Federal Rules of Evidence (FRE) – Outline

Federal Rules of Evidence Law School Supplements

Federal Rules of Evidence Law School Supplements

  1. Evidence Law and the System
    1. General Notes:
      1. Purpose for Evidence Rules:
        • 1) Mistrust of Juries
        • 2) To provide a mechanism to favor/disfavor certain claims or parties
        • 3) To provide mechanism for protection of private relationships (ex. Protection of marriage)
        • 4) To ensure accurate fact-finding
        • 5) Control scope and duration of trials
        • 6) Allow for due process at trial
        • 7) To provide a mechanism to encourage important policies unrelated to present litigation
        • Rules > Common law because Rules = more accessible
    2. Trial:
      1. Litigation Process:
        • Complaint >> Answer >> Pretrial Discovery >> Pre-Trial Motions >> Motions in Limine
        • Jury Selection:
          • Voir Dire: court and counsel try to find out whether members of jury panel should NOT serve
          • Process = each party gets X number of peremptory challenges which lets them exclude potential jurors for any reason
        • Opening Statement:
          • Overview of case
          • Party w/ burden of persuasion gets to make 1st opening statement (P)
        • Presentation of Proof:
          • Order of Proof: P presents case-in-chief (CIC) >> rests >> D presents CIC >> rests >>P presents case-in-rebuttal (CIR) >> D presents CIR >> can be further CIR
          • Order of Examination: Direct by calling party (CP) >> Cross by adverse party (AP) >> Redirect by CP >> Re-cross by AP
        • Trial Motion:
          • Motion for Judgment: Judge assumes that jury (if given case) will believe witnesses for party opposing motion (usually P)  no credibility determination
        • Closing Argument:
          • Party w/ burden of persuasion can make 2 closing arguments (1 before and 1 after adversary)
        • Instructions  Deliberations  Verdict  Judgment and Post Trial Motions  Appellate Review:
          • JNOV (judgment as matter of law) asks judge to set aside judgment
    3. The Record:
      1. General Notes:
        • Components and What to Do:
          • Comprised of the following: 1) the pleadings; 2) filed docs (briefs, motions, docs seeking discovery, jury instructions, court orders); 3) record of proceedings, 4) exhibits, 5) docket entries
          • Do the following for good record:
            • 1) Ensure that utterances important to cause—by self, witness or judge—are spoken clearly enough to be understood and put down by recorder
            • 2) Ensure that utterances have meaning when appear in printed form in transcript
        • Evidence Admitted/Excluded:
          • Testimonial Proof:
            • Direct Examination = lay foundation  ask substantive questions
            • Cross Examination = can lead witness on cross  expose inaccuracy in memory, details, etc
          • Scope of Direct Rule:
            • Traditional rule is that cross-questioning is limited to matters explored on direct
      2. Types of Evidence:
        • Real Evidence:
          • Refers to tangible things directly involved in transaction/events in litigation (can be established by testimonial account)
          • Ex. Defective steering assembly involved in accident
        • Demonstrative Evidence:
          • Tangible proof that in some way makes graphic the point to be proved
        • Writings:
          • One kind of physical evidence that generally must be introduced at trial rather than provided by means of testimonial descriptions [Often writings = real evidence]
        • Direct Evidence v. Circumstantial Evidence:
          • Direct Evidence = Evidence which, if accepted to be true, establishes the point
          • Circumstantial Evidence = Facts which, if proved, may provide a basis for an inference that other facts are true
        • Original v. Prepared Evidence:
          • Original = Evidence which exists as part of the event
          • Prepared = Evidence prepared for us in the present case (i.e. demonstrative evidence)
      3. Keeping Evidence Out:
        • Objection:
          • General Principles:
            • Reason for Objection = fairness, guides court
            • Must be timely and should include statement of underlying grounds
            • Two types = specific v. general objections
            • Grounds = substantive or formal
            • Sustained = well formed objection
            • Overruled = objection is without merit
            • Rules to Live By: Act promptly, known judge, be courteous, reserve objections for important matters, be specific, if more than one objection state them all
          • Specific Objections:
            • May be for want of better terms and is either substantive or formal in nature
          • General Objections:
            • Alliterative phrase “irrelevant, incimpetent and immaterial”
          • Formal Objections:
            • Focus on manner of questioning and often used to delay, obstruct or break cadence of opposition
            • Common Types: 1) asked and answered; 2) assumes facts not in evidence; 3) argumentative; 4) compound; 5) misleading; 6) leading; 7) speculation or conjecture; 8) ambiguous; 9) nonresponsive to question
          • Common List of Objections:
            • Addressing juror by name
            • Vague and ambiguous
            • Assumes facts not in evidence
            • Argumentative
            • Asked and answered: Can’t continuously ask a question that has been answered
            • Calls for a narrative: Question doesn’t have for specific enough answer and invites story telling from the witness
