EVIDENCE OUTLINE

 

I. THE HEARSAY RULE OF EXCLUSION  (rule 802 provides that hearsay is not admissible except as provided by these rules)

A.  801a-c:  Definitions of Hearsay-anything that is oral and out of court is generally hearsay if the declarant is not on the stand available for cross, it is not trust worthy and this is why we have rules against allowing such evidence in.  Concerns revolve around our inability to probe the declarant’s perception, memory, sincerity and narration.

1.  801 a:  Statement:  a statement is 1. an oral or written assertion OR 2.  non-verbal conduct of a person, if it is intended by the person as an assertion.

a.  A substitute for speech, or written word that is intended by the person as an assertion.

Ex:  Giving someone the bird is a nonverbal conduct that is intended. 

Ex:  Pointing out someone in a line-up is non-verbal

b.      Conduct, is problematic.  The critical distinction under the FRE is between assertive and non-assertive conduct.

c.       Non-assertive conduct:  (implied assertions): 

a.       Wright v. Tatham:  A beneficiary offered letters to prove competency of testator.  The letters that merely discussed every day affairs.  If the letters had called him a “competent testator” they would have been hearsay.  (all the letter writers were dead at the time of trial)  The letters indicated the writers believed he was mentally competent.  The court held this was hearsay, but the federal rules feel differently. 

b.      Federal Rules View:  advisory committee is of the view that these dangers of narration, sincerity, etc. are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds.

                                                                                                   i.      If a person does not intend to make an assertion, insincerity issues are significantly reduced or eliminated. 

2.      801 b:  Declarant:  is a person who makes a statement.  (remember Peter’s statement to Jill, he is the declarant, she is the witness who gives the statement.  Also remember that Peter can be the declarant and the witness)  One person is making a statement to someone else, and that someone else repeats the statement in court.

a.       This definition makes clear that the hearsay rule does not apply to devices such as radar, or to tracking dogs.

3.      801 c:  Hearsay:  a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

a.       Look to where the statement is made.  If made in court, then the statement is probably not hearsay, if made outside of court and repeated then probably a candidate for hearsay.

                                                                           i.      Out of court:  other than one made by the declarant while testifying at the trial or hearing.

b.      Why the statement was offered:  Truth of the matter asserted:  have to look at why the statement was made!  If it was made to prove the truth of the matter asserted, then it is hearsay and generally not admissible.  A non hearsay offering never cares about the truth of the statement.

                                                                           i.      If the relevance is just to show the statement was made rather than the truth of the assertion contained in the statement, the statement is not hearsay.

                                                                         ii.      If the statement is offered for any other purpose than its truth, it is not hearsay.  SO, we have to know why the statement is being offered, its relevancy.  (it is the offering party that decides this) (AND rule 401, and 403 may keep it out too!).

Ex:  if statement “I am very rich” used to prove rich, then hearsay, to prove he is a jerk, this is going away from the truth and is not hearsay.

Ex:  Statement:  “I am the Pope” made by John Doe oral statement out of court.  Offering is that you are going to show Doe uttered it and the statement was false.  We are not offering to show that he is the pope.  Not hearsay.  If offering to show he is the pope, then it is hearsay and is inadmissible.

*General Rule:  If trying to prove what he said was false then it is not hearsay.  A non hearsay offering does not care about the truth of the statement.

Ex:  Statement:  “I want to cancel my policy”  if offered to show the policy was canceled, or that he uttered the statement, then not hearsay, BUT if offered to show the declarant wanted the policy canceled, then hearsay.  The first is not because we are not showing his intention to cancel.

*General Rule:  if only offered to show it was uttered, then not hearsay.

c.  A witness can also be the declarant.  If a witness is testifying as to what he saw, for example in Leake the son testified to seeing the light out this is not hearsay, because he is not testifying as to the truth of something said outside of court.  However, if the son was testifying to what he told the adjuster outside of court (“I told Gross…..), this is hearsay because it is offered to prove the truth of his statement to the adjuster. 

i.  It is important to note that the witness can repeat an out of court statement and have it be hearsay no matter who said it….even if the witness himself said it.

d.  Policy reasons for not allowing hearsay, (what we would want to grill our witness over)

            i.  Perceptions

            ii.          Memory

iii.                  Sincerity

iv.                 Narration, the communications between these people (ex:  they speak two different languages, or maybe it was a joke)

e.       Hearsay that is so good we want to let in.  Under certain circumstances we will let the evidence in (about 30 exceptions)

i.                     803 and 804 are exceptions:  (see below for the exceptions)

ii.                   807:  says if you have great hearsay and it is extremely relevant and trustworthy, the trial judge has discretion to let it in. 

f.        Statements that have legal significance:  a category where the law attaches rights or obligations to those statements.  It does not matter whether or not you wanted it, you said it.

a.       Ex:  offer and acceptance.  The insurance policy example again.  Contracts, defamatory statements, slander, etc.

b.      If the statement relates to the substantive law of the case.

                                                                                                   i.      Ex:  Adverse possession, a statement offered to show the element open and notorious which is an element of adverse possession.  NOT hearsay.

                                                                                                 ii.      Ex:  (Verbal part of an act)  Transfer of a gift, AND the donor says I give you this gift.  This is a transfer with a statement of present intent.  Substantive law requires both elements to be present.  It is not hearsay, it has legal significance.  Verbal part of the act has to be at the same time as the gift.  If not, then it is hearsay.

                                                                                                iii.      Self Defense

                                                                                               iv.      Notice

c.       Greetings are NOT hearsay.

                                                                                                   i.      “good morning class”, not hearsay

d.      Animals and inanimate objects like a clock are not hearsay.  You cannot cross examine them, so no problem with memory, sincerity or perception.

e.       To show effect on listener:  a person’s state of mind:  knowledge, belief, good faith, reasonableness is sometimes an issue.  A statement offered to show its effect on the state of mind of the person who heard it is not hearsay.

f.        Statements of victim:  if self defense is offered, her reasonable fear of the victim is an issue and statements made to her regarding the victim’s dangerous or violent character are relevant to show her subjective fear as well as the reasonableness of this fear.

g.      Implied beliefs

a.      Common Law-statements offered for their implied beliefs are hearsay.  (different from federal)

b.      Federal Rules- statements offered for their implied beliefs are not hearsay.

                                                                                                  i.      Advisory Notes:  the key to the definition is that nothing is an assertion unless intended to be one.  The effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion.

c.       Loetsch:  statement offered by the declarant to show the declarant’s state of mind.  (not by a third party)

                                                                                                   i.      Federal Rules will not exclude.  Offered to show pecuniary loss to her, so not offered to show how she felt.

                                                                                                 ii.      If evidence is offered to impeach a witness it is generally not hearsay.  You are showing this person does not need to be believed.  Impeaching is only offered to show the statement was made, not prove it.

h.       Verbal Acts:  statements that constitute verbal acts or operative acts are not hearsay because they are not offered for the truth.

a.       The uttering of certain words has independent legal significance under the substantive law.

b.      Ex:  words of a contract, slander, threats.

c.       We only care if these words are said, not if they are true.

i.        Verbal Parts of Acts

a.       statements offered in evidence only to show that the statements were made and to explain an otherwise ambiguous act.

b.      Words of donative intent accompanying the transfer of something.  (because donative intent is an element of a gift)

j.        Exemptions: 

a.      801d1A:  Prior Inconsistent Statements:  A statement is NOT hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjurty at a trial, hearing, or other proceeding, or in a deposition.

                                                                                                  i.      Really offered to show the statement was inconsistent, not the truth of the matter asserted.

                                                                                                ii.      You might then want to invoke a rule 105 limiting instruction

b.      801d1b:  consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

                                                                                                  i.      Normally is hearsay, however this is an exception.  It is showing the truth of the matter asserted, however here we are rebutting a lie or something different.

c.       801d1c:  ….one of identification of a person made after perceiving the person

                                                                                                  i.      No other way to show you identified that person outside of court.

1.      Ex:  A murder, then a line-up:  declarant says Danny committed the murder, trial comes same witness is on trial.  An in court identification.

d.      801d2:  Admission by a party opponent:  contains five circumstances under which we can have a party admission.  Must be against the party.  D against P, or P against D.  You cannot say your own statement.

                                                                                                   i.      801d2A:  the party’s own statement, in either an individual or a representative capacity

1.      Either statement against a party opponent, OR

2.      A statement by someone who represents you, a trustee, make statements on behalf of a beneficiary

a.       Judicial admissions: current pleadings not superceded, lawyer drafts a pleading this is a party admission and is admissible in court.  Is not hearsay.

b.      Evidenciary admissions:  Amended pleadings:  admission on behalf of client.  Is not hearsay.  But can be contested

c.       Request for admissions:  Ask D to answer to certain things that will not be contested in court.  These answers are judicial admissions and cannot be contested.

d.      Written Interrogatories:  a legal device to find out facts.  (Not admissions or denials).  Answers are a party admission and they are evidenciary.  Can contest answers.  Not hearsay.

ii.  801d2B:  a statement of which the party has manifested an adoption or belief in its truth

1.      ex:  murder, D flees to Brazil, he is caught and brought back.  His flight from the crime is an admission of guilt by conduct.

2.      BUT silence is not always evidence of a party admission.  Must look at two elements:

a.       Totality of the circumstances

b.      Was the statement made under such circumstances and by such persons that it would naturally call for a reply.

                                                                                                ii.      801d2C:  a statement by a person authorized by the party to make a statement concerning the subject

1.      Only business type that was recognized by the common law.

                                                                                              iii.      801d2D:  a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

1.      Restatement limits statements.  Cannot be made from agent to agent or agent to principal.  Can be made to the public at large.

