Evidence, Fall 2010 I. Evidence is... A. Whatever proof is offered (information through which jurors make decisions) B. A system of rules which guide the introduction of proof C. The material from which inferences may be drawn as the basis for proof of the truth or falsity of a disputed fact. II. Burden of Proof A. The risk of nonpersuasion/persuasion burden B. The duty of producing evidence/production burden C. What is "likely", is often presumed; Access to evidence is often the basis for creating a presumption D. A presumption involves a relationship between a proven or admitted fact or group of facts (a), and another fact or conclusion of fact (B) which is sought to be proven E. The conclusive/irrebuttable presumption = If A is shown, then B is to be presumed without question and a court will not entertain other evidence showing the nonexistence of B F. Proponent of the evidence or claimant of the privilege has the BOP as to preliminary facts (whether a witness is qualified to testify; whether the witness is privileged to testify, etc) G. Smith v. Rapid Transit 1. Sup. Ct. of MA, 1945 2. Facts: A bus was traveling opposite of Plaintiff and Plaintiff alleged that the bus caused her to turn to the right and hit a parked car 3. Issue: Was there evidence for the jury that the Plaintiff was injured by a bus of the defendant that was operated by one of its employees (on the job)? 4. Holding: No. 5. Rationale: The ownership of the bus was a matter of conjecture. It could have been a private or chartered bus. A proposition is proved by the preponderance of evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind of the jury (notwithstanding any lingering doubts). 6. Plaintiff needed to prove: accident, location, schedule for defendant's bus, going west, proximate cause (plaintiff got hit by defendant's bus), certificates for main street of defendant's bus, no other certificates H. Dyer v. MacDougall 1. US COA, 2nd Cir., 1952 2. Complaint for slander and libel 3. Facts: Plaintiff attempted to shift the burden of proof to Defendant, wanted to use Defendant's denials as evidence 4. Defendants may have the burden of proof if alleging an affirmative defense 5. Typically, the burden of proof will not shift in civil/criminal cases 6. In cases that can damage character/reputation, the court will generally require clear & convincing evidence I. Procedural consequences of burden of proof 1. When encountering a motion for judgement as a matter of law: Taken in a light most favorable to the plaintiff, no reasonable juror could find for the Plaintiff on any essential element by a preponderance of the evidence (civil)/ beyond reasonable doubt (criminal) 2. Make both legal and factual arguments; claim insufficient evidence 3. Plaintiff retains the burden of persuasion throughout trial (if motion for directed verdict is overruled); defendant can go forawrd by choosing NOT to produce evidence J. Direct evidence does not have problems of logical relevancy, only veracity. K. Circumstantial evidence has problems with both logical relevancy and veracity. III. Relevance and Probative Value A. Key Rules: R103 (Admissibility), R104 (Relevancy conditioned on a fact, circumstantial evidence), R403 (Exclusion of relevant evidence), R404 (character evidence) B. When looking at a rule...look at your given case facts, consider the given elements of the rule, and know the context and background of the rule C. Relevance and Inference 1. Looks at whether there is a logical connection between one fact and another; then compare to a key issue in the case 2. How much weight to give "relevant" evidence deals with its probative value 3. Relevance is only an admissibility issue; must know what the contested issues are and understand the elements of the claims made 4. When an item of evidence tends to prove or disprove any proposition, it is relevant to that proposition (R 401) 5. All relevant evidence is admissible unless excluded by a specific rule (R 402) 6. If evidence is admissible on one ground and not on another ground, then the trial judge must instruct the jury to consider the evidence only for the admissible purpose. (R 402) 7. Knapp v. State a) Sup. Court of IN, 1907 b) 1st degree murder case; State rested and Defendant made motion for directed verdict, court denied and defendant went on to present evidence c) Defendant testifies that he heard victim killed a 3rd party, alleges self-defense; State rebuttal, 3rd party died of natural causes d) Key element: Defendant's state of mind; any other evidence is not relevant D. Probative Value vs. Prejudicial Effect 1. R403 2. Old Chief v. U.S. - ask Prof. Adams about this case a) U.S., 1997 b) Facts: Old Chief was involved in a fight with gunshots fired; Federal law prohibits prior felons from possessing a gun; Old Chief was also charged with assault with a dangerous weapon and another crime; Had a previous conviction of assault causing bodily injury. c) Issue: Did the district court abuse its discretion if it spurns the defendant's stipulation to a prior conviction when the name and nature raises the risk of a tainted verdict? d) Holding: Yes. e) Rationale: Disclosing the name and nature of the prior conviction can evoke a different emotional response from the jury ("bad person" aspect) f) Gives a template for assessing probative value 3. Probative value + need for evidence vs. harm likely to result from admission. 4. Def of unfair prejudice = undue tendency to suggest decision on improper basis. 5. Judge shall consider (1) probable or lack of effectiveness of limiting instruction and (2) availability of other means of proof [Old Chief] 6. Theory for allowing relevant but prejudicial evidence...would rather give the jury the most relevant evidence, then balance any prejudice with a jury instruction; on appeal, the court would look for an abuse of discretion 7. Ballou v. Henri Studios, Inc. a) US COA, 5th Cir., 1981 b) Issue on appeal regards a motion in limine that sought to exclude evidence that Plaintiff was intoxicated at the time of the accident; trial court sustained the motion and ruled the BAC test inadmissible; judge found a lack of credibility in the BAC tests versus testimony of the nurse; also found evidence harmful & prejudicial to plaintiff c) Courts can consider the attitude of the jury d) Don't make conclusory statements in your argument re: whether your evidence has or does not have probative value/why it's fair or unfair 8. Relevancy Problems That Need Balancing (for probative value) a) Ex: the fact a P has litigated a tort claim before is not relevant b) Ex. prior accidents. c) Ex. subsequent accidents d) Ex. absence of accidents E. Character and Habit, FRE 404-415 1. Generally relevant, but can be systematically inadmissible 2. Different forms of character evidence have different values/weights in reference to relevance and probative value 3. Evidence of a character trait is generally inadmissible to show action in conformity with that trait on a particular occasion i.e. the D is a bad person or propensity to commit the crime; Rationale: relevancy is outweighed by prejudice and risk of confusion of issues 4. Must first ask if character is genuinely at issue OR circumstantial; if at issue -->R405; if circumstantial-->R404(b) 5. Character in Issue a) If character is an operative fact in a parties' rights or liabilities, then it is typically "at issue" b) Cleghorn v. NY Central & H. River Railway Co. (1) COA of NY, 1874 (2) Facts: PI suit against railway company and switchmen for negligence of not closing the switch after a train had passed; plaintiff offers evidence that the switchman was frequently intoxicated and may have been at the time of the incident (3) Result: The evidence was deemed proper (on appeal) because the character and habits of the negligent employee was an element of an award of punitive damages against the employer c) Wellman Article (1) Talked about a libel suit (2) In cases where libel or defamation is claimed, plaintiff's character is directly material on the issue as to how much he/she was damaged by the defendant's actions; R405(b) (3) Truth of statement (defense) - specific acts could then be admissible to show plaintiff was the "sort of man" to do certain things; becomes essential element d) For example: defamation (evidence of P’s character to prove or disprove the truth of what D said about P) negligent entrustment (D’s knowledge of entrustee’s bad charcter), child custody (prove character/fitness of parents) insanity defense, entrapment, character of the decedent in wrongful death (when computing emotion and economic loss) self-defense (re: victim’s knowledge of the attackers violent nature). e) Example for negligent entrustment: (1) Reputation (everyone knows X is a horrible driver) (2) Opinion (X drives like a mad woman, in my opinion) (3) Specific Acts (speeding ticket and reckless driving citation) f) Unlike reputation testimony, opinion testimony requires that the witness actually know the individual about whom he/she is testifying. g) Courts have construed that reputation CAN be in the negative. (“I haven’t heard anything bad about him”) h) Rule 803(21). Reputation as to character. Reputation of a person’s character among associates or in the community [is an exception to the hearsay rule.] i) Note: character evidence must still be relevant . . . person on trial for embezzlement can’t have someone on the stand talk about how he is passive and docile 6. Character as Circumstantial Evidence a) Michelson v. U.S. (1) US, 1948 (2) Facts: Bribery case (crime of dishonesty), defendant did testify on his own behalf and admitted to several prior crimes; also brought out 5 additional witnesses to prove that he b) c) d) e) had a good reputation; defendant trying to prove that a person of his character would not commit the crime charged (3) R404(a) says his character is circumstantial, he could be acquitted without offering reputation evidence (4) Counsel must ask specific and precise questions to elicit character trait evidence: (1) what is ___'s reputation for truth and veracity? (2) what is ___'s reputation for honesty? (5) Give the jury some basis