            • Unresponsive
            • Speculative
            • Compound Question
          • Possible Objections for Opening Statement:
            • Example Objections to Opening Statement:
            • Addressing jurors by name
            • Arguments of the facts or law
            • Arguing the credibility of anticipated witnesses
            • Referring to evidence which has been excluded by motion in limine
            • Inflammatory Argument
            • Misstating law or facts
            • Unduly emotional argument
            • Urging matters outside of the trial record
            • Mentioning the wealth or poverty
          • Possible Objections for Closing Argument:
            • Addressing jurors by name
            • Inflamatory arguments
            • Misstating law or facts
            • Unduly emotional argument
            • Urging emotional argument
            • Urging matters outside of the trial
            • Mentioning the wealth of poverty of the parties
        • Motion in Limine:
          • Gives parties chance to brief important evidence issue and give more elaborate argument than possible during trial
          • Occurs when 1 party anticipates evidence being admitted and they anticipate other side
        • Offer of Proof:
          • Lawyer faced w/ ruling excluding evidence must make formal offer of proof, if he wants to preserve point for appellate review later, which mean demonstrating to TC exactly what he’s prepared to introduce if permitted
          • CAUTION: be sure that objection was “definitive” (get judge to say it) b/c otherwise you might have problems on appeal
          • REFER TO: Rule 103(a)(2) below
        • Admissibility Determined by Judicial Mini-Hearing:
          • REFER TO: Rule 104
          • Rule 104(a) says judge determines “preliminary questions” including witness competency, privilege and admissibility of evidence
          • Rule 104(b) suggests when relevancy turns on fulfillment of a condition of fact >> Jury decides whether condition is satisfied and evidence conditionally relevant is admitted upon sufficient evidence to supporting finding by jury that condition is satisfied
    4. Rule 103. Rulings on Evidence:
      1. Effect of Erroneous Ruling.
        • Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
          • (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
          • (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. 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.
      2. Record of Offer and Ruling.
        • The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
      3. Hearing of Jury.
        • In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
      4. Plain Error.
        • Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
    5. Rule 104. Preliminary Questions:
      1. Questions of admissibility generally.
        • Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
      2. Relevancy conditioned on fact.
        • When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
      3. Hearing of jury.
        • Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
      4. Testimony by accused.
        • The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
      5. Weight and credibility.
        • This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
  1. Consequences of Evidential Error:
      1. Types of Error:
        • Reversible Error:
          • Refers to the kind of mistake that probably DID affect judgment
          • Rulings on evidence cannot be assigned as error unless:
            • A) a substantial right is affected, and
            • B) the nature of the error was called to the attention of the judge
        • Harmless Error:
          • Refers to the kind of mistake that probably DID NOT affect the judgment
        • Plain Error:
          • The kind of mistake that warrants relief on appeal, even though appellant failed to take steps usually necessary to preserve rights
          • Error is so egregious/outrageous that court will change ruling even though NO timely objection
          • NO PLAIN ERROR CODE in CALIFORNIA (only under FRE)
          • For error to be reversible (in California) the following must occur:
            • A) there was objection or motion to provide evidence to make clear specific ground of objection or motion that there was error
            • B) court is of opinion that error resulted in a miscarriage of justice
        • Constitutional Error:
          • Generally involves a mistake admitting evidence for prosecution that should have been excluded under constitution
      2. 3 Doctrines That Turn Reversible into Harmless:
        • 1) Cumulative Evidence Doctrine:
          • While trial judge did err in admitting evidence offered against appellant, there’s still so much other proper evidence supporting the same point that jury would likely have found against her even if judge had correctly excluded the evidence in question
        • 2) Curative Instruction Doctrine:
          • When judge commits an evidence error, he may be able to avoid reversal by means of instruction to jury (often to disregard)
        • 3) Overwhelming Evidence Doctrine:
          • If reviewing court concludes that evidence properly admitted supports judgment below overwhelmingly, it generally affirms
      3. Review of Evidence Points:
        • Appeal from Judgment:
          • Evidence rulings are for the most part, an example of the nonappealable interlocutory order
        • Interlocutory Appeal:
          • Interlocutory appeal is permitted in the following 2 instances:
            • 1) Privilege Rulings:
              • a) Approach One: Ask whether person from whom info was sought has been held in contempt >> if not, no review may be had
              • b) Approach Two: Ask whether nondisclosing person is party to action >> if yes, he may obtain review of privilege ruling only by suffering adverse judgment on merits of case, then raising privilege issue on appeal from judgment
            • 2) Suppression Motions:
              • Criminal cases in federal court >> there’s statute that allows govt. appeals from decision/order suppressing/excluding evidence not made after D has been put in jeopardy and before verdict/finding on an indictment if US Attorney certifies that appeal has not been taken for purpose of delay and that evidence is substantial proof of a fact material in proceeding
    1. Rule 105. Limited Admissibility
      1. When Evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly
        • NOTE: Rule does NOT mandate that corrective instruction be given as soon as evidence is admitted
    2. Rule 106. Remainder Of Or Related Writings Or Recorded Statements:
      1. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other party or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
        • NOTE:
          • Rule based on 2 considerations:
            • 1) misleading impressions are created by taking matters out of context
            • 2) repair may be inadequate when delayed to later point in trial
          • Don’t take things out of context >> you’ll look “shady” to jury
  1. Competency of Witnesses and Examination:
    1. Rule 611. Mode and Order of Interrogation and Presentation
      1. Control by court.
        • The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
      2. Scope of cross-examination.
        • Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
      3. Leading questions.
        • Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
    2. Examination of Witness:
      1. General Notes:
        • Separation of Wtinesses = Witness should be separated while others are on the stand (w/ exception of victim) >> See Rule 615 above
          • This rule does not authorize exclusion of
            • 1) a party who is natural person
            • 2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or
            • 3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or
            • 4) a person authorized by statute to be present
        • Rule 615. Exclusion of Witness:
          • At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or (4) a person authorized by statute to be present.
  1. Exceptions to Rule Preventing Leading Questions on Direct:
        • Preliminary matters
        • Hostile witnesses
        • Adverse party or witness identified w/ adverse party
        • Forgetful witnesses or frightened witnesses
        • Child witness
  1. Effective Cross-Examination:
        • Take advantage of pre-trial discovery and be prepared for closing argument before trial starts
        • Use cross ONLY to support arguments
        • Listen carefully to witness answers and do NOT quarrel but do NOT give witness opportunity to tell his story (don’t let them explain)
        • Avoid the one too many questions
        • Be succinct, simple and use plain words
        • Use leading questions and don’t ask things you don’t know the answer to
    1. Refreshing Recollection of Witness:
      1. General Notes:
        • You can refresh witness memory with ANYTHING
      2. Rule 612. Writing Used to Refresh Memory:
        • Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—
          • (1) while testifying, or
          • (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

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. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

    1. Competency of the Witness:
      1. General Notes:
        • Common Law v. Modern Rules:
          • Common law highly restricted which witnesses could testify, but modern rules are very liberal with who can testify >> General presumption that witnesses are competent >> see Rule 601
          • OLD Common law deemed witness incompetent for the following:
            • 1) Mental Capacity: insane not allowed to testify
            • 2) Religious Beliefs: atheists prevents from testifying >> had to believe in God
            • 3) Prior Criminal Conviction
            • 4) Infancy: Children weren’t allowed to testify
            • 5) Parties: Party couldn’t testify for himself or coparty in case
            • 6) Spouses of Parties: before incompetent >> can now give favorable testimony but rules on adverse spousal testimony have been narrowed
            • 7) Accomplices: couldn’t testify for each other
            • 8) Other Interested Parties: Anyone w/ direct interest in litigation was barred
          • 4 Requirements for Competency:
            • 1) Oath (no belief in God required)
            • 2) Witness must have perceived something
            • 3) There must be bridge of temporal gap btwn when witness perceived it and when they’re going to testify (must have minimal recollection)
            • 4) Witness must be able to relay info to trier of fact
          • Circumstances Where Witness May Be Incompetent:
            • 1) Ladies and gentlemen of jury (exception w/ extraneous prejudicial info, outside influence and pre and post-deliberative conduct)
            • 2) Judge as witness
            • 3) Dead man statutes
            • 4) Spouse testimony
          • Rule 601. General Rule of Competency:
            • Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies to the rule of decision, the competency of a witness shall be determined in accordance with State law.