2.      Must also be within the scope of his duty.  Cannot be after the employment is terminated.  The federal rules do not mention the last one, but it was within the case:  shown to have an animus against principal.

3.      When a statement is offered to show notice, not hearsay.

                                                                                               iv.      801d2E:  a statement by a coconspirator of a party during the course AND in furtherance of the conspiracy.  The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision C, the agency or employment relationship and scope thereof under subdivision D, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision E. 

1.      Elements: 

a.       Conspiracy

b.      Declarant

c.       Defendant and declarant who are part of that conspiracy

d.      In the course and furtherance of the conspiracy

2.      Generally, a judge can consider a what would be hearsay statement of a coconspirator before trial to offer evidence of a conspiracy regardless of whether that statement was hearsay.  Can be considered because of Rule 104.

a.       Policy:  a judge knows how to evaluate evidence without misconstruing it. 

b.      BUT even though it can be considered, it cannot be the sole support to prove the predicate crime.

k.      EXCEPTIONS TO HEARSAY

1.RULE 803:  Hearsay exceptions; Availability of Declarant Immaterial.  (does NOT matter if the declarant is available, apply whether or not the declarant is available)

a.  803(1).  Present Sense Impressions:  a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

i.  Differences between an excited utterance:  here there is not an exciting triggering event.  It is just an observation.

ii.  Spontaneous comment regarding the declarant’s experience made at or immediately after.

iii.  Is there time between the declarant’s statement and the observation?  (a couple of minutes is the standard.)

iv.  What if she was on the phone with her daughter?  Yes this is okay

b.  803(2):  Excited Utterance:  A statement relating to a startling event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

i.  Court sets the time between event and statement at around 45 minutes.

ii.  Reason we allow excited utterances are:  they are less likely to be manufactured.  An emotional reaction. 

iii.                  We have to consider:

                                                                                                                           i.      His emotional state

                                                                                                                         ii.      Was he a participant or a bystander

                                                                                                                        iii.      Where statement was made and to whom

                                                                                                                       iv.      Degree of startling event.

                                                                                                                         v.      Did the declarant have a motive to falsify?

                                                                                                                       vi.      Blurted is better, ore likely if upset

iv.                 Can you rekindle the passion?  YES!

c.  803(3):  Then existing mental, emotional, or physical condition (Hillside v. Pheaster)  A statement of thedeclarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memorty or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. 

            a.  Must be a present state of mind:

Ex:  “I have a headache” is part of the exception, because you have to condition as you are speaking about it..  BUT “I had a headache yesterday” is NOT because it is past. 

b.  Must also show intent:  a current statement of present intent to do the act in the future. 

c.  Cannot use a declarant’s statement to prove the intent or actions of a 3rd party.

Ex:  Hillman case.  Cannot use to show 3rd party would meet him in the parking lot.

e.       The Alcalde Rules:  say you have to have 3 other arguments present before this hearsay will be excepted under 803.  

                                                                                                                           i.      Court limits this to the dead or unavailable declarants.

                                                                                                                         ii.      Relevant and a high degree of trustworthiness.

                                                                                                                        iii.      Other evidence present from which guilt can be inferred.

d.  803(4):  Statement for purposes of medical diagnosis or treatment:  statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

1.  Iron Shell:  focuses inquiry to an attempt to diagnose.  Does it matter who the person was who raped her?  NO not here, BUT is there a situation, maybe disease…but not likely.

2.  Has been extended to social workers, nurses, EMT

ex of extension:  social worker goes to a home, removes the child from the home, AND you have to know the name of the person doing the abusing.

3.  ONLY works if the patient makes the statement.  The declarant has to be the patient.

a.  ex:  from treating doc to follow up doc no good!  Because the treating doc is the declarant.

e.      Record recollection:  A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.  If admitted, the memorandum or record may to read into evidence buy may not itself be received as an echibit unless offered by an adverse party.

1.      2 ways to attack a witness that does not remember

                                                                                                                           i.      Try to refresh witness’s memory, (jog the memory) OR

                                                                                                                         ii.      Try to get it in under recorded recollection.

1.      memorandum or record

2.      witness observed personally (cannot repeat what someone else said)

3.      NOW has insufficient recollection

a.       Common law said there must be zero memory.

b.      Federal Rules:  “I remember something, but not much.”

4.      Made or adopted by the witness

a.       Have someone else and sign it

b.      Adopt someone else’s by signing it.

c.       Author does not have to be the witness.

d.      6 month time period between observation and statement given was OK.  (Krump says this is reaching.

5.      If admitted, may be read into evidence, BUT must be offered by an adverse party.  BECAUSE the jury will look at a writing and assume an improper importance.  (comes in as read to the jury).

2.      Hodas v. Davis:  prove by habit, course of business, check marks, anything that shows a habitual way of dealing with documents.

f.        803(6)  Business records:  (a business is any calling for profit)

1.      Why?

                                                                                                                          i.      Because basis for running a business and is trustworthy.  AND

                                                                                                                        ii.      Because you have a lot of people reporting information, business records are necessary.

2.      4 types of people: 

                                                                                                                           i.      Supplier:  the person who must have personal knowledge of information going into the record.

                                                                                                                         ii.      Entrant:  they enter the data.  Takes record from supplier to make it a business record.

                                                                                                                        iii.      Custodian:  records kept in his personal control.  Knows how kept and how disposed of.

1.      Does not need personal knowledge.

                                                                                                                       iv.      Witness:  alternative to custodian.  Any witness who has enough information to lay the predicate.

3.      We do let in computer records, Dr. Records that contain opinions.

                                                                                                                           i.      Print out usually occurs after litigation so could be a problem, however courts look to when the information was inputted into the computer.  Recognize the info. Stored in the computer. 

                                                                                                                         ii.      Old law required showing the computer was trustworthy, now not really a requirement unless opponent makes a stink about it.

                                                                                                                        iii.      3rd party business records can be turned into business record of another.

1.      ex:  K and sub. K, receive an invoice from sub.  K adopts as his own. This is ok.

4.      Need to look at when the event occurred, must be within a reasonable time to avoid a memory problem.  Must also be a person with knowledge (supplier), In the regular course of business AND regular course of business to make this type of record.  (at or near the time of the events depicted)

                                                                                                                           i.      EX:  railroad wants to get in statement made during the investigation of an accident.  Court says no!  NOT regular course of business. 

                                                                                                                         ii.      Can it be a one or two time occurrence:  look at how reliable the document is.

5.      3rd party business records can be turned into business record of another. 

                                                                                                                           i.      K and receive an invoice from a sub K.  The 3rd party records can be considered the records of the business as long as 3rd party meets the duty to report requirement and reporting in course of business.

6.      Also has to be in the regular course of business.  A routine business matter.

                                                                                                                           i.      Ex:  The telex in Kim was not a routinely used method of reporting on bank accounts.  (Note:  Kim argued a summary record but that can only be used when voluminous records AND can be examined in court  But that does not apply here).

g.      803(7):  Absense of entry in Business Records

1.      Can offer to show something is not in the record!!!j

2.      902(11 and 12)  allows custodian to lay business record in an affidavit and the records can then come in.  You don’t need a custodian then. 

h.      803(8):  Public Records:

1.      A.  Activities of office or agency

                                                                                                                           i.      Ex:  records of a federal aviation administration says we investigated a ploane crash site.  No specificities just activities.

1.      Limited admissibility

B.     Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, OR

a.      Ex:  weather records of rainfall, map prepared by government engineers when required.  911 call transcripts if state law legally requires them to be recorded.  Prison records.  Car titles

b.      Will not allow police records.  Because they are not as accurate as they could be.  Will contain hearsay.  Just helps in investigation, does not make it reliable. 

c.       BUT if just documenting routine police record where no room for interpretation, then ok.

C.     In civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

a.      Agency goes to investigate and make factual findings. 

b.      CANNOT get in legal conclusions! 

                                                                                                                                                                          i.      Conclusion that D violated “Sherman act” ONLY factual findings.

                                                                                                                                                                        ii.      Finding someone was negligent.

c.       Agency report must be final in order for factual findings.

d.      Process must be trustworthy

e.      Timeliness of investigation

f.        Skill or experience of officer conducting investigation

g.      Has a hearing been held?

i.  804:  Hearsay Exception:  5 exceptions that apply only if the declarant is unavailable.

a.  Definition of unavailability:  Unavailability as a witness includes situation in which the declarant is unavailable.

1.  804(a)(5):  is absent from the hearing and the proponent of statement has been unable to procure the declarant’s attendance. 

i.  Need to take reasonable measures to get the declarant back.  BUT you cannot try to make people unavailable.

ii.  Analysis

1.      Determine if unavailable

2.      If unavailable then decide: civil or criminal.

3.      If criminal, was there an opportunity to cross examine under the 6th amendment.

2.      804 (b)(1):  Testimony given as a witness…….

                                                                                                                          i.      Determine who is offering and who offering against.

1.      Ex:  Lloyd:  Lloyd was unavailable.  Alverez wants deposition statements.  BUT who is the predecessor of interest?  Was the Commissioner enough?  Here the answer is yes.

                                                                                                                         ii.      Determine if you have a predecessor in interest: 

1.      Traditionally meant privity which meant mujtual or successive rights to the same property.  BUT this is not the way this is read into this rule! 

2.      NOW read:  someone with a similar motive and interest.  “same facts and same fight”

a.      Ex:  Coast guard charged Lloyd with misconduct and so did Alverez’s attorney.

                                                                                                                        iii.      Cross must be done by the D in a criminal matter, but not civil. 

