evidence notes compilation

Lecture 1, Week 1Monday, August 23, 20108:21 AM

I. Trial i. Plaintiff

1. Expert testimony as to the standard of care 2. Breach of the standard of care 3. Damages proximately caused

ii. Defendant 1. Affirmative defenses

iii. Failure to get certain evidence into the record can be the death of a caseII. Federal Rules of Evidence

i. 11 Articles ii. 67 Rules

iii. utilized in criminal and civil cases iv. Many states have modeled their evidence codes to the FRE v. Congress authorizes the federal judiciary to prescribe the rules

1. Congress can make changes to the proposed rules or do nothing and let it go into effect Dec 1st of that year.

III. Litigation Stages i. Pretrial

1. Utilization of discovery tools (evidence need not be admissible to be discoverable)2. Summary Judgment - testing sufficiency of the facts ("there is no material facts in dispute

here. Judge may make a decision based on law alone.")a. FRCP 56

3. 1982 Proposition 8 - proposed amendment to the CA constitutiona. Relevant evidence should not be excluded for any reason

4. Begins the moment the client walks into the office ii. Trial

iii. Post Trial IV. RULE 101: Scope

i. Govern proceedings in the courts of the US V. RULE 1101: Applicability of Rules

i. (a) Proceedings generally1. These rules apply generally to civil actions and proceedings, including admiralty and

maritime cases, to criminal cases and proceedings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under title 11, USC

ii. (d) Rules inapplicable 1. The rules (other than with respect to privileges) do not apply in the following situations

a. Preliminary questions of factb. Grand juryc. Miscellaneous proceedings

VI. State or Federal Court i. Federal courts will look to state laws for presumptions, competency of witnesses, and privileges

ii. A judge must follow the FRE even if she is the factfinder 1. These rules aren't followed to the letter

VII. Rationale for Rules i. Regulate the evidence submitted to a jury (mistrust of juries)

1. Concern that the jury can be misled 2. Even though the evidence may be relevant, it may be excluded at time of trial

ii. Provide a mechanism to favor/disfavor certain claims or parties 1. Provide a certain standard - e.g. "proof beyond a reasonable doubt"

iii. Provide a mechanism for accurate fact-finding iv. Provide a mechanism to encourage important policies unrelated to the present litigation

1. Important public policies changed due to trial and evidencev. Provide a mechanism for the protection of private relationships

1. Spousal privileges vi. Provide a mechanism to limit the scope and duration of trials

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1. All non-relevant evidence is not admissible 2. Relevant evidence is admissible with certain exceptions

vii. Allow for due process at the trial VIII. Closing argument is a way to talk directly to the jury

i. 3 opportunities to talk to the jury 1. Voir dire 2. Opening statements 3. Through your witnesses 4. Closing statements

IX. Objections to Closing Arguments (example) i. Addressing the jury by name

ii. Inflammatory arguments iii. Misstating law or facts iv. Unduly emotional argument v. Urging matters outside of the trial record

vi. Mentioning the wealth or poverty of the parties (exception: punitive damages case) X. Litigation Process

i. Complaint and Answer ii. Pre-trial Discovery

iii. Pre-trial Motions iv. Motions in Limine

1. Exclude mention or reference to certain pieces of evidence so the jury doesn't hear it (e.g. attorney's fee)

v. P's Opening Statement 1. They go first because they have the burden of persuasion 2. Traditionally, the party who has the burden sits closest to the jury

vi. D's Opening statement vii. Case-in-chief of P

1. Must prove what you tell the jury in the opening statement to the jury viii. Motions at the close of P's case

1. D asking for directed verdictix. Case in chief of D x. Rebuttal Evidence

xi. P's closing argumentxii. D's closing argument

xiii. P's rebuttal argument xiv. Arguments regarding jury instructions

1. Should help the jury walk through the jury instructions and get to the answer you want 2. Should NOT ignore these instructions in your closing argument

xv. Jury instructionsxvi. Jury deliberation

xvii. Verdict and entry of judgment xviii. Post-trial motions

xix. Appellate review XI. Objections

i. Addressing juror by name 1. It is improper to identify a particular juror and address that juror by name

ii. Vague and ambiguous1. Trier of fact would have to guess part of the facts asked and answered

iii. Assumes facts not in evidenceiv. Argumentative

1. Sometimes its better not to say too much - asking "why would you come to court if you were obviously intoxicated at the time?" opens up the door for the witness to give a good answer

v. Asked and answered 1. You can't continually ask the question again if it has already been appropriately answered -

you can't just keep asking because you don’t like the answer vi. Compound question

1. Multiple questions asked at oncevii. Calls for a narrative

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1. Witness interviews should be question and answer alone - don't ask the jury "what happened?"

viii. Unresponsive 1. Answering a question that was never asked when a different question should be answered

ix. Speculative 1. Asking the witness for opinions, not facts

x. Opening Statement Objections1. Addressing jurors by name2. Argument of the facts of law 3. Arguing the credivility of anticipated witnesses4. Referring to evidence which has been excluded by motion in limine

xi. Closing Argument Objections xii. Objections: rules to live by

1. Act promptly 2. Know your judge3. Always be courteous 4. Reserve objections for important matters 5. Be specific 6. If you have more than one objection, state them all

a. If you don't, it may not be available on appeal 7. Request the court make appropriate instructions on evidence 8. Decide whether you want to be heard at side bar 9. When appropriate, use the opportunity during your opponent's direct examination to voir dire

the witness for the purpose of an objection a. You have a right to assist yourself in formulating your objections

10. Must know the rules of evidence and be comfortable utilizing them xiii. Without a timely objection/offer of proof, the appeal issue is not preserved - you waive your right to

appeal on this issue xiv. We are NOT entitled to an err free trial - we are entitled to a right of appeal

1. Not all mistakes made in the original trial is accessible 2. Err must be more than just harmless error

xv. "Rulings on evidence cannot be assigned as error unless (1) a substantial right is effected, and (2) the nature of the error was called to the attention of the judge…

xvi. Successful appeal is a timely or proper objection or offer of proof must have been made 1. Appellant must establish that the trial court's evidentiary ruling was in error 2. The AC must be persuaded that the error effected a substantial right of the appellant (harmful

error) - reversible error or prejudicial errorxvii. Offer of proof

1. On the record, shows what witness would have said if witness was allowed to testify2. Either on the stand or outside the presence of the jury 3. if you don’t put this in the record, the AC cannot see the error

xviii. Objection, general objection is not available on appeal - must be specificxix. RULE 103: Rulings on Evidence

1. Effect of erroneous ruling. Error must not be merely harmless a. Objection - timely objection b. Offer of proof - substance of the evidence was made know to the court

2. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal

a. Imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point

3. Trial court has the power to add or exclude things 4. Rule 103(d) Plain error - attempt by drafter of FRE to say there are situations so egregious

and blatant that the appellate court should fix it even without an objection a. If no timely objection is more likely to be allowed compared to no timely offer of proof b. CA evidence rules does not have a plain error rule - CAE 353

i. Can't set aside if evidence erroneously admitted or excluded - eve if there was error

ii. Must result in a miscarriage of justice, not just harmful error

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c. CAE 354 - exclusion of evidence i. Error, miscarriage of justice AND

1. Made known to the court OR2. Court rendered making an offer of proof futile OR 3. Evidence was sought by questions asked during cross or re-cross

examination XII. Question 1B

CD joins with AB as the second plaintiff in the suit against EF. The defense offers testimony by police officer H, based on measurements of skid marks at the scene, that B's Fiat was traveling at a speed of about 50mph just before entering the intersection. (The posted limit was 35 mph.) Counsel for B objects that "officer H is not qualified as an expert in accident reconstruction," and that "estimates of speed based on skid marks involve sheer speculation and are not helpful to the jury."

The court overrules the objections; the jury returns a verdict for F; the court enters judgment that B and D take nothing, and that their claims be dismissed with prejudice. D appeals, and F argues that his appeal should be dismissed because of his failure to object below. Should he prevail on this argument? Why or why not?

P should know the requirement of the jurisdiction. Ask the judge if the court wants us to make individual objection on the record - should be made on the record before trial

RULE 104i. (a) questions of admissibility generally - prelim questions concerning the qualifications for being a

witness shall be determined by the court/judge (not bound by the rules of evidence aside from privileges)

1. Facts affecting competency of evidence 2. Requirements for a privilege3. Requirements for hearsay exceptions 4. Lack of mental capacity 5. Qualifications of a witness as an expert

ii. Exemption (b) XIV. RULE 105 - Limited admissibility

i. Evidence which is admissible as to one party but not for another ii. Party seeking admission of evidence can be required to specify the purpose

iii. Restricted to proper scope and instructs jury accordingly iv. Close relationship between this rule and rule 403

1. The present rule recognizes the practice of admitting evidence for a limited purpose and instructing the jury accordingly

v. Alternatives to limiting instructions 1. Exclusion 2. Redaction3. Separate trials

vi. CA law is almost the same as rule 105 in this regard XV. RULE 106 - rule of completeness

i. Adverse party to require the introduction of full evidence - must be read in context ii. 2 considerations

1. Misleading impression 2. Inadequacy of repair work

iii. Adverse party may require the introduction at that time of any other part to be considered contemporaneously with it

1. Only applies to writings and recordings 2. 611(a) obligates the court to accept the rule of completeness to oral testimony as well

iv. This does not open the door to read everything v. CAE 356 - broader, takes into consideration conversations

XVI. Real Evidence i. Refers to the tangible thigns directly involved in the transactions or events in litigation

XVII. Direct vs. Circumstantial i. Direct: evidence which, if accepted to be true, establishes the point for which it is offered

ii. Circumstantial: facts which if proved, may provide a basis for an inference that other facts are true 1. Permissible factual inferences (given A, you infer B)

XVIII. Original vs. Prepared i. Original: evidence which existed as part of the event or transaction in question at the trial

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ii. Prepared/Demonstrative: evidence which is prepared for use in the present case. 1. Have to have a foundation, testimony as to authenticity

XIX. Order of Witness Examination i. Direct (by party calling the witness)

ii. Cross (by opposing party) iii. Redirectiv. Re-crossv. Further redirect and re-cross

XX. RULE 611 Mode and Order of Interrogation and Presentation i. Court shall exercise reasonable control over the mode and order of interrogating witnesses and

presenting evidence ii. Limited scope of cross-examination

1. Limited to the subject matter of the direct examination and matters affecting the credibility of the witness

2. Limited cross-examination a. A part vouches for his own witness to the extent of matters elicited on direct b. Party cannot ask their own witness leading questionsc. Promotes orderly presentation of the case

XXI. Question 1A At the intersection of Folsom and Valmont two cars collide - a yellow Fiat driven by AB, in which

CD rode as passenger, and a blue Buick driven by EF. In a Rules jurisdiction, B sues F for personal injuries and property damage. During her case-in-chief, B calls CD, who testified on direct examination that "the Buick ran a red light."

On cross-examination, F's counsel asks the following questions:1) Now Mr. D, you and Ms. B are seeing each other socially, isn't that right?

Goes to the credibility of the witness - allowable 2) Isn't it true, Mr. D, that at the time of the accident Ms. B here had turned clear around in her seat and was looking out the back window of the car?

May be allowable - difference between a narrow interpretation or broad interpretation (what he saw rather than just the light)

3) Tell me, Mr. D, you and Ms. B here had just finished lunch at Sebastian's where she drank three glasses of wine just before the accident, isn't that right?

Not allowable because while it goes toward credibility, it's not going to the credibility of the witness on the witness stand

To each question B's counsel objects, "Improper as beyond the scope of direct, your honor." How should the judge rule in each instance, and why? What arguments do you expect from B and F?

Lecture 2, Week 1Monday, August 30, 20108:48 AMLeading Questions

I. Definition: any question that suggests the desired answer 1. Example: "isn't it true that before you left, you closed and locked the gate to the pool?"2. Non-example: "what, if anything, did you do when you left your home on that day?"3. You would not want to use leading questions on direct because it would make the jury think you are

manipulating the witness 4. You should be able to disappear and let the witness tell the story for you

a. Must be prepared - prepare the witness to communicate to the jury II. RULE 611c: Mode and Order of Interrogation and Presentation

1. Leading questions are not to be used on direct 2. Leading question on cross is a matter of right

a. Qualification 'ordinarily" denying leading questions on cross in form only 3. Court states that trial judge can allow in their discretion for leading questions

III. Exceptions (may use leading questions on the following) 1. Preliminary matters 2. Hostile witness 3. Adverse party 4. Witness identified with an adverse party5. Forgetful or frightened witness

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6. Child witness IV. Scope restriction

1. Scope of direct2. Credibility of witness on stand 3. Judge's discretion

V. Cross-examination 1. Never give up your own credibility by putting up testimony that is not credible 2. If you have to put a witness on with information that you don't want to come out on cross, bring it up

on direct so that you can frame it in a way most favorable to yourself 3. Effective cross-examination

a. Take full advantage of pre-trial discovery a. Can be utilized to give you an advantage on cross-examination

b. Be prepared (be able to give your closing argument even before the trial starts) c. Utilize cross only to support your arguments d. Listen carefully to the witnesses answer e. Do not quarrel f. Do not give the witness the opportunity to once again tell his or her story g. Never permit the witness to explain h. Avoid the one too many questionsi. Respect the intelligence of the jury j. Be succinct k. Be simple l. Always use leading questions m. Never ask questions to which you don't already know the answer

a. You have NO idea what they are going to say VI. Testifying witnesses

1. If they are in the courtroom, you can ask the judge to make them leave so they cannot hear other witnesses testimony

2. Exceptions a. Party b. Victim

3. RULE 615: Exclusion of Witnessa. At the request of a party the court shall order witness exclusion so that they cannot hear the

testimony of other witnesses, and it may make the order of its own motion b. The victim is entitled to be present at all public court proceedings unless their presence would

be materially affected by the testimony c. Does not authorize exclusion of

a. natural personb. officer or employee of a non-natural personc. person whose presence is shown by a party to be essential to the presentation of the

party's caused. person authorized by statute to be present e. Investigative agent at counsel table throughout the trial although the agent is or may be a

witnessVII. Refreshing Recollection

1. Ask for recess2. Ask leading question 3. Refresh present recollection

a. Use deposition b. You can use ANYTHING you want (EVEN inadmissible documents)

a. Example: hand the witness her diary to read and refresh her memory - she CANNOT just read straight from the diary though - can only be used to refresh i. You would have to give the diary to the other side to review the evidence as well -

other side may put this into evidence 4. Seek to have memory refreshing evidence put into the record 5. May not assist or school a witness in twisting or distorting the witness' memory 6. RULE 612: Writing used to Refresh Memory

a. (Except in 18 USC 3500) If a witness uses a writing to refresh memory for the purpose of testifying, either

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a. While testifying orb. Before testifying, if the court in its discretion determines it is necessary in the interests of

justice b. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-

examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness

c. If writing contains matters not related to the subject matter, the court may examine, excise d. If a writing is not produced or delivered pursuant to order under this rule, the court shall make

any order justice requirese. in criminal cases when the prosecution elects not to comply, order shall be to strike the

testimony or declaring a mistrial f. This does not wipe out the other sections of the law (i.e. attorney-client relations or work

product) 7. Jencks Act (18 USC 3500)

a. Prevent abuse of prosecution witness b. Bars discovery by defense of prosecution witness before they testify c. Entitles D to production of

a. any document signed b. Any recording/transcription they are entitled to c. Any statements/testimony before the grand jury

d. Cannot get this information before witness testimony e. Provides that the government/prosecutor be required to produce a verbatim statement or report

made by a government witness or prospective government witness (other than the defendant), but not until after the witness has testified.

Lecture 3, Week 2 Wednesday, August 25, 20108:26 AMWitness Competency

I. Personal Knowledgei. Witnesses must have personal knowledge of certain events that transpire

1. Exception: expert witnesses 2. Eligibility of witness to take the stand

ii. RULE 601 1. Every person is competent to be a witness except otherwise provided in these rules2. 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 to state law 3. Grounds abolished

a. Religious beliefb. Conviction of crime c. Connection with litigation of party

4. Discretion is regularly exercised in favor of allowing the testimony 5. Witness wholly without capacity is difficult to imagine 6. Question is one particularly suited to the jury as one of weight and credibility

iii. US v. Lightly 1. Inmate (McDuffy) was not allowed to testify because they were determined to be criminally

insane a. He would have testified that he alone, and not D, had attacked P

2. McDuffy cannot be prosecuted because he is insane 3. Liberal adoption to competency 4. Court states that being criminally insane does not make him incompetent to testify

iv. Ricketts v. Delaware 1. Child is competent to testify even though she does not know what perjury is

v. To be competent, you must1. Take an oath

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2. Witness must have perceived something - have personal knowledge (exception: expert witnesses)

3. Some minimal recollection (does not have to be perfect) 4. Able to communicate to the trier of fact - may use a translator

vi. Up to the jury to weight the credibility of the witness vii. Exceptions

1. Jury members2. Judge3. Dead Man's statutes 4. Spousal exclusion

viii. RULE 603: Oath or Affirmation 1. Witness has to declare that he will testify truthfully 2. Flexible - simply a solemn undertaking to tell the truth 3. US v. Fowler

a. Even a criminal accused can be excluded from testifying at trial if he refuses to take an appropriate oath (doesn’t pass constitutional muster)

ix. RULE 602: Lack of Personal Knowledge 1. Unless evidence is introduced sufficient to support personal knowledge

II. Peacock's Tale i. Challenged for lack of personal knowledge unless qualified as expert witness

ii. Witnesses should be testifying based on present knowledge and recollection of having perceived something

III. Judges as witnesses i. RULE 605

1. A judge may be a competent witness but CANNOT preside over the trial if they are a witness 2. Problem arises when judge questions witness - asking leading questions or trying to inspect

their own thoughts - have to object (improper)IV. Lawyers as witnesses

i. While there is no federal rule, it violates professional responsibility ii. Witness testifying inconsistent with what they told you

1. Always bring someone else with you - investigator/paralegal/etc. a. That way, you can call that person to the stand if you have to

2. Record - signed affidavit V. Juror as witness

i. RULE 6061. A member of the jury may not testify in the trial of the case in which the juror is sitting 2. (b) Inquiry into validity of verdict or indictment

a. Juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything on his or any other juror's mind that influenced his decision for verdict

b. Juror MAY testify to i. extraneous prejudicial information

ii. outside influenceiii. Pre- and post-deliberative conduct iv. a mistake in entering the verdict

c. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying

ii. Tanner v. US1. 2 juror comes forward stating that some of the jury were getting drunk and doing drugs during

deliberation 2. SC states that juror affidavit is NOT admissible because the drugs and alcohol do not count as

"outside influence" 3. Dissent (Justice Marshall)

a. Juror misconduct involving objectively verifiable conduct occurring prior to deliberations should be admissible

b. Would accept juror intoxification as "outside influence" exception 4. If court were to accept the affidavit, it would cause a slippery slope effect where anything that

could have influenced the juror's state of mind would be considered admissible evidence (eg lack of sleep, too much caffeine, etc.)