to assess the value of the witness's testimony (6) Reputation evidence is generally more probative U.S. v. Carillo (1) US COA, 5th Cir., 1993 (2) R404(b) case (3) Specific acts can only be admitted if not used as proof of conduct and conformity; i.e. "he did the other crime before, so he must have done this one..." (4) Prior specific acts can be used to prove identity U.S. v. Beasley (1) US COA, 7th Cir., 1987 (2) Facts: Appeal based on the district court using evidence of other drug sales/purchases as "pattern" evidence (pattern of conduct); pattern can also be used to show identity (3) Specific acts admitted at the district court level: (1) doctor shopping for prescriptions (2) gave drugs to other associates (3) showed a patient how to fake pain for drugs (4) patient became addicted and institutionalized (4) Issue: Was the admission of the "pattern of conduct" improper? (5) Holding: Yes. (6) Rationale: Trial court erred in not having the government explain how the pattern evidence was going to be used to show intent. Also, did not consider R403 weighing the probative value of that evidence. (7) Trial court had to lay out the basis of wanting to admit the doctor shopping against the unfair prejudice it could cause (8) Court looks at timing of specific acts, must be "specially close in time" to establish intent U.S. v. Cunningham (1) US COA, 7th Cir., 1996 (2) Facts: Nurse Cunningham was convicted of tampering with a consumer product with reckless disregard for the risk of another. Gov't introduced evidence of prior acts (1) prior demerol addict (2) license suspended for addiction and stealing demerol (3) falsified drug tests while suspended (4) previously convicted of stealing demerol <---All introduced to establish MOTIVE (to do current act charged) (3) Issue: Was the admission of the prior bad acts an abuse of discretion by the trial court? (4) Holding: No. (5) Rationale: It was the addiction driving the specific acts and not the desire to steal. If there were a lawful route to satiate her addiction, then that would have been the means (establishes mental compulsion or motive) Tucker v. State (1) Sup. Ct. of NV, 1966 (2) Facts: Man was indicted for murder, alleged he did not murder anyone, but only stumbled upon the victim after awaking from his sleep. Gov't offered evidence that Tucker was f) g) h) i) connected with a prior murder that had similar circumstances. (3) Issue: Was it improper to admit evidence of a prior anonymous (unconvicted) crime of murder? (4) Holding: Yes. (5) Rationale: Anonymous crimes can have no relevance in deciding whether the defendant committed the crime with which he was charged. Has to be clear, convincing, INDEPENDENT evidence that the defendant committed the prior crime. Huddleston v. U.S. ask prof. adams about this case (1) US, 1988 (2) Facts: Huddleston was charged with selling stolen good in interstate commerce and possession of stolen property. Gov't introduces similar acts of defendant selling televisions and other appliances where he was arrested. Wants to offer as proof of knowledge that the goods were stolen. (3) Issue: Does the district court have to make a preliminary finding that the government has proved the "other act" by a preponderance of the evidence before admitting it? (4) Holding: No. (5) Rationale: Uses "packaging theory", evidence of other similar acts is enough to preclude the defendant's knowledge of the stolen goods. The Court simply examines the government's offer of proof and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence R104(b) (6) Balance need, strength of other crime evidence Perrin v. Anderson (1) U.S. COA, 1986 (2) Facts: Plaintiff's decedent was shot and killed by a police officer during an inquiry into a car accident; officers offered evidence that decedent had several violent encounters with uniformed officers prior to his death; officers also alleged self-defense (3) Issue: Was the admission of decedent's prior conduct prejudicial error? (4) Holding: No. (5) In a self-defense situation, a defendant or eyewitness may allege the victim was the first aggressor; can then rebut with reputation or opinion evidence (6) R404(b) says the defendant must have personal knowledge of the victim's past acts; offered to show state of mind (i.e. I feared for my life, and deadly force was the only appropriate response) Halloran v. Virginia Chemicals, Inc. (1) COA NY, 1977 (2) Facts: Plaintiff was injured when a can of freon exploded, VA Chemicals offered evidence that Plaintiff had used an immersion coil (contrary to the label warning not to) to heat cans of freon in the past as a habit (3) Issue: Was the admission of this evidence proper? (4) Holding: Yes. (5) Rationale: Proof of a deliberate, repetitive practice by one in complete control of the circumstances is highly probative and should be admitted. State v. Cassidy (1) App. Ct. of CT, 1985 (2) Facts: Victim testified that defendant raped her; defendant offers evidence of prior sexual conduct between another male where she exhibited similar erratic behavior (3) Issue: Was the exclusion of this evidence proper? Did it violate the defendant's constitutional rights? (4) Holding: Yes/No. (5) Rationale: No violation of defendant's constitutional rights because evidence offered did not constitute a false report of sexual abuse. One similar instance is not sufficient to prove a pattern of conduct. j) Olden v. Kentucky (1) U.S., 1988 (2) Facts: Victim alleged she was raped by Olden and Harris, there were conflicting stories at trial; Olden offered evidence that Mathews (victim) lived with Russell (extramarital affair) to demonstrate Mathews had a propensity to lie (3) Issue: Was the exclusion of Olden's offer of proof proper? Did it violate Olden's constitutional rights (6th amend)? (4) Holding: No/Yes. (5) Rationale: Olden had a right to confront his accuse despite speculation as to the effect of jury biases. (6) In another case: in order to ensure defendant's constitutional rights are protected, defendant must be allowed to present evidence attesting to prior sexual relationships k) Johnson v. Elk Lake School District (1) US COA, 3rd Cir., 2002 (2) FRE 415 prior sexual conduct rule at issue in this case; only for use in civil trials...must satisfy R413(d) the act has to be "sexual assault" (3) Facts: Student claimed she was sexually assaulted by her HS guidance counselor; plaintiff wanted to introduce testimony of another school employee who mentioned that she had been harassed by the counselor as well (4) Result: The testimony was properly excluded...not sure if there was intent for the act of sexual assault, isolated incident; and there were differences in the alleged assaults between Johnson and other victim which made the other victim's testimony less probative (5) Rationale: When considering evidence of past sexual assaults, the trial court need not make a preliminary finding by a preponderance of the evidence under FRE104(a) that the act in question qualifies as a sexual assault and that it was committed by the defendant. The court may admit the evidence so long as it is satisfied that the evidence is relevant, with relevancy determined by whether a jury could reasonably conclude by a preponderance of the evidence that the past act was a sexual assault and that it was committed by the defendant ---R104(b) referenced (6) "We think that in cases where the past act is demonstrated with specificity and is substantially similar to the act(s) for which the defendant is being sued, it is Congress's intent that the probative value of the similar act be presumed to outweigh R403's concerns." (7) Congress intended R413-415 to include admission of prior convictions for sexual offenses and uncharged conduct 7. D may always introduce evidence of her good character to show likely that D did not do it. 8. D however has opened the door and the P can rebut by showing D’s bad character or impeachment by cross-examining D. 9. Character evidence is INADMISSIBLE in CIVIL CASES to proved conduct in conformity therewith on a particular occasion [a doctor who has not “committed malpractice in 30 years” is an inadmissible piece of evidence that shows the doctor has character trait of carefulness.] 10. These rules are still subject to the FRE 403 Balancing Test. 11. Habit - R 406 a) Character evidence: refers to a person’s general propensity b) Habit evidence: refers to a person’s specific, routine, and continuous behavior in particular situations (1) Ex. giving a hand-signal when turning. Going down stairs two feet at a time. (2) Things like going to church on Sundays are too volitional sometimes. (3) Whittemore v. Lockhead: evidence that decedent had flown the airplane four times before admitted to prove that he was piloting rather than a guest on a plane which crashed and killed all on board. c) Habit evidence describes a person’s regular response to a repeated situation (1) Ex: Y is good and careful and driver, and thus likely not failing to stop at a stop sign. This is not admissible since it is character. However, evidence from X that X and Y drive to work every day on the same route and stop at a stop sign demonstrates habit, and thus admissible. (2) Ex. Correspondence of X is always shredded by X’s secretary on Fridays at noon. [business org] F. Similar Happenings 1. Used to show defect or dangerous condition; notice; causation...must be substantially similar incidents 2. Simon v. Kennebunkport a) Sup. Ct. of ME, 1980 b) Slip and fall case; also involved R104(b) c) Facts: Plaintiff wanted to introduce evidence that two witnesses had seen nearly 100 people fall or trip on the sidewalk in question (all weather, and physical conditions the same, sidewalk had not been changed since its construction) d) Issue: Was it an abuse of discretion to not allow Plaintiff's offer of proof? e) Holding: Yes. f) Rationale: Because the evidence was to be offered through personal observations of 2 witnesses, its introduction would not have consumed an inordinate amount of time or caused confusion. The city was aware of the witnesses before trial began and could have prepared to rebut their testimony. g) Safety history is generally admissible from the defendant, to prove the negative (no defect, no notice, no causation) G. Subsequent Precautions/Remedial Measures 1. General Rule: Evidence of repairs made or precautions taken by D after injury to P is not admissible to prove D’s negligence, culpable conduct, or defect in the product or product’s design. 