          • United States v. Lightly (1982):
            • Facts:
              • Inmated stabbed and L and M are suspected but only L charged b/c court psych found M criminally insane and incompetent to testify >> L claims M was assaulting inmate and L tried to pull him off >> M would have admitted this in testimony too
            • Issue:
              • Was TC’s court’s ruling that M incompetent to testify b/c he was insane correct? NO
            • Holding/Rationale:
              • Modern Competency Rule: Every witness is presumed competent to testify UNLESS it can be shown that the witness
            • Takeaway Principles:
              • All witnesses are presumed competent, but weight given to testimony may change based on conditions (i.e. insanity, youth, prior convictions, etc)
      2. Personal Knowledge:
        • Witness MUST have personal knowledge (exception = expert and past recorded recollection rule)
        • Rule 602. Lack of Personal Knowledge:
          • A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
      3. Oath Requirement:
        • Rule 603. Oath or Affirmation:
          • Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
        • United States v. Fowler (1979):
          • Facts:
            • D indicted for not filing taxes >> appeals/claims TC erred in refusing to let him testify after he refused to swear that he would tell truth or submit to cross
          • Legal Issue:
            • Is statement that someone is truthful sufficient to constitute oath for purposes of testifying? NO
          • Takeaway Principles:
            • Purpose of Oath: 1) To impress on mind of witness a duty to speak truth; 2) To make amenable to criminal prosecution if perjured testimony is given
            • Oath: Required for testimony >> Rule 603 clearly states that witness MUST declare that he will testify truthfully
      4. Interpreters:
        • Rule 604. Interpreters:
          • An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.
      5. The Child Witness:
        • Rickets v. Delaware (Delaware Supreme Court, 1985):
          • Facts:
            • D convicted of raping 5 yr old >> girl to testify at trial >> Before testimony girl says she went to church, that a lie was a thing that was not true and that it was bad to tell one >> she promises to tell truth about everything asked but said she didn’t know what heaven was
          • Legal Issue:
            • Was it error for TC to permit minor to testify w/out adequate foundation to determine competency? NO
          • Holding/Rationale:
            • General Rule of Competency (FRE 601): Girl was presumed to be competent
            • Personal Knowledge (FRE 602): Girl had personal knowledge to recount
            • Oath (FRE 603): Girl promised to tell truth therefore competent >> flexibility given to child witnesses w/ this requirement
          • Takeaway Principles:
            • Child NOT incompetent JUST b/c of age so long as other basic requirements are met
      6. Previously Hypnotized Witnesses:
        • Rock v. Arkansas (US Supreme Court, 1987)
          • Facts:
            • D charged w/ murder but said that night it was self-defense >> D can’t remember so counsel wants to use hypnosis showing she didn’t remember pulling trigger along w/ evidence of defective gun to show that firing was accidental b/c gun prone to misfiring when dropped
          • Legal Issue:
            • Did rule prohibiting hypnotically refreshed testimony violate D’s constitutional right to testify on her own behalf? YES
          • Holding/Rationale:
            • Rule RE Testimony: When state rule of evidence conflicts w/ right to present witness, rule may not be applied mechanistically to defeat ends of justice, but must meet fundamental standards of due process >> limitations
            • Hypnosis: Rule that hypnosis-induced testimony is ALWAYS unreliable is too arbitrary/ detriment to D  despite inaccuracies, hypnosis can be limited w/ trained pros in neutral setting and corroborating evidence
          • Takeaway Principles:
            • Cannot have per se rule against hypnotic-induced testimony >> can limited but can’t automatically exclude
      7. Dead Man’s Statutes:
        • Concern: People testifying when only person to corroborate testimony is dead and when they’re testifying about conduct of dead person >> Result = Dead Man’s Statute
        • Result: Dead Man’s Statutes (apply in tort cases) sometimes bar testimony by survivor on any fact occurring prior to dead man’s death
      8. Lawyers as Witnesses:
        • Common Law: Attorneys = incompetent to testify in case they were trying ONLY if they had direct pecuniary interest
        • Modern Rule: Can testify but judge has discretion to exclude.
    • Code of Professional Responsibility: A lawyer shall not accept employment in contemplates or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
      • 1) if the testimony will relate solely to an uncontested matter
      • 2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony
      • 3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client
      • 4) As to any matter, if refusal would work a substantial hardship on the client b/c of the distinctive value of the lawyer or his firm as counsel on a particular case
      1. Jurors As Witnesses:
        • Common Law: Allowed juror testimony before jury of which he was member
        • Rule 606. Competency of Juror as Witness
          • (a) At the trial.