3.      804(b)(2)  Dying declarations: 

                                                                                                                           i.      Dying was imminent

                                                                                                                         ii.      AND relating to cause or circumstance of the death.  (if she does not abandon all hope of recovery, then she may not have been aware of death.)

                                                                                                                        iii.      These declarations are necessary because the dead cannot speak.  Common law thought it was trustworthy because of religious beliefs.

                                                                                                                       iv.      As long as can be construed as what or who caused her death, is admissible as dying declaration.

                                                                                                                         v.      “someone watch the children” probably has nothing to do with her death.

                                                                                                                       vi.      “you made me” (made by husband after stabbed wife):  probably will, but how will a jury interpret?  Defense might argue she asked “why did you do it?”  BUT this is an admission of a party opponent, an exemption.

                                                                                                                      vii.      “I am going to die” will come in.

                                                                                                                    viii.      “He tried to stab me once before” Has nothing to do with the direct cause of her death.

                                                                                                                       ix.      How do we know imminent fear of death?

1.      Blood, severity of wounds, actions

4.      804(b)(3):  Statements against interest (an exception)

                                                                                                                          i.      Statements made against pecuniary interest

1.      “I’m sorry I hit you”

                                                                                                                        ii.      Statements against propriatory interest-against land

1.      Real estate interests.

                                                                                                                        iii.      Not recognized in Common Law at all.

                                                                                                                       iv.      Majority of states recognize BUT probably the most controversial.  Generally two parts of the statement:

1.      “Joe,”

2.      And “I robbed the bank”-against declarant’s penal interest.  Offered to inculpate or show guilt of Joe.  Some courts said cannot come into evidence unless other evidence present.

3.      “Joe robbed the bank”-a collateral statement to part of statement “I robbed the bank”

4.      Examples:  Williamson is the big fish drug dealer, I am the mule.” Close to “Joe and I robbed the bank.”  BUT if you say “Joe did not rob the bank, but I did” Joe cannot use because it is not a statement against the declarant’s penal interest.

5.      Transfers:  “I stole the gun” thief and person who receives stolen goods.  If thief admits then transfers over to the other.

5.      807 Catch All Exception:  trial court can take really great hearsay and let it in.  (statements may be admitted on an ad hoc basis)

                                                                                                                          i.      Has to be as trustworthy as excited utterance

1.      Material Fact at issue

2.      Important to the case

                                                                                                                         ii.      No cumulative residual evidence.  Must be significant.  Statement must be trustworthy.

                                                                                                                      iii.      If opponent is offering under 807, then notice is required. 

6.      Confrontation clause of the 6th amendment. 

                                                                                                                          i.      Means:  D has right to be present at trial

                                                                                                                        ii.      Learn what evidence is against him

                                                                                                                      iii.      Cross exam witnesses who testify against him.

                                                                                                                      iv.      IF comes in at trial, 6th is not offended as long as it comes in under a well grounded exception.

7.      Bogus Hearsay:  “false”, hear things that are not the laws.

                                                                                                                          i.      Ex:  anything said in the presence of the D….no good.

                                                                                                                        ii.      Self serving-NO GOOD!

                                                                                                                      iii.      Prejudicial  (is an objection if unfairly prejudicial).

8.      Rule 805, hearsay within hearsay: 

                                                                                                                          i.      If each part of a double hearsay statement falls within an exception, the statement is admissible.

II.                RELEVANCY:  401 – 403:  contains generalized description of how relevance works.  404 – 415 contain specific rules where relevance issues have been applied and determined in specific situations. 

A.     401:  Definition of “Relevant Evidence”:  means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

1.      Evidence tends to swing the issue one way or another.  It does not matter which way it goes.  To be relevant it just moves the fact closer to the issue.  Any slight movement will do. 

a.       Evidence………..Issue of fact

How strong is

the connection here?

Determination of probative value

b.      Krump uses the 1-10 scale. 

c.       Probative value is a determination of logical relevance.

B.     402:  ALL relevant evidence is admissible.  No matter if its probative value is a 1 or a 10!  UNLESS it fails the 403 balance.

C.     403:  balancing test because if we let in everything we would never finish our law suits.  Evidence must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

probative value……………………unfair prejudice

                  does the unfair prejudice

                  substantially outweigh the

                  probative value?

 

a.  Unfair prejudice:  tendency of a jury to divert its view of the evidence.  Because it appeals to the jury’s emotions so that the jury would base its decision on the emotion NOT the facts.

1.  Ex:  D has one month to live in a battery case.  This is way too far out!!!

2.  One way to get a lie detector in:  NOT to determine credibility, but in a lawsuit based on discrimination, where employee flunked a polygraph because it goes to a reason why he was fired.

3.  Ex:  prior criminal convictions (not all will come in)

a.  The letter in Carter, his words used in his writing might sound like he had something against the justice system.  Jury may not look at the facts of the case.

b.  ask how likely the jury is going to use the D’s statement to say I do not like him.

                                    D.  Analysis steps

1.  Determine Probative Value:  what are the facts that push the scale one way or the other.  How strong is the connection between the evidence and the issue of fact.

Ex:  Murder trial and you want to get in a confession of “I killed X”.  This has a very high probative value.  The evidence has a strong connection with the issue of fact, who killed X.

NOTE:  Rule 402 allows ALL relevant evidence!  Says all relevant evidence is admissible. 

2.  NEXT balance the probative value with unfair prejudice.  RULE 403

a.  Does the Unfair prejudice substantially outweigh the probative value?  (remember there is a presumption of admissibility so it must substantially outweigh)  Unfair prejudice is anything that stirs emotion, appeals to the juror’s emotions.

-Is there a tendency of a jury to divert its view of the evidence if we let this in?

Ex:  if we show criminal record of someone, the jury might think why is this guy not behind bars right now and convict based upon prior convictions.

-we can eliminate the unfair evidence and still let in another part of the evidence if it does not seem substantially unfair.  (under rule 102)

-if the government does not have much else to convict, this evidence will come in!  It will be more significant in pushing the issue one way or another.  (more need = higher probative value = more likely to come in.)

                        Crump’s opinion, too tenuous. 

-remember if you are trying to a judge rule 403 does not come in because the judge can logically exclude relevant evidence because of unfair prejudice.  He/She can see what is prejudicial.

-Photos of a crime scene:  usually autopsies are ok. 

-911 calls:  if to show a serious pattern of violence, and there are a lot of them, then maybe they have a highly prejudicial value, BUT if there are only a few and large gaps between them, probably ok.  (OJ case)

                                    E.  Another case example:  Norfolk kid/chicken case

1.  Used people to conduct a reenactment of looking down the RR tracks to determine if they could see a chicken or a child.

2.  Probative value was high

3.  Unfair prejudice:  people conducting the test knew what they were looking for, a child.  The reliability of the test was low so unfair prejudice was low and the probative value would outweigh the unfair prejudice.  The court ruled that pre-trial simulations have to have strong similarities for them to be admissible.

F.  Similar Happenings:  The Cox case where the entire family was falling off of street cars.  P wanted to offer as evidence the other family members who had filed similar suits.  The probative value was substantially diminished by the fact there is no claim and no showing there is a conspiracy among the Cox people. 

1.  Another Example:  John Deere Case:  evidence of 34 other instances of this happening (not with this P).  It cannot be admitted unless substantially similar.  BOTH governed by same standard, do not need identical similarities.  Jury was allowed to take in this evidence even though this tractor was a different model.  This was a very BROAD ruling. 

2.  Sometimes prior occurrences are relevant because they tend to show a party knew or had a reasonable opportunity to know of a dangerous condition. 

3.  Substantially similar circumstance is required.

4.  Slip and fall cases:  can you offer all other slip and falls in that store?  NO.

 

III.             CHARACTER EVIDENCE-a tendency for a person to act according to a given character trait.  Ex:  honest character trait (but does not mean always act in accordance with ths trait.)  NOTE:  business practices are not character evidence. Ex:  wear a hard hat.

1.      GENERALLY:  404a:  Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, EXCEPT:

A.  404a1:  the accused’s character.  (aka:  The Mercy Rule for the D, he gets to go first and this MUST take the form of reputation or opinion))

First Part:  1.  Offered by (who goes first):  the accused OR the prosecution to rebut the same.

2.  In a criminal case only.  Allows the accused to present good character evidence that responds to the bad character trait of the crime charged.  NOT for impeachment, it is substantive evidence.

3.  Form of evidence:  either opinion or reputation (they go hand in hand) 

i.  The evidence must also be relevant to the crimes charged.

a.  ex:  peaceful character in crimes of violence, honest character for theft.

4.  Rebuttal:  by prosecution.  Can put on own reputation and opinion witnesses to show the opposite character trait the accused asserted.  ALSO can cross examine D’s reputation and opinion witnesses

i.  SECOND PART OF a1:  If accused decides to put in evidence to show victim was not peaceful, under the first part of (a), then prosecution can offer same bad evidence of the accused.  (BUT is restricted to the bad character trait). 

ii.  LIMITATIONS:  It is the D’s character at the time of the charged offense that is relevant.  AND only opinion and reputation evidence, and not specific instances of conduct may be used.  AND in sex offense cases rules 412-15 preempt Rule 404.

iii.  the character witness of the defense may also be taken on cross examination.

a.  ex:  the prosecution can ask a character witness if they have heard of, or are aware of a defendant’s prior arrests and convictions.

b.  This type of cross examination must be done in good faith and have a basis of fact for asking the question.  Cross must contain questions that are:

            i.  Pertinent Trait

ii.  Remoteness:  acts that are too remote are not the proper subject of cross examination.

iii.  Cannot ask the witness about the effect of the current charge.

iv.  Cannot ask opinion evidence questions.  “Did you know” will not work.