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5. Court states that it is inside the deliberations and should not be brought in a. Judge can "wake" juror up

iii. Huror lying on voir dire can be brought up 1. Don't want to admit to being racist in front of people 2. Actually want to be a juror

iv. Polling the jury 1. Never do it if you win but it would be a good idea if you lose 2. Judge will ask each juror if the verdict is their "final answer"

v. Rules allow for correction of clerical errors VI. Dead Man's Statutes

i. person interested in case is incompetent to testify against a decedent ii. the decedent would not be able to defend themselves/rebut

VII. Hypnotized Witnessi. Rock v. Arkansas

1. Facts a. Wife is accused of shooting her husbandb. She cannot remember what happens but is hypnotized into recalling c. Hypnosis causes her to remember that she did not shoot him but it was an accident - the

gun just went off d. Gun expert states that the particular gun that she had is prone to firing on its own

2. Rationale a. Per say rule: cannot have hypnotically refreshed evidence introduced in court b. SC reverse the trial court's denial of hypnotized testimony

i. Does not pass constitutional muster ii. Doesn't say a state can't limit or exclude testimony - the Arkansas rule

inappropriate though (straight up denial)VIII. Review on Competency

i. Witnesses doesn't have to believe in God but must take an oath to tell the truth ii. Witness must have personal knowledge (with few exceptions)

iii. Bridge temporal gap - remember and be able to communicate iv. RULE 601: General Rule of Competency

1. Every person is competent to be a witness with respect to an element of a claim or defense as to which state law supplies. Competency is determined by State Law

v. Competency is not saying that the witness is credible 1. Witness can take the stand however the witness' credibility is put at issue when she takes the

oath a. You don’t have to delay attack on credibility

IX. RULE 614: calling and interrogation of Witnesses by Court i. Calling by court: court may, on its own motion or at the suggestion of a party, call witnesses, and all

parties are entitled to cross-examine witnesses thus called ii. Interrogation by court: court may interrogate witnesses, whether called by itself or by a party

iii. Objections: objections to calling or interrogation may be made at the time or earliest time when jury is not present

iv. Advisory committee note1. Authority of the judge to question witnesses is also well established 2. Authority is abused when judge abandons his proper roll and assumes that of advocate 3. Manner in which interrogation should be conducted and proper extent are not susceptible of

formulation in a Rule

1. Rock v. Arkansas 2. Tanner v. US

Lecture 4, Week 2Wednesday, September 01, 201012:54 AMJudicial Notice

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I. Definition i. Court determines certain facts of law without formal need for proof

II. Types i. Adjudicative facts

1. Who, what, when, how of the given case a. Facts in which the law are applied b. Facts in which the jury determines - facts of the case which the trier of fact determines

based upon the application of the given law c. Judicial notice results in this fact being true without formal presentation of evidence. It is

a substitute for formal proof at the time of trial 2. Without judicial notice of an adjudicative fact, that fact MUST be proven in another way 3. Facts capable of accurate and ready determination are acceptable

a. Almanac type facts (when a full moon occurred, day of the week, etc.)b. Scientific basis for accepted scientific tests (blood tests, etc)

4. FRE 201 - ONLY applies to adjudicative facts a. To get around this rule, you may try to argue that the facts are legislative instead of

adjudicative fact b. 201c: May be discretionaryc. 201d: Mandatory: court shall take judicial notice if requested by a party and supplied the

necessary information d. 201e: Time of taking notice: can be taken at any stage of the proceeding (before, during,

or after trial-appeal) e. 201f: Opportunity to be heardf. 201g: Instructing jury

i. In a civil case, jury must accept the fact as conclusive ii. In a criminal case, jury may but is not required to accept the fact as true

1. If judicial notice is taken on appeal, goes around 201(g) - NOT allowedii. Legislative facts

1. Fact that has legal significance beyond the current case 2. Facts relevant to legal reasoning

a. Formulation of a ruling principle or ruling by a judge in enactment of a legislative body 3. Rule 201 DOES NOT APPLY4. Examples

a. Roe v. Wade: SC use of data related to mortality rates for early abortionsb. Brown v. Board of Education: SC use of social science studies showing that segregation

creates a feeling of inferiority 5. Muller v. Oregon

a. Court holds a rational basis for an Oregon statute limiting the hours women can work in laundries and factories to 10 hrs a day

b. At the time, there was a widespread social belief on the frailty of women c. States "when a question of fact is debated and debatable, and the extent to which a special

constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration" i. Judicial notice was allowed

6. Houser v. Statea. Issue: Is there a rational relationship between the drinking age of 21 and the purposes

sought to be served?b. Washington Supreme Court states "to ascertain whether a rational relationship existed

between the 21 year old drinking age and a legitimate state purpose, the trial court took judicial notice of the studies submitted to it by the state"

c. States that is a question of law, not fact i. "a court may ascertain as it sees fit any fact that is merely a ground for laying down

a rule of law" - in order to make judgments on the law, courts must look beyond the case and towards society

ii. Reputable scientific studies are allowed to be judicially noticed III. Government of the Virgin Islands v. Gereau

i. Facts1. D was found guilty of murder, assault and robbery2. Appeal stating that the verdict was not freely assented to by all the jurors

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3. A juror (Cappin) had come up testifying that another (Foye) had spoken to her about the case 4. Foye denies the claim - each juror's word against the other 5. Trial judge states that while both jurors are credible, he was going to listen to Foye because of

his personal knowledgeii. Rationale

1. A judge may only make opinions on matters of common knowledge or those that are "capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy"

2. Court states that it was improper for the judge to base his ruling on personal, subjective knowledge

3. A judge's personal knowledge (adjudicative fact) is not applicable for judicial notice iii. Appeal is not won because it was not prejudicial - harmless error iv. A party cannot always be certain under 201 that judicial notice will be taken

IV. United States v. Jonesi. Facts

1. D was convicted of illegally eavesdropping on his estranged wife 2. Called for an acquittal because the government failed to prove 1 element of the federal

eavesdropping statute 3. P appealed, urging that judicial notice be taken by the appellate court

ii. Rationale 1. Rule 201(f) states that judicial notice can be taken at any time in the trial court or on appeal 2. Big difference between civil action and criminal cases

a. Judicial notice on civil cases is conclusive b. In criminal case, jury is not bound to accept the judicially noticed fact and may disregard

it if they want to [201(e)]3. If judicial notice is to be taken at the appellate level, it leaves no room for the jury to "pass upon

facts which are judicially noticed" iii. Holding: Affirmed - "Rule 201(f), authorizing judicial notice at the appellate level, must yield in the

face of the express congressional intent manifested in 201(g) for criminal jury trials."V. United States v. Gould

i. Ds were convicted of importation of cocaine 1. The product they brought in was "cocaine hydrochloride" - a Schedule II drug accepted by the

court on judicial notice of being a biproduct of the coca leaf ii. Debate was over whether the court could tell the jury that they must accept the fact to be true

1. Whether the fact was adjudicative or legislative 2. Once the court states that the fact is legislative, rule 201 doesn't apply

iii. Courts state that legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally

1. Adjudicative facts are those developed in a particular case iv. Using the definitions, court find that the facts were legislative and 201g does not apply (adjudicative

facts for criminal cases may, not must, be accepted subjectively)v. Court did not err on telling the jury they must find the facts to be true.

vi. If the question is something that the jury would have to decide (who, what, when, where) = adjudicative fact (201 covers)

1. If it is more of a statement of law = legislative fact a. Example: a gun is considered a dangerous weapon

VI. Minimum elements for trial i. Judge - orchestrates the trial

1. May decide the facts if there is no jury ii. Trier of fact - jury function

iii. At least 2 parties iv. At least 1 issue - one point of disagreement

1. Is there a genuine issue of material fact for the jury to decide upon? v. Motion to dismiss

1. Failure to state a claim 2. Assuming that every material fact is true, they still don't have a case 3. Partial summary judgment

vi. Trial: evidence regarding disputed issues --> trail

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Lecture 5, Week 3 Wednesday, September 08, 20109:00 AMPresumptions

I. Burden of Proof i. 2 components

1. Burden of going forward (burden of production) 2. Burden of persuasion

ii. Prosecution goes first because it has the burden of production and persuasion iii. When the prosecution is done with the case, there is a motion for direct verdict from the defense

1. States that the prosecution failed to fulfill their burden of production 2. At this point, judge needs to decide whether to grant or deny the motion for summary judgment

iv. Prima facie "box" - burden of going forward 1. Judge determines whether there is enough evidence for a reasonable jury to decide one way or

another 2. if the party carries the burden of going forward on any given issue, then that party must produce

sufficient evidence to support a jury finding in its favor on this issue 3. Failing to satisfy this burden will result in a motion to dismiss or a motion for directed verdict

being granted4. Satisfied if sufficient evidence is submitted to create a fact question so that the jury may

determine this fact questionv. Persuasion "box" - burden of persuasion

1. Jury decides whether or not they are persuaded 2. Level of persuasion is instructed to the jury by the judge

a. Preponderance of the evidenceb. Clear and convincing evidence

i. Example: fraud claim - have to plead with particularity because we don’t like these claims - make it more difficult to prove them and plead them

c. Beyond a reasonable doubt II. Improper uses of Presumptions

i. Given Fact A, we infer Fact B ii. Factual inference - this is NOT a presumption

1. Basic fact --may be inferred--> inferred fact 2. It was raining on the day of the accident --: road condition slippery

iii. Rule of Law (conclusive Presumption) 1. Basic fact --must be found--> presumed fact 2. Under age 7 --> cannot be prosecuted 3. Law: anyone under age of 7 cannot be prosecuted for a crime

iv. TRUE production actually shifts one of the burden from one party (who usually has the burden) to the other party

v. FRE 3011. Imposes on the party against whom the presumption is directed the burden of going forward with

evidence to rebut or meet the presumption 2. Does not shift the burden of persuasion3. True production cannot be used to tamper with the burdens in a criminal case - applies only to

civil cases4. Presumptions effect opposing party, the burden of establishing the non-existence of the presumed

fact III. Sources of Presumptions

i. Statutory ii. Case law

iii. State evidence code iv. FRE do not provide a list of presumptions

IV. Presumption Examples i. BF -- must be found in absence of sufficient rebutting evidence --> presumed fact

ii. Letter mailed --> presumed received

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iii. A properly mailed letter is presumed to have been received 1. Basic Fact: letter was properly mailed2. Presumed Fact: received

iv. A person not heard from in 7 years is presumed to be deceased1. BF: haven't heard from them in 7 years2. PF: dead

V. Ways to attack a presumption i.

Basic Fact --> Presumed fact

| |

V V

Evidence disputing BF Evidence disputing PF

VI. Evidence Disputing Basic Facti. Presumption applies only if trier of fact finds the basic fact is established

ii. Becomes a jury question if sufficient disputed evidence VII. No Evidence Contesting the Presumed Fact

i. Other side has the burden of going forward - it has shifted under FRE ii. The other side needs to "put up or shut up"

iii. In this situation, the presumed fact is established (assuming basic fact established) iv. The court in this case is required to instruct the jury that the presumed fact must be taken as established v. This distinguishes a presumption from a permissible inference

VIII. If there is a dispute i. Evidence disputing presumed fact

1. Cogent and compelling evidence -reasonable jury could not find otherwise (presumption completely overcome)

2. Evidence sufficient to raise jury question (different views) ii. Bursting Bubble - presumption is gone

1. Since presumption shifts only the burden of going forward, the presumption disappears when sufficient evidence to raise a jury question is submitted

a. FRE 301 adopts this view, except where state law provides the rule of decisionIX. Example

i. P injured in a car accident sues owner of the car 1. BF: ownership --> PF: agency 2. There is evidence disputing presumed fact - the presumption goes away

X. Counterproof Sufficient to Raise Jury Question - "Morgan" Viewi. Gives more teeth to the presumption itself

ii. A presumption shifts the burden of persuasion to disprove the existence of the presumed fact 1. Under this view the possibility of establishing the presumed fact stays alive, even in the presence

of evidence that a reasonable jury could find that the presumed fact does not exist XI. Conflicting presumptions

i. If 2+ presumptions apply, courts will generally utilize the presumption that has the more significant public policy considerations

XII. Allowable Criminal Inference i. Must place no burden of any kind on the D

ii. Allows (but doesn’t require)….iii. Presumptions that shift the BoP to the D are not allowed in criminal cases iv. Presumptions that shift BoPr are not allowed. P is required to prove each element of the charge. Shifting

the burden of this to the D would likely be improperv. Presumptions on matters not directly related to the issues of guilt are allowable.

1. Eg presumption that D is competent to stand trail vi. Merely a part of the prosecution's case, permissive inference could be ignored by the jury

XIII. Res ipsa loquiter i. The thing speak for themselves

ii. Sufficiently fills out the prima facie fact box and gets you to trial

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Lecture 6, Week 4Monday, September 13, 20108:27 AM

I. Review i. CA: no such thing as a plain error rule

1. In order to be successful on appeal, you must make a timely objection or offer of proofa. Must be more than harmless error

2. Must repeat an objection unless there is a definitive rulingII. Presumptions

i. Burden of Proof - inarticulate term that includes the burden of going forward and burden of persuasion 1. If a party carries the burden of going forward, they have the risk of being dismissed

a. Must present enough prima facie evidence to convince the judge b. There is nothing wrong with circumstantial evidence to assist in providing prima facie

evidence 2. Morgan view: shifts burden of persuasion (and stays shifted)3. Bursting bubble (federal view): presumption disappears when the party on whom the presumption

is directed supplies enough evidence - burden of going forward is shifted ii. Problem 10A

1. If you can prove the basic fact, the presumed fact is assumed to be true a. If I entrust to you my goods in good condition and get it back damaged (basic fact), it's your

fault (presumed fact) b. The party wanting to take advantage of the presumption has the burden c. If a true presumption is shifting something here, D has the risk of dismissal

i. If they provide no evidence, there is risk of dismissal d. If there was no presumption, the instruction would be that the P must prove by a

preponderance of evidence (P still has burden - it does not shift) e. If presumed fact attacked then it matters which jurisdiction you are in

iii. Problem 10B 1. Basic Fact: sudden violent death 2. Presumed Fact: accident 3. What is being disputed: disputing the presumed fact

a. Everyone is agreeing on the basic fact. They are trying to figure out whether it was an accident or a suicide

b. Evidence: marital problems, nasal hairs, financial problems, etc. 4. MATTERS whether we're in Morgan or Federal Jurisdiction

a. If you are under FRE, a presumption does not exist because the basic fact is agreed upon - ample circumstantial evidence to take case to the jury

b. Morgan: instruction would state that if D can prove by a preponderance of the evidence, then you must find for D i. MORGAN shifts the burden of persuasion to the other side and it does not shift back

5. True presumption actually shift somethingIII. Relevance

i. FRE 402: relevant evidence is generally admissible and irrelevant evidence is not ii. Can't understand unless it is in context

iii. Not subject to detailed rules iv. General standard

1. Anything that can help the jury decide that is not prejudicial v. Direct vs. Circumstantial Evidence

1. Direct Evidence: Evidence which if the jury accepts as true or genuine, establishes the offered fact a. Evidence that directly proves a fact and conclusively proves the fact b. Evidence offered --> fact to be proven

2. Circumstantial: evidence which does not assert or represent the actual fact to be proven, but instead asserts a fact from which the trier of fact can infer an increased probability that the fact to be proven actually exists.

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vi. Relevancy is not an inherent characteristic. vii. Does the item of evidence tend to prove the matter sought to be proved?

viii. FRE 401: 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 or less probable than it would without the evidence

1. Broad standard 2. Slight probative valude 3. Does not have to establish that a fact is more probable than not4. Does not have to provide a sufficient basis for a jury determination of the case

ix. CA: elevated the subject of evidence in a criminal case to a constitutional level as a result of enacting a truth-in-evidence clause as part of the CA State Constitution

1. Except as provided by statute hereafter enacted by a 2/3 vote, relevant evidence shall not be excluded in any criminal proceeding

x. All relevant evidence is admissible unless specified 1. All non-relevant evidence is not admissible2. Exclusions:

a. US Constitution: evidence obtained by an illegal search and seizureb. Congressional statutesc. Federal rules

xi. Problem 2B: Boys on the Bridge 1. D wants to put in evidence that there were a group of boys running away from the bridge where a

rock had fallen and caused damage a. Want the jury to assume that it was the boys' fault b. Falling concrete is likely to be the result of pranksters

2. Do not have to prove for a fact that the boys DID do it - just has to tip it one way or another xii. Problem 2A: Was He Going Too Fast?