2. R407 "by an event" - injury must have occurred before design change/subsequent remedial measure; does not limit discovery, only offers of proof 3. Tuer v. McDonald a) COA of Maryland, 1997 b) Med Mal case; R407 at issue c) Facts: Plaintiff's decedent went in for surgery and was on a heparin drip, the doctor stopped heparin a few hours before scheduled surgery and Plaintiff's decdent had a complication and had emergency surgery, died the next day; Plaintiff is looking to admit evidence of the hospital and doctors remedial measures of continuing heparin until immediately prior to surgery d) Plaintiff also argued change was not remedial because the hospital did allege that policy was applicable standard of care, and changing it was not remedial e) Issue: Did the court err in excluding Plaintiff's offer of proof re: remedial measures? f) Holding: No. g) Rationale: The rule (407) was designed to encourage re-evaluation of procedures and policies in light of certain incidents. h) If feasibility was challenged (defendant has to raise this issue), subsequent remedial measures can be admitted (1) Plaintiff can introduce other alternatives to show that defendant adopted those alternatives (2) Court will look at feasibility at the time of the event (3) Because heparin restart was "unsafe" at the time doesn't challenge feasibility, only reflects a judgment call of the defendant i) To admit subsequent remedial measures does not impeach credibility of the witness per se, just goes to facts 4. Evidence of subsequent repairs is admissible for other purposes (1) to impeach (if disputed) D’s witness as to the safety of the condition (2) to show ownership or control of the injury-producing instrumentality (3) to show D’s attempts to conceal or destroy evidence (4) to show that precautionary measures were feasible [when feasibility brought into issue] H. Offers in Compromise 1. R408 2. A direct admission of liability will not be admissible 3. Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. i.e. X, Y, and Z get hit by C in an accident. C settles with Y and Z, and in return they are to testify against X in trial. In this situation, X can offer into evidence that Y, Z, and C settled, but ONLY for purposes of demonstrating bias and NOT liability. 4. Davidson v. Prince a) COA of Utah, 1991 b) Facts: Plaintiff was injured by a cow that had escaped (from Defendant's truck) onto the road upon which he was traveling. Plaintiff appeals the jury verdict because he felt the trial court made an error by admitting statements he made in a letter to defendant, claimed they were part of settlement negotiation c) Result: The letter was merely an attempt to inform defendant as to the facts of the incident and also stated that the defendant should remit payment in full and didn't have the tone that he would compromise at all. 5. Admissions under FRE 408 (offers to settle) are treated different than admission under FRE 409 (offer to pay medical bills). a) Under FRE 408, admissions in conjunction with settlements offers are inadmissible to prove negligence, liability, or a claims value. b) Ex: At negotiations, X says I am sorry, it was my fault. I will pay you $5,000. Accompanying admission to settlement offer is not admissible nor is the offer to settle/settlement itself. c) Under FRE 409, admissions in conjunction with an offer to pay medical bills are admissible. d) Ex. “I’ll pay your medical bills . . . it was my fault” are admissible. I. Admissibility of Pleas 1. R410 2. Typically relevant, but not admissible 3. Any discussions with prosecutors that do not result in a guilty plea or a guilty plea later withdrawn R410(4) blanket provision 4. Government can ask defendant to waive R410 privileges; not a constitutional right to have those statements protected 5. Plea discussion with an attorney for the government 6. Being found guilty by a jury is considered hearsay (if less than 1 year as the punishment) traffic offenses; conviction (inadmissible) guilty plea (admissible) IV. The Hearsay Rule A. Key Rules: R801, R802, R803, R804, R805, R806, R807 1. Definitions a) 801(a) Statement - 1) an oral or written assertion OR 2) nonverbal conduct of a person, if it is intended by the person as an assertion b) 801(b) Declarant - a person who makes a statement c) 801(c) Hearsay - a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted d) 801(d) Statements that are not hearsay... (1) Prior statement by witness (2) Admission by party-opponent - has 4 distinct parts e) The truthfulness of the out-of-court statements do not matter; the statement itself is the "operative fact" 2. Crawford v. Washington: court held that the Roberts test fails to comport with the intent underlying the confrontation clause. It also held that when prior testimonial evidence is at issue, the evidence is inadmissible UNLESS the declarant is unavailable and the D had an opportunity to cross-examinationine the declarant at the time the statement was made. 3. Applications of Confrontation Clause a) The Courts modification of the Roberts ruling applies to all testimonial evidence, including testimony 4. 5. 6. 7. given at a preliminary hearing, grand jury, or former trials, as well as statements taken by police officers during interrogations. [Crawford] b) Confrontation Clause does not pose any barrier to the admission of co-conspirators statements as long as they are offered under an exception similar to the federal exception. A showing of unavailability and trustworthiness is not required. c) Statements that fall within firmly rooted hearsay exceptions and are admissible without particularized showing of trustworthiness. d) A confession by an accomplice (incriminating D) may not be used against D unless the accomplice is unavailable and D had an opportunity to cross-examinationine the accomplice. [Sir Francis Drake] The CC is intended to guarantee a criminal defendant the right to be confronted with the witnesses. The CC provides procedural guarantees at trial, including the right to be present at trial, the right to learn what evidence is being offered against him or her, and the right to cross-examinationine witnesses. Applicable only in criminal trials. If an out-of-court declaration is introduced under a FIRMLY ROOTED HEARSAY EXCEPTION, this will by itself be enough to establish the required reliability under the 6th. a) If it doesn't fall within firmly rooted exception, the CC is violated unless there are particularized facts surrounding the statement to show its reliability. [Factor: whether the declarant had been cross-examined at some point.] b) List of Firmly Rooted Hearsay: (1) Former Testimony given at prior proceeding [804(b)1)] (2) Excited Utterance [803(2) (3) Statements by Coconspirators [801(d)(2)(E)] c) Likely Firmly Rooted Hearsay: (1) Admissions by a party-opponent [801(d)(2)] (2) Recorded Recollections [803(5)] (3) Business Records [803(6)] (4) Dying Declaration [804(b)(2)] (5) Statements Against Interest [other than penal interest] (6) Declarations against interest prob don’t qualify as firmly rooted. 8. Four Factors to Consider when examining hearsay... a) b) c) d) Perception Recall (then existing state of mind) Content/Communication Sincerity 9. Fun-Damental Too, Ltd. v. Gemmy Industries Corp. a) US COA, 2nd Cir., 1997 b) Patent infringement case c) Facts: Plaintiff wanted to offer direct testimony of its sales manager to demonstrate confusion of its retail customers; Dist. Ct allowed the testimony d) Issue: Was the evidence hearsay? e) Holding: No. f) Rationale: Hearsay is an out-of-court statement admitted for the truth of the matter asserted. The statements were probative of the declarant's confusion. (Defendant's packaging copied Plaintiff's and cause retailers to believe Plaintiff was overcharging them) R801 10. U.S. v. Hernandez a) US COA, 5th Cir., 1985 b) Facts: Hernandez was arrested and convicted of possession and distribution, objected to testimony by DEA agent that he had been though to be a drug smuggler by US Customs; "received referral from US customs"; Gov't claimed that they were not offering the testimony for its truth c) Issue: Was the evidence admissible? d) Holding: No. e) Rationale: The gov't offered the testimony as part of the evidence of Hernandez's guilt of being a drug smuggler. Did not use the agent's testimony as proof of their own state of mind. Did not have any probative value. 11. U.S. v. Zenni a) US Dist. Ct. E.D. of KY, 1980 b) Illegal bookmaking case c) Facts: Gov't wanted to introduce evidence of phone calls where people were calling and making bets on various sporting events; Defendant objected on various grounds of hearsay d) Result: The gov't may have been relying on a 3rd party's underlying belief that defendant ran a betting operation. Court held that the betters were exhibiting "nonassertive verbal conduct" and were relevant for an implied assertion. e) Must look at the credibility of the caller using the 4 factors of cross-examination PRCS f) Courts look at the underlying reliability of inferences to be drawn from the assertion sought to be admitted; Is the inference viable without cross-examination? g) Example: A defendant runs away from officers when he was sought to be arrested; can the prosecutor offer the flight as evidence? This will be an implied assertion and will not be excluded; can infer knowledge of guilt 12. Wilson v. Clancy a) b) c) d) US Dist. Ct. of MD, 1990 Assertion looking to be admitted: Lawyer's silence in telling the decedent to change his will R801(d)(2) must have manifestation of an adoption or belief in its truth Will keep the "silence" out on the basis of its probative value not being outweighed by its risk of unfair prejudice; Silence is ambiguous e) "Silence, at least where this is no showing of intentional silence on a particular occasion intended as an assertion when the silence was kept, is no longer hearsay..." 