B.  404a2:  Character of alleged victim (comes up out of the facts and substantive law) 

1.  Offered by (who goes first): the accused (the defense must open the door before the prosecution can take over.

            2.  In a criminal case only.

            3.  Form of evidence:  reputation or opinion (rule 405)

4.  Rebuttal:  own reputation or opinion (rule 405) witnesses to show D was peaceful. OR Cross examine the prosecution’s witnesses.

i.  May offer rebuttal evidence of the victim’s character, or respond with evidence of the accused’s violent character.

            THE SECOND PART OF a2:  same as first part.

*It is important to note that once the defense has opened the door by offering a character witness, the prosecution can cross examine that character witness on specific acts:  “has she heard”, or “if she knows” of specific acts that reflect upon the character trait addressed by that witness.

*Rule 404b is a clarification of rule 404a. 

C.  Rules 412-415:  all 3 methods may be used

1.  412:  404a’s exception for evidence of the victim’s character is subject to rule 412.  This rule limits the admissibililty of evidence of the victim’s character.

            a.  Applies to criminal and civil cases

b.  Excludes evidence of the victim’s other sexual behavior and sexual disposition unless an exception applies.

2.  412(b)(1)(a):  Exception:  excepts evidence of specific instances offered to show that another person was the source of semen, injury or other physical evidence (ex:  pregnancy or disease).

3.  412(b)(1)(B):  excepts evidence of specific instances of sexual behavior between the accused and the alleged victim.  Typically this exception is limited to the issue of consent.

4.  412(b)(1)(C):  a constitutional exception:  if the evidence would violate the constitutional rights of the defendant.

5.  412(b)(2):  Evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules AND its probative value substantially outweighs the unfair prejudice to any party.   Reputation evidence is admissible only if placed in controversy by the alleged victim.

a.  Here the proponent of the evidence must convince the court that the probative value of the proffered evidence substantially outweighs the unfair prejudice and causes harm to the victim. 

i.  This is different than rule 403 because it shifts the burden to the proponent of the evidence to demonstrate admissibility rather than making the opponent justify exclusion of the evidence.

ii.  Also different because more stringent than the 403 rule:  it raises the threshold for admission by requiring that the probative value of the evidence substantially outweigh the specified dangers.  (so biased in favor of exclusion rather than admissibility)

iii.  and includes harm to the victim on the scale in addition to prejudice to the parties.

6.  412(c):  sets forth the procedures for determining admissibility. 

a.  provides for 14 day notice and an in-chambers resolution of the issues, as well as the alleged victim’s right to participate.

D.  404b Other Acts Evidence:  Evidence of other crimes, wrongs, or acts not admissible UNLESS:  for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice on good cause shown of the general nature of any such evidence it intends to introduce at trial.  (applies to civil cases as well)

            “to prove a factual issue being contested at trial” 

1.  Analysis: 

a.  Rule 401:  identify a material issue (other than character) for which the evidence is being offered to prove (ie:  identity of perpetrator, mens rea)

            i.  some of the purposes are listed in 404b. 

            ii.  typically used to prove: 

                        1.  the accused was the actor

2.  the accused possessed the requisite mental state OR

3.  a crime has been committed

b.  Rule 403:  balance the probative value of the evidence against the risk that the jury will ignore the limiting instruction and make the prohibited character inference AND

i. Excluded if probative value is substantially outweighed by the dangers of unfair prejudice, confusion of issues, or misleading the jury.

c. Rule 104(b):  determine whether there is prima facie evidence of the accused’s involvement in the other act.

i.  The prosecution must offer some evidence tending to show that the defendant committed the other act.

ii.  The court examines the evidence and decides whether the jury could reasonably find the fact true.

2.  Ex:  4th SIDS baby to show absence of mistake.  Problem is, jury still sees this however they want.  So, let in for a much narrower purpose, but the jury will still be confused.

3.  This evidence is offered to prove:  motive, knowledge, intent, etc.

a.  These arise under fact issues at trial.  They prove something in the indictment, there is no character in the indictment.

b.  What form?:  other acts

i.  The other act need not have occurred prior to the charged offense, nor does it have to be similar to the charged offense.

ii.  others acts:  offered by the defense, to show a different person used a distinctive method in committing an earlier crime, and that method was used in this crime too.

c.  The prosecution must provide notice:  allows the defense to adequately investigate the claim of misconduct.

d.  The prosecution may even offer evidence of a prior acquittal.  In this situation it just has to be clear that the jury could reasonably find him guilty.

D.  Methods of Proving Character:  405(a) and (b)

            1.  405a:  Reputation and Opinion Evidence

i.  Reputation:  what the community thinks about a person’s character trait.

ii.  Opinion:  what the witness thinks about a person’s character trait.

2.  405b:  a specific instance of conduct.  HAS to be in the pleadings, the substantive law calls for it.  The character of a person is plead as an issue in a claim or defense.  Cases where character is an essential element of a charge, claim, or defense.

a.  Comes up in pleadings NOT a fact issue like 404b. 

                                                b.  What form:  other acts, reputation, and opinion

c.  Specific examples where seen:  slander/defamation.  Pleading for punitives and a daycare hiring a child molester.  Other than these two, not going to see that often.  Another example is in criminal law, many centuries ago had to prove the victim was a virgin.

d.  Specific Acts:  that relate to the person’s character trait., reputation and opinion may also be used.

 

IV.  HABIT EVIDENCE (Rule 406)

A.  Generally:  evidence of the habit of a person, or the routine practice of an organization when offered to prove that a person or organization acted in conformity with that habit or routine practice on a particular occasion may be admissible.  (and the rule must be read in conjunction with rule 403).

B.  Distinguished from Character Evidence:  a habit is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time.  Habitual acts become semi-automatic. 

C.  Elements to consider:

            1.  Specificity

a.  A person’s general disposition as a careful driver shouls be classified as character, BUT evidence that a person always stopped her car at a particular intersection should be classified as habit due to its specificity.

            2.  Repetition

a.  Evidence of car stopping at a particular intersection once a day is more probative than once a month.

            3.  Duration

a.  Has stopped there for 5 years every day is more probative than only for two months.

            4.  the semi-automatic nature of the conduct.

                        a.  those things that are done without thinking.

                        b.  look at what stimulates those activities to occur.

 

V.  SUBSEQUENT REMEDIAL MEASURES:  applies only when evidence of subsequent remedial measures is offered to prove negligent or culpable conduct, including strict liability in federal courts.  If evidence is offered for proof of ownership, control, feasibility of precautionary measures, or impeachment, the rule does not apply.

            A.  Definitions: 

1.  Subsequent remedial measures:  broader than the word repair.  It encompasses the installation of safety devices, changes in company rules, and discharge of employees. 

2.  The remedial measure must take effect after the accident or incident being litigated.  If takes effect after purchase but before the accident that is not subsequent remedial reassure.

B.  Evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. 

1.  BUT when a subsequent remedial measure is made by a third party, the policy of encouraging such measures is not implicated, and thus the rule does not apply.

C.  The P cannot interject feasibility into the case because Rule 407 is designed to protect against that.  The D has to put it into evidence.  The D has to contest feasibility.

D.  Hypos:

1.  5 year old goes head first down a slide, breaks his neck and dies.  School decides all students must go feet first with an adult holding hand.

a.  This will not come into evidence to show the school was negligent.  This would also apply to safety devices implemented after an accident.

2.  Day care that hires a child molester, daycare center reports and fires him.

a.  Will not usually come in, because we want day cares firing child molesters.

 

VII.  COMPROMISE AND OFFERS TO COMPROMISE

A.  Generally not admissible to prove liability for or invalidity of the claim or its amount.

1.  Policy:  P may see offer to settle as admission of guilt (cannot do that)  We want to promote settlements.

2.  Under common law offer and acceptance were excluded, but statements of fact made by the parties were not UNLESS those statements of fact were said to be raised hypothetically.  OR state the facts were made without prejudice, OR facts that are intimately connected to the offer.

a.  The court does not like this common law rule.  You no longer need a pre-trial agreement to exclude these facts.

b.  You cannot bring up stuff discussed in settlement.

i.  ex:  We know there are 30 toilets broken, so we will settle for 10K less.

c.  You could show biased or prejudice of the witness, Call the person making a report of what is defective and not defective to the stand, problem is they are no longer tied to the party that hired them.

d.  BUT if offered for a different purpose, it does not require exclusion. 

e.  Ex:  Two Defendants.  D1 settles and will now testify for the P.  He can probably get in settlement agreement to show they agreed to testify in the settlement agreement. 

f.  Ex:  Michael Jackson settling, if prosecution went ahead with criminal charges, they could get in settlement of boys promising not to testify in exchange for money to show he was obstructing a criminal investigation.

3.  NOTE this is different from Rule 410 which governs the admissibility of offers to plead guilty or no contest in criminal case.

4.  There must be claim or its amount disputed.  There must be a dispute about who is at fault!

Ex:  car wreck neither claims liability, but there are settlement negotiations.

VIII.  Rule 409:  PAYMENT OF MEDICAL AND SIMILAR EXPENSES

A.  Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.  (remember 403 applies if offered for another purpose)

1.  ex:  car wreck:  “I will pay your medical expenses”, no claim needed inadmissible.  BUT if you say “I will pay for your car” and no claim is admissible.

2.  Policy:  this offer is usually made from humane impulses and not from an admission of liability.  Maybe would discourage the assistance of an injured person.

 

IX.  INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS (Rule 410)

1.  ex:  criminal case 1st, pleads guilty, In civil case, will that plea come in?  Answer in Rule 410.  Not admissible if not guilty later withdrawn, or no contest plea.  BUT if you just plea not guilty, then a problem.