1. Evidence offered: 30 miles previously, a witness saw a red car going at least 80mpha. Driving speed is not a constant - the car could have slowed down by the time the car got 30

miles 2. Fact to be Proven: whether the speed remained cosntant or not

a. Depends on many things such as terrain, etc. xiii. Problem 2C: Flight and Guilt

1. Evidence Offered: the man ran 2. Fact to be proven: does that mean he is guilty?

a. For consciousness of guilt, can you infer that its guilt FOR the crime he is currently being accused of or is it cause he has a checkered past?

xiv. Problem 2D: Too much wax on the floor?1. No, doesn't matter if he fell in the same place 2. Admissible because it is evidence of condition, notice

xv. Weighing evidence, determining sufficiency 1. Problems of relevancy call for an answer to a question whether an item of evidence, when tested

by the process of legal reasoning, possesses sufficient probative value to justify receiving it in evidence

2. There is going to be a weighing of probative value xvi. FRE 403: whether or not to exclude otherwise relevant evidence

1. Probative value is "substantially outweighed" by: a. Unfair prejudice - NOTHING wrong with putting prejudicial evidence in but there is a

difference between prejudicing and UNFAIRLY prejudicing the other side's evidence b. Confusion of the issues c. Misleading the juryd. Undue delay, waste of timee. Needless cumulative evidence

2. When should the judge use his discretion?a. Err on the side of allowing more evidence in b. Although relevant, evdience may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion, misleading the jury, undue delay, waste of time, needless presentation of cumulative evidence

c. Probative value of evidence weighed against unfair prejudice, confusion, etc

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i. Misleading relevant evidence can be admissible as long as there is a high probative value

xvii. Step 1: Court evaluates the extent of the probative value; court evaluates how great the prejudice xviii. Step 2: court determines how important is the fact to be proved as it relates to the overall case

xix. Step 3: analyze whether there are alternate ways that are less prejudicial xx. Step 4: wehther the issue to be proven is genuinely in dispute

xxi. Step 5: whether a limiting jury instruction would be effective xxii. Consideration should be given to the probable effectiveness of a limiting instruction

1. Every time we exclude evidence, ask yourself why

Lecture 7, Week 4Tuesday, September 14, 201010:52 PM

I. Rule 403i. Lots of discretion is afforded to trial judges in regard to this rule

ii. Evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion, misleading the jury, or by considerations of undue delay, waste of time, needless presentation of cumulative evidence

iii. Must determine for yourself first if the probative value is high or low 1. Judges usually determine this themselves but you should be comfortable calling it out and

explaining why it should be excluded iv. Evidence needs to be more than prejudicial - it must be unfairly prejudicialv. In order to be relevant, evidence does not need to be in dispute under FRE (in CA, it must be)

vi. Limiting instructions 1. Courts love giving these 2. You must make the best argument you can of why this limiting instruction isn't enough to

overcome the unfair prejudice vii. Tries to give power to the trial judge

II. Proposition 8 (California) i. Amended the CA Constitution providing a provision in the Constitution regarding a "right to truth and

evidence" ii. CA constitution can only be changed by a 2/3 vote

iii. Relevant evidence shall not be excluded in any criminal proceeding iv. Privileges and hearsay still stands; section 352 (equivalent to FRE 403); 782 (FRE 412); 1103

(witness' character before they bring it up); best evidence rule; rights of the press and US constitution.1. Does not look at 1101 (character is not utilized unless you meet certain exceptions)

III. Example: Murder Case i. Whether the D was the killer

ii. Prosecution offers enlarged photographs of the deceased bodies depicting multiple stab woundsiii. Issue: should these photos be allowed in evidence? iv. Arguments

1. It is relevant to the case 2. There may be less prejudicial methods to get the same evidence in

IV. State v. Chapple i. Facts: D is accused of 1st-degree murder. 2 witnesses involved in the drug transaction pointed D out

as the murder. He claims that he was out of the state at the time. Gruesome pictures of the victim and fatal wound were presented to the jury. D appeals stating that the pictures were irrelevant to the case.

ii. Rationale: pictures are usually found to be relevant to a case, especially a criminal case, but it is up to the discretion of the court to weigh its value over possible prejudice. Relevancy is miniscule at best.

iii. Unfair prejudice: playing on the emotions of the jury - they're going to want to punish someone for this happening but the only person they have to point fingers at is D.

iv. Two-prong test: (1) determine if the evidence is relevant, (2) weigh its relevance against the danger of prejudice

v. Holding: picture was unduly prejudicial and not relevant to the question at hand - whether D is the actual murderer. Had the question been about how the victim was killed, then the pictures would be allowed. This is merely used to incite the jury without having a bearing to prove a contested issue.

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V. Old Chief v. US - example of the 2-prong test i. Old Chief v. US (I) - determine relevancy

1. Facts: P was convicted of being a felon in possession of an illegal firearm. He contends that his past crimes should not be disclosed to the court because simply stating that he is a felon would establish that he violated the statute. Instead, he offers to stipulate to being a felon.

2. Rationale states that the prosecution should be able to prove their case the way they see fit.3. Court holds however that the prosecutor's need for evidentiary depth has virtually no

application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior.

4. According to Rule 403, relevant evidence may be inadmissible if it is unfairly prejudicial (if its prejudicial effects out way its usefulness)

ii. Old Chief v. US (II) - regardless of relevancy, should it be excluded? 1. Rationale continues that P's offer to stipulate to the conviction in exchange for not telling the

jury why he was previously convicted is less prejudicial with comparable relevancy weight. 2. General rule is that if an alternative is found to have substantially the same or greater probative

value and a lower danger of unfair prejudice, the alternative should be usedVI. Problem 2-E: Battered Wife

i. Wife "fell" on a knife and died. Should evidence that, 2 years earlier, wife sought refuge at the battered women's shelter be allowed?

ii. May show motive and intent, past historyiii. Lots of inferential leaps - there is no proof that she went to the shelter because she was fearful and

battered - even if she did, that doesn't prove that he beat her on this occasion iv. Even if it is relevant, it is unfairly prejudicial, not very probative

VII. Rule 104i. 104(a)

1. Court decides preliminary issues 2. Relevancy: judge and jury both have a role 3. Court alone decides whether evidence has endency to make issue more or less probable - to all

it into evidence to begin with a. Simple relevance b. Court is gatekeeper

4. After evidence is allowed, jury weighsii. 104(b): when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court

shall admit it1. Conditioned on a fact 2. Both judge and jury have a role in this3. Judge merely screens this evidence to see if a reasonable jury would be able to come to a

conclusion with this fact 4. Example:

a. Preliminary fact ("I saw a man running from the bank wearing a blue shirt and white jeans") --> Defendant owned a blue shirt/white jeans

b. Conditional relevance: Relevance of defendant owning these articles hinges upon the testimony from the eyewitness.

c. Court here does not make a determination as to the reliability or credibility of eyewitness. Instead, the jury makes this determination under 104(b)

5. If preliminary questions of conditional relevancy were determined solely by the judge, as provided…

6. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted.

iii. 104(c): hearing of jury1. Hearings on the admissibility of confession shall be conducted out of earshot of the jury 2. Similar to rule 103(c)

iv. 104(d)1. The accused does not, by testifying upon a prelim matter, become subject to cross-examination

as to other issues in the case VIII. People v. Collins (skim - not all that important)

i. Mathematician is called to the stand to be an expert witness for a mugging case - "you're dumb if you don't find this to be true, jury"

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ii. Sought to establish that there is an "overwhelming probability" that these 2 people - blonde woman with a ponytail driven away by a black man - are the actual muggers

iii. Court threw out this evidence - probability is not evidence

Lecture 8, Week 5Monday, September 20, 20108:26 AM

I. Character Evidence i. Alger Hiss: called witnesses to the stand to testify to his moral character that he did not lie to Congress

1. Is this relevant/allowed? 2. Evidence offered: he is an honest person 3. Fact to be proven: he is being honest today

ii. Juries may misuse evidence and put too much weight on evidence that may not be entirely relevant 1. Example: he beats his wife - he has a violent temper - therefore, he killed X.

iii. Character traits: 404(a), 405 iv. Other Acts 404(b)v. Habit: 406

vi. Exclusions for Policy Reasons 1. Subsequent remedial measures: 407

vii. Character means a person's disposition or propensity to engage or not engage in various forms of conduct

viii. Determine: 1. Method used to prove the character trait

a. Specific acts: "did John Doe hit his wife at the local bar last year?" b. Reputation testimony: "are you aware of John Doe's reputation for violence?"c. Opinion Testimony: "in your opinion, is John Doe a violent individual?"

i. Each must have a foundation 2. Purpose why the character evidence is offered (essential element v. circumstantial) 3. Type of case (criminal vs. civil)

ix. Essential element evidence (405b)1. Character or trait of character evidence is allowed to prove an essential element of a charge, plan,

or defense a. Applicable in both criminal and civil casesb. May be raised when it is appropriate to prove the essential element c. All three types of character proof allowed (reputation, opinion, specific acts)

2. Determine the actual elements of the claim or dense 3. Analyze to see if character is actually one…4. Examples: chastity of a woman, specific element of entrapment dense, 5. Example: criminal charge of felon in possession (not true - character is not really an element of

the criminal charge. Proof of felon status, no character) 6. Child Custody Dispute: character and or fitness of each parent 7. Wrongful death: character of the deceased - what could his life had been 8. Negligent Entrustment claim: character of that 3rd party is a direct element of the P's case 9. Defamation10. Employment litigation 11. When is the character trait evidnce first raised when it deals with an essential element: depends on

whether the element is part of the P's case or D's case 12. PROBLEM 5E - She's a Known Thief

a. Security guard wanted to testify that she has a reputation as a thief among the security crew i. NOT allowed because she didn't bring it up first - this is a criminal case and it would

be improper to useii. They're suppose to prove that she DID steal, not that she has a reputation

x. Circumstantial evidence (404a) 1. If you determine that the trait is not an essential element, then it will fall in the category of

circumstantial evidence 2. In other words, the evidence is offered to prove that the person…

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3. Suggesting an inference that the person acted consistently with his character4. 2 forms

a. Character of accused/victim b. Impeachment of witness

i. Any time you take the witness stand, you put your credibility at issuec. Rules 607, 608, 609d. Allowed in civil and criminal cases e. Proof only as allowed under 608, 609

i. Reputation evidence 608aii. Opinion 608a

iii. Specific act 608biv. Conviction of crime evidence 609

f. Stepsi. Determine whether civil or criminal case

1. In a civil case: not admissible 2. Criminal: admissible only under

1. Character of accused 404(a)(1) and character of victim 404(a)(2) 3. Proof allowed:

1. Reputation testimony, opinion testimony, specific acts NOT allowed 5. RULE 404(a)(1)

a. Character of accused: in a CRIMINAL CASE, evidence of a PERTINENT TRAIT of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait…etc.

b. Example: murder case - when might the prosecution can call a character witness to the stand? i. As soon as D raises character, P can rebut the same

ii. P cannot use in their case in chief xi. The rules are drafted in a way that indicated that if the criminal accused attacks the character of the

victim and gets in in under 404a2, the prosecution can call a witness in under 404a1 1. Linkage does NOT go the other way 2. 404a1: criminal accused calls a witness on his character 3. 404a2: criminal accused calls a witness on victim's character 4. RULE 404a2

a. In a CRIMNAL CASE, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crim offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor

II. Summing up i. Who initiates circumstantial character trait evidence in a criminal case?

1. Defendant makes this decision 2. Only after defendant presents character trait evidence in a criminal case, is the prosecutor allowed

to introduce contrary character trait evidence III. Problem 5A: Fight in the Red Dog Saloon

i. Bar fight - who threw the first punch?ii. Criminal case - assault

iii. 404a prevents this from coming in by the prosecution - prosecution can only rebut iv. D can bring this in but it is not without risk - prosecution can rebut same AND prosecution can attack the

credibility of the witness on the witness stand 1. You can ask specific acts 2. If you bring character witnesses, it better be damn advantageous because you're opening the door

IV. Character of accused/victim i. Rule 404a talks about "pertinent trait of character." Accordingly, it is required that the type of character

evidence offered must relate to the type of crime to which defendant is being accused ii. Pertinent trait

1. 404a1 and 2 limit the use of character evidence to a pertinent trait 2. Example:

a. Embezzlement case - character trait evidence of honesty because this is pertinentb. Murder case: character trait evidence of peacefulness because this is pertinent

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iii. Example: John hit Steve in the face. Prosecutor charges John with battery. 1. D John can call a witness to testify that D has a reputation for a peaceable disposition

V. Rule 405(b): Specific instances of conduct i. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or

defense, proof may also be made of specific instances of that person's conduct VI. Character of Victim 404a2

i. D has a choice whether to initiate this type of evidence, except in certain homicide situations ii. Generally, only after the D has first presented character trait evidence as it relates to the victim of the

crime, may the prosecution rebut such evidenceiii. Homicide exception

1. In a homicide case, if the D puts in evidence that the victim was the first aggressor, then the prosecution can rebut such evidence by utilizing the character trait of peacefulness of the victim

2. If it is a non-homicide case and the D testified that the victim first attacked him, that does not sufficiently raise the character trait of the victim and therefore does not allow character evidence under 404a2

VII. Problem 5B: Red Dog Saloon (Part 2)

Lecture 9, Week 5Tuesday, September 21, 20108:02 PM

I. Character Evidence i. Broad relevancy standard 401-402

ii. Exclusions 403-404 iii. 404(a)(2) - D can bring up character first

1. Rule specifically states: "in a criminal case and subject to the limitations imposed by Rule 412" iv. Should we protect victim in sexual assault case?

1. Rape shield statute: should not bring the sexual history of the victim into evidence 2. Rule 412

a. Rests on policy reason - avoid embarrassment, encourage victim to report, judges can't be trusted to make the right decision

b. Evidence generally inadmissible i. Engaged in other sexual behavior

ii. Sexual predisposition c. Exceptions

i. Criminal case, admissible 1. Evidence of specific sexual behavior to prove that a person other than the

accused was the source of semen, injury, or other physical evidence 2. Sexual behavior by he alleged victim with respect to the person accused

ii. Civil case1. Sexual behavior or sexual predisposition of any alleged victim is admissible 2. Only admissible if the probative value substantially outweighs the danger of

harm to any victim and of unfair prejudice3. This errs on the side of pushing the evidence out, NOT letting it in like 403

iii. Procedure 1. File a written motion - 14 days before trial - victim AND other side 2. Serve the motion 3. Court must conduct a hearing in camera and give victim and parties a right to

attend and be heard v. Problem 5J

1. Sorority girl alleges that she was raped. Man said she had consenteda. He said they had sex before: this is relevant [404(a)(2)] and admissible. 412 does not

prevent this because it is sexual activity between the victim and accused. b. Another witness testifies that she is an "easy mark" and sexually active: this is character

evidence against the victim brought upon by the prosecution i. D can bring this up

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c. Another witness testifies that he had had sex with her earlier that night: admissible because it could be the other man's DNA but it must be a fact in dispute - cannot backdoor in sexual predisposition

vi. Hypothetical 1. Evidence offered: victim was a virgin 2. Fact to be proven: she was raped3. This is relevant but does the rule prevent it from coming in?

a. Sexual predisposition - letter of the law says it's not admissible but it doesn’t cover the general policy that the law was created to protect

vii. Rule 413:1. In a criminal case where D is accused of sexual assault, evidence of D's commission of another

offense may be considered 2. If the rules allow the P to make the argument that "he did it in the past so he did it in the present"

- prejudicial but not unfairly so3. If its relevant, it's going to come in based on 403

II. Problem 5Ki. Airforce base - met at bar. They went to a secluded place where they began to fool around. She told him

to stop when he went below the waist. She tried to run but he grabbed her and raped her. 1. Victim works occasionally as an exotic dancer2. Dresses provocatively 3. Tells detailed stories of her sexual experiences 4. Makes sexually explicit remarks to men

ii. Standard is by a preponderance of evidence to show the propensity III. Problem handout

i. No, this information would not be admissible under 404(a) - not an offense of previous sexual assault, but consensual

ii. Relevant yes but not admissible. Prosecution cannot bring forward character evidence - can only use on rebuttal. Criminal case.

IV. Flowcharti. Essential evidnece?

ii. No, used for general propensity?iii. What else if not general propensity? iv. Does it show intent?

V. RULES: 404(b) - prior acts i. Evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting

the inference that conduct on a particular occasion was in conformity with it ii. However, the evidence may be offered for another purpose, such as proof of motive, opportunity, and so

on, which does not fall within the prohibition iii. The determination must be made whether the danger of undue prejudice outweighs the probative value

of the evidence under rule 403 iv. Pretrail notice requirement

VI. Rule 404: other crimes, wrongs, or acts not admissible to prove the character. Admissible for other purposes i. Not limited to listed categories

ii. 404(b) does not mandate a similar conduct/similar circumstances requirement 1. Used to show intent, knowledge and identity, the prior acts must involve similar conduct

commited under similar types of circumstances 2. NOT for motive 3. An appropriate logical connection between the evidence offered

iii. Burden of persuasion is on the proponent of the evidence 1. Preponderance of evidence 2. Court screens, jury determines

VII. Virgin Islands Bank Robbery i. Instructed the jury

ii. Limited purposeiii. Reitered admonition

VIII. RULE 404(A) i. Lets you use reputation and criminal character, NOT prior acts

IX. RULE 405: reputation or opinion

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i. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross, inquiry is allowable into relevant specific instances of conduct

X. Problem 5F: Drug Sale or Scam? i. Prosecution wants Smith to testify that D made prior drug deals to show intent, and general propensity

ii. Allowed XI. Problem 5G: "He Came Running in All Hunched Over"

Lecture 10, Week 6Monday, September 27, 201012:10 AM I. Homework Problems

i. Problem 5M: Death on the Highway 1. D wants to put in evidence that decedent was a "good and careful driver" in order to prove that he could

not have been the cause of the accident. P claims that this is character evidence, not evidence of habit.2. The evidence that he is a good driver is a general description of a person's disposition - his general trait is

carefulness. This could technically be habit also because it may account to a person's regular practice of responding to a particular situation with a specific type of conduct - he is careful when he drives.

3. In my opinion, it should not be admitted because it speaks more to a person's character that he is a careful driver. He can be careful in all aspects of his life including handling an automobile but that doesn’t mean that he's always careful.

4. You must show that this is a particular intersection that he goes over all the time and takes the same safety precautions every day- it would rise to the level of habit

ii. Problem 5N: The Exploding Can 1. Worker was injured when he heated up a can in order to inject a chemical into a car. The can exploded

injuring him. The chemical company is sued for products liability and they counter stating that worker was negligent. Witness states that he has often seen worker use this method.

2. This evidence should be admissible because it is a habit - he has always used this method when he was having trouble with the chemical. This does not speak to his character but to a routine that he always uses in order to solve this particular problem.

3. Often may not be enough, however. If the testimony stated that he "always" or "routinely" did this, it would be sufficient. It should be left up to the judge to decide if this is relevant and taken to the jury

iii. Problem 5P: Two Potato, One Potato1. Salesman sold herbicide to farmer. The herbicide was created by Cheron Chemical Company. The

company employed S to deal with customers, offer suggestions, and process complaints. S tells F that the company will back up its product. After plants begin to show damage, S tells F "Don't worry. We'll take care of you." At the next complaint, S tells F "You just tell us the damages you're claiming, and we'll bill Cheron." Cheron refuses to pay claiming that S's statements were settlement offers and cannot be brought to court.

2. The statements should be allowed into court because they are not settlement offers or offers made during negotiations. No where in the conversations does S accept blame for the deficient plant growth. All he does is accept the complaints and passes them to the company.

3. The last statement S made regarding billing Cheron may be considered an acceptance of guilt and an offer to settle but it would depend on the amounts offered and accepted.