            • A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
          • (b) Inquiry into validity of verdict or indictment.
            • Upon an inquiry into the validity of a 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 upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. 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.
        • Tanner v. United States (US Supreme Court, 1987):
          • Facts:
            • D appeals saying TC erred in refusing to admit juror testimony at post-verdict hearing on juror intoxication and drug use during breaks
          • Legal Issue:
            • Does alcohol/drugs constitute “extraneous influence” that permits juror testimony to impeach verdict? NO
          • Holding/Rationale:
            • Public Policy: Strong public policy against post-verdict investigation into juror misconduct b/c it disrupts finality of judgment >> therefore court strict in saying that drugs DO NOT equal outside influence
            • However: FRE Rule 606 doesn’t talk about conduct prior to deliberations that is verifiable
      2. Judges As Witnesses:
        • Common Law: Judges considered competent to testify in trial where they were presiding
        • Modern Law: Judge can’t testify in trial where he is presiding
        • Rule 605. Competency of Judge as Witness:
          • The judge presiding at the trail may not testify in that trial as a witness. No objection need be made in order to preserve the point.
  1. Judicial Notice:
    1. General Notes:
      1. Judicial Notice Defined:
        • Judicial Notice: Describes the process by which a court determines certain matters w/out need for formal proof.
        • Covers the following 4 areas:
          • 1) Adjudicative Facts (governed by FRE Rule 201):
            • Facts that normally go to jury >> the who, what, when, where and how of case
            • Judicial Notice Doctrine relieves party of burden of producing evidence on indisputable issues (to further effiency) >> results in fact being true w/out formal proof
            • Judicially noticed fact must be one not subject to reasonable dispute that is either:
              • 1) generally known within jurisdiction, or
              • 2) capable of accurate determination by sources whose accuracy isn’t questioned
          • 2) Evaluative Facts (unregulated)
            • Common knowledge matters that judge and jurors bring to deliberations (background info)
            • No evidence introduced to prove evaluative facts
          • 3) Legislative Facts (unregulated)
            • Facts considered by TC or AC in ruling on questions of law (? Of law might be interpretation of statute) >> Beyond province of jury
            • Legislative facts have relevance to legal reasoning in law-making process, whether in formulation of ruling principle or ruling by judge
          • 4) Law
            • Judicial notice of law = process by which court determines controlling law
            • Ex #1: Roe v. Wade = Supreme Court’s use of date related to mortality rates for early aboritons
            • Ex.#2: Brown v. Board of Education = Supreme Court’s use of social science studies showing that segregation creates feeling of inferiority
        • Government of the Virgin v. Gereau (US Court of Appeals for 3rdCircuit, 1975):
          • Facts:
            • Dispute in trial that jury attendant pressured juror (1 juror testified to this but matron denied convo) >> Judge chose to believe matron based on thought that woman was grateful for opportunity to earn extra $ as jury matron
          • Legal Issue:
            • Was this a proper form of judicial notice? NO
          • Holding/Rationale:
            • Credibility findings RE siding w/ matron are supported in record so decision was ok HOWEVER judge should NOT rely on personal/subjective belief for rejecting juror credible testimony (error was harmless)
          • Takeaway Principles:
            • Rule: With respect to judicial notice of adjudicative facts the tradition is 1 of caution in requiring that the matter be beyond reasonable controversy
    2. Rule 201. Judicial Notice of Adjudicative Facts:
      1. Scope of rule.
        • This rule governs only judicial notice of adjudicative facts.
      2. Kinds of facts.
        • A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
      3. When discretionary.
        • A court may take judicial notice, whether requested or not.
      4. When mandatory.
        • A court shall take judicial notice if requested by a party and supplied with the necessary information.
      5. Opportunity to be heard.
        • A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
      6. Time of taking notice.
        • Judicial notice may be taken at any stage of the proceeding.