2.  A statement of facts by the D in connection with a no contest or a not guilty later withdrawn are inadmissible.  Also excluded are plea discussions with the prosecution.  Feel free to talk with prosecutor about facts of a case.

3.  careful! Because if the D says “I said earlier I did not mean to hurt her” during a negotiation, the prosecution can expand upon this.  But if just says in settlement “I did not mean to hurt her” this is ok.

4.  Also be aware that plea bargaining discussions with an attorney are inadmissible as well.

5.  Only applies when evidence is offered against the defendant who made the offer, plea, or statement.

6.  NOTE that all of this evidence would be admissible as an admission of a party opponent in the absence of rule 410.

 

X.  LIABILITY INSURANCE (rule 411):  evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.  BUT does not exclude when evidence is offered for another purpose such as proof of agency, ownership, control, bias or prejudice of a witness.

A.  Excludes evidence of liability insurance if offered to prove that a person carrying or failing to carry liability insurance acted negligently or otherwise wrongfully.

B.  Policy:  the jury will say who cares insurance will pay for it.  Are people with insurance more likely to act negligently? 

            C.  Exceptions: 

                        1.  When offered for another reason such as agency or control.

Ex:  to show had insurance.  If you claim the car is not your, if you insure your own car then control.

2.  To show bias or prejudice of the witness.  (remember 403 still operates in this context as well.)

Ex:  Insured by Docs R US.  P puts on docs to show negligence.  D puts on Smith (a lawyer) to show P’s doc has a bad reputation for telling the truth.  P can show Smith is employed by the insurance company. 

XI.  WITNESSES

A.  Rule 601:  General Rule of Competency:  Every person is competent to be a witness except as other wise provided in these rules.  However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the competency of a witness shall be determined in accordance with state law.

1.  Common Law:  (now changed by the fed. Rules) you could not testify if you were an atheist, agnostic, convicted felon, a child, insane, parties to the case (P or D or spouses of either).  Common law was afraid these types of people would lie.

2.  601 Reverses this idea:  All persons deemed competent UNLESS in the rules it states otherwise.  Issue of credibility no longer an issue of admissibility.

            a.  Restrictions:

                        i.  Must swear to affirm or tell the truth AND

                        ii.  From personal knowledge (see, feel, smell, etc.)

            b.  How to put a child on the stand:

                        i.  Never put 1-2 year old, 3 maybe, 4 bottom limit

                        ii.  ask if know difference between a truth and a lie        

                        iii.  then show child can coherently narrate events.

c.  For Erie purposes:  the competency of a witness is a substantive issue and apply state law.

i.  Most states have same rules as 601 for competency.  A few states have a dead man statute.

a.  Dead Man Statute:  a common law doctrine, if a lawsuit and one party is dead, the D may not testify against interest of P who is dead.  “Death has closed the lips of one party, law will close the lips of the other party.”

1.  States that recognized:  when a party to a suit is dead other parties and other interested persons may testify, but not as to communications between them and the dead person.

2.  Applies only to civil cases

3.  Exceptions:

a.  If the statement was heard by someone else that can testify to hearing it.  OR

b.  called by adverse party

3.  605:  Judges cannot testify in a case they are hearing, neither can a juror (606), after a mistrial the juror can testify to show or prove this mis-trial.

4.  606(b):  upon inquiry into validity of a verdict, a juror may not testify to anything during the jury deliberations.

            a.  Exceptions: 

i.  if jury is told extraneous information by a bailiff, or anyone else.

ii.  Bribery of a juror occurs during deliberation

                                    b.  Policy:  if go beyond, not going to have stability of verdicts.

B.  607:  Who May Impeach:  The credibility of a witness may be attacked by any party, including the party calling the witness.

1.  If evidence is offered for impeachment, the jury can only use it to discredit a witness. 

2.  Can impeach your own witness but watch out for Morlang case:  Prosecution calls W1, (government knew testimony would help D) Asked if ever told a fellow prisoner Morlang was guilty, he denied.  Then Prosecution called W2 (a person who talked to Morlang) and said that Morlang told him one of us has to take the rap so other could stay out.  So Prosecution impeaches W1 with W2.  The court’s problem with this was a run around the hearsay rule, W1 was set up to get knocked down.

a.  Rule:  cannot put a witness up solely to impeach to get in evidence of a prior inconsistent statement.

b.  Impeachment:  make a witness look less credible.  It is the act of aking questions, to show witness should not be believed.

c.  Extrinsic Evidence:  outside of the witness’s testimony.  “other than witness’s testimony at trial”

i.  What do you do if a witness lies, so you cannot impeach, then you can SOMETIMES bring in extrinsic evidence to show he is lying.  (ex:  609)

ii.  If witness denies making the statement, questioner may introduce extrinsic evidence if the issue is non-collateral.  If not the issue of the case.

            C.  Rule 613:  Prior Statements of Witnesses (can be written or oral)

(a):  In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

            i.  Only concerned with the written statements. 

ii.  A prior written statement need not be shown to a witness as a prerequisite to an examination on that statement.

iii.  HOWEVER, opposing counsel has a right to inspect the statement upon request, a provision “designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary.”

(b):  Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.  This does NOT apply to admissions of a party-opponent as defined in rule 801(d)(2).

i.  At common law a witness must have been afforded an opportunity to explain or deny a prior inconsistent statement before extrinsic evidence of that statement was admissible.

ii.  BUT in 613(b) it does not require that the witness be afforded an opportunity to explain or deny before extrinsic evidence is introduced, so long as the witness is afforded such an opportunity at some time during the trial.

iii.  under this rule, several collusive witnesses may be examined before disclosure of a joint prior inconsistent statement.

1.  Example of old common law:  Queens case:  lays the rule for X and trying to impeach.  Case said show statement to the witness.  Direct witness’s attention to when it was written and who was present.  (Tx follows this, Federal Rules do not).

a.  Prevents crossing someone with a bogus statement.  Give enough information to admit, deny, etc. If he said yes I did, that is the end of the inquiry.

b.  If the witness says “I deny” or “I cannot answer”, then you get to introduce the statement itself.  Or put on another witness to show he was present when statement was made.

2.  In the federal rules, the witness does not have to be told or shown.

3.  613(b):  if a witness denies statement, 613b says you can still get it in but you have to give witness an opportunity to explain when the statement is introduced.

4.  It must however be the witness’s statement, not a third party’s statement.

5.  Distinguish from 801(d)(1)(A):  In a 613 situation you are only offering for impeachment purposes, I under 801(d)(1)(A) you are offering as substantive evidence.

6. This rule does NOT apply to prior inconsistent conduct

D.  BIAS:  If the fact at issue is to show bias.  A relationship that might lead witness to slant testimony in favor of relationship is always relevant for impeachment. 

1.  Bias is always relevant.  It is trustworthy, the jury’s main function is to determine who to believe.  Bias will help decide who is lying.

2.  There is no federal rule for Bias (TX has one)

a.  The rule that applies is rule 403, relevancy.  Prob. Value v. unfair prejudice.  (a presumption of admissibility).  If the evidence shows bias of a witness and no meant to hurt a D then let it in.  The bias comes from the details. 

b.  Bias is a non-collateral matter and the questioner may introduce extrinsic evidence if witness denies the bias.

c.  Two categories of bias:

1.  a relationship between a witness and one of the parties may be evidence of bias.

2.  The relationship is a favorable one, such as a familial, employment, business, sexual, or other relationship, or it could be hostile caused by prior fights and quarrels.

            E.  RELIGIOUS BELIEFS OR OPINIONS (RULE 610)

1.  Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

2.  BUT if the purpose of showing is to show interest or bias because of religious beliefs it is not prohibited.

Ex:  Disclosure of affiliation with a church which is a party to the litigation would be allowable under the rule.

F.      RULE 609:  IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME: (impeach credibility of accused or non-accused with past convictions to show untruthful character)

a.      General rule. For purpose of attacking the credibility of a witness,

                                                                          i.      The evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to rule 403, if the crime was punishable by death or imprisonment in the excess of one year under the law which the witness was convicted, and the evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused;

1.  Under Luck, the prior rules operated under a theory that rule 403 should govern and would allow a trial judge discretion.  That is now changed.

2.  609 can be used in a criminal or civil proceding

            a.  609(a)(1):  includes all felonies (no misdemeanors)

                        i.  further divided into two sections:

a.  witness other than accused is convicted of a crime AND

b.  the accused is the witness

§         must be a criminal case (only called the accused in a criminal case)

 

ii.  HYPO:  on cross, wants to bring up a prior robbery conviction.  AND non-accused testifying

            i.  Is this a felony

ii.  403 balancing:  Unfair prej. Substantially outweighs probative value.  Presumption of admissibility.

iii.  HYPO:  BUT same facts as above, but the accused is testifying.

            i.  Is this a felony

ii.  Different balancing test used:  prob. Value outweighs the unfair prejudice to the accused.  A presumption of inadmissibility. (does not have to substantially outweigh the unfair prejudice.)

a.       Policy:  if impeached with a robbery conviction and on trial for robbery, once a robber always a robber.

                                                                                                                                                                                                   i.      Ex:  if offering to impeach to show cannot be believed because has a prior conviction.  If a crime of dishonesty, then higher probative value.  Probably not admissible.

b.  609(a)(2):  any evidence that any witness has been convicted of a crime shall be admitted if it includes felonies and misdemeanors of dishonesty and false statements.  (The trial court has no discretion to exclude these convictions.) High probative value

Ø                  Conference Committee Report

o       By the phrase “dishonesty and false statement” the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsfi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accussed’s propensity to testify truthfully

§         1/3 of jurisdictions say that larceny should be included with these, 2/3 say no

2.  can use the conviction document because the conviction is not a collateral matter under 609.  (worth the effort)

i.  You can object that it is hearsay, however there is an exception 803(23) so no problem.

ii.  Object to authentication issue:  this document is truly what it purports to be under Article 9.

iii.  More than 1 Person by that name.  Prove with fingerprints.  (NOTE, you cannot authenticate by photographs)

                                                3.  403 balancing must still be done on the record.