13. U.S. v. Jaramillo-Suarez a) US COA, 9th Cir. 1991 b) Facts: Defendant accused of cocaine and conspiracy crimes, Gov't wanted to introduce a pay/owe sheet c) d) e) f) that recorded drug transactions found in a location visited by the defendant Issue: Is the pay/owe sheet admissible under hearsay rules? Holding: Yes. Rationale: The pay/owe sheet was admitted for the specific and limited purpose of showing the character and use of the apartment (where sheet was found). Role was no different than the large amounts of money found in the apartment. A limiting instruction was given by the court saying the pay/owe sheet should not be used to prove the truth of the matters asserted 14. U.S. v. Brown a) US COA, 5th Cir., 1977 b) Tax fraud case c) Facts: Gov't is seeking to admit testimony from an IRS auditor that 90-95% of the tax returns submitted by defendant had overstated deductions; Defendant says it's hearsay because there was no opportunity to cross-examine the 160 taxpayers; no way to know deductions were overstated without talking to the taxpayer d) Issue: Are the IRS auditor's inferential statements admissible? e) Holding: No. f) Rationale: The jury had no way to examine the trustworthiness of Peacock's testimony or reliabilty of the out-of-court statements made by the taxpayers g) Case of implicit hearsay h) Negatory response to investigative testimony will typically be viewed as hearsay i) Cannot use prior statement made to others to show credibility of declarant "bootstrapping credibility" 15. City of Webster Groves v. Quick a) St. Louis COA, 1959 b) Traffic violation case c) Facts: Gov't seeks to admit testimony by city officer as to the readings on device showing defendant's speed as 40 mph d) Issue: Is the radar gun reading inadmissible? e) Holding: No. f) Rationale: The hearsay rule cannot be applied to what a witness observed either through his own senses or through use of scientific instruments. The electric speed reading results relied upon by the officer is not dependent on the perception, memory, and sincerity of an absent declarant. g) Hearsay rules only apply to persons! 16. Wilson v. Tatham stands for the proposition that in holding conduct even when not intended as assertive, is hearsay when offered to show the actor's belief; conduct (other than assertions) when offered to show the actor's beliefs and hence the truth of the facts so believed ought to be admissible whenever the trial judge in his discretion finds that the action so vouched the belief as to give reasonable assurance of trustworthiness 17. USEFUL OUTLINE: Is there an out-of-court statement/assertion? Is it oral or written? Was the conduct intended to be assertive? Is it offered for the truth of the matters asserted? B. Exceptions and Exemptions 1. Spontaneous and Contemporaneous Exclamations a) R803(1) Present sense impression b) R803(2) Excited Utterance c) Truck Insurance Exchange v. Michling (1) Sup. Ct. of TX, 1963 (2) Facts: Statement of the husband made to the wife that he hit his head at work and did not feel well; Plaintiff died about a month after the incident (3) Elements of R803(2): occasion must be startling enough to cause shock which in turn creates an emotional state; utterance made under the stress of that emotion; must be spontaneous and natural response; so clearly connected with the occasion that the declaration may be said to be the spontaneous explanation of the real cause (scope) (4) Rationale: The Court did not allow the testimony of the wife because the statement had to have been made in connection with an act proven. There was no other evidence to show that Plaintiff's decedent was in an accident. (5) "Must be evidence of an act itself admissible in the case independently of the declaration that accompanies it." (6) In federal court, the evidence will generally be admissible and can be used to show event R104(a) allows this (preponderance of the evidence) d) Lira v. Albert Einstein Medical Center (1) Sup. Ct. of PA, 1989 (2) Medical malpractice action (3) Facts: Plaintiff offered a non-party physician's statement of "Who's the butcher who did this?" as admissible hearsay under excited utterance and present sense impression exceptions (4) Rationale: Court found that the physician's statement was inadmissible hearsay because his comments were expressions of opinions based on medical training and experience. (5) An excited utterance must be instinctive, rather than deliberate. (6) May have gotten in if tried in federal court under R803(1) 2. Admissions, R801(d)(2) a) Must prove statement is applicable to the facts being litigated; show the statement's relevance (1) Perception - Party could argue that the declarant's perception closer to the time of the event has since changed (2) Sincerity (3) Recall (4) Communication - could be argued as faulty (5) Included as non-hearsay because the party is generally available to explain or refute those statements b) Reed v. McCord (1) COA NY, 1899 (2) Statement: Defendant employer made statements about the cause and circumstances of plaintiff's accident to the coroner (3) Result: Statements made by this declarant were not based on personal knowledge; but court still held him responsible for those statements c) U.S. v. Hoosier (1) US COA, 6th Cir., 1976 (2) Statement: "Sacks of money" and Defendant's silence in the face of an accusatory statement (3) Result: there has to be some showing that Defendant heard and perceived the statement/perceived the original event itself; must show that the silent declarant was compelled to respond to the out-of-court statement sought to be admitted (4) Manifesting belief = agree with the outcome d) State v. Carlson (1) Sup. Ct. of OR, 1991 (2) Possession of meth case (3) Statement/conduct: Defendant was shaking his head back and forth in response to the wife's statement (4) Case involved conditional relevance R104(b): evidence that is supposed to be admitted if the proponent has already produced other material that shows its relevance to the trial or if the proponent promises to produce the contextual information later; it's left to the jury to determine whether the underlying context has been proven (5) Rationale: Court looks to R104(a) preliminary fact/preponderance of the evidence and considers the potential for misuse of the evidence by the jury (stronger possibility of misuse in this case) e) Mahlandt v. Wild Canid Survival & Research Center, Inc. (1) US COA, 8th Cir., 1978 (2) Dogbite case (3) Three issues pertaining to admissibility of Mr. Poos' note to employer, statements to director, and board meeting noted (4) Facts: Plaintiff wanted to introduce 3 pieces of evidence against the doctor individually (Poos) and WCS& RC (5) Rationale: Poos may not have had personal knowledge of the actual incident; but the note manifested such a belief that Poos had accepted the out of court statements (that a wolf bit someone) as his own; Poos' statements were also admissible against WCSRC; the Rules do not require personal knowledge of the agent; Poos' statements were related to control given by the principal (employer); corporate board meeting minutes also admissible against WCRSC, but not Poos f) Big Mack Trucking Co., Inc. v. Dickerson (1) Sup. Ct. of TX, 1973 (2) Wrongful death case (3) Facts: Employer seeks to have employee's statement of negligence inadmissible as to hearsay (4) Rationale: Court found that employee's statement was inadmissible because there was no evidence that he was authorized to speak on behalf of the company per R801(d)(2) g) Sabel v. Mead Johnson & Co. (1) US Dist. Ct., 1990 (2) Facts: A user of an antidepressant brought suit against a manufacturer claiming the medication caused an adverse medical condition; wanted to introduce evidence of a special conference hosted by the manufacturer and attended by two of its employees regarding the side effects of the medication in question (3) An agency relationship has three essential characteristics: 1) the power of the agent to alter the legal relationships between the principal and third parties and the principal and himself; 2) the existence of a fiduciary relationship toward the principal with respect to matters within the scope of the agency; 3) the right of the principal to control the agent's conduct with respect to matters within the scope of the agency h) U.S. v. Doerr (1) US COA, 7th Cir., 1989 (2) Further explanation of "in furtherance of the conspiracy" requirement of R801(d)(2)(E) (3) The statement is a part of the information flow between conspirators intended to help each perform his role (4) Pixley's statement was only a narrative, did not further objectives of the conspiracy (5) Statements that advance the conspiracy (6) New co-conspirators are responsible for previous conduct/statement made by the other conspirators i) Bourjaily v. U.S. (1) Case regarding the requirements of R801(d)(2)(E) (2) Gov't wanted to introduce evidence that defendant was participating with a friend in the illegal transaction (3) Rationale: The Court determines that there must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made in furtherance of the conspiracy. A co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy. 3. Former Testimony a) Travelers Fire Ins. Co. v. Wright (1) Sup. Ct. of OK, 1958 (2) Civil case (insurance bad-faith) (3) Facts: Ins. company wants to offer testimony from 2 witnesses from the defendant's criminal cases (4) Four elements for admissibility of former testimony: 1) unavailable witness; 2) opportunity for cross-examination at former trial; 3) identity or substantial identity of issues 4) identification of parties 4. Declarations against Interest a) INSERT NOTES FROM E&E 5. State of Mind, R803(3) a) Adkins v. Brett (1) Sup. Ct. of CA, 1920 (2) Out of court statement: Wife stated that plaintiff her husband (D. accused of seducing plaintiff’s wife and thereby causing alienation) was distasteful; also mentioned that defendant took her dining, gave flowers, and gave her a good time (3) The issue here was whether to exclude the statement because it was prejudicial against the defendant; court