II. Tuer v. McDonald i. Medical malpractice suit where decedent died because of a heart attack due to being taken off of anticoagulants

prior to a surgery that was delayedii. Hospital changed their practice of removing surgery patients off anticoagulants a day before surgery to right

before surgeryiii. Court states that subsequent remedial measures is not sufficient evidence to prove culpability

1. Conduct is not an admission of wrongdoing 2. Public policy would want to encourage business to fix what they knew was wrong without worrying

about lawsuits ~~~Class Notes - Relevacy and its LimitsI. Overview

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i. Relevant Evidence: anything that makes facts more or less probable (Rule 401) ii. All relevant evidence is admissible unless otherwise excluded (Rule 402)

iii. Underlying Policy iv. Rule 403 (VERY IMPORTANT)v. Rule 404: character evidence is relevant

1. If you are a bad person before, you're bad on the day in question 2. General rule: exclude all character evidence from trial

a. D makes the decision b. Exception: in sexual assault and child molestation, it is no longer the D's choice [404(a)(1), 404(a)

(2)]3. If not used as an essential element or general propensity, can be used for intent, opportunity, knowledge,

motive - Prior Acts [Rule 404(b)]a. Often time used by Prosecutor in a criminal caseb. 403 still applies to 404(b) - cannot be unduly prejudicial c. There must be a link to show overall plan/scheme

i. i.e. X did not pay his taxes. 5 years ago, he purposefully did not pay his taxes. Therefore, he could have a plan to not pay his taxes again.

ii. 404(b) does not mandate that it must be a criminal or "bad act" vi. Habit Evidence

1. Distinguish between character evidencea. Character: generalized characteristic of a person's personalityb. Habit: regular response to a repeated situation - semi-automatic

2. Habit evidence is highly persuasive as proof of conduct on a particular occasion. 3. Habit under Rule 406 is freely admitted4. Is there something that takes an act from mere character and rises it to habit?5. Rule 406: habit of a person or of the routine practice of an organization is relevant to prove the conduct is

in conformity with the habit or routine practice vii. Subsequent Remedial Measures (Rule 407)

1. 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

2. Admissible: to prove ownership, control, or feasibility (if controverted), or if used for impeachment 3. Tries to promote the public policy to improve/fix what's broken - if this information was admissible,

people would never fix anything they knew was wrong in fear that they would be sued. a. Exclusion rests on a social policy to encouraging added safety

4. 403 is still available here - cannot be unduly prejudicial 5. 407 applies only to measures taken voluntarily - if they were mandated by some authority to fix it, it is

admissible (since it would not discourage people to fix mistakes because they have to anyway) 6. RULE: after an injury or harm, measures are taken would have made the injury or harm less likely to

occur. It is not admissible to prove negligence. Does not require the exclusion offered for another purpose.

7. Prior to the 'event' do not fall within the exclusionary scope 8. Subsequent remedial measures may be admissible 9. Danger of prejudice or confusion substantially outweigh the probative value of the evidence

viii. Rule 408 - Compromise and Offers to Compromise 1. Applies if there is a claim that is disputed as to either validity or amount

a. Does not apply if no dispute 2. Filing a lawsuit is not required but there must be some expressed/implied intention to dispute the claim 3. Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to

accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible

ix. Rule 410 - similar to 408 for criminal cases 1. Purpose is to allow for significant confidentiality of statements in course of negotiating a plea 2. Any statement made in the course of plea discussions with an attorney for the prosecuting authority 3. Admissible in any proceeding where another statement made in the course of the same plea has been

introduced and the statement ought in fairness be considered contemporaneously with it or in a criminal proceeding for perjury

4. Evidence of the following is not admissiblea. Plea of guilty which was later withdrawn b. Plea of nolo contendere

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c. Statement made in the course of any proceeding under Rule 11 of the FRC x. Rule 409: payment of medical and similar expenses

1. Evidence promising to pay medical not admissible xi. Rule 411: Liability Insurance

1. Evidence that a person was or was not insured against liability is not admissible 2. Does not require the exclusion of evidence of insurance against liability when offered for another

purposexii. All relevant evidence is admissible unless otherwise excluded

II. Impeachment i. Rule 611: Mode and Order of Interrogation and Presentation

1. (b) Scope of cross-examination a. Cross-examination should be limited to the subject matter of the direct examination and matters

affecting the credibility of the witness.ii. Rule 607: Who May Impeach

1. Abolish "voucher rule" 2. Traditional rule against impeaching one's own witness is abandoned as based on false premises3. Can impeach on direct and cross-examination 4. When you take the witness stand, you put your credibility on the line

a. Opens up the door to allow all kinds of things to come into evidence 5. A person who has already lied under oath

a. Still competent b. Bring it up first and spin it in your own favor

iii. Categories of impeachment 1. Perception/personal knowledge2. Memory - bridge of the temporal gap between time past and time present 3. Mental capacity 4. Bias, prejudice, interest and corruption 5. Prior criminal conviction 6. Prior non-conviction acts bearing on truthfulness/untruthfulness7. Prior inconsistent statement 8. Opinion and/or reputation evidence of character 9. Contradiction

iv. Rules 1. 607: abolishes "voucher rule" 2. 608a: use of opinion and/or reputation character evidence 3. 608b: use of prior non-conviction acts bearing on truthfulness/untruthfulness4. 609: use of prior criminal conviction5. 610: prohibits credibility impeachment by use of religious beliefs or opinion 6. 613: in part, addresses use of prior inconsistent statements

v. Impeachment tries to show that the witness should not believed because of their failings (categories of impeachment)

vi. Distinguishing between Collateral Evidence and Non-Collateral Evidence1. Collateral: evidence that has no important independent significance. You cannot "prove up" collateral

evidence if denied 2. Non-Collateral: evidence that has important independent significance. You can "prove up" non-collateral

evidence vii. US v. Abel

1. Abel and Elhe are indicted for robbing an S&L 2. Mills planned to testify that E admitted he intended to implicate A falsely 3. Prosecutor wanted to discredit Mills by getting E to admit that he and Mills were members of a gang 4. Impeachment by showing bias or corruption is admissible

Lecture 11, Week 6Tuesday, September 28, 201011:32 PM Homework Notes I. Problem 8A: The Hired Gun

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i. GM hires an expert witness at $1600 per day. P is attempting to ask the EW how much he expects to be paid total, if he'd been hired by GM previously, if he expects to be hired from GM again. D objects stating that the $1600 should be sufficient to answer any questions.

ii. The judge should rule for P. Indication of a high salary and continuous employment may be enough to bias the witness in GM's favor. The jury already knows that he is being paid a lot of money for his expertise however a show of continued service towards the GM may be prejudicial but not unduly so.1. Highly probative to show his bias

~~~I. Impeachment

i. Collateral v. Non-collateral 1. Collateral: you cannot prove it up even though you're sitting there with all the evidence you can to prove

the person lied on their resume 2. Non-collateral: if denied, you can prove it up.

a. "did you X"; "no"; "oh really?? Here's proof" b. Bias, prejudice, interest, corruption

ii. 404(a) provides the exceptions for when character is utilized 1. Criminal case (character of defendant), criminal case (character of victim), and evidence of character of a

witness2. 404(a)(3): as soon as you take the witness stand, you put your character at risk

a. Using character traits to show that the witness should not be believed b. Once the criminal accused takes the witness stand, they subject themselves to being impeached

i. Door is not WIDE open, but open ii. Example: Susan is on trial for assault - can she call someone to take the stand to testify that

she is a peaceful person? What if she takes the stand herself saying "I did not do this". If Susan takes the stand, she has opened up her character for telling the truth.

iii. RULE 608 (example: lying on a resume) 1. Can assist is showing that the witness is lying today 2. Should this be allowed?

a. Rule 608(b) - prior non-conviction acts bearing on truthfulnessi. Trial court must exercise its discretion and allow such evidence

ii. Used on cross-examinationiii. Concerns character of truthfulness or untruthfulnessiv. A good faith basis to ask the question exists v. COLLATERAL EVIDENCE - may not be proved by extrinsic evidence

vi. They may be inquired into on cross-examination of the witness (1) character for truthfulness or untruthfulness (2) character the witness being cross-examined

iv. US v. Manske 1. Manske wants to cross-examine the witnesses regarding threats they made against 5 other people 2. Should this be allowed?

a. Yes: threatening other people shows that the witness would do anything to get the truth out b. No: threat has no bearing on being truthful or untruthful c. Yes: object of a threat is truthfulness/untruthfulnessd. No: standard is too broade. Collateral if they deny it

II. Prior Criminal Conviction i. Common law: if you were convicted of a felony, you are not competent to testify

ii. Relevant to show your veracity on the witness stand iii. Impeachment by evidence of conviction of crime (rule 609)

1. Evidence of conviction of crime involving dishonesty or false statement a. Relevant b. If they lied in the past and convicted, highly probative c. 609(a)(2): evidence that any witness has been convicted of a crime shall be admitted regardless

of the punishment (can be misdemeanor or felony, etc), if it can be readily determined that establishing the element of the crime required proof or admission of an act of dishonesty or false statement by the witnessi. Murder does not count

ii. Look at elements of the crime - if one is dishonesty, it falls under 609a2 iii. Shall - takes away discretion from Rule 403 - REQUIRED admissibilityiv. Limitations found in 609b,c, and d still apply

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v. Applies to ANY witness, including a criminal defendant d. Evidence that a witness was convicted for a crime of violence is NOT admissible

i. Murderii. Assault

iii. Sale of drugsiv. Sexual crimesv. Arson

e. Admissible i. False testimony/statements

ii. Lying on applications/formsiii. Intentional misconduct that encompassed deception (i.e. fraudulent misrepresentations)

2. All other evidence of conviction of crime - evidence NOT involving dishonesty or false statements a. Only for the criminal accused - no other witnesses are given this standard b. 609(a)(1): evidence that a witness other than an accused

i. Allowed for a traditional Rule 403 determination - err on the side of not allowing ii. Crime MUST be a felony

iii. Still subject to limitations of b, c, and d c. 609(a)(1): Evidence that an accused has been convicted

i. Determines probative value of admitting this evidence outweighs its prejudicial effect to the accused - err on the side of allowing

ii. Must be a felonyiii. Still subject to b, c, and d

d. Removes limitations that the conviction may only be elicited during cross-examination i. Can be used in direct, etc.

iv. Limitations 1. 609(b): time limit

a. Person is convicted of felony perjury - conviction took place 15 years ago (10 years in prison) - limitation does NOT apply

b. Not admissible if a period of more than ten years has elapsed since the date of conviction or the release of the witness from confinement, whichever is the later date UNLESS probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect

c. Probation: similar to confinement? i. What if probation has been revoked and you go back to jail?

2. 609(c): effect of pardon, annulment or certification of rehabilitation a. Not admissible if conviction subject to pardon, annulment, certification of rehab, or equivalent

based on finding of rehabb. Person has NOT been convicted of subsequent crime c. Finding of innocence

3. 609(d): juvenile adjudications a. Not admissible other than the person accused

4. 609(e): pendency of appeal: does not render evidence of a conviction inadmissible - evidence of pendency of an appeal is admissible

v. US v. Lipscomb 1. D loses motion in limine to prevent evidence of prior conviction from being allowed and D decides not to

testify2. To preserve for appeal, have to testify but didn’t want to be impeached 3. Alibi witness - testify and impeached 4. Burden is on prosecution 5. D is put at risk not only at evidence of their own conviction but also for calling a witness to the stand

who has a conviction a. "birds of a feather flock together"

6. All felonies are probative of credibility to some degree vi. NOT trying to give extra protection to civil defendants - ONLY criminal

Lecture 12, Week 7Monday, October 04, 20108:27 AM

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I. Rule 609: Impeachment by Evidence of Conviction of Crime

i. Prior criminal convictions are relevant to showing lack of credibility ii. Rule governs admissibility

iii. Start with 609a2 - is this an impeachment of a witness of a prior conviction that deals with the element of truthfulness?

1. Aside from some exceptions, this information will come in regardless of misdemeanor or felony 2. Does not matter if it is the person accused

iv. Next, 609a1 - who is the person on the stand? If it is the criminal accused, is it a felony? 1. Balancing: nature of crime (more probative to show lack of veracity, more likely to come in)

a. Recentness, remotenessb. Crime similar to charged offense - used only for impeachment because it can cause unfair

prejudice c. Ask the witness - if they deny it, you're allowed to prove it up if it is collateral evidence

(NOT non-collateral) d. Cases that can show the sentence (prof thinks this was wrongly decided)

i. Condemns where the crime is committed II. Problem 8B - Hit the Deck

i. Bank robbery - each witnesses have prior criminal convictions that may be used to impeach their credibility

ii. Elmo: witness for prosecution1. Should there be an objection? 609a1 - doesn’t involve truthfulness, not timely, not the person

accused a. If you do a great job, the defense will start to call witnesses and possibly the person

accused himself, you will lose against impeaching other witnesses i. Balancing test - if you win one on, you'll win of them all

ii. If you cannot bring in the conviction of your witness, you will not be able to bring the conviction of other witnesses

iii. Farr: witness for defense 1. Spill over of unfair prejudice - those who play together, rob together - they are friends 2. Just because you can object doesn’t mean you should

III. Problem 8C - A history of Lying i. Misdemeanor conviction 9 years ago for displaying a false handicapped symbol

1. 609a2 ii. Felony conviction 8 years ago of "misleading conduct towards another" with intent to "cause or induce"

her to "be absent from an official proceeding" 1. 609a2

iii. Misdemeanor conviction 6 years ago for petit theft1. No, must be felony

iv. Yes a2 v. Probably a1

vi. A1 - have to look at what is mandated to be proven - not facts of crimeIV. Luce v. US

i. Luce was on trial for drug charges - files motion ahead of time to figure out if prosecution is going to try to impeach him with previous criminal convictions. SC says if he wants to preserve issue for appeal, has to take the witness stand and be impeached.

1. Want trial judge to decide these things in limine ahead of time 2. Puts the criminal accused in a difficult position

a. Can bring it out ahead of time on direct, but then you don't preserve on appeal V. Example Problem

i. Dave is on trial for Sarah's murder 1. Criminal case2. Each witness puts their credibility at issue

ii. Dave's first criminal conviction for embezzlement (13 years) - trial judge excluded the evidence1. 609a2 crime - does not come in because it was over 10 years ago

iii. 2nd criminal conviction for embezzlement - 11 years ago (served 5 years) - trial judge excluded 1. Criminal case 2. 609a2 - it doesn’t matter if it’s the criminal accused being impeached 3. Should be let in because it is within the time limit (less than 10 years since being confined)

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iv. Prior conviction for aggravated battery 1. Criminal accused 2. Felony3. 403 standard used - not properly used (wrong standard)

v. Fred's prior conviction for aggravated battery 1. 609a1 crime 2. Felony 3. Someone else - should use the 403 standard - correct standard used 4. Court allowed WAY too much detail outside of proper balance 5. Spillover argument

vi. Fred's misdemeanor conviction for false statement 1. 609a2 crime2. Judge is wrong - should be included even though it is a misdemeanor where a 3rd party witness is

being impeached vii. Sam gives testimony that Dave is a "very violent person"

1. This cannot be brought in because 404(a) - character evidence of violence - cannot do this VI. Additional Areas of Impeachment

i. 404a - character evidence is not admissible for the purpose of proving that the person acted in conformity

ii. Exceptions (rule 608) develops the exceptions 1. Only opinion/reputations evidence is allowed 2. Evidence must refer only to character for truthfulness or untruthfulness 3. Cannot use evidence of truthful character until your witness' veracity has first been attacked by

opinion or reputation evidence 4. Credibility of witness may be attached in the form of opinion or reputation

a. Exceptions: i. Refer only to character for truthfulness or untruthfulness

ii. Only after character of witness for truthfulness ahs been attacked5. 608b2 - if they deny it, it is collateral and cannot be proved up 6. 608a2 - after it has been attacked, can call witness as to the truthfulness of witness

VII. Hypothetical Set 2 i. Holy is on trial for the murder of John

ii. Can the presecution (in its case in chief) call a character witness to testify as to Holly's character for violence

1. NOiii. Can Holly in her defense case call her friend Connie to testify that Holly has a wonderful reputation for

truth and honesty?1. No - not a pertinent trait

iv. Does the correct answer change if Holly testifies and denies she committed the crime? 1. They would have to attack her credibility first

v. After Holly testifies on direct, prosecutor cross examines H using prior non-conviction acts bearing on H's untruthfulness. Can H now call Connie as a witness to testify to Holly's reputation for truthfulness?

1. Yes - 608b2 vi. Assume H never testifies but calls Frank as a witness to testify that in his opinion, H is a non-violent

person 1. Yes - 404a1 (pertinent trait)

vii. Can prosecutor call a witness to testify to H's reputation? 1. No - can only do that if H took the stand herself

VIII. Prior Inconsistent Statement Impeachment i. Nothing better than to control and impeach witnesses on what they said before

ii. Rule 613: Examining witness concerning prior statements 1. 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 2. Extrinsic evidence - must show witness first

a. Prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or the interests of justice otherwise required

b. Does not apply to admissions of a party-opponent 3. Abuse by lawyers - call adverse witness to the stand

IX. Harris v. New York

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i. Police gets statements that are contrary to Miranda rights - barred from using statements but what if D gets on the stand and testifies inconsistently with miranda barred statements? Can they impeach? YES

X. Mincey Case i. SC said that the use of involuntary statements by a seriously wounded D in the debilitated and helpless

condition on the edge of consciousness violates due process XI. Jenkins Case

i. Pre arrest, pre Miranda silence can be used to impeach. Post arrest silence cannot be used Homework Notes (Best Evidence Rule) Sunday, October 10, 20103:57 PM Problem 14Ao Defamation case where P brings up a letter that was not produced in court against D. The letter is not produced but a

witness is brought in to testify as to the contents. o This violates the best evidence rule - the common law of the rule states that if you are trying to prove the contents of a

writing, the original must be brought in. If the writing is central to the case, it should be reversed.United States v. Duffy o D is convicted of transporting a stolen vehicle across state borders. He is attempting to claim that there was an error in

the admission of evidence. One of the forms of proof was a laundry tag with the letters "DUF" on it. Instead of bringing the shirt in, a witness testified to it.

o What counts as "writing"?o The court held that the Best Evidence Rule did not apply to the shirt/laundry tag because it is an inscribed chattel. The

trial judge has the discretion to treat the evidence as either chattel or writing. Because the words on the tag were not complicated, and because the shirt was not a central element in the case, the judge did not err in admitting the testimony in loo of the shirt itself.

Problem 14B o D puts her child up for adoption telling the doctor to never disclose to either the adoptive parents or the child who she

is. When the child grows up, she goes to the doctor to find out who her biological parent is. He gives her a photocopy of the birth certificate. Once the child finds D, D sues the doctor and brings up the photocopy as proof.

o This evidence should be admitted because technically, it is the original copy for this case. This was the paper that the child used and this is the paper in dispute. It doesn't matter if it is a photocopy of a birth certificate - it still counts as the original for this case.

Problem 14D o On a wrongful death case, nurse testifies that the patient had eaten just 1 hour before the surgery and doctor had forced

her to change the 1 to a 9. She offers a photocopy of the original chart as evidence.o This evidence should be admitted even though it is a photocopy because technically, the changing of the document

could be seen as "destroying" the original so the photocopy is the only piece of evidence that is still available. If the judge thinks that the photocopy is a forgery, it should be left up to the jury to decide.

Problem 14Eo Porn is being brought across state borders. Instead of bringing the videos themselves, an officer who watched them

testifies. o This evidence would not be admissible because the testimony is trying to prove the contents of the tapes.

Problem 14F o During a bank robbery, the robber's image is captured on surveillance. Guard downloaded the images and offered to

testify that the suspect is the same person who appeared in the picture. o Should not be allowed because the officer's testimony is towards the content of the picture - that the robber is the

person in the image. Meyers v. United States o On a perjury case, witness testimony was given towards what Meyers said prior to trial. Also offered into evidence

was stenography notes. Meyers claims that this violates the best evidence rule because the writings should have been used, not testimony.

o Court holds that this was not error - it does not go towards the contents of the notes but rather what was said. The notes are one form of evidence of what Meyers said but the testimony is just as good. The witness was not asked on what the notes contained but what Meyers had said. The issue is not on what was written.

o Dissent: stenographer's notes are the best evidence and should have been relied on Problem 14G

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o DEA agent N plants a bug and overhears/records P and Q's conversation about drug transactions. After arresting both, he interrogates both separately, getting a stenographer for P and recording Q's.

o N should be allowed to testify to what he overheard when he set up the bug because he is not testifying towards the contents of the tape but rather what he overheard himself.

o N should be allowed to testify to P's testimony because, again, he was an eye-witness. The stenographer's notes are not at issue.

o N should be allowed to testify to Q's statements because the contents of the tape are not at issue. The tape is just a form of evidence to prove what Q said.

Problem 14Ho Farmer attempts to prove that he should have gotten a price adjustment to chickens that he bought because they were

sick. He tries to testify on a veterinarian report saying as much. o The evidence should not be let in because he is trying to testify towards the contents of the report - if he wants it in, he

should bring in the report itself. Sylvania Electric Products v. Flanagan o Breach of contract case - P had an oral agreement with D to be paid $13 per hour, per truck. At the end of the job, the

total came out to be $25,267.50. D refused to pay.o As evidence of the hours, P said he had tally sheets for the hours worked. The tally sheets were never produced by P

testified that they "checked out" and offered as proof a total of the sheets. o Court holds that this is not sufficient - the tally sheets are at the heart of this case and they needed to be produced. P

had said that he had some but none were ever brought to court. o Original writing must be produced unless it is shown to be unavailable at no fault of P. o If P wants to provide secondary evidence, he has to show that he made a reasonable and diligent search for the

originals - he did not prove so in this case. Problem 14L o Breach of contract, P establishes the original contract was destroyed. He has a photocopy but decides to testify instead. o He is exempt from producing the photocopy even though it would be the better option. The original was destroyed

through no fault of his own so he is exempt from the best evidence rule. Problem 14M o IRS agent testifies to bank records in tax evasion case - he gives a summary of the deposits and a chart summarizing

significant entries. o Summary charts may be used if the contents are too voluminous but the originals must be made available for perusal.

Inadmissible writings are not made admissible just because it is in summary form however. (1006)Problem 14N o No pets clause in a lease - landlord is trying to kick out tenant for violation of the clause. The lease is not available

however she has a letter from the tenant acknowledging the clause and seeking permission anyway. o The letter may be used because it is a written admission - exemption to the best evidence rule (1007)

Lecture 13, Week 7 Monday, October 04, 20106:12 PM Homework Notes I. United States v. Webster

i. D is accused of aiding and abetting in a bank robbery. Witness King is introduced to speak against D. W gives testimony that, if believed, would have gotten D off. P introduces evidence of inconsistent statements that would inculpate D. D claims that P should not be allowed to introduce inadmissible evidence by calling a hostile witness and using his out-of-court statements (which would otherwise be inadmissible hearsay) to impeach him.

ii. Court holds that D is correct - it is an abuse of FRE 607 to allow in hearsay in the guise of impeachment evidence however they said that there is no show of bad faith in calling the witness.

iii. The good faith standard is "always open" to the D to argue that the probative value outweighs the undue prejudicial impact (Rule 403)

iv. Quotes United States v. Morlang ("impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible")

II. Harris v. New York i. D was charged with selling heroin. The main W was an undercover cop who conducted business with D. On

cross, prosecution asked about statements made prior to P being given his Miranda Rights. D stated that he did

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not remember the statements he made and prosecution read him the "partially contradicted" testimony. Trial judge told the jury that the statements could only be used to judge D's credibility, not as evidence against him.

ii. Court holds that information inadmissible because of Miranda for a case-in-chief is not barred for all purposes. Miranda is not a shield for the accused to commit perjury.

iii. Dissent: statements inadmissible for direct should also be inadmissible for cross III. Jenkins v. Anderson

i. D is accused of stabbing and killing Redding. He claims that the stabbing was in self-defense. Facts of the case state that Redding had robbed D's house the day before. D followed him and called the police. There was a confrontation where Redding accused D of calling the police. D then claims that Redding attacked him with a knife. D turned himself in 2 weeks later. Prosecution referred to his delay in turning himself in as a burn on his credibility.

ii. Question: does the use of prearrest silence to impeach a defendant's credibility violate either the 14th or 5th amendment?

iii. Court holds that 5th amendment is not violated because once a criminal takes the stand, he leaves himself open to any inconsistent statements or acts for impeachment - waives his right to silence.

iv. Court holds that 14th amendment is not violated because each state is allowed to create their own rules regarding this. Common law allows Ws to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. In this state, prior silence cannot be used for impeachment where silence is not probative of a defendant's credibility and where prejudice to the D might result.

IV. Problem 8F i. Oswald is charged with robbery. Ardies testifies that he is an alibi and that he saw O at his restaurant on the

day of the robbery and every day for weeks leading up to the robbery. ii. Witness 1 (Police Detective Kinney) claims that he saw O in Seattle a week prior to the robbery and he had

been there for a few days. 1. The court should not allow this evidence in because it is simply used to contradict A, not to bring

anything else to the table. It does not matter if K had seen O a week before the robbery in a different city. Just because he was in Seattle that day does not mean that he was not in the restaurant at the time of the robbery. The contradiction is not relevant to the case.

2. Class - how central does the testimony have to be for the case in hand?iii. Witness 2 (waiter Samuel) claims he's never seen O before at the restaurant

1. The court should allow this information in because this testimony may contradict the alibi itself, not just A's statement. If S had never seen O before and had worked the day of the robbery, it brings light that A may be lying about O being in the restaurant/the alibi. It would be relevant on a substantive point if he worked that day. If he did not, it would be similar to K's testimony and would not be relevant.

2. Class - more right to the point and would probably be allowed V. United States v. Havens

i. Issue: can evidence excluded based on illegal search and seizure be used to impeach a witness where the evidence doesn't squarely contradict the D's testimony on direct?

ii. Respondent was convicted of importing, conspiring to import, and intentionally possessing cocaine. McLeroth was found to be wearing a t-shirt with sewn up pockets filled with cocaine. Respondent's possessions were searched without a warrant where they found a cut up t-shirt that matched another suspect's pocket swatches. This evidence was suppressed prior to trial for illegal search and seizure. During direct, R claimed that the shirt was not in his suitcase at the time. T-shirt was admitted with instructions to the jury solely impeach the witness's credibility.

iii. Court of Appeals: reversed, "illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a D in the course of his direct examination"

iv. Supreme Court: reversed, when D testifies, he must do so truthfully. If he is found to have perjured, any evidence that can be used to prove this should be used regardless of whether it was illegally obtained. The questioning was close enough in connection to direct examination that the t-shirt may be used as evidence to contradict the witness.

v. Dissent: illegally seized evidence should not be allowed in because it just gives prosecution a roundabout way to get the evidence in on cross. Defendant should be able to deny without leaving himself vulnerable to rebuttal evidence illegally secured.

VI. Problem 8G: "Have you Ever Sold Narcotics Before?"i. Young is charged with selling narcotics. He testifies that he did not commit the offense and he was elsewhere

at the time. Prosecutor asks on cross if he's ever sold narcotics before. ii. Objection before answer

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1. The questions would not be allowed in because it speaks of prior acts (404b) that would be unduly prejudicial in this case based on FRE 403. There is little to no connection with him selling narcotics previously to him selling them now.

2. Class - past acts - show past acts a. Needs to be in form of reputation or opinion, and only after D opens it up first

iii. Objection after answer1. The evidence would not be allowed in for impeachment towards credibility because his previous acts

have nothing to do with the case here. It has to do with fairness - you don’t want a jury to be thinking of the defendant's other crimes or force the defendant to defend their whole lives.

2. Class - now they have lied, can prosecution come back and impeach?a. Courts would probably not let that happen b. Prosecution stated this with improper question