4.  You can try to steal the thunder of your opponent.  On direct, bring up the dishonest crime “have you learned your lesson” under 607 you can impeach your own witness.

c.  If you have motions in liminy, and you tell the judge you do not want the evidence discussed until jury is out.  It does not preserve the error!  You must object to a 609 conviction when it is offered.

d.  609(b):  Time limit:  usually 10 years from either conviction or release from confinement whichever is later.

e.  609(c):  Pardon, no longer a conviction, but parol still a conviction.  If pardon, annulment, or equivalent procedure is based on a finding of innocence, the impeachment value of the conviction is naught.

f.  609(d)Juvenile conviction is generally not admissible.  (Davis v. Alaska was allowed because it was admitted for a different purpose rather to impeach character of the witness)

g.  609 (e) Pending appeal is still a conviction and does not affect the admissibility of evidence of a prior conviction.

Ø             608(b)àyou have to accept a denial from the witness, but not under 609

Ø             for 608 and 609 to apply, you need a testifying witness

 

Impeachment by use of evidenceà608, 609

Ø             the witness is presumed to be truth tellers, you can impeach any of them if you can get up a witness that will testify against the initial witness

Ø             Collateral matter rule

o       No extrinsic evidence is admissible

o       Collateral matterà608(b)

o       Non-material matters w/in a prior inconsistent statement

Ø             Non-collateral matterà609

o       Extrinsic evidence is admissible

o       Impeachment on a material and relevant matteràprior inconsistent statement

 

G.  RULE 608 EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS:  (Witness Credibility)

1.  608 (a):  (Untruthful Character) Credibility of witness (including the accused) attacked or supported by evidence in the form of:

1.  reputation, or 2. opinion as to truthfulness or untruthfulness.  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 otherwise.

*requires the cross-examiner to put on the stand a reputation/opinion witness.  Witness must testify as to another testifying witness’s reputation for being truthful/ or his opinion that the other witness is untruthful.  Once attacked, the testifying witness’s bad character for truthfulness can be supported by good character evidence (ie:  good reputation and/or opinion testimony)

                                    EXAMPLE SITUATION:

a.  D calls W1 to testify, D cannot call W2 to testify W1 had a good reputation for truthfulness.  Bolstering, no good.

b.  BUT:  P can put on W3 to show W1 has a bad reputation for dishonesty.  Then D can come back with W4 to say is honest.

c.  NOTE:  we have seen this before in rule 404, BUT here put solely to impeach a testifying witness, NOT for substantive evidence.

d.  611(b): Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.

i.  AND cross can ask about some specific facts to test the witness’s qualifications to testify about the principal witness’s character.

2.  608(a)(2):  once a witness’s character for truthfulness has been attacked, opinion and reputation evidence showing that the witness has a good character for truthfulness is admissible. 

i.  IF character has been attacked under 608(a), 608(b), or 609, then rebuttal evidence of truthful character is admissible.

3.  608(b):  Prior Specific acts not resulting in a conviction (impeachment by specific instances that have not resulted in a conviction.)

            a.  Only Admissible if

                        i.  the conduct reflects untruthful character (see a below)

ii.  its probative value outweighs the danger of unfair prejudice,

a.  evidence is entrusted to the discretion of the trial judge per Rule 403.

iii.  a good faith basis for the inquiry exists,

a.  have to have a good faith basis in fact for asking the question.

iv.  the evidence is introduced on cross examination (and NOT through extrinsic evidence ie:  another witness)

a.  This rule explicitly prohibits extrinsic evidence in this context.

b.  ex:  the testimony of other witnesses who had observed the conduct, even if testifying witness denies the conduct on cross-examination.

a.  Can ask about a witness’s prior specific acts (if no conviction) but only as they relate to untruthfulness.

i.  Only prior acts probative of untruthful character are admissible. 

ii.  ex:  falsifying a college application, or unemployment benefits

b.  Rule 608 impeachment is always a collateral matter.  No extrinsic evidence to rebut the witness’ denial. (ie:  you cannot call another witness to testify the occurrence of the specific act)

c.  However watch out for the Abel situation where you can get in the evidence if it relates to bias.  (in that case the prison gang)

           

 

H.  RULE 615, EXCLUSION OF WITNESSES “THE RULE”

1.  Allows the judge to exclude all witnesses from the court room except those pertinent to that point in time.

            a.  Excuses all others from the room.

b.  This rule is invoked about 95% of the time.  Either side can invoke the rule.  Judge will instruct that they may not talk to anyone but the lawyers about the case or else held in contempt.

c.  This rule does not exclude

1)      A party who is a natural person

a.       Someone who is not a business entity

2)      An officer or employee of a party which is not a natural person, designated as its representative by its attorney

3)      A person whose presence is shown by a party to be essential to the presentation of the party’s cause, or

a.       Example of an expert

4)      A person authorized by statute to be present

d.  Reason:  a corporation or partnership deserves to be present and see what is going on.  AND jury will wonder why they are not there.

e.  Does not authorize the exclusion of experts.  Base opinions on testimony.  Have to ask the court for permission to do this.

 

I.  COLLATERAL MATTER DOCTRINE:  concerns the question of when can you admit extrinsic evidence to counter an impeachment denial.

            1.  Example:  the letter from carter was admitted.

            2.  Collateral:  not material, just hangs out in the lawsuit

a.  ex:  evidence cannot be admitted to counter a denial or impeachment.

b.  ex:  608(b) Prior Inconsistent Statements

                        3.  Non-Collateral Matter:  extrinsic evidence is admissible.

a.  ex:  609, Prior Inconsistent statement as to a non-collateral matter and can use extrinsic evidence.

4.  So if a prior inconsistent statement as to a material issue, then you can use extrinsic evidence.

CHART OF 607-609, AND 613

METHODS OF IMPEACHMENT

 

                                    Cross Examination                                Extrinsic Evidence

 

A.  Bias                                   yes                                          yes FRE 403 controls

 

B.  Sensory/mental                 yes                                          yes, FRE 403 controls

            Capacity

 

C.  Untruthful Character       

            Reputation 608(a)      not applicable             yes character witness

           

            Opinion 608(a)            not applicable             yes, character witness

 

            Prior conviction

            609                              yes                                          yes, record of conviction

 

            prior acts 608(b)         yes                                          NO

 

D.  Prior inconsistent

Statement                   yes                                          sometimes, 613(b)

requires any time during trial

 

 

 


LAY WITNESS AND EXPERT OPINIONS

 

LAY WITNESS: 701

Ø             If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

o       Rationally based on the perception of the witness, and

§         Based on personal knowledge (602)à5 senses

o       Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and

o       Not based on scientific, technical, or other specialized knowledge within the scope of 702

Ø             Added 3rd prong after Asplundh case

o       b/c it was easier to slip in technical witnesses as lay witnesses rather than expert witnesses

 

TESTIMONY BY EXPERTS: 702

Ø             If scientific, technical, or other specialized skill will assist the trier of fact to understand the evidence or to determine a fact at issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:

o       The testimony is based upon sufficient facts or data,

o       The testimony is the product of reliable principles and methods, and

o       The witness has applied the principles and methods reliably to the facts of the case

Ø             Daubert charged the trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony and Kumho clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science, which is now in the rule.

Ø             Before DaubertàFrye Test: “general acceptance test”

Ø             The expert testimony needs to be relevant and reliable, also have benefit of cross-examination.

Ø             Daubert v. Merrell Dow

o       Factors considered: Daubert factors (not exclusive)

§         Whether the expert’s technique or theory can be or has been tested.  Can’t be simply subjective, has to have the ability to be assessed for reliability

§         Subject to peer review and publication

§         Known or potential rate of error

·        Ask the expert

§         Existence and maintenance of standards and controls

§         Technique or theory generally accepted in the scientific community (from Frye)

o       In a case involving scientific evidence, evidence reliability will be based upon scientific validity

o       Judge to act as “gatekeeper” (104(a))

§         Use these above factors to assist the judge in being the gatekeeper

§         Focus on the reliability of the methodology and not the conclusions

§         Judge is not supposed to determine who has the right answer

§         Gives instructions to the jury regarding the evidence, and its burden

Ø             ProblemàDaubert left us with factors that were not useable in the context of non-scientific experts

Ø             US v. Jones: involved a hand writing analysis expert

§         Determined reliability by

·        Training

·        Work experience

·        Experience

·        The way he explained what he did

 

703: Bases of Opinion Testimony by Experts

Ø             The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the fact or data need not be admissible in evidence in order for the opinion or reference to be admitted. 

o       Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

 

704: Opinion on Ultimate Issue

a)      Except as provided in subsection (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

b)      No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.  Such ultimate issues are matters for the trier of fact alone.