reversed because the judge did not give an adequate jury instruction b) Mutual Life Ins. Co. of NY v. Hillmon (1) U.S., 1892 (2) Insurance company is alleging that body recovered is not that of the decedent (Hillmon), heirs are suing the insurance company to recover the life insurance policy (3) Out of court statement: letters sent by Walters showing that he was traveling with Hillmon at the time of death at Crooked Creek (circumstantial proof of intent, and of that intent being carried out) (4) Court says that the letters are not necessarily proof that Walters traveled away from Wichita, and traveling with Hillmon; the intent to go made the fact that he did go to crooked creek more probable than not (if there were no letters written) (5) Court found that the letters were competent evidence (due to corroboration of the evidence) and that there were a material fact bearing upon the issue in dispute (6) Potential for fabrication would not be enough to keep this evidence out c) Shepard v. U.S. (1) U.S., 1933 (2) Army doctor is convicted of murdering his wife, poisoned her because he wanted a different wife (3) Out of court statement: Wife’s statement to her nurse to get a bottle of whisky to test for poison, that it looked and smelled strange, and “Dr. Shepard has poisoned me” (4) Jury is less likely to misuse intent, than statements of past events d) U.S. v. Pheaster (1) US COA, 9th Cir., 1976 (2) Facts: Larry Adell was kidnapped by defendants, and the government offered statements from Larry’s friend that he was going to meet with Angelo (defendant) at Sambo’s North (3) Defendant argued that Larry voluntarily disappeared in order to extort money from his father (4) Government wants to use the statement to rebut the affirmative defense of false kidnapping; the name in the statement will be deemed highly prejudicial (5) Government also wants to use the statement to prove the actual fact that he did meet the defendant at the parking lot at Sambo’s North (because he had the intent to do so) (6) Issue: Is the statement admissible under R 803(3)? (7) Holding: Yes. (8) Rationale: The court admitted the statement using Hillmon doctrine (when the performance of a particular act by an individual is an issue in a case, his intention/state of mind to perform that act may be shown). The statement is used inferentially to prove other matters which are in issue. A statement that refers to another person’s intent OTHER THAN those of the declarant, will not be admissible. e) Zippo Mfg. Co. v. Rogers Imports, Inc. (1) US Dist Ct., Southern Dist. Of NY, 1963 (2) Intellectual property case (3) Zippo alleging that Rogers infringed their trademark, offered surveys as evidence to show consumer confusion and secondary meaning (4) Rogers alleges surveys are hearsay (5) Court says that typically surveys are admissible, even beyond the exceptions listed in R 803 (6) Says that there is a necessity for this kind of case, cannot bring in a million people and show them the lighters (7) Court looks at the trustworthiness of the survey the company should have had other brands of lighters available for the consumers to delineate from (8) Rogers alleges survey 3 was inadmissible because (9) Issue: Are the 3 surveys admissible? (10) Holding: Yes (11)Rationale: There are 4 dangers of hearsay: recall, sincerity, communication, perception. Court says that there is either no danger or minimal danger from the responses given in the surveys. People who are usually polled generally have no interest in the results of the survey. The determination that a statement is hearsay does not end the inquiry into admissibility; there must still be a further examination of the need for the statement at trial and the circumstantial guaranty of trustworthiness surrounding the making of the statement. Also, was necessary to have the polling because you cannot show that the copied features have a secondary meaning with the consumer base. 6. Medical Diagnosis or Treatment, R803(4) a) Allows for testimony by the declarant of what caused the patient’s problem so long as the descriptions are reasonably pertinent to diagnosis or treatment b) Such statements may be presumed reliable since the declarant most likely believes that the effectiveness of the treatment received may depend in large part upon the accuracy of the information given to the physician c) Can be from anyone associated with medical services d) Will generally need expert testimony to support any kind of causation claim (pertinent to diagnosis or treatment) 7. Dying Declarations, declarant unavailable a) Rule applicable only to homicides and civil cases b) Declarant must be conscious of their impending death; and have an objectively reasonable basis that their death is imminent c) Based on the theory that when a person who believes death is near has to motive to make false statement since there is nothing to be gained from them d) Used only to show the declarant’s belief about the cause of what the declarant believed to be his or her impending death e) Can still be a dying declaration if the speaker survives; if death was believed imminent...Delcarant must divulge the causes or circumstances of what he believed to be certain death. f) State v. Jensen (1) Wisconsin Circuit Court, 2008 (2) Involved a conviction of the defendant of murdering his wife via poison (3) Government sought to introduce evidence of a letter written by the wife attributing any future homicide to his husband (4) Letter was written 3 weeks before her death (5) Court doesn’t say that there is a time limit on the rule on the belief of impending death (6) Result: Court found letter to be admissible under R804(b)(2); found that the letter was a statement by the victim, and based upon religious foundations that the “dying person is not presumed to lie” (7) Questions to ask: Is a declarant who is about to die, is their communication skills better than any other out of court declarant? Is the recall, perception, communication, sincerity any clearer when death is imminent? (8) R610 prohibits impeachment based on religion or lack thereof 8. Prior Identification, R801(d)(1)(c) a) The purpose of this provision was to make clear, in line with recent law, that nonsuggestive lineup, photographic and other identifications are not hearsay and therefore are admissible b) Only admissible when the person who made the prior identification testifies at trial and is subject to cross-examination c) U.S. v. Owens (1) Involved a case where the declarant had identified the defendant in prior statements but then could not recall at time of trial whether the defendant was the person who attacked him (2) Court says the statements were still admissible and constitutional (against the 6th amendment confrontation clause); because declarant was available for cross-examination; out-of-court identifications are preferred as opposed to courtroom identifications; the rule was directed at these type of incidents i.e. memory loss 9. Past Recollection Recorded a) R803(5) b) Must establish (1) that the record was made by or adopted by the witness at a time when the witness did have a recollection of the event and (2) that the witness can presently vouch for the fact that when the record was made or adopted by him, he knew that it was accurate c) Requires the presence of the declarant, going to be cross-examined about why the witness has a lack of memory…is this a kind of thing that a witness could forget? d) Can have diminished recollection, but cannot be NO recollection e) Present Recollection Revived/Refreshed (1) The only source of evidence is testimony of the witness himself (2) The stimulus may jog the witness’s dormant memory, but the stimulus itself is not received in evidence (3) Baker v. State…”The catalytic agent or memory stimulator is put aside, once it has worked its psychological magic, and the witness then testifies on the basis of the now-refreshed memory” (4) The adverse party has the option to introduce the document into evidence; will otherwise only be allowed to be read f) Adams v. The NY Central RR Co. (1) Court of Common Pleas, Cuyhoga County, Ohio 1961 (2) Issue of double hearsay, can be gotten around by offering Raith’s statement as an admission by a party opponent 10. Business and Public Records a) R803(6) b) Will often be admissible c) Must show that the document was made as part of the usual activities of the organization d) That a person with knowledge of what the record says made the record or reported the information to the person who made the record e) That the record was made near the time of the occurrence of what it describes f) Witness must testify about how the record meets those requirements g) May often include hearsay within hearsay…under R805 will not necessarily be excluded if each part of the combined statements conforms with an exception to the hearsay rule h) If there is something about the business record that indicates a lack of trustworthiness, the court may still exclude i) U.S. v. Vigneau (1) Drug transaction case; there was evidence submitted of the defendant using western union slips to send money (2) Good case for setting up an exam answer... (3) "Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted R801(c)...whoever wrote the name of the defendant was making an assertive statement...if other evidence were offered to show that defendant was the writer of the western union slips that would be non-hearsay under R801(d)(2) admission by party opponent...however the government may not use the western union forms themselves as proof that defendant made the admission." j) U.S. v. Duncan (1) US COA, 5th Cir., 1990 (2) Defendants are challenging their convictions of conspiracy and insurance fraud (3) Defendants alleged that the insurance company should not have been allowed to introduce unauthenticated medical records and statements by doctors; no custodial verification; hearsay that does not fall within the R803(6) exception (4) Court rejects defendants’ claims (5) Result: The ins. co. compiled their records from the business records of hospitals. There is no requirement that the witness who lays the foundation be the