~~~I. Impeachment Review

i. When you take the stand, you put your credibility at issue - subjects the W to be impeached ii. Techniques to Impeachment

1. Petition, pleadings, answers a. If they deny it and turns out to be true, you can impeach them

2. Minimal amount needed for impeachment - used to show W is not accurately describing the events - Non-collateral: if denied, you can prove it up

a. Perceptionb. Memoryc. Mental capacity d. Biase. Prior conviction (collateral)f. Non-conviction acts bearing on truthfulness (collateral) g. Inconsistent statement h. Opinion/reputation evidence of character i. Contradiction

iii. Contradiction 1. Want to prove the W is wrong - if wrong on 1 aspect, could be wrong on another even if it is on an

unimportant event 2. Example: Bank Robbery - W said "I just left Rubio's and saw the bank robbery across the street" - there

is no Rubio's across the street but a McD. a. Get the W to say that it was false or show extrinsic evidence

3. 608b: collateral - cannot deny it up unless it is material to the case (character) II. Problem 8F (see above)

III. Problem 8G (see above)IV. Rule 610: Religious Beliefs or Opinions

i. 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

ii. 609 (prior convictions), 608b (prior non-conviction acts bearing on truthfulness), 608a (opinion/reputation to dishonesty)

iii. Take out the "sting" on direct examination V. Repairing Credibility

i. Explanation by impeached witnessii. Prior consistent statements (possibly)

1. Impeachment for prior inconsistent statement does not open the door for all inconsistent statements a. Recent fabrication or result of undue influence

iii. Character evidence of truthfulness (possibly)1. Cannot bolster credibility until after W's truthfulness is attacked 2. Character witness may then testify (opinion or reputation) as to truthful disposition of attacked W

iv. US v. Medical Therapy Sciences 1. Prosecution brings out past convictions 2. Wants to take the sting out 3. Does that allow prosecution to call W by opinion/reputation that she is honest?

a. No, credibility has not been attacked by other side 4. On cross, they attack her on these aspects 5. Now, prosecution can try to repair her credibility - wouldn’t have been able to otherwise

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VI. Best Evidence Doctrinei. Mandated by rules to put forth the most probative evidence available - FALSE

ii. Not talking about heirarchy or probative valueiii. "The Original Document Rule" - bring the original if you are trying to prove the content of that document

1. Also extends to recordings and photographs 2. Only if you are trying to prove the contents

iv. RULE 1002: To prove the content, original is required except as otherwise provided v. If BER applies

1. Duplicate is admissible 2. Not admissible if unfair or genuine dispute as to the original's authenticity exists 3. Production of original may be excused under certain circumstances

vi. Exceptions 1. Originals lost or destroyed2. Not obtainable 3. In possession of opponent4. Collateral matters

VII. Problem 14A: The Defamatory Letter i. Paula brings a defamation action against Daniel based on statements made by D in a letter to P's employer. At

trial, the letter is neither produced nor shown to be unavilable. ii. Assume BE implicated

iii. Must affect substantial right of party iv. Reversible error when writing is central to the case v. If not challenged, appellate court might consider this harmless error

VIII. Definitions (rule 1001) i. Writings and recordings - very broad definition

ii. Photographs - very broad definition (still photos, x-ray, video tapes, motion pictures) 1. US v. Duffy

a. Whether t-shirt with letters is considered writingb. Court holds that it is an inscribed chattel - not a writingc. Original does not have to be produced

iii. Original 1. A copy can be an original

iv. Duplicate 1. Recognizes modern technology and allows the use of duplicates 2. Same as original unless

a. Genuine question is raised as to authenticity of the original b. Unfair to admit duplicate

v. Rule 1004: Admissibility of Other evidence of Content 1. Original lost or destroyed: all originals are lost or have been destroed, unless the proponent lost or

destroyed them in bad faith a. Alterations = destroy original

vi. Photocopy must be legible vii. BED comes into play where

1. Substantive law mandates you prove the context of the writing, recording, photograph2. You decided that you want to prove the context of the writing, recording, photograph

IX. Problem 14Ei. Sustained - well taken

ii. Testimony is trying to prove the contents X. 14F

i. Bank robbery took images of the robber - testified that he downloaded the images that were taken at the time of the robbery. Wants to testify that it is the D in the image

1. Should be let in because it is an original copy 2. Testimony is used to prove the content - does not bring in the original itself 3. Trying to prove the contents of the photo

a. Different from Meyers v. US i. D is being tried for perjury to the committee of the Senate

ii. Told that transcript of the hearing should be provided iii. Best evidence is not the best document rule - must put in the original

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iv. "that theory is, in our view, based upon a misconception of the best evidence rule. As applied generally in federal courts, the rule is limited to cases where the contents of a writing are to be proved. Here there was no attempt to prove the contents of a writing; the issue was what Lamarre had said, not what the transcript contained"

XI. 14 Gi. The issue is what was said in the conversation, not the contents of the tape. The tape is a method of proving the

conversation. XII. 14H

i. Guy gets a bunch of sick chickens, wants a price adjustment, proven by vets report, but does not offer the vets report itself, just talks about it. This violates the best evidence rule. He is trying to prove contents of report, original would be required.

XIII. Rule 1004: i. original not obtainable

1. Must try to get it ii. Original in possession of opponent

1. You can request the original from the other side - if the copies are illegible, you can request to inspect the original documents

iii. Collateral matter 1. Not related to controlling issue

XIV. 14L i. Original was destroyed in a fire

ii. Wanted to introduces testimony instead of a perfect copy iii. If original is destroyed, you can testify OR produce a copy - you don’t HAVE to put in the next best evidence

XV. 14Mi. Rule 1006 - charts and oral summaries are allowed as long as the original can be produced

ii. Inadmissible writings are not made admissible by 1006 just because it is in summary form iii. 1006 requires provision of original copy to opposing party with enough time to inspect the document

FOUNDATION, START HEARSAY on weds

Homework Notes (Foundational Evidence) Sunday, October 10, 20107:25 PM United States v. Johnson o D was convicted of assault resulting in serious injury - attacked Papse with an ax. Papse took the stand and was asked

to authenticate an ax found on D's premise as the one used against him. P did so with some hesitancy. D is trying to say that the authenticity was insufficient because P did not state specifically what distinguished the ax from any other, that there could be other axes on site, and that it was all speculation that this was the ax used. Also, the ax was in a changed condition - court should be more wary.

o Court holds that the evidence was properly authenticated because P said he was "pretty sure" and had used the ax in the past. Any hesitation or changed features of the ax should go to the weight accorded the evidence but as for authenticity, it is sufficient. The requirements for Rule 901a were met - ax was properly put into evidence

Problem 13Ao 3 bags were found on a suspect - after analysis, it is determined to be cocaine. What foundation is necessary to

introduce the baggies? Analysis process - cop (T) gives to U at state crime lab. U gives to V (chemist). o Foundation: Cop could authenticate that the bag was on the suspect but it would be better to get all witnesses in to

testify 1) that it was on the suspect, 2) that it contains cocaine. It is important to call all witnesses otherwise there will be a hole in the story. They would have to identify it, label it, and lock it up.

o Chain of custody - control every aspect of the chain of custody in this manner United States v. Howard-Arias o Coastal guard boarded a ship and found large quantities of marijuana. The boat sank but 240 bales of it were salvaged.

The marijuana was turned over to the proper authorities and D was charged with possession with intent to distribute. o D is trying to say that because not all witnesses in the "chain of custody" testified, the evidence was not properly

authenticated.o Court holds that so long as there is sufficient proof that the evidence is what it purports to be and hasn’t been altered,

its ok to have a missing link.

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o Not all witnesses who's hands the evidence passed through need to testify so long as there is enough proof to show that the evidence is what it claims to be and hasn’t been altered.

o It is up to the discretion of the trial judge to determine if there is enough proof. United States v. Bagaric o D attempts to challenge the authenticity of a letter found addressed to another suspecto Court holds that circumstantial evidence (including appearance, contents, substance and other distinctive

characteristics of the writing) may be used to authenticate evidence - there was ample evidence in this case to authenticate.

Problem 13Do Officers Kirsch and Enyart set up a sting operation. A microphone was hidden in the room where K was to meet

Jenkins and buy heroin. In another room, E had set up recording devices - he did not listen to the conversation. The recording was put onto a flash drive and was in E's hands until trial.

o E would have to testify that this was the drive on which the recording was copied onto. Only E would be required to authenticate even though he did not hear the conversation himself. He would have to testify about their sting operation and that this was the drive used at the time.

o Either officer can testify towards the recording. K as a participant or E like in Turnage. Turnage v. State o Recorded phone call from prison - recording technician did not compare the copy to the original. D attempts to say that

the tape was not properly authenticatedo Court holds that there are 7 foundational elements for a tape recording to be admitted

Showing that recording device was capable of taking testimony Showing that operator of device was competent Establishment of authenticity and correctness Showing that changes/additions/deletions were not made Showing of manner of preservation Identification of speakers Showing that testimony elicited was voluntary/not induced

o Court says that duplicate recording is admissible to the same extent of the original unless there is a genuine question regarding authenticity of the original or it is unfair to admit duplicate in lieu of the original

Problem 13Eo Photograph taken a month after a traffic accident is attempting to be authenticated. o Photographer does not have to testify in order to establish authenticity - just have someone familiar with the street

testify that it is an accurate representationo If there are new features in the picture that were not there at the time of the accident, have someone familiar with the

street testify to that. o Photo is still admissible

Problem 13F o X-ray is put in as evidence of a fractured leg.o Authentication: show that the operator was properly trained to use the x-ray machine

Problem 13Go Proof of amount on sales - computer print out was offered as evidence. o Authentication: person who printed must testify that this is an actual, unchanged copy of the invoice

United States v. Pool o D is convicted for participating in a scheme to import approximately 225,000 lbs of marijuana. The only proof they

have is from a telephone conversation where "Chip" (nickname suspect uses) told the undercover DEA agent to meet him on another boat to make the exchange. Conversation was not recorded, agent never met up/talked to suspect in person. Only way to identify is through the caller's self-identification

o Court holds that this is not enough proof, circumstantial or not, to show that the caller was actually the suspect. The chance of someone else using the nickname is too great and the call is essential to the conviction.

o A telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentication of the call as in fact coming from X.

Problem 13Ho Paul Michaud is interviewed for a position in a firm - never spoke to head partner but is told that he is in charge of

hiring. Prospective employee is told by O'Roarke's secretary to call him after 5pm. When he calls, he is asked when he can start. He rejects the other interviews he has lined up. Months later, he gets a letter stating that the firm is not hiring any new employees. He sues O'Roarke for breach of contract. Employee is asked to recount the phone conversation but the opposing lawyer objects on authentication grounds.