Ø             Can’t say who should win or lose

Ø             lay people usually do not fall under this rule, must go under “some” doctrine (need to find out)

Ø              

 

JUDICIAL NOTICE: 201

Ø             Judicial notice of legislative facts

o       General facts that tend to be studies and their results

§         Effects of segregation on afirican American children

§         Cocaine hydroxide is a schedule 2 drug

§         You can argue it, you don’t have to prove it

§         Is usually general and does not control the juries specific evaluation of the facts

Ø             Judicial notice of adjudiatory facts (jury cannot decide on these facts)

o       Facts that are actually at issue at trial.  This is where 201 applies

o       A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

§         (1)Those facts must be generally known within the territorial jurisdiction

·        “water runs downhill”, well duh

·        sometimes so obvious that you do not need judicial notice, just argue them to jury

§         (2)Fact is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonable be questioned

·        November 12 is on a Wednesday

·        Finger print tests, radar tests are reliable to come in

·        Can ask the judge to take judidical notice of its own records

·        Judge can’t take judicial notice of facts that are within the judges personal knowledge or within a groups personal knowledge

o       Either side can ask or the judge can do it on its own (at its own discretion)

§         Judge has to if party requests and supplies necessary info

o       Have to have notice

o       Can happen at any stage in the proceedings

o       Jury gets instructed

§         In civil, to accept as conclusive any fact noticed

§         Crim, jury may, but is not required to accept as conclusive

o       “Your Honor, I would like the court to take judicial notice that…”

 

BURDENS AND PRESUMPTIONS

301: Presumptions in General in Civil Actions and Proceedings

Ø             In all civil actions and proceedings, a presumption imposes on the party, against whom it is directed, the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast

 

Burden of Proof tells you what in a case?

Ø             Burden of persuasion, and

o       Preponderance in civil, beyond a reasonable doubt in criminal

o       Need to get half way

Ø             Burden of production

o       Burden of putting on some evidence as to each and every issue to which you have the burden

o       Need to get into jury territory

Ø             Civil, burden generally on plaintiff

Ø             Put on evidence if you have the burden, but you must make inferences from the evidence (but the carry no evidentiary wait), but a legal inference (a presumption) is so reliable that the law recognizes it as being worthy of a jury instruction

Ø             Presumption

o       Legal presumptions from statutes and case law

§         Presumption that person is missing for 7 years is that they are dead

o       Sometimes the proof is in possession of ….?????

§         Example of a mailed letter

·        Fact A: letter mailed, properly addressed and postage

·        Fact B: presume that letter arrived in due course

·        Case where recipient denies receiving the letter

·        It throws the proof to the other parties side

§         Human experience presumptions (human experiences tell us it true

·        A child born in wedlock is presumed legitimate

§         Social policy

o       Rule 301 codifies the Thayer Theory of Presumptions (The “bursting bubble” theory or “the bats in the night” theory) crump likes the bats

§         Under this theory there are 3 scenarios (here letter receive) (here P has burden of proof on receipt)

·        P introduces some evidence of Fact A

o       The opponent introduces nothing

§         Result: the P has satisfied his burden of proof on the issue of receipt if the jury finds facts A to be proved by a preponderance (probably will).  P can rely on this unless rebutted.  The judge may direct a verdict on this issue if the jury could only find facts A to be true

o       The opponent introduces some evidence that the letter was not properly mailed (refutting Fact A)

§         Result: issue of mailing will get thrown to the jury, so if jury finds Facts A by a preponderance then will find for P on receipt

·        Here D has contested and lost

o       The opponent contests concluded fact B

§         Result: the bubble of the presumption will burst.  There will be no presumption.  Once you contested the concluded fact, you are no longer entitled to a presumption.  The presumption disappears like bats at the break of dawn.  No jury instruction, they decide the issue without the presumption.

·        This theory shifts the burden of production

§         A presumption that a child is born in wedlock and a  presumption that you have a blood test, and by statute if you satisfy this test you are the legitimate parent of the child.

·        These will cancel each other out.  No legal jury instruction

 

PRIVILEGES

Ø             Attorney-client

o       Against confidential communications

o       The holder of the privilege is the client

o       American National Watermattress case

§         An employee instead of a lawyer came over to take the lady’s statement

§         D wanted the statement.  Argued no privilege b/c she was not a client.  She was just a perspective client, and statement was not made to a lawyer, and no legal points were discussed

§         Court said that that is not an impediment to the privilege.  It is enough if you are consulting with an eye to hire the lawyer.  And that statements to the employee are protected because he is just a conduit or he was a representative of the lawyer.  Common law also extends to intermediaries.  The privilege protects 2 way communication, from the client to the attorney and the attorney to the client

·        Policy reasons

o       Is not protected:

§         If use your attorney to commit the crime of fraud

§         Against the discovery of physical evidence in a case or documents given to a lawyer.

·        Obstruction of justice issue

§         Only applies to private communications (but agents, etc may be present)

·        Cannot have your children present

·        TX said eve droppers presence will also rid the privilege, if you have a reasonable expectation that they might be there

o       But if you take reasonable precautions, generally it will be protected

§         Friendly advise doesn’t qualify

§         Name of client and facts of employment

Ø             Husband-wife

Ø             We are talking about Privileges in federal court

Ø             501

o       they are developed by common law

§         congress did not want them codified

o       however in civil actions or proceedings they are sometimes determined by state law.  In a diversity case in fed court, privileges are an Erie issue

Ø             they protect against the disclosure of confidential information.

Ø             Don’t create a privilege if information is unreliable and irrelevant

Ø             Want to protect relationships

 

 

11/19/03

 

Attorney-client privilege

Ø             File a privilege log during discovery

Ø             Does not apply if use your attorney to commit a crime or fraud

Ø             Or protect the disclosure of physical evidence given to a lawyer by a client

Ø             Applies only to confidential communications

o       A third party present may destroy the privilege

§         But not if interpreter, spouse

Ø             An attorney can wear 2 hats

o       Business advisor and lawyer

§         Business not protected

Ø             Eves droppers can destroy the privilege, unless take necessary precautions

o       Have you taken reasonable precautions to make sure that your conversation is confidential

 

Upjohn Co. v. US

Ø           Test: Control group test

o       Employee knows its for legal advise

o       Within the scope of employee’s corporate duties to give this info

o       Necessary to obtain legal advise for corp.

o       Taken in confidence and held/kept in confidence (kept confidential)

Ø           Attorney-Client privilege and the control group test

o       will not always protect facts coming from the client to the attorney

o       the same with legal advise from the attorney to the client

Ø           Runquist argued that this test was unpredictable, and produces inconsistent results

Ø           Work-product doctrine: attorneys thoughts/notes. Rule 26, bt p. 618                   

o       Protects the written statements, notes, memorandum, legal research, strategy or tactics, motions, pleadings, and possible answers if not filed of the attorney. 

o       Can only get as opposing counsel if show substantial need and undue hardship to obtain.

o       2 situations where it may work

§         witness dead, who is critical to the case

§         if allege fraud or criminal activity

o       there is not attorney-witness privilege

 

The Marital Privilege

Ø             Marital Communications Privilege

o       Communications between spouses from “I do” to “I don’t” are covered forever

§         If divorced, and communication was during the marriage, you cannot testify as to the communication.

§         Applies to civil and criminal cases

§         Who is the privilege holder?

·        CL: either spouse can assert the privilege, but both must waive it.

·        Fed Cts today:

o       Majority: the spouse that made the communication is the holder of the privilege and is the only one who can waive it.

§         It does not apply to acts, unless they are communicative

§         Third parties presence destroys the privilege

·        This includes children who are old enough to understand

§         Privilege may be invoked by a party or witness

§         Exceptions

·        Crimes against spouse, privilege does not apply

·        Crimes against children or step-children, privilege does not apply

·        Planning of a crime of a present crime, privilege does not apply

o       Instance where someone else is listening

·        Case between spouses, privilege does not apply

Ø             Spousal Incapacity Notion

o       Early CL, pre-1933:

§         H and Wife are one, and that one is represented by the husband.

·        Even if husband wanted the wife to testify she could not

o       After 1933: Hawkins and Funk

§         Adverse testimonial Privilege of Spouses (replaced SIN)

·        There is a privilege to testify for or against, but both spouses must waive

·        This notion only applies in criminal cases and if still married at time of trial

·        Can only be claimed by parties, not witness

·        Exceptions

o       Crime against a spouse or their children

·        TX still recognizes this

Ø             Trammel case

o       If waive the privilege can testify to anything she saw, as long as it is not a communication

 

Identity of the Informant Privilege

Ø             There is a reason to protect the identity

Ø             Can be waived by the ct

o       Balance the need of the defendant to have access to potential exonerating evidence that the informant might have.

§         If the informant is a fact witness, his identiy is usually disclosed

§         If probable cause for search or arrest witness ,then probably not disclosed

 

No physician/patient privilege in federal ct.

There is a psychotherapist/patient privilege

 

 

AUTHENTICATION OF DOCUMENTS/EVIDENCE

Ø             All evidence must be authenticated to be admissible

Ø             Photographs

o       Lay the predicate to show that it fairly and accurately portrays the scene of the crime, etc.

§         “fairly and accurately”: You can account for the differences, you don’t have to be exact

Ø             901(b)(1): put on the witness stand someone who can testify that what you are authenticating is what it purports to be.

o       Introduce it as demonstrative evidence, show that it is substantially similar

Ø             It is basically a requirement for anything you can touch or feel, i.e. an exhibit.  Ct reporter must give it a number or letter to mark them.

Ø             Authentication is simply that this thing is what it purports to be.

Ø             Maps, Charts, and Photos (demonstrative evidence)

o       Must be either substantially similar or fair and accurate

o       Photo of victim in a homicide case

§         Fairly and accurately in the morgue

o       Fairly and accuratelyàsubstantially similar, does not have to be exact.