author of the record or be able to personally attest to its accuracy. There is no requirement that the records that the records be created by the business having custody of them. (6) The court has great latitude in determining the trustworthiness of the records (7) The insurance company records may have still been admissible as nonhearsay evidence under R801(d)(2)(C-D); a patient will routinely authorize release of medical records to insurance companies k) Williams v. Alexander (1) COA NY, 1955 (2) Plaintiff is looking to overturn a judgment for defendant; wanted to challenge the admissibility of medical records that included a statement by plaintiff of the cause of the accident (3) Result: Court orders new trial because it was the business of the hospital to diagnose plaintiff’s condition and to treat her for ailments, not to record a statement describing the cause of the accident in which plaintiff’s injuries were sustained. Entries of this sort, purporting to give particulars of the accident, which serve no medical purpose, may not be regarded as having been made in the regular course of the hospital’s business. l) Hahnemann Univ. Hospial v. Dudnick (1) Superior Court of NJ, App. Div., 1996 (2) Debt collection action (3) Judgment was against the defendant, and defendant appeals alleging that the computer printout of the bills owed by him were hearsay and not covered by the business records exception (4) Result: Court will basically only exclude a business record if it is deemed as untrustworthy. Lay foundation: The witness must demonstrate that the computer record is what the proponent claims (2) is sufficiently familiar with the record system used (3) can establish that it was the regular practice of that business to make the record m) Palmer v. Hoffman (1) U.S., 1943 (2) Railroad accident (3) Plaintiffs originally won a judgment at the trial court level, and was affirmed at the circuit court level (4) Defendants sought to have a statement made by a deceased employee (engineer of the train) introduced under the business record exception (5) Result: the court found that the statement by the engineer was not made in the regular course of business. It was not reflective of transactions with others, or to provide internal controls. The fact that a company makes a business out of recording its employees’ versions of their accidents does not put those statements in the class of records made “in the regular course” of the business… n) Lewis v. Baker (1) Injured railroad worker; no one witnessed the accident but the trainmaster did a personal injury report and inspection report; employer offered these reports into evidence (2) Trainmaster testified that the personal injury reports were part of the regular course of business (3) Rationale: The reports had to have been prepared for the systematic conduct of the business as a business and must be made in the regular course of business. The mere fact that a record might ultimately be of some value in the event of litigation does not per se mandate its exclusion. The fact that a report embodies an employee's version of the accident, or happens to work in favor of the entrant's employer, does not, without more, indicate untrustworthiness. Must be a clear motive to fabricate o) Sana v. Hawaiian Cruises, Ltd. (1) Plaintiff’s decedent was injured in the course of his employment (allegedly), seeking to have statements made by two co-workers and an immediate supervisors admitted against the defendant (via an insurance investigative report by Rutherford) admissible as a business record (2) The trial court initially held Rutherford’s report to be inadmissible hearsay; and plaintiff was deemed as failing to meet his burden of proof for his claim (3) The co-workers statements were hearsay within hearsay; and each statement would have to satisfy an exception to the hearsay rule (4) The co-workers statements met the exception of “then existing physical condition” (it was a statement of Sana’s then existing state of mind) R803(3) (5) Also admissible as an admission by a party opponent under R801(d)(2)(D) (6) Rationale: Plaintiff sought to introduce a document created by Hawaiian Cruises insurer, which had no incentive to gather evidence of Sana’s illness (no lack of trustworthiness) p) Beech Aircraft Corp. v. Rainey (1) US, 1988 (2) Plane crash that involved a naval flight training mission (3) The cause of the crash was dispute and a JAG investigation was conducted that deemed pilot error as the major cause of the incident (4) Plaintiff’s estates brought suit, wanted to have a JAG investigative report deemed as inadmissible hearsay (5) R803(8) is the public records and reports exception; which allows for factual findings to be admissible (6) Court finds that factual findings are inherently riddled with opinions… “There is no conceivable statement however specific, detailed or “factual”, that is not in some measure the product of inference and reflection as well as observation and memory” p. 367 (7) This rule makes government experts more readily available to regular citizens (8) Rationale: As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report q) U.S. v. Oates (1) US COA, 2nd Cir., 1977 (2) Defendant was convicted of possession of heroin with an intent to distribute and other conspiracy charges (3) Government sought to offer the report of a US Customs Service chemist that analyzed the powdery substance (who was unavailable to testify at time of trial); used the testimony of another US Customs Service chemist to establish foundation of Weinberg’s report as being trustworthy and authentic (4) The defendant objected because they had no opportunity to cross-examine the actual author of the report (confrontation clause issue); the report was altered from that which was initially provided to the defendant prior to trial (5) Defendant challenges the admissibility of the chemist’s reports under the R803(8) exception (6) Court finds the chemist’s report is inadmissible hearsay under F803(8)(C) and (B); the reports by the chemist were specifically made in anticipation of a criminal case (7) Specific legislative intent of R803(8) was to exclude docs such as these against a criminal defendant; and will carry over to other hearsay exceptions (8) Government also argued that it was admissible under R803(6) modified business records exception; the court denied this argument because the reports might not indicate a lack of trustworthiness (“circumstances of preparation that indication lack of trustworthiness” p. 373) 11. Miscellaneous Exceptions a) Stroud v. Cook (1) FRE 803(22) Judgment of Previous Conviction (2) Dist. Ct. of NV, 1996 (3) Plaintiff wanted to use a prior misdemeanor conviction to establish negligence in a car collision (4) Federal rule generally only allowed for felony convictions to be used in civil actions (5) 9th Circuit has decided to allow misdemeanors to be admissible (6) Result: Allowed the misdemeanor to come in because it was a substantive issue (burden of proof) (7) Cannot use someone else’s conviction as evidence of another defendant’s guilt (“to prove a fact in another defendant’s case”) (8) Will not allow an acquittal to be used either b) FRE 803(18) Learned treatises V. often used to impeach a expert witness (1) 3 requirements to introduce as substantive proof… B. Must be called to the expert’s attention C. Show that it is a recognized treatise (use your own witness, or get an admission from the opponent’s witness) D. Facts about which there can be no reasonable debate (judicial notice) a) ONLY READ TO THE JURY, cannot take the treatise to the deliberation room b) FRE 804(b)(4) Statement of personal or family history; declarant unavailable E. Statements are not made with an eye toward litigation F. Typically will not be available in any other way but this a) FRE 803(19) Reputation concerning personal or family history G. Not offered to prove the declarant’s pedigree H. Only reporting what the community believes about the individual I. Future of Hearsay 1. In order for something to be hearsay, it must be “testimonial” in nature 2. Hearsay and the Confrontation Clause a) The 6th amendment states that a criminal defendant enjoys the right to be confronted with the witnesses against him b) Supreme Court has said that this clause only applies to “testimonial’ out-of-court statements c) Crawford v. Washington holds that these type of statements will be held as inadmissible UNLESS (1) the declarant is available at trial for cross-examination or (2) the declarant is unavailable and the defendant had an earlier opportunity to cross-examine d) “Testimonial” statements may include: preliminary hearing testimony, grand jury testimony, former trial testimony, statements made in police interrogations, things done in a context where someone may believe the statement would be used in a criminal proceeding e) Things like statements made during a 911 call will NOT be admissible, non-testimonial when objective circumstances indicate the primary purpose of the questioning was to enable police to responds to an ONGOING emergency (Davis v. Washington) f) The statements will be held to be testimonial in nature when the objective circumstances show that there was no emergency and that the primary purpose of questioning was to establish past events potentially relevant to criminal prosecution (Davis v. Washington) g) If a person prevents or makes the declarant become unavailable, Confrontation Clause protections will be revoked; R804(b)(6) forfeiture by wrongdoing VI. Impeachment A. Capacity to observe, recall, communicate B. Credibility (mistake; fabrication) 1. Contradiction of facts (cross or extrinsic proof) 2. Character for truthfulness (Prior bad acts R608(b); prior convictions R609, reputation, mental capacity) 3. Bias or interest 4. Prior inconsistent statements (R613) C. Can impeach your own witness R607 D. Are there limits on impeachment? Must look to primary purpose… E. Cross examination should be done by leading questions, direct the witness to answer as you would like to answer; give the facts in the question allowing them to concur with them F. Refrain from open-ended