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o PM may have a case here because there is more to go on than in the Pool case - here, he is told be a secretary who identifies herself as O'Roarke's secretary. He is given a phone number and is told to call after 5pm. On answering the phone, the person states "This is O'Roarke" (unlike in Pool where the person identified themselves with a nickname).

o It is ultimately up to the judge's discretion but there seems to be enough circumstantial evidence to authenticate the phone conversation testimony.

o What he could do is bring in the voicemail recording and have it authenticated to actually being O'Roarke's secretary's voice.

Lecture 14, Week 8 Monday, October 11, 20108:30 AM

I. Best Evidence Doctrine (continued) i. Original document doctrine

ii. Problem 14N 1. Rule 1007 - authenticating the letter without producing the letter 2. Proved by the testimony or deposition (or written admission) without accounting for the

nonproduction of the original 3. Does not extend to oral admissions

iii. Rule 1005: Public records - may be proved by copy, certified as correct, or testified to be correct by a witness who has compared it with the original

1. Copies must be certified or compared copies 2. If requirements are met, must be received in lieu of original

iv. Rule 1008: Functions of Court and Jury 1. Judge decides most things but jury has a part in some issues

II. Foundation i. Want a mechanism to make sure the proof is what it purports to be

ii. Screens out evidence that is not reliable/relevant iii. If there's no foundation present, you may not know what the proper objections are or are not iv. General requirement

1. Satisfied by the proponent proving evidence that the matter in question is what it claims it to be 2. Burden of production and persuasion are on the proponent of the evidence 3. Authentication issues are decided under Rule 104(b)

a. Court/judge determines if evidence is authenticated v. Discovery - interrogatories, depositions, etc

vi. Rule 16: pre-trial conferences vii. Rule 26: production of documents

viii. Rule 36: request for admissions ix. Rule 37: sanctions x. Rule 901:

1. Satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims

a. Laying the foundation xi. Example procedure for Authenticating Trial Exhibits

1. Know exactly what exhibits the other side is going to use at trial and preserve your objections. Know your strategy regarding each exhibit

2. Mark all exhibits for identification. Find out how the court wants it done and comply3. Organize a copy of all your marked exhibits 4. Be sure you are prepared to authenticate each of your marked exhibits 5. Authenticate a given exhibit6. Offer exhibit into evidence. Be sure to keep a proof and exhibit checklist7. Permit opposing counsel the opportunity to review the offered exhibit and object to its

admissibility 8. Obtain court ruling. Be sure you understand the ruling and the ways you can satisfy the judge's

concerns, if any, regarding admission of the exhibit 9. Make record if court rules against you 10. If admitted, publish the exhibit to the jury in the most effective way allowed

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xii. Example1. Holly for the murder of John 2. Knife brought in found at the murder scene 3. No one is brought in to testify as to the knife - pathologist testifies that John died by multiple stab

wounds 4. Rule 104(b) - there must be ample evidence to decide one way or another - objection should be

sustaineda. Burden is on the proponent trying to get the knife in - here they had nothing

xiii. 901(b) reaches beyond tangible objects - handwriting, voice identification, etc. xiv. Authentification is more significant in criminal cases

1. More limited discovery xv. Tangible evidence generally proved by

1. Witness testimony, based upon identifying charactersitics of the tangible item or 2. Chain of custody evidence

xvi. RULE 901(b)1. Illustrations

a. Testimony of witness with knowledge xvii. United States v. Johnson

1. D was convicted of assault resulting in serious injury - attacked Papse with an ax. Papse took the stand and was asked to authenticate an ax found on D's premise as the one used against him. P did so with some hesitancy. D is trying to say that the authenticity was insufficient because P did not state specifically what distinguished the ax from any other, that there could be other axes on site, and that it was all speculation that this was the ax used. Also, the ax was in a changed condition - court should be more wary.

2. Court holds that the evidence was properly authenticated because P said he was "pretty sure" and had used the ax in the past. Any hesitation or changed features of the ax should go to the weight accorded the evidence but as for authenticity, it is sufficient. The requirements for Rule 901a were met - ax was properly put into evidence

3. 104(b) determination - reasonable factfinder could be able to determine one way or another - judge's discretion is not the only factor (he only overturned if abuse of discretion)

a. 403 - errs on the side of allowing evidence xviii. Police seize a tangible object

1. Take not of unique characteristics xix. Problem 13A

1. 3 bags were found on a suspect - after analysis, it is determined to be cocaine. What foundation is necessary to introduce the baggies? Analysis process - cop (T) gives to U at state crime lab. U gives to V (chemist).

2. Foundation: Cop could authenticate that the bag was on the suspect but it would be better to get all witnesses in to testify 1) that it was on the suspect, 2) that it contains cocaine. It is important to call all witnesses otherwise there will be a hole in the story. They would have to identify it, label it, and lock it up.

3. Chain of custody - control every aspect of the chain of custody in this manner xx. United States v. Howard-Arias

1. Coastal guard boarded a ship and found large quantities of marijuana. The boat sank but 240 bales of it were salvaged. The marijuana was turned over to the proper authorities and D was charged with possession with intent to distribute.

2. D is trying to say that because not all witnesses in the "chain of custody" testified, the evidence was not properly authenticated.

3. Court holds that so long as there is sufficient proof that the evidence is what it purports to be and hasn’t been altered, its ok to have a missing link.

4. Not all witnesses who's hands the evidence passed through need to testify so long as there is enough proof to show that the evidence is what it claims to be and hasn’t been altered.

5. It is up to the discretion of the trial judge to determine if there is enough proof. 6. Courts vary in the tolerance - depends on which link is missing

a. Unlikely that evidence would have been received if the coast guard who original seized the object to testify

b. Courts almost always require that the original chain testify III. Authentication of a Writing

i. To admit, you must prove that a particular person authorized or signed the document

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ii. 901(b)(2): nonexpert opinion on handwriting 1. "are you familiar with this handwriting? Who's is it?"

iii. 901(b)(3): comparison by trier or expert witness 1. Comparison by the trier of fact or by expert witnesses with specimens which have been

authenticated iv. 901(b)(4): distinctive characteristics and the like

1. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances

2. Common law reply doctrine - allows writing to be authenticated when it is a reply to an already authenticated letter

v. United States v. Bagaric 1. D attempts to challenge the authenticity of a letter found addressed to another suspect2. Court holds that circumstantial evidence (including appearance, contents, substance and other

distinctive characteristics of the writing) may be used to authenticate evidence - there was ample evidence in this case to authenticate.

vi. 901(b)(7): public records or reports 1. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a

public office, or a purported public record, report……vii. 901(b)(8): ancient documents or data compilation

1. Evidence that a document or data compilation, in any forma. Is in such condition as to create no suspicion concerning its authenticityb. Was in a place where it, if authentic, would likely be c. Has been in existence 20 years or more at the time it is offered

viii. 901(b)(5): Voice identification 1. Identification of a voice, whether heard firsthand or through mechanical or electronic

transmission or recording, by opinion based upon hearing voice at any time under circumstances connecting it with the alleged speaker

2. Problem 13Da. Officers Kirsch and Enyart set up a sting operation. A microphone was hidden in the room

where K was to meet Jenkins and buy heroin. In another room, E had set up recording devices - he did not listen to the conversation. The recording was put onto a flash drive and was in E's hands until trial.

b. E would have to testify that this was the drive on which the recording was copied onto. Only E would be required to authenticate even though he did not hear the conversation himself. He would have to testify about their sting operation and that this was the drive used at the time.

c. Either officer can testify towards the recording. K as a participant or E like in Turnage. 3. Turnage v. State

a. Recorded phone call from prison - recording technician did not compare the copy to the original. D attempts to say that the tape was not properly authenticated

b. Court holds that there are 7 foundational elements for a tape recording to be admittedi. Showing that recording device was capable of taking testimony

ii. Showing that operator of device was competent iii. Establishment of authenticity and correctness iv. Showing that changes/additions/deletions were not madev. Showing of manner of preservation

vi. Identification of speakers vii. Showing that testimony elicited was voluntary/not induced

c. Court says that duplicate recording is admissible to the same extent of the original unless there is a genuine question regarding authenticity of the original or it is unfair to admit duplicate in lieu of the original

ix. Problem 13E1. Photograph taken a month after a traffic accident is attempting to be authenticated. 2. Photographer does not have to testify in order to establish authenticity - just have someone

familiar with the street testify that it is an accurate representation3. If there are new features in the picture that were not there at the time of the accident, have

someone familiar with the street testify to that. 4. Photo is still admissible

x. 901(b)(9): process or system

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1. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result

2. Problem 13F a. X-ray is put in as evidence of a fractured leg.b. Authentication: show that the operator was properly trained to use the x-ray machine

3. Problem 13Ga. Proof of amount on sales - computer print out was offered as evidence. b. Authentication: person who printed must testify that this is an actual, unchanged copy of

the invoice xi. Telephone Converstaions

1. Must have some recognition other than a person just saying "hi, this is X" 2. United States v. Pool

a. D is convicted for participating in a scheme to import approximately 225,000 lbs of marijuana. The only proof they have is from a telephone conversation where "Chip" (nickname suspect uses) told the undercover DEA agent to meet him on another boat to make the exchange. Conversation was not recorded, agent never met up/talked to suspect in person. Only way to identify is through the caller's self-identification

b. Court holds that this is not enough proof, circumstantial or not, to show that the caller was actually the suspect. The chance of someone else using the nickname is too great and the call is essential to the conviction.

c. A telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentication of the call as in fact coming from X.

d. Could possibly use caller id3. Rule 901(b)(6): telephone conversations

a. By evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business if i. In the case of a person, circumstances, including self-identification, show the

person answering to be the one called ii. In the case of a business, the call was made to a place of business and the

conversation related to business reasonably transacted over the phone 4. Problem 13H

a. Paul Michaud is interviewed for a position in a firm - never spoke to head partner but is told that he is in charge of hiring. Prospective employee is told by O'Roarke's secretary to call him after 5pm. When he calls, he is asked when he can start. He rejects the other interviews he has lined up. Months later, he gets a letter stating that the firm is not hiring any new employees. He sues O'Roarke for breach of contract. Employee is asked to recount the phone conversation but the opposing lawyer objects on authentication grounds.

b. PM may have a case here because there is more to go on than in the Pool case - here, he is told be a secretary who identifies herself as O'Roarke's secretary. He is given a phone number and is told to call after 5pm. On answering the phone, the person states "This is O'Roarke" (unlike in Pool where the person identified themselves with a nickname).

c. It is ultimately up to the judge's discretion but there seems to be enough circumstantial evidence to authenticate the phone conversation testimony.

d. What he could do is bring in the voicemail recording and have it authenticated to actually being O'Roarke's secretary's voice.

5. Rule 901(b)(4): Distinctive characteristicsxii. Self-identification

1. Extrinsic evidence not required for foundation 2. Rule 902 sets forth 10 situations where this applies3. In no instance is the opposite party foreclosed from disputing authenticity 4. Does not mean it is automatically admissible - just don’t have to prove extrinsic evidence to

authenticate 5. FRE 902(7)

a. Trade inscriptions and the like 6. FRE 902(5)

a. Official publications - books, pamphlets, or other publications purporting to be issued by public authority

7. 902(6)a. Newspapers and periodicals - printed materials purporting to be newspapers

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8. 902(4) a. Certified copies of public records

IV. Rules 902(1)-902(4) i. (1): Domestic public documents under seal

1. A document bearing a seal purporting to be that of the US, or of any State, district, etc…and a signature purporting to be an attestation

2. Talking about the ORIGINAL document ii. (2): Domestic public document not under seal

1. Original public document iii. (3): Foreign public documents

1. Original 2. Accompanied by a final certification as to the genuineness

V. Rule 902(9)i. Commercial paper and related documents

VI. Rule 902(10) i. Presumptions under Acts of Congress

VII. Rule 903 i. 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 ii. i.e. a will

VIII. Demonstrative evidence i. Describe evidence for illustrative purpose

ii. Still need to lay down foundation

Lecture 15, Week 8Tuesday, October 12, 201010:54 PM Homework Notes I. Problem 3B: Kenworth and Maserati

i. Maserati (Phillip) pulls up next to a large Kenworth truck. P is not able to see any lights but goes forward into traffic because the Kenworth begins to pull forward. As he shoot out in front, he is hit by Hillary. At the trial, Philip wants to put into evidence that the light was green for him because the truck was also moving forward.

ii. The fact that the truck pulled forward is hearsay because it is a statement of an action made out of court. Pulling forward is an act done on the faith of the statement being true which would raise in the ordinary conduct of affairs a strong belief in the truth of the statement.

iii. Requires a two-step inference similar to Wright case ~~~I. Impeachment by Evidence Attacking

i. Perception/personal knowledge ii. Memory: bridge of the temporal gap between time past and time present

iii. Mental capacity II. Hearsay

i. Protect the engine of being able to cross-examine ii. Evidence that is hearsay is not admissible unless otherwise provided

1. Hearsay evidence may still be admissible; and even if it is not hearsay, evidence may still be excludable iii. Hearsay does not automatically equal exclusion iv. Only can we define hearsay can we determine if the hearsay rule operates to exclude the evidence (subject to

limitations) III. Rule 802: Hearsay Rule

i. Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress

ii. Hearsay (defined) 1. Statement (oral, written or asserted conduct) 2. Made out of court3. Offered to prove the truth of the matter asserted

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4. Not otherwise excluded under rule 801(d) iii. Must determine:

1. Whether the evidence is a "statement" 2. Was this statement made "out of court" - was the statement made on the witness stand at the current trial

or somewhere else 3. Why is the evidence being offered into the record

iv. 801(c) 1. Hearsay is 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 (not excluded under 801(d))v. Statement (defined) - 801(a)

1. An oral or written assertion; or 2. A person's nonverbal conduct, if it is intended by this as an assertion 3. If you do not have a "statement," hearsay is NOT present

vi. Declarant (defined) - 801 (b) 1. A person who makes a statement

IV. Sample Problems - is this hearsay?i. In Court: "the light was red at the time of the accident"

Out of Court: "I observed the color of the light at the time of the accident"I. Not hearsay - testifying in court under oath, subject to cross-examination

II. In court: "I heard Alicia say that the 'car just ran the red light" Out of court: "John and I were working out and I said "Look, that car just ran a red light" 1. Hearsay: statement made by a 3rd party out of court 2. Declarant: Alicia

iii. In court: "I said 'the car ran the red light'" Out of Court: "the car ran the red light" 1. Hearsay: he is not testify based on his present knowledge but rather a statement made by himself 2. Less risk but under the definition, still considered hearsay because it is an out-of-court statement 3. Hearsay may still be present even if the statement was made by the person on the witness stand as long as it

was made out of court 4. If she just said "The car ran the red light," if would not be hearsay

iv. In Court: I heard her scream "look out there is a tree in the middle of the groomed slope" Out of court: "look out there is a tree in the middle of the groomed slope" 1. What is it being offered for? 2. If it is offered for what is being asserted, it is hearsay 3. If it's offered, for example, to determine if X made a reasonable action, it would not be hearsay 4. Statement can be hearsay if offered for the truth of the matter asserted

v. In Court: My brother, Frank, told me many times that his puppets talk to him Out of court: "Wow, my puppets really do talk to me!" 1. If offered to show that the puppets actually talk to him, it's hearsay 2. If it's offered to show that Frank is crazy, not hearsay

vi. In court: I know father Tom and can authenticate his signature on this affidavit - affidavit moved into evidence Out of court: Father Tom signs a notarized affidavit stating that "while blessing a sick child, I looked out the window and say the car run the red light" 1. Hearsay: statement is written and made out of court, offered for the matter asserted

5. Problem 3A: Three See a Robbery i. Witness Lissner testifies on 3 conversations he had with witnesses of a bank robbery.

1. Plaintalk: "Higgins is the one who did it"a. If offered to show that Higgins is the person who did it - direct statement to the point to be

proved 2. Sirchev: "That fellow Higgins went out of here carrying money bags"

a. Offered to show that Higgins came out carrying money bags and therefore committed the crime b. Offered: carrying money bagsc. Proved: he's the robber

3. Oblique: "they ought to put Higgins in jail for this, and throw away the key" a. Exactly what he asserted - he did the robbery and should go to jail

ii. All three of these statements are hearsay because they are out of court statements6. Example

i. Shortly after a murder of Fred, Sam tells Anne: "I saw the defendant standing over Fred with a bloody knife in his left hand". Is it hearsay if, at trial, Anne relays what Same told her about the D?