§         It is the judges discretion

Ø             Murder weapons

o       Can be the real weapon or the demonstrative weapon

§         If demonstrative gun or wife, can just ask if this is substantially similar to the weapon that killed the victim

§         If the actual weapon used, going to have to show chain of custody or have a witness, with knowledge, identify the gun as being the same as the one found at the murder scene

·        With the latter of the 2, you can have a homicide detective pick up the weapon at the scene tag it, and do all of the other procedures of keeping and marking the evidence.

o       A particular marking on the evidence

·        Chain of custody: proves that it is unaltered

o       Need to show in 1 or 2 conditions:

§         When you can’t identify it; or

§         Where the condition of the exhibit at a particular point in time is critical.

o       From the scene to the lab to the locker, etc.

o       Can be proved circumstantially

o       Does not have to be a murder weapon

o       901

§         ancient documents will not be on the exam

o       902: Self-authentication (no condition precedent required; good enough

§         seals are important here

§         Domestic Public Documents (Not) Under Seal

§         Foreign Public Documents

§         Certified Copies of Public Records

§         Official Publications

§         Newspapers and Periodicals

§         Acknowledged Documents (notary)

§         Commercial Paper and Relate Documents

§         Presumptions under Acts of Congress

§         She pointed specifically to these two (“about time”)(11 and 12)

§         (11) certified domestic records of

·        a process that will allow these records without someone having to lay the predicate

§         (12) Certified foreign records or regularly conducted activity

·         just for civil cases

§         Just go look at the rule briefly

o       903: Subscribing Witness’ Testimony Unnecessary

§         The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

§         Did not talk about this in class, but in syllabus

 

 

THE BEST EVIDENCE RULE

Ø             not really

Ø             Should be call the “Preference for the original document/recording/photo” rule

Ø             1002-àto prove the content of a writing/recording/or photo, the original is required, except as otherwise provided in these rules

Ø             A writing is anything set down by handwriting, typewriting, etc

Ø             A recording is anything set down by an electronic or mechanical devise

Ø             Photo: pictures or videos or x-rays or x-rays

Ø             “Original”: the original, also includes in addition to the first print, etc. it also includes anything that is made at the same time that is intended to be an original. Defined under 1001(3)

o       Example of a will being on 3 originals

o       All photo negatives and photos therefrom are original

o       All printouts from the computer are originals

o       You have to look at the intent and use of the document at the time it was made.

o       Needed when the content is at issue

o       A fax is an original to a person who receives it

Ø             “Duplicate”: 1003 says duplicate is admissible to the same extent as an original, unless there is bitching

o       unless a genuine question is raised as to the authenticity of the original or under the circumstances it would be unfair to admit the duplicate in lieu of the original

o        

Ø             “Other Secondary evidence”:

o       everything other than an original or a duplicate

o       handwritten notes as to the content

Ø             original is not required: 1004(Admissibility of Other Evidence of Contentsàsecondary evidence is admissible

o       if destroyed

o       cannot be obtained

o       has not been produced by opponent

o       as to collateral matters

Ø             when does the preference for the original kick in:

o       when you have to prove the content of a writing/recording/or photo

o       Example of a tombstone

§         If we are trying to prove that John Doe died on Jan 1 2003, and it is carved in the tombstone, can testify that he is dead without having to show the actual tombstone

§         But the tombstone would have to be shown for instance where there is a breach of contract, i.e. an error on the description.

o       Sometimes the facts will have memorializations and not the event itself. Not required to bring in memorializations when trying to prove whether or not the person did it or not. ????

o       It is not the fact of what happened, but the memorialization of what happened.  If it is simple memorialization the BEST EVIDENCE RULE DOES NOT APPLY..  What is in (the content) the document must be at issue for 1002 to apply

o       Must frequent use is where the is a K

§         Having to prove up the terms of the K

o       Also with pornography

§         The content of the film is at issue when arrested for selling it

o       A photo that infringes on a copyright

o       The content of a forged check

§         The copy of it would probably be considered the original

 

THE REMAINDER OF RELATED WRITINGS OR RECORDED STATEMENTS: 106

Ø             When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

o       ONLY APPLIES TO WRITING AND RECORDED STATEMENT, no oral

o       The witness will be allowed the read the left out part at that time, do not have to wait for cross-examination

o       Where the party is trying to be tricky by reading only part of something, taking it out of context, so

 

 

FINAL

 

 


RULES

 

HEARSAY

Ø             801 (a)-(c): definitions

Ø             801(d): Statements which are not hearsay

o       (1) Declarant testifies at trial or hearing, subject to cross

§         (A) Prior inconsistent sworn statements

§         (B) Prior Consistent Statements, whether under oath or not, to rebut charges of witness misconduct

§         (C) Statements of Prior Identification of a Person

o       (2) Admission by Party-Opponentàstatement offered by the opponent

§         (A) A party’s own statement (either individual or representative capacity)

§         (B) Adopted Statement

§         (C) Statements by a Party’s Authorized Spokesperson

§         (D) Statements by a Party’s Agent, Employee, or Servant

§         (E) Statements by a Party’s Co-Conspirator

Ø             803: Declarant Availability Immaterial Exceptions

o       (1) Present Sense Impression

o       (2) Excited Utterance

o       (3) State of Mind (then existing mental, emotional, or physical condition)

o       (4) Statements for the Purpose of Medical Diagnosis

o       (5) Recorded Recollection

o       (6) Records of Regularly Conducted Activity (The Business Record Excep

o       (7) Absence of Entry in Business Record

o       (8) Public Records and Reports

§         (A) Activities of the Office or Agency

§         (B) Matters Observed and Reported Pursuant to a Duty

§         (C) Factual Findings

§         unless lack trustworthiness

o       (9) Records of Vital Statistics (Birth, fetal death, death, marriage)

o       (10) Absence from Public Record or Entry

Ø             804: The Declarant Unavailable Exceptions

o       (a) Defining Unavailability

§         (1) Privilege

§         (2) Refusal to Testify

§         (3) Lack of Memory

§         (4)Death, Illness, Infirmity

§         (5) Absent From Hearing (unable to procure attendance, and if used under 804(b)(2),(3), or (4), must also be unable to depose him to procure the declarant’s testimony

o       (b) Hearsay Exceptions when Declarant is Unavailable

§         (1) Former Testimony

§         (2) Statement under Belief of Impending Death (Dying Declaration

§         (3) Statement Against Interest

Ø             807: The Residual Exceptionà “The Catchall”

RELEVANCY AND ITS COUNTERWEIGHTS

 

Ø        401: Definition of “Relevant Evidence”

Ø        402: Relevant Evidence Generally Admissible

Ø        403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time

Ø        404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

o       (a) Character Evidence Generally

§         (1) Character of the Accused

§         (2) Character of the Alleged Victim

§         (3) Character of Witness (as provided in 607-609)

o       (b) Other crimes, wrongs, or acts

Ø        405: Methods of Proving Character

o       (a) Reputation or Opinion

o       (b) Specific Instances of Conduct

Ø        406: Habit; Routine Practice

Ø        407: Subsequent Remedial Measures

Ø        408: Compromise and Offers to Compromise

Ø        409: Payment of Medical and Similar Expenses

Ø        410: Inadmissibility of Pleas, Plea Discussions, and Related Statements

Ø        411: Liability Insurance

Ø        412: Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition

o       (a) Evidence generally inadmissible

o       (b) Exceptions

Ø        413: Evidence of Similar Crimes in Sexual Assault Cases

Ø        414: Evidence of Similar Crimes in Child Molestation Cases

Ø        415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation

 

WITNESSES

 

Ø             601: Competency

Ø             602: Lack of Personal Knowledge

Ø             603: Oath or Affirmation

Ø             604: Interpreters

Ø             605: Competency of Judge as Witness

Ø             606: Competency of Juror as Witness

Ø             607: Who May Impeach

Ø             608: Evidence of Character and Conduct of Witness

o       (a) Opinion and Reputation Evidence of Character

o       (b) Specific Instances of Conduct

§         (1) concerning the witness’ character

§         (2) concerning the character of another witness

Ø             609: Impeachment by Evidence of Conviction of Crime

o       (a) General Rule

§         (1) deals with witness other than accused and accused and felonies

§         (2) crime of dishonesty or false statement

o       (b) Time Limit

o       (c) Effect of Pardon, Annulment, or Certificate of Rehabilitation

o       (d) Juvenile Adjudication

o       (e) Pendency of Appeal

Ø             610: Religious Beliefs or Opinions

Ø             611: Mode and Order of Interrogation and Presentation

o       (a) Control by Court

o       (b) Scope of Cross-Examination

o       (c) Leading Questions

Ø             613: Prior Statements of Witnesses

o       (a) Examining Witness Concerning Prior Statement

o       (b) Extrinsic Evidence of Prior Inconsistent Statement of Witness

Ø             615: Exclusion of Witnesses

 

LAY AND EXPERT OPINION

Ø             701: Opinion Testimony by Lay Witnesses

Ø             702: Testimony by Experts

Ø             703: Basis of Opinion Testimony By Experts

Ø             704: Opinion on the Ultimate Issue

 

JUDICIAL NOTICE

Ø             201: Judicial Notice of Adjudicative Facts

 

BURDENS AND PRESUMPTIONS

Ø             301: Presumptions in General in Civil Actions and Proceedings

 

PRIVILEGES

Ø             501: General Rule

 

WRITINGS AND EXHIBITS: THE AUTHENTICATION REQUIREMENT

Ø             901: Requirement of Authentication or Identification

Ø             902: Self-Authentication

Ø             903: Subscribing Witness’ Testimony Unnecessary

 

WRITINGS, PHOTOS, AND RECORDINGS: THE BEST EVIDENCE RULE

Ø             1001: Definitions

Ø             1002: Requirement of Original

Ø             1003: Admissibility of Duplicates

Ø             1004: Admissibility of Other Evidence of Contents

Ø             1005: Public Records

Ø             1006: Summaries

Ø             1007: Testimony or Written Admission of Party