questions…what? How? Why? G. Scope of cross-examination 1. Only those matters discussed within direct examination and matters affecting the credibility of the witness R611(b) 2. For example, if witness A is testifying as to causation; defendant can cross-examine using direct and indirect line of questioning (use any inferences made in the direct) 3. Can go into reputation, character (prior bad acts), mental condition, bias, prior inconsistent statements R613 H. Rule against Impeaching One's Own Witness 1. U.S. v. Hogan a) If trying to get in other out-of-court statements that you know you could not get without impeachment is improper use of the impeachment process I. Methods of Impeachment 1. Impeachment by Contradiction a) State v. Oswalt (1) Sup. Court of Washington, 1963 (2) Facts: Defendant has been charged with robbery and first degree murder; defendant appeals his conviction on the basis that the government offered evidence constituting impeachment on a collateral matter; evidence was offered on cross-examination by a witness(an alibi) stating that the defendant had been in a restaurant in Portland, OR every day the past few months…alluding to the fact that the defendant was there on July 14th and not in Seattle committing the alleged crimes (3) Rebuttal evidence was offered by a police officer that showed that defendant had been in Seattle a few weeks prior to the crime (received a ticket) (4) General rule: a witness cannot be impeached upon matters collateral to the principal issues being tried (5) The test for collateralness: Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction? (6) Issue: Does the witness’s apparent error about the defendant’s location for the past 2 months, suggest that he is incorrect about defendant’s location on the date of the alleged crime? (7) Could argue mistake, collusion (bias in favor of defendant) (8) Rationale: The state’s argument requires speculation that the defendant could not readily commute between Seattle and Portland (9) McCormick’s rule (has been generally accepted)…can introduce a contradiction to show a background fact about which the witness could not have been mistaken about if his testimony were true (Iowa has adopted this view) b) U.S. v. Copelin (1) US COA, D.C. Cir., 1993 (2) Facts: Defendant was convicted of unlawful distribution of cocaine; was asked on cross-examination about whether he saw the transactions, recognized drugs; government also used three prior failed drug tests to demonstrate that the defendant was lying/contradicting his current testimony that he had only seen the drugs on TV (3) This is not necessarily a contradiction case; involved evidence that could be testified to specifically by the witness/defendant (4) Case was overturned because there should have been a limiting instruction to minimize the prejudicial effect of such evidence…there is now no rule that says the trial court must give a limiting instruction (5) Can offer any extrinsic evidence unless it refers to collateral matters (non-collateral if it is material background information as a matter of human experience) 2. Character of the Witness a) Prior Bad Acts, R608 (1) Unconvicted bad act may be introduced if the examiner meets the following two requirements: VII. the act or conduct must be probative of witness’ truthfulness, not merely of the witness’ general good character. (Acts of violence don’t usually qualify) VIII. the evidence must be brought out solely in cross-examination. No extrinsic evidence can be used for this purpose. (a) Ex.W1 cannot be impeach by W2’s testimony that W1 has committed an unconvicted dishonest act. (2) there is a reasonable good faith basis the witness actually did what is going to be asked (3) U.S. v. Owens (a) US Court of Military Appeals, 1985 (b) Facts: Defendant was apprehended and convicted of murdering his second wife by gunshot; defendant alleged it was a tragic mistake while he was messing with his hunting rifle; on cross-examination, government asked the defendant about his application to become a military officer and about omissions of prior arrests and convictions UNDER OATH (c) Must differentiate between R404 and R405 & R608 and R609 character evidence (d) The cross-examination is only allowed under R608(b) [the omissions] and must satisfy R403 (no unfair prejudice being more than probative value) (e) Result: The omissions were inadmissible under R403 because the omissions did not go to the issue of deceit; the assault and battery and subsequent arrest would have been prejudicial in this case since he is on trial for murdering his 3rd wife…but all of this was not prejudicial error in the whole sum of things…conviction upheld. (4) U.S. v. Drake (a) US COA, 10th Cir., 1991 (b) Issue: Whether the form of questioning is an introduction of extrinsic evidence of the Univ. of Illinois records? (c) Holding: No. (d) Rationale: Cross-examination questions alone, cannot constitute extrinsic evidence. Though the questions did not constitute extrinsic evidence, they were arguably improper because they assumed facts not in evidence. Still did not say that Drake’s substantial rights were affected. (5) U.S. v. Saada (a) US COA, 3rd Cir., 2000 (b) Gov’t wanted to prove the declarant (now deceased) had a character for untruthfulness (was a disbarred judge for unethical conduct) (c) Discussion of R806 and R608(b) (d) No extrinsic proof is going to be admitted to get around R806 (e) Could cross-examine other witnesses about the unavailable declarant’s reputation and character b) Prior Convictions (1) R609 - strictly using the prior conviction for impeachment of the truthful character of the witness; not being used to prove conduct in conformity (2) Crimes of dishonesty or false statement are by default admissible; the crime must have had elements that required proof or admission of dishonesty or false statement (i.e. perjury, criminal fraud, embezzlement, or false pretense) The ultimate act must involve deceit (3) For a witness use R403, for a defendant must have probative value outweigh the undue prejudice (4) Crimes that do not involve dishonesty or false statement (i.e. assault with a deadly weapon) are admissible if they were punishable by death or imprisonment for more than a year; and subject to a balancing test against certain risks of misuse by the jury (5) If the witness is not the criminal defendant, the evidence is only inadmissible if probative value is substantially outweighed by its prejudicial effects (6) The court will look at the bearing of veracity of the prior conviction to the witness’s testimony c) Bad Reputation for Truth and Veracity (a) Opinion and reputation evidence of character. (2) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (3) Impeachment can be done by (1) reputation or (2) opinion evidence. (4) Witnesses who take the stand put their character for honesty and veracity in issues; therefore they can be impeached by evidence that their character is such that they may lie under oath. (5) The FRE permits prior inconsistent statements that were made under oath to be admitted as substantive evidence. 2. Psychiatric Condition a) U.S. v. Lindstrom (1) US COA, 11th Cir., 1983 (2) R704(b) governs the expert witness testimony about the mental disease (3) Gov’t wanted to establish the witness’s past behavior of manipulating others (4) Case involves convictions of mail fraud and conspiracy to commit mail fraud (5) Rationale: Certain forms of mental disorder have high probative value on the issue of credibility. (6) R608(b) refers to moral ability to tell the truth; not mental capacity to tell the truth (delusions, fantasies all affect the witness’s ability to recall and observe; can at that point introduce the fact that the witness may have trouble being credible (uses R602, NOT 608) 3. Prior Statements to Impeach or Rehabilitate a) R613(a) prior inconsistent statement - on the theory that a person who says one thing one time another thing one time has probably lied or suffered from memory deficiencies b) Extrinsic evidence will not be admissible as showing prior inconsistent statement; must direct the witness to the time, place, and circumstance of the statement, sufficient so that the witness’s memory would be refreshed c) Prior inconsistent statement must not be collateral (has to have independent value): Could it be offered on another issue in the case (is it material)? Does it tend to undermine the witness’s testimony on the substantive issues in the case? d) A witness may not be rehabilitated until her credibility has been attacked; mere contradiction of testimony is not enough. e) The type of rehabilitating evidence admissible depends upon the nature of impeachment evidence. f) If a witness has been impeach on cross-examination, he may be REHABILITATED by: (1) explanation of responses on cross-examination (2) testimony of other witnesses as to the principal witness’ reputation for truthfulness (3) prior consistent statements when used to defeat a charge of bias or recent fabrication [801(d)(1)(B)]. Under the FRE, the statement must have been made before the alleged improper influence or motive. g) Refreshing Witnesses though “Items” are not evidence. Evidence is what is elicited from the witness after her memory is refreshed. The item merely assists in producing evidence. B/C the item is not evidence, it does not need to comply with the Best Evidence Rule, be authenticated, or comply with the hearsay rule. h) Impeachment by intrinsic evidence is testimony that discredits the witness, elicited SOLELY from the witness himself on cross-examination. i) Impeachment by extrinsic evidence is discrediting testimony from any other source. 