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ii. Depends on whether it is being offered for the truth being asserted iii. When one part of the chain of inferences results in the statement being offered for the truth of the matter

asserted, it is still hearsay 7. "Statement" under Federal Rules

i. Must be either verbal assertive conduct or nonverbal assertive conduceii. CAN to Rule 801(a) recognizes that nonassertive verbal conduct" does exist

iii. Determine the declarant's intent (i.e. did the declarant intend to assert something?)iv. For it to be a hearsay statement, it must be assertive conduct v. Assertive conduct may be verbal or non-verbal

vi. "the key to the definition is that nothing is an assertion unless it is intended to be one - 801(a) vii. Judge will decide if something is hearsay - 104(a)

1. Places the burden on the party claiming the statement is hearsay viii. Verbal assertions readily fall into the category of "statement" - verbal utterances whether written or oral

1. Exceptions a. Reflexive/unthinking verbal conductb. Words expressed as common social pleasantriesc. Actor's or Singer's performances

2. Federal Rules: MUST have an intention to assert 3. Common law view: Wright Case

a. Wright v. Doe d. Tatham i. D is contesting a will, saying it was made under undue influence. In his defense, he bring

witnesses that say that the testator was not of sound mind - infantile in mind. For testator, 3 letters are brought in, each saying that testator was a fine businessman. Each of the writers have passed away and are unable to testify in court.

ii. Evidence of an act, offered only to suggest third persons' statements or opinions on a material issue, is inadmissible if the statements/opinions themselves would be inadmissible

iii. Merely hearsay evidence, not on oath, of the opinions of the writers iv. Had the statements been made to a 3rd person instead of in writing, it would still not be

admissible by hearsay.8. Examples

i. In court: "I looked outside my window and everyone had their umbrellas open" Out of Court: raining 1. This is NOT hearsay - if you do not intend to communicate by raising your umbrella, it is not hearsay

1. In Court: Testifies as to training and pedigree of bloodhound; and evidence of trailing and barking at the defendant

2. Out of court: dog barks at person i. Declarant: bloodhound; statement: barking

ii. 801(b): dog is NOT a person therefore is not a declarant. Barking is NOT hearsay iii. Some states say it is hearsay

9. Cain v. George i. Wrongful death case wehre a son died of carbon monoxide poisoning while a guest at D's hotel. P alleges that

the heater was defective. D says that it was an unavoidable accident that was not their fault. ii. Evidence of hotel manager testifying that other guests were fine and made no complaints was not seen as

hearsay because it related to the knowledge of the manager whether anyone else had ever been harmed by the heater. Best evidence to show that harm was not caused by heater

iii. Silence is not hearsay 10. Example Problem:

i. Barb, a lay witness, is called to the witness stand to testify that the D, while operating his car, did not come to a complete stop at the stop sign/ Barb was not present at the intersection on the date in question, but will say that in her opinion the D could not have completely come to a stop given the circumstances. What is defense counsel's best objection?

ii. Try to sneak hearsay in 11. United States v. Check

i. Blatant attempt at hearsay without actually saying "X said" Lecture 16, Week 9 Monday, October 18, 2010

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8:27 AM

I. Hearsay under 801(c) i. Statement made in court (at that time) offered for the truth of the matter of the case at hand

ii. If a statement is not offered for the truth of the matter, it's not hearsay iii. Start by identifying what the arguable statement is

1. Who is the arguable declarant? 2. Is there intent to communicate?

iv. Want a witness to testify with personal knowledgeII. Categories

i. Impeachment 1. Not hearsay if solely for the purpose of impeachment 2. Problem 3C

a. Objection should be overruled - not used as proof substantively (color of the light) b. "this witness should not be believed"

ii. Effect on the listener or reader1. "look out, there's a fire!" - is this hearsay?

a. Depends on whether it is used for the matter asserted b. We all should know that a statement, if used as purpose A can be hearsay, and if used for

purpose B can be nonhearsay 2. Problem 3F

a. Smells gas and thinks there's a problem. Doesn't call anyone but someone shows up saying he's an agent of the gas company. Gas company man lights a cigarette and there is an explosion.

b. Reasonable for X to take the gas man to the back?i. Negligence (taking the man to the back) - not hearsay

ii. Agent of the gas company - hearsayiii. Verbal acts which have an independent legal significance

1. Statement in a defamation action: "Sam said that I was dishonest and a drug addict" 2. Merely for offering independent legal significance - merely because it was spoken 3. Does not matter if it is truthful or not 4. Statement in a contract action: "I offer to sell to you my computer for $100" and "OK it's a deal" 5. True offer: creates the power of acceptance 6. Problem 3D

a. Undercover agent goes to a massage parlor and while there, was solicited for sex. "You can have it any way you like it."

b. Has the words themselves risen to the level of solicitation? It doesn't have to be true. c. Offered as having independent legal significance d. Solicitation for prostitution was the very fact in issue - the truth of her statement were not

important iv. Verbal objects

1. Words sometimes have an identifying characteristic - can be on a physical object 2. The words MAY be intended as an assertion (i.e. words on a briefcase saying "HANDS OFF!

DEVITT'S BRIEFCASE") 3. "People are Yankee's fans are more likely to have Yankee's paraphernalia" DiGiovanni's laptop -

not hearsay 4. Briefcase with "Mike" on it - people named Mike would have a briefcase with "Mike" on it -

nonhearsay 5. Commercial labels - usually not hearsay

a. If used to authenticate an object - not hearsay6. Problem 3G

a. 3Ds were charged with conspiring to deal cocaineb. Matchbook with legend on it was found at the crime scene with the words "Eagle's Rest Bar

and Grill" i. Not used for the matter asserted but used as identifying characteristics

c. Mug with "Chief Illiniwek" and "The Fighting Illini" and "Witter" on it i. Not used directly for the matter asserted

d. Barmaid pointing out couple to undercover cop. Undercover cop testifies to barmaid's pointing out

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i. Not hearsay - witnesses are testifying based upon the present knowledge and recollection free of hearsay

ii. Both are testifying to present knowledge and recollection v. Circumstantial evidence of state of mind

1. Problem 3H: the will was used to show Anna's state of mind - that she was unhappy with her husband. It was not used to show that the statements in the will were accurate.

2. A statement made to prove state of mind is not considered hearsay so long as it is not used to prove that the statement is in fact true.

3. Example: Statement of man saying "I am the Queen of England!" is not hearsay to prove that he is crazy and not that he's actually the queen.

vi. Circumstantial evidence of memory, knowledge or belief 1. Must be independent evidence of unique or unusual facts 2. Statement by out of court declarant describes the same event and its similar3. Circumstances would show that witness would not have known the facts if they were not present at

the time 4. Bridges Case (Problem 3I)

a. Soldier sexually assaults Sharon - he said, she said situation b. Court struggles to try to get evidence in c. Sharon begins to describe the room where she was molested d. Court says that Sharon's statement of the room would not have been known had she not

been in the house i. Hearsay and would not be able to get in if she was testifying as to what was in the

houseii. Admitted tending to show that she had knowledge of the articles of the house

iii. Independent evidence of unique and unusual facts III. Verbal expressions may blend with physical conduct

i. Singer Case 1. Conduct: addressing the envelope and mailing it

a. Non-assertive action ii. Problem 3J: "My Husband is in Denver"

1. Non-assertive - not hearsay IV. Photographs

i. End-product of photography ii. Not statements

V. DO HEARSAY QUIZ (P. 150)i. Look who the arguable declarant is

ii. Is he making a statement or arguable statement?iii. How is it being offered?

Lecture 18, Week 10 Monday, October 25, 20108:31 AM

I. Hearsay Flowchart i. Recognize whether something is hearsay or not - 801(c)

1. If not hearsay, hearsay rule does not apply 2. See if admissible under FRCP

ii. Does it fit under 801(d)(1)(a)-(c) 1. Admission by party opponent and falls under 801(d)(2)

iii. Whether it fits under an exceptioniv. If there are no exceptions, does the Constitution apply? (6th Amend)

II. Statements Which Are Not Hearsay i. Rule 801(d) provides special rules defining certain statements as not hearsay

1. Prior inconsistent and consistent statement by witness as set forth in Rule 801(d)(1) 2. Admission by party--opponent as set forth in Rule 801(d)(2)

ii. Example 1. In court: I said "the car ran the red light"

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Out of court: "the car ran the red light" II. Hearsay under 801(c)

III. Do you want to use this substantively for truth of the matter asserted, look at 801(d)iii. RULE 801: the following definitions apply under this article:

1. (d) Statements which are not hearsay a. A statement is not hearsay if

i. (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross concerning the statement and the statement is

1. Inconsistent with declarant's testimony and was given under oath subject ot penalty of perjury

2. Consistent with declarant's testimony and is offered to rebut an express or implied charge against the declarant of crecent fabrication or improper influence or motive

3. One of the identification of a person made after perceiving the person 2. Can generally utilize to impeach because not offered to prove the truth of the matter asserted 3. Can also use substantively (for truth of the matter asserted) if you satisfy the requirements of rule

801 (d)(1)(A)4. Prior inconsistent statements traditionally have been admissible to impeach but not as substantive

evidence. Under the rule they are substantive evidence. a. Declarant must testify and subject to perjury, inconsistent with testimony at trialb. Does not have to concern the subject matter of the statement

iv. State v. Smith 1. Woman was assaulted and named Smith as her attacker. She gives statement2. Note 1, page 1613. Castro-Ayon: immigration proceeding 4. NEVER says that rules mandate that the proceedings have a right to cross-examination

a. Can be used for Grand Jury - no right to cross but rule still applies v. Problem 4A: "I got Amnesia"

1. Witness testifies at grand jury but when asked, he says he cannot remember what he said previously

a. Is this inconsistent? Can be argued either way i. Majority view is that forgetting something you previously knew counts as being

inconsistent ii. Cross-examination concerning the statement, NOT the subject matter

iii. As long as you are cross-examinable concerning the statement, that is sufficientvi. Examples of Prior Consistent Statements Allowed Under the Common Law

1. W's credibility is attacked by prior inconsistent statement. W denies making the statement. Prior consistent statement may be used to support denial of making such prior inconsistent statement

a. Rehabilitate W's credibility 2. W's memory is attacked. W may be rehabilitated by use of a prior consistent statement showing

W's memory is the same at trial a. This would be allowed only if the statement was made before the alleged fabrication b. Shouldn’t impact the hearsay rule if it is not being used for the truth of the matter asserted

3. Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence

vii. Tome v. United States 1. Occurred on Indian Reservation 2. Accused of assaulting his 4-year old daughter 3. Child is put on the stand under oath, asked leading questions 4. Defense is trying to create a motive to fabricate abuse - "why do you want to live with your

mother?" 5. Want to try to get in other testimony - babysitter and mother 6. Tome is convicted and appeals saying that reversible error was made

a. Court finds that the statements to babysitter, etc. was made AFTER the motive of fabrication statement

b. Supreme court has gone to the common law, looked at motive requirement, and read it into the rule

7. What is left of the common law uses of prior consistent statements…

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iii. 901(d)(1)(c) 1. Allows substantive evidence if declarant testifies at the trial or hearing and is subject to cross-

examination concerning the statement, and the statement is a. Inconsistent with the declarant's testimony and was given under oath b. Consistent with declarant's testimony and is offered to rebut an express or implied charge against

the declarant of recent fabrication or improper influence or motive c. One of identification made after perceiving the person

2. Example: officer comes forward to testify that X is the person that Y pointed out as her attacker (Y does not remember clearly if it was X)

a. This is not considered hearsay 3. Problem 7, hearsay quiz (p. 151)4. State v. Motta

a. Man comes in and robs coffee shop b. Is a sketch admissible to identify robber?c. Court holds that it is admissible - 801(d)(1)(C) - identification of the initial witness because it was

her description that created the sketch i. If witness is dead and cannot be subject to cross, rule does NOT apply

5. If you have an intent to communicate, made out of court for the subject of the matter asserted, is the witness present and available for cross?

iv. 801(d)(2) - WEDNESDAY 1. Party opponents

a. Criminal case - state and criminal accused b. Civil case - plaintiff and defendant

2. Add onto hearsay analysis a. Is this hearsay trying to be utilized against the party opponent as the opponent's admission? If it is,

it wont be subject to the hearsay rule.

Lecture 19, Week 10 Wednesday, October 27, 20108:22 AM

I. Rule 801(d)(2)i. Defines admissions by party opponent as nonhearsay

ii. Additional step to analysis1. Who is the declarant?2. Is the declarant the party opponent?3. If so, it can be an admission by party opponent

iii. Why do we exclude?1. Don't want people to be able to hide behind previous statements2. Admissions by a party opponent are excluded on the theory that their admissibility is a result of

the adversary system a. Each party is responsible for what they say

iv. Statement offered AGAINST the party1. It’s the party's own statement which is adopted by the other side 2. Authorized statement - lawyer is authorized to make statements for their client 3. Statement by co-conspirator

II. Problem 4B: Fire in the Warehousei. Martin is suing Carter - statement by Carter

ii. Statement is by Carter out of court offered for the truth of the matter asserted 1. Hearsay under 801(c)

iii. P wants to use D's statement as an admission 1. D has no personal knowledge of the statement he made - he was not present at the time of the

incident 2. D's statement was fairly self-serving because he wants to get money from insurance3. Gives an opinion 4. Does not anticipate that the statement will be used against him

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iv. Admissions will come in freely - you don't need personal knowledge III. Admissions

i. Courts have not excluded drunk/intoxicated admissions 1. Some may say "these are not true admissions" 2. Others believe that drunk speech are truthful - just loosen the lips

ii. Finnerty v. Darby (note 5, 184)1. Severe injury with miraculous recovery - admission allowed 2. Colo Rev. Stat.: barring hospitals and doctors from negotiating settlements with patients within

30 days after receiving treatment; excluding statements obtained by doctors or hospitals from patients within fifteen days of such occurrence

IV. Problem 4Ci. 2 people met on vacation and went back to a hotel room. Woman claimed sexual assault. Judge forces

actors to make certain admissions.V. Limits on the use of admissions

i. Admission is cumulative, unfairly prejudicial such that it substantially outweighs the benefits of allowing it.

ii. Constitutional restrictions 1. 6th amendment: if you're going to use a statement made out of court offered for the truth of the

matter asserted, if the perosn who made that statement cannot be confronted by the criminal accused and the prosecution is the person who is trying to confront, NEED to discuss 6th Am.

2. Right of Confrontation: exclude otherwise admissible hearsay or nonhearsay 3. Bruton v. United States

a. E says, "Bruton and I committed the robbery" b. Confession shouldn’t have been admitted based on 6th amendment - his accomplice made

the statement c. States/feds vs. E&B - admission can be used against E but E is not testifying.

i. B can't confront E - cannot confront him over the statement ii. Admitting a statement violates the 6th Am. Right of confrontation

iii. Try separately; redact statementd. ONLY applies in Criminal Cases

4. Example: a. X signs written confession that X and Y commited robbery. If X doesn’t testify at trial, it

CANT be used against Y (6th Amdt right to confront problem).b. If X DOES testify, then Y has the right to confront him on cross and it CAN be used. c. Might be a 403 prejudice problem from SPILLOVER effect though, since X’s admission

would prejudice jury to hold Y guilty as well. VI. Adoption of Words

i. You don't have to make the statement yourself, as long as you adopt and believe in those words ii. US v. Hoosier

1. Convicted of armed robbery 2. GF is bragging "you ain't seen nothin'"

a. Prosecution wants to use the statement for the truth of the matter asserted under 801(c)b. Is this an adopted admission?

i. Probable human behavior would be to deny GF's statement if it wasn’t true. iii. Doyle v. Ohio: Post-Miranda silence/arrest cannot be used as admission

VII. Rule 801(d)(2)(C)i. Statement by person authorized by the party to make a statement

VIII. Problem 4F: Couldn't He See the Boy?i. Wrongful death accident - bus driver ran over child

ii. Strict liability action against bus company iii. FRCP 36: request for admission

1. Admission must be for purposes of the pending action iv. Statement can be made between principle and agent - does it have to be made to a 3rd party?v. Statement made by agent/servant within the scope of employment, it is considered the words of their

employers (D)1. This person does not have to have personal knowledge

a. Mahlandt v. Wild Canid Survival & Research Center i. Child is bitten by a wolf - person who made the statement did not have personal

knowledge of the attack

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ii. Statement is made in the course and scope of employment - admission for the principle

IX. Conspiracy i. If you make a statement during dependency of a conspiracy in furtherance of a conspiracy, the statement

can be used against ANY member of the conspiracy. ii. Conspiracy does not have to be charged

Lecture 20, Week 11Monday, November 01, 20108:28 AM

I. Co-Conspirator Statements i. Coconspirator statements are admissible under 801(d)(2)(E) if:

1. Declarant and defendant conspired 2. Declarant's statement furthered the conspiracy3. Declarant's statement was made during the course of the conspiratorial venture4. Not: applies in both criminal and civil cases

ii. Bourjaily v. US1. 104(a) determination 2. No longer is it true that trial courts must find the predicate facts by independent evidence alone3. Leaves open the door whether or not the alleged conspiring statements can be used solely to prove

necessary elements 4. Burden of persuasion

a. Preponderance of evidence 5. Amendment resolves an issue on which the court had served decision. It provides that the contents

of the declarant's statement do not alone suffice 6. Rational has been extended to (C) and (D) of Rule 801(d)(2)

iii. 801(d)(2) cont. 1. Contents of the statement shall be considered but are not alone sufficient to establish the

declarant's authority under (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).

iv. Problem 4H: Drugs Across the Border 1. Does this fit 801(d)(2)(E)? 2. Conspiracy to buy cocaine 3. Just because a coconspirator makes a statement during the course of a conspiracy doesn't mean it

fit 801(d)(2)(E). Must further the conspiracy v. 801(d)(1)

1. Only applicable when declarant is available for cross-examination vi. Distrust of hearsay statements

1. Want to cross-examine the witness 2. Despite the distrust, rules recognize exceptions 3. Hearsay exception categories

a. Rule 803. Hearsay exceptions; availability of declarant immaterial b. Rule 804. hearsay exceptions; declarant unavailable c. Rule 807. residual exception

4. Exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration

vii. Rule 8051. Talks about hearsay within hearsay 2. Each part of the combined statements conforms with an exception 3. If any bit is hearsay in this chain, it has to fit within an exception

viii. Rule 803: hearsay exceptions; availability of declarant immaterial 1. The following are not excluded by the hearsay rule, even though the declarant is available as a

witness

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a. Present sense impression: a statement describing or explaining an even or condition made while declarant was perceiving the event or condition...

b. The underlying theory of exception (1) is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation

II. Rule 803(2) i. Excited utterance exception

ii. Requirements1. Statement related to a startling event made while the declarant was under the stress of the situation

iii. Theory of exception (2) is simply that circumstances may provide a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication

iv. How long can the excitement prevail?1. Transaction or event will largely determine the significance of the time factor

v. US v. Arnold 1. Independent evidence of an exciting event

vi. Participation by the declarant is not required: a non-participant may be moved to describe what he perceives, and one may be startled by an event in which he is not an actor

vii. Problem 4I: I Felt This Sudden Pain 1. Present sense impression

a. Any event or condition b. Statement must describe or explain event c. Made while perceiving or immediately thereafter

2. Excited utterance a. Startling even or condition b. Statement need only relate to a startling event c. Made while declarant under stress of excitement caused by event

III. Rule 803(3)i. Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state

or mind, emotion, sensation, or physical condition, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the excecution, revocation, identification or terms of declarant's will

ii. Declarant's state of mind - no one else's iii. To show current or future, not past

1. Exception: wills IV. Hillmon Case

i. "I am going to Chicago this Saturday" 1. US supreme court in Hillmon held that such a future statement of intent, if offered that the

declarant actually did go to Chicago, falls within the tehn exisiting state of mind exception 2. CAN make clear that the Hillmon rule allowing evidence of intention as tending to prove the doing

of the act intended is, of course left undisturbed by 803(3) ii. The committee intends that 803(3) be construed to limit the doctrine of Mutual Life Insurance Co. v.