4. Bias a) No specific rule, but uses the balancing test in R403 b) Bias testimony can be demonstrated by extrinsic evidence, very probative of the credibility of the witness c) U.S. v. Abel (1) Can membership in an organization be demonstrative as evidence of the witness perjuring himself? Is it appropriate to use organizational guidelines to show that a witness would have acted in accordance with those guidelines? (2) Prosecution witness was a part of a prison organization that had guidelines was to lie, cheat, steal, murder, to protect their fellow brother (3) Supreme Court says yes it is appropriate; allowed it in as relevant evidence and probative because jury instructions were given, “a secret prison organization” was used instead of “The Aryan Brotherhood” IX. Authentication A. B. C. D. E. F. G. H. I. J. Specialized form of relevance Often called “foundation testimony” What level of confidence does the judge have to have before allowing the evidence? It is what it claims to be? Is it relevant? R901(a) - proponent must introduce evidence adequate to support a jury finding (or a finding by the court if there is no jury) that the matter is what its proponent claims it is R901(b) offers methods by which parties may use to satisfy the authentication requirement U.S. v. Dockins 1. US COA, 5th Cir., 1993 2. Government wanted to introduce evidence of a prior conviction through extrinsic evidence of a fingerprint card and police record sheet reflecting the arrest 3. Needed a source to lay foundation of the fingerprint card, not just a representative of the agency 4. Needed a custodian of the fingerprint card to authenticate First State Bank of Denton v. Maryland Casualty Co. 1. US COA, 5th Cir., 1990 2. It was enough that the person who answered the phone, replied that it was the Mills residence Self-authenticating documents - newspapers/periodicals are self-authenticating; public records under seal are usually easy to determine if it is a official seal Ancient documents - R803(16) grants a hearsay exception X. Competency A. R601 - everyone is competent except as provided in the subsequent rules B. Must be able to comprehend the obligation to tell the truth 1. Do you understand what truth is? C. A witness [other than an expert] MUST have personal knowledge of the facts about which he testifies. D. Under FRE 602 and 603, (1) a witness must have personal knowledge of the matter on which he will testify, and (2) that the witness will testify truthfully. E. R603 Oath or affirmation (awakens “moral” conscience) F. Common law: the three elements of competence were the individual’s ability to accurately observe, remember, and recount facts. G. Mental competency only goes to the WEIGHT to be given to certain evidence (i.e. if someone is crazy); and a judge will ultimately decide that H. Even if the person is shown through character/habit testimony to be a pathological liar, still deemed competent to testify I. Hill v. Skinner 1. COA Ohio, 1947 2. Dog bite case 3. Only direct testimony given was by the minor child who was allegedly bitten 4. The court determined the child’s testimony to be a clear explanation of the issues; and probative coupled with circumstances and other facts shown to exist 5. Hypnosis - one approach is to exclude completely, or defend the hypnosis thru expert testimony, allow certain guidelines on certain situations J. R606(b) Inquiry into validity of verdict or indictment 1. In general, jurors are excluded as witnesses (R606a) supposed to be impartial 2. External v. internal testimony (from a juror) K. Rock v. Arkansas 1. Issue: Whether Arkansas’ evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated petitioner’s constitutional right to testify on her own behalf as a defendant in a criminal case 2. Generally, want to record all proceedings; have an expert available; have some corroborating evidence, favorable jury instructions re: credibility of hypnosis L. Tanner v. U.S. 1. U.S., 1987 2. Describes what things that are internal to juror testimony, and those which are external 3. External influences do not justify reversal in and of themselves; must demonstrate that the influence was calculated to and reasonably probable that it influenced the verdict XI. Opinion Testimony A. Opinion Testimony by Lay Witnesses - Inferences to be drawn from this testimony are for the jury; R701 limits opinion testimony by lay witnesses B. Can be justified if (1) rationally based on the perception of the witness; (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge; i.e. acting as a witness in a car accident, “He looked intoxicated” C. Generally courts allow a shorthand rendering of facts D. List of other examples allowed, pg. 748 E. Question to ask: can the witness adequately convey the facts, so that the jury can understand the testimony, without giving an opinion? F. If it is a conclusion that is commonly reached by the community, the testimony will generally be allowed G. Commonwealth v. Holden 1. Sup. Ct. of PA, 1957 2. 1st degree murder case 3. Evidence: statement of a witness that defendant winked at him, and said what he thought the wink to mean 4. Only dissenting opinion listed; said that the wink could not have been that communicative…said that the case is too serious of a case to allow evidence of just a wink to be deemed as demonstrative of the defendant’s intent to commit perjury XII. Expert Testimony A. R 702 B. A witness can be qualified as an expert based upon knowledge, skill, or experience, training, or education C. Ultimate question: will these opinions help the jury? Is it within the common understanding of persons of ordinary or common experience? 1) Who decides who is an expert? Trial judges! Have very broad discretion in assessing whether a person should be allowed to be an expert for a particular trial 2) What topics are appropriate for this expert? 3) Probable reliability of the expert testimony 4) What types of data an expert may rely on to form an opinion 5) Whether the style or form of the testimony should be restricted D. Expert opinion is not allowed on the issues of fault, negligence, or guilt b/c they are conclusions that jurors are competent to draw from the facts. E. Expert can be x-examined or impeached like lay witnesses, plus: 1. Lack of expert qualifications 2. Prior inconsistent opinions in the present case 3. Alteration of hypothetical questions 4. Showing compensation 5. Contrary expert views. F. State v. Odom 1. Sup. Ct. of NJ, 1989 2. Can be an expert without having a degree in a certain field 3. Must demonstrate the extent of the expert’s experience 4. Defendant was convicted of possession with an intent to distribute 5. State offered a police officer as an expert witness regarding whether the amount of drugs was for personal use or distribution G. U.S. v. Scop 1. US COA, 2nd Cir., 1988 2. The witness testified in the language of the securities fraud statute 3. When you take the verbiage directly from a statute, appear to be offering an opinion on a legal subject (drawing a legal conclusion) 4. R 704(b) - an expert cannot make a conclusion about whether the defendant had/did not have the requisite mental state for the crime charged 5. Translate the testimony into medical expertise sans any type of legal conclusion 6. Firsthand knowledge can qualify as expert testimony 7. The expert must be able to explain the facts that he/she is relying on H. Hypothetical questions 1. R 705 - an expert witness can testify without prior disclosure of the underlying facts or data 2. Typically the courts do not allow one expert to testify that he based his opinion on another’s expert’s testimony I. Daubert v. Merrill Dow Pharmaceuticals - Scientific v. specialized knowledge 1. U.S., 1993 2. Plaintiffs sued claiming that Bendectin caused birth defects; defendant filed a motion for summary judgment, no epidemiological studies that showed a link of the medication and birth defects 3. Plaintiffs offered other lab studies(not epidemiology studies) showing defects through their expert; were also unpublished 4. The district court granted the motion for summary judgment; said scientific evidence is admissible only if the principle upon which it is based is “sufficiently established to have general acceptance in the field to which it belongs” (frye test) 5. Method before Daubert: Frye test, the consensus of scientists in the expert’s field controls the admissibility of the testimony 6. Result: A court must determine the admissibility of scientific evidence by evaluating the validity of 2 separate pieces of evidence (its scientific method AND the application of that method to the factual inquiry under consideration) 7. Court may analyze using these questions: a) Can it be tested, and if it can be tested, has the testing taken place? b) Has it been described in scientific publications subject to peer review? c) What are its known or potential error rates? d) Are there standards that can control its operation, and if so, were they used in developing the expert’s testimony? e) Has it achieved some degree of acceptance in a relevant community? 8. Applies to ALL expert testimony, not just scientific experts 9. Must be able to assist the trier of fact to understand or determine a fact in issue J. GE v. Joiner 1. U.S., 1997 2. standard of review for admissibility of expert testimony: abuse of discretion 3. trial judge is the gatekeeper K. Kumho Tire Co. Ltd. v. Carmichael 1. US, 1999 2. Daubert principles still apply to technical or other specialized knowledge 3. Key word in R702 is “knowledge” 4. Trial court must assess the sufficiency of the expert’s underlying data, the reliability of the expert’s methods, AND the reliability of the expert’s application of those methods to the facts of the case 5. Don’t always have to analyze the actual field of expertise as was done in Daubert XIII. General Matters during Trial A. Rule 611 (a) Control by court. 2. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. B. (b) Scope of cross-examination. 1. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. 2. Cross-examination is the most reliable and effective method to test witness’s credibility and accuracy. 3. Cross-examination is essential to due process and the confrontation clause. 4. Cross-examination is restricted to matters put in issue on direct, including the credibility of witnesses [opening door]. C. (c) Leading questions. 1. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. a) Leading questions SUGGESTS to the witness the desire answer. b) Leading questions may not be allowed on cross-examination if they are friendly to the cross-examiner (such as a hostile witness).