Hillmon so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person

V. Example

Lecture 21, Week 11Wednesday, November 03, 20108:39 AM

Example: Daniel's Will Question 1: Forward looking statement Question 2: backwards looking statement

Hearsay Exception Rule 803(4): statements 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

Statements as to fault would not ordinarily qualify under Rule 803(4)…thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light

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Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included

State v. Blake: child molestation case Victim does not testify Prosecution wants doctor's testimony in though Doctor is prepped to answer questions for prosecution in order to get the testimony in Says it is important for her to know facts of attack/attacker because her treatment will be different based on

the information (not really believable because the rape kit will not be administered differently) SC did not have a problem with this

Requirements for Recorded Recollection Hearsay Exception Under 803(5) Existence of a memo or recordMust concern a matter about which the witness once had knowledgeMust correctly reflect such knowledge of the witnessThe witness must have made or adopted the memo or recordMust have made or adopted while the matter was fresh in the witness' memoryInsufficient recollection to enable witness to testify fully and accurately Rule 803(5)

Recorded 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 be read into evidence but may not itself be received as an exhibit unless offered by an adverse party

Business Record Exception The element of unusual reliability of business records is said variously to be supplied by systematic checking,

by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation

Regular, regular, at, personal knowledgeReaches only records kept in the course of a regularly conducted business activity Regular practice of that business to make the recordRecord made at or near the time of the events recorded thereinMade by a person with personal knowledge or made from information transmitted by a person with

personal knowledge Original source of info must have PK, but other persons in the chain of transmission of

information does not have to have personal knowledge Contemplates and allows multiple hearsay

803(6): records of regularly conducted activity Regular, regular, at, personal knowledge

Example: Archie's Loading Dock Archie counted the widgets Must understand that the source of the information and each other person participating in making the

business record MUST be acting in the routine of the business If the source of info was coming from someone outside of the business, you cannot get the entire doc

in solely through this rule Petrocelli Case

Hernia operation Returned 5 months later because he was having pain Negligence suit - want to get statements when he went back to the doctor saying that the original

surgery had a split nerve Petrocelli not acting in course of business when speaking to Swartz (doctor).

Gallison (original doctor) -> Petrocelli -> Swartz (2nd doctor) Business chain is broken. Cannot admit solely under 803(6)

Example 2: Marcy works at a non-profit homeless shelter. She hears "I am Jeff; I'm drunk and proud of it. I am so

drunk I just stumbled in front of a car and got hit." She writes this in her report for the day. Jeff sues the driver. Can the record be used?

Yes. 803(6) and 802(d) may be used in combination to bring the entire record in. Use the record to recall memory

Rule 803(7)

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Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory for admission

Absence of entry in records kept in accordance with the provisions of paragraph (6)Rule 803(8)

Public records and reportsRecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting

forth The activities of the office or agency 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

In civil actions and proceedings and against the gov't 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

Baker Does not pave the way to allow that to come in


Rule 803; Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

Judgement as to personal, family or general history, or boundaries: Judgements as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation

Transferred to rule 807 Rule 804(b)

Makes the hearsay rule inapplicable - 4 exceptions Only present if the declarant is unavailable

Prefer live testimony Don't have to show availability for 803

For 804, declarant must not be available AND additional requirement Unavailability defined

Exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

Testifies to a lack of memory to the declarant's statement; or Can the same witness be available for 803(1)(A)(i) and not available for 804? - yes because you

can remember making a statement but not remember what the statement was about Is unable to be present or to testify at the hearing because of death or then existing physical or mental

illness or infirmity; or In absent from the hearing and the proponent of a statement has been unable to procure the declarant's

attendance (or in the case of a hearsay exception under (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means

(b)(1) is missing here - former testimony - if it is former testimony and fits, it's good enough A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or

absence in due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

Problem 4L: "The Government Let Her Go" This problem falls under 804(a)(5) in that Shell's absence was unavoidable. The DA is correct in that

they could not hold her in custody for 2 months. A solution may be to offer her travel expenses. If she continues to refuse, the prosecution should be able to use her disposition.

As long as they made an attempt to get her to stay, it's enough

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Giving her passport and plane ticket back - does that mean that there was enough done? There are ways to detain people but for how long?

Rule 804(b)(1) Former testimony: testimony given as a witness at another hearing of the same or a different

proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination

Three requirements Declarant must be UNAVAILABLE at trial Former testimony must be from a trial, preliminary hearing, deposition, administrative hearing,

etc Party against whom former testimony is offered ( or in civil case - predecessor in interest) had

the opportunity and similar motive to cross-examine the declarant Does not HAVE to cross, just have the opportunity to cross

Lloyd Case Lloyd sues American Export AE brings in Alvarez Alvarez countersues AE Whole thing triggers a coast guard hearing against Lloyd Both Lloyd and Alvarez testify at the hearing

There is no way for Alvarez to cross-examine Lloyd disappears AE's claim against A disappearsA's claim against AE is still validAE wants to use L's testimony at the coast guard hearing to assist them against A's claim A's argument - "I had no right to cross-examine" AE's argument - "Yes, but someone else had a right to cross-examine and they are your predecessor.

They had similar interests and could have cross-examined for you" Did ANYONE have the ability to cross? Was the person a predecessor in interest?

804(b)(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a

statement made by a declarant when believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death

Applies to civil cases and criminal homicide casesDeclarant does NOT have to die - just believe in imminent danger of death but MUST be unavailable Must include the identity of assailant and description of what happened

Lecture 23, Week 13 Monday, November 15, 20108:30 AM

ExceptionsRule 803 Rule 804 Rule 807 (residual exceptions) Constitution

Rule 804: Hearsay Exceptions; Declarant Unavailable (b) Hearsay exceptions

(2) Statement under belief of impending death: in a proecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminient, concerning the cause or circumstances of what the declarant believed to be impending death

Statement declaring who gave them the mortal wound - "X shot me!"Belief that a person who thinks they are going to die will tell the truth Guess or speculation is not something that can fit within the exception

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Must have personal knowledge CA law - 1242: if the statement was made with personal knowledge and under the sense of

immediately impending death Not limited by homicide or civil action/proceeding

(3) Statement against interest: A statemenet that:(a) a reasonable person in the declarant's position would have made only if the person believed it

to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(b) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability

Persons do not make statements against themselves unless they are satisfied that they are true Made by the party, offered by the party opponent - 801(d) party admissions

Admission by Party Opponent Statement Against Interest

Statement only by a party opponentNo unavailability requirementNo against interest requirement Party need not have personal knowledge

Statement by a witnessWitness must be unavailableMust be against declarant's interest Must be within the declarant's personal

knowledge

Williamson v. US - collateral statements Not all collateral statements fit within exception Reaches only statements that are themselves against interest, doesn’t reach entire

narrative (related statements/contextual statement/collateral statements) Analyze statement to see what truly is against interest

(4) Statement of personal or family history (6) Forfeiture by wrongdoing: A statement offered against a party that has engaged or acquiesced in

wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness Right to object on hearsay grounds Need NOT consist of a criminal act

Rule 807: Residual Exception 5 requirements to use

Equivalent circumstances guarantees of trustworthinessOffered as evidence of a material factMore probative on the point than any other evidenceInterests of justice will best be served by admission Proponent of it makes known to the adverse party sufficiently

Only to be utilized rarely Constitutional Issues of Hearsay

6th amendment: applies to a criminal case Accused can confront the witnesses against them Right to be present at trial

You can lose that right by misbehaving 2004: right of confrontation changed in Crawford decision Leading up to Crawford

Constitutional guarantees - higher standard of unavailalbility Always required to show unavailabilityOhio v. Roberts: To use hearsay statement, P must show strict constitutional notice of unavailability

and constitutionalize notion of sufficient reliability SC does not the reliability notion

Crawford:D assaulted the victim because V had allegedly raped D's wife D's wife testified to the police She was unavailable because of spousal privilege Roberts proponents: If not testimonial, must satisfy Robert's two-prong test

Hypothetical: non-testimonial hearsay, fits under excited utterance Can it be used without showing that declarant is unavailable? Statement made knowingly to third party will not be testimonial

801(c) - statements that are not hearsay

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Does not change after Crawford 803 exceptions - testimonial

If there was an ability to cross-examine, Crawford is satisfied If its testimony, they must be there to testify, subject to cross or you lose the statement

Davis Court is further defining what "testimonial" is and what it isn't Finds that the recorded statement was not testimonial - P needs the recording to prosecute Statements are nontestimonial when made in the course of police interrogation under circumstances

objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution

Government trying to use hearsay against the criminal accused - problem


Rule 705: Disclosure of Facts Expert Witnesses

Rule 704: Opinion on Ultimate Issue(a) Except as provided in (b), testimony in the form of an opinion or inference otherwise admissible is not

objectionable beceause 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 D in a criminal case may

state an opinion or inference as to whether the D 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

Hinkley Case - not guilty (insanity) W testifying directly to his mental state Caused the amendment saying no expert can do this anymore

Have expert testimony in place that is consistent with jury instructionProvide the jury with a roadmap Does not mean you have to tell the jury what to do

Abolition of the ultimate issue rule does not lower the bar so as to admit all opinion Expert witnesses are usually hired by the court themselves

Hopefully to give neutral opinionsUS courts have been reluctant to appoint a court-appointed EW Looks bad to foreigners When should you start to keep experts out?

Some courts have started to look to Rule 706 Court has the power to appoint their own expert if they want to Would probably be considered the most believable to the jury - looks more neutralExercise of court's discretion - can tell the jury that the court itself hired the witness Doesn't prevent other parties from hiring their own witnessWill your expert be able to testify? Rigorous reliability challenge

If it is not admissible, you could be screwed Distrust for expert - trial judges can do away with non-relevant, unreliable

testimony Example: female flight attendant brought action against her employer, American Airlines

P's expert will testify, if allowed, that the P's preeclampsia and resulting miscarriage were caused by work related stress

Should this be allowed in? Must have damages and causation

Example: cheese producer's employee sues dairy cooperative, alleging that he developed cancer of the larynx as a result of exposure to cooperative's aerosolized milk, which contained a chemical known as aflatoxin

Expert testimony was stricken because they couldn’t prove causation

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Rule 702: Testimony by Expert Assist the trier of fact to understand the evidence or to determine a fact in issue, expert may testify Fry v. US

Admissibility of EW derived by polygraphCoA rejected this testimony - had not yet gained general acceptance from where it belongs

(scientific community) General acceptance test created

DoubertProcess changed - no longer giving this to general scientific/expert community

Must be relevant and reliable (based on trial judge's opinion) Fry standard is dead - does not mean there aren't limits to admissibility of Expert

Testimony Must be based on a reliable foundation Must be relevant at the task at hand Subject to exclusion (i.e. Rule 403, 703)

4 factors that should be looked at General acceptance is one factor the court should consider Not the only factors (look at Rule 702 - 5 OTHER factors)Look objectively without bright line rules

In Kumho, the Supreme court summed up its decision in Daubert as follows: In Daubert…this court focused upon the admissibility of scientific expert testimony. It pointed out that

the such testimony is admissible only if it is relevant and reliable 104(a) determination Tells trial judges to take hard look at scientific evidence and determine if it is relevant and

reliable Should NOT let in unreliable testimony even if it reached general acceptance

Joiner Case Appropriate standard an appellate court should apply in reviewing a trial court's decision to admit or

exclude expert testimony is the abuse of discretion standard Privileges

Preventing for coming admissible for some important reason Rule 501

Governed by the principles of the common law Civil actions determined in accordance with State law (Erie) 503: lawyer client 504: psychotherapist patient 505: husband wife506: communication to clergy

Lawyer-client relationshipFormed as soon as the client reasonably believes Duty of confidentiality - broad

Difference between attorney-client privilege L-C privilege is a component of the duty of confidentiality


Attorney-Client Privilege Attorney: lawyer or person who client reasonable believes to be an attorney

Person who is an imposter lawyer - can still have privilege Case where lawyer not acting as an attorney

Applies only to confidential communications between client and lawyer or lawyer rep Can extend to paralegal Must be for rendering legal services

Problem 12BNo privilege

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Lawyer is not providing legal services but acting as conduit for transmission of the technical information

Problem 12CPrivilege if client comes in to see you and they are drunk and then get into an accident? Do you have to

testify?Not legal services, privilege not there to protect observations Can probably be forced into testifying in this case

If you bundle up a packet of paper and give it to your lawyer, not necessarily privilege Still have to produce them

People v. Meredith There is a burn barrel behind D's house. Police never found wallet, but it was out there. Client tells

lawyer about it and he goes and gets it from the barrel. They check it out and bring it to the police. Police wants to know where the victim's wallet was found

Court says that it would be privileged if the client did not touch the wallet Cannot get the information unless it is likely the police would find it - too speculative Unethical: tampering with evidence. Waiving privilege for client - taking the wallet and not

warning client of the position he would be in What if a lawyer destroys or conceals evidence?

Don’t do it! EVER!Must be intended to be confidential

Look at circumstances to make that determination US v. Kovel

Extends to accountant - sometimes lawyer needs help Can waive privilege so long as it doesn’t disclose the other's confidential information

Pooled defense arrangement L1 represents A L2 represents B Can A and B get in same room with lawyers and have privileged communications? YES Best to have pooled defense agreement Must have some common interest

Problem 12D Joint client doctrine, motion to compel should be denied Privilege is lost when the joint clients have a falling out and engage in subsequent litigation against each

other Privilege claim should be sustained, common interest would prevail and hold it to be privileged

Person who is claiming the privilege who has the obligation to satisfy the burden the at the privilege exists Privilege log: document to X from Y with a description of why its privileged Does not disclose the privilege, just explains why it is CA law: party only need to give prima facie evidence

Standard of review is such that lower court has great discretion You don’t have to have confidential communications contain confidential information Duration of privilege

Continues to protect even after the death of a client Problem 12V

Does not have an obligation to go to prison Waiver

Inadvertent production of client privilege RULE 502: does not alter federal or state law on disclosure of privilege

(a) deals with intentional disclosure - you better know that additional information may have to be produced with it

(b) inadvertent disclosure - as long as reasonable steps were made to withhold and rectify, get back

Jaffee v. Redmond Female police officer is being sued for shooting someone - wrongful death She claims that he had a weapon; family claims that she came out guns blazing while victim was

unarmed She goes to a social worker (not psychotherapist) P wants that informationTrial judge gives an adverse inch for instruction - inherent power in judge to do this

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Spousal Privileges Spousal Testimony

Only applies in criminal cases in most states SC has held that testifying spouse holds privilege Must have a valid marriage at the time marriage was sought

Inquiry into spousal confidential

KNOW 403, 801(c) Final Review Wednesday, December 01, 20108:34 AM

190 questions3 sections: 2 T/F, 1 MC

120 T/F70 MC

Major difference between FRE and CA evidence law

Right of truth in evidence Rule 26 just got changed today - this rule will be on the exam Underlying rational and Scope of FRE

Scope: broad - applies both in civil and criminal cases Occasions where state law will drive the rule of decision

PresumptionsCompetency of witnesses Privileges

FRE 1101(d) - where rules do not applyUnderlying Rational of FRE

Utilized to regulate mistrust of juries (FRE 404 - can't trust juries enough to deal with this) Mechanism to favor or disfavor certain claims

Clear and convincing standard for burden of persuasion of fraud claim - we disfavor fraud claimsAuthentication and why it's important Provide mechanism to provide important policies mattersLimit scope and duration of trial Protect private relationships (privileges) Allow for due process at time of trial (cross-examination)

Making objections and preserving them for appeal Timely objection, timely offer of proof Nothing special - a simple call would be enough More likely to find plain error when there is not timely objection - puts into record Object and state the reason(s) why

Issues for the court to decide and issues for the fact finder to decideJudge should be determining the law (104a) Jury makes factual determinations Never go to trial without something material in dispute Summary judgment - no material issues for the jury to decide

Limited admissibilityEvidence is admissible for one party and not others

Significant chance for unfair prejudiceOnce there's evidence that doesn't come in generally, there should be a limiting instruction Once jury uses evidence for more than what they're suppose to, it's unfairly prejudicial (403 objection)105: if asked, court must give exclusion, redaction, etc.

Rules of completeness 106 - fairness rule Adverse party can put in evidence to put the evidence in context

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Types of evidenceReal DemonstrativeCircumstantial

Order and manner of witness examination Effective cross-examination

Direct: there are situations where you can lead the witness (hostile, adverse, child, etc) Cross: you can lead the witnessNever ask a question in cross that you don't know the answer to

Refreshing recollectionYou can use anything to refresh recollection - even with otherwise inadmissible documents

This puts into evidence and must hand over to the other side as well If you can't refresh the Witness' memory, they are not competent

Carve out - non-hearsayAssume that everything in a document is inadmissible - other side wants to bring in one part of the document.

You have a right to put this in context - entire document is up for grabs Exclusion of witnesses

615: at the request of the party, excludes the witness so they cannot hear each other Exception: constitution - accused, FBI agent, etc.

Competency of witnesses Liberal standard - former challenges went to impeachment With certain exclusions, ANYONE can be a competent witness so long as they take an oath, perception, ability

to communicate Exceptions: Juror cannot testify, dead man statutes, judge cannot testify

Judicial noticeLimited to only the adjudicative factsRestrictions of the rules do not cover legislative facts

Trial court can take notice of legislative fact even if it is in dispute - not true of adjudicative fact Burden of going forward and burden of persuasionPresumptions

You cannot understand a presumption unless you fully understand the burden of going forward and the burden of persuasion

Burden of proof is an inarticulate term - assumes 2 different burdens Burden of going forward: addressed to the trial judge

Party must fill up the magical box to create a prima facie case Not the judge's role to make credibility determination - only determine if a prima facie case has

been satisfied Burden of persuasion: addressed to the jury/ trier of fact

Judge determines the size of the box ( beyond a reasonable doubt, preponderance, clear and convincing)

Plaintiffs should have a "burden of education" - educate the judge and jury FRE - bursting bubble theory

Does the burden of persuasion get shifted ever under the FRE? NO Permissible factual inferences: can use if rationally based

Relevancy and its limitsGeneral propensity - not technically unfair because the rules allow it

Generally, 403 is available to make these argumentsWhere 403 does not apply: 609(a)(2) - impeachment with a prior crime involving false statement or

dishonesty609(a)(1) - impeachment for a prior crime not involving false statements, this is not a 403 standard

403: great discretion but not unbridled 404: start by asking if it is an essential element

General propensity is almost never essential in criminal cases Something else? Habit, essential element, motive, intent, etc. If there is general propensity, is it a sexual assault or child molestation case?

If no, ask whether it is civil or criminal case? 404(a)(1)&(2): wont allow in unless other side puts it in first 404a3 - impeachment attacks of credibility

Authentication and identification

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"Best" evidence doctrineOriginal document rule Only if you are trying to prove the content of the writing or recording

ImpeachmentVoucher rule - abused by calling an adverse witness, trying to create some inconsistency, and then try to

impeach them with some inadmissible document Attack of the credibility of the witness - this is somewhat hurt by allowing hearsay into evidence Misdemeanor for perjury 609a2 - doesn’t matter if it’s the criminal accused; 609a1 - must be a felony; criminal

accused, different standard 403Hearsay

10-12 questions on whether something is hearsay under 801c - TAKE THE HEARSAY QUIZStatement made out of court offered for the matter excluded not otherwise excluded under 801dIf it's hearsay, can you get around the hearsay rule or does the hearsay rule otherwise get around this? Constitution: don't look for inditia of reliability; is this hearsay? Is it subject to an exception? It is a criminal

case? Is the lawyer violating the 6th amendment? Was criminal accused subject to cross? Lay witness opinions and expert testimony

Prep your people Privileges

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evidence notes compilation

Documents