      7. Instructing jury.
        • In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
    3. Judicial Notice in Criminal Cases:
      1. United States v. Jones (US Court of Appeals 6thCircuit, 1978):
        • Facts:
          • D convicted of illegally intercepting phone convos of estranged W
          • TC grants D’s motion for acquittal b/c govt failed to prove that Bell Telephone Co. was “common carrier…providing/operating…facilities for transmission of interstate communications” (requirement of eavesdropping statute) >> P wanted judicial notice that Bell was common carrier
        • Legal Issue:
          • Can judicial notice be taken criminal case on appeal? NO
        • Holding/Rationale:
          • Criminal v. Civil: In civil action, court instructs jury that it MUST accept as conclusive any fact judicially noticed. BUT in criminal action, court instructs jury that it MAY, but isn’t required to, accept as conclusive any fact judicially noticed
          • FRE 201: Doesn’t distinguish btwn judicial notice in criminal/civil case but jury in criminal case must have opportunity to decide whether to accept judicial notice or not
        • Takeaway Principles:
          • Judicial notice CANNOT be taken on appeal in CRIMINAL case
    4. Judicial Notice of Legislative Facts:
      1. Muller v. Oregon (United States Supreme Court, 1907):
        • Facts:
          • Court finds rational basis for statute limiting hours women can work in factories to max of 10 hr/day
        • Legal Issues:
          • Was taking judicial notice of legislative facts in this instance proper? YES
        • Holding/Rationale:
          • Legislation and opinions in margin are significant of widespread belief that women’s physical structure justify legislation restricting conditions
      2. Houser v. State (Washington Supreme Court, 1975):
        • Facts:
          • P sues on behalf of 18-20 yr olds challenging constitutionality of min drinking age >> contends no rational basis for statute and challenges TC’s judicial notice of State’s studies and refusal to grant him trial on merits of contradictory factual claims
        • Legal Issue:
          • Should court have given judicial notice of leg. Facts? YES.
        • Holding/Rationale:
          • Rationale Relationship: State’s SJ motion required TC to see if there was rational relationship btwn statutory distinction and state purposes it was alleged to serve (not look at facts of particular case)
          • Application:W/ judicial notice of legislative facts (studies) court does NOT have to show that facts are reasonably indisputable
    5. Judicial Notice of Law:
      1. General Notes:
        • Process by which court uses to determine applicable law
        • Common law tradition requires fed judges to take judicial notice of all domestic statutory and case law (state law as well as federal)
    6. Classification Problems:
      1. United States v. Gould (US Court of Appeals for 8thCircuit, 1976):
        • Facts:
          • D convicted of importing cocaine and jury instructed that “if you find substance was cocaine hydrochloride, you are instructed that cocaine hydrochloride is schedule 2 controlled substance under US law.”  D claims P should have had to prove that substance seized was on schedule of controlled substances
        • Legal Issue:
          • 1) Was it error for DC to take judicial notice of fact that cocaine hydrochloride is schedule II controlled substance? NO (not common knowledge but easily discernable)
          • 2) If we conclude that it was permissible to judicially notice this fact, did DC err in instructing jury that it must accept fact as conclusive? YES (criminal case so judge should have said “you may find” NOT “you must find”)
        • Holding/Rationale:
  2. Burdens of Proof and Presumptions:
    1. Two Burdens of Proof:
      1. Burden of Going Forward (Burden of Production):
        • General Notes:
          • Rule Re Burden of Going Forward:
            • If party caries burden of going forward on any given issue, then party must provide sufficient evidence to support a jury finding in its favor on this issue.
              • Failing to satisfy burden = motion to dismiss/motion for directed verdict being granted
              • Burden = satisfied IF sufficient evidence is submitted to create a fact question so that jury may determine this fact question
              • Prosecution must present first because it has burden of going forward (to fill magical box to get past motion for summary judgment)
      2. Burden of Persuasion (sometimes referred to has Burden of Proof):
        • General Notes:
          • Rule Re Burden of Persuasion:
            • Jury has persuasion box (size of the box varies depending on judge instruction) and if the box is filled appropriately the jury may find D guilty or that P has sufficiently prove case
        • Standards of Proof (Box Size):
          • 1) Preponderance of the Evidence (small)
          • 2) Clear and Convincing Evidence (medium)
            • Used for fraud claims b/c they are disfavored
          • 3) Beyond a Reasonable Doubt (large)
    2. Presumptions:
      1. General Notes:
        • Presumption Defined:
          • Imposes on the party against whom the presumption is direct the burden of going forward with evidence to rebut or meet the presumption >> does NOT shift burden of persuasion
        • Sources of Presumptions:
          • 1) statutory; 2) case law; 3) state evidence code
          • NOTE: Federal Rules of Evidence DO NOT PROVIDE list of presumptions
        • Presumption Examples:
          • 1) Properly mailed letter is presumed to have been received.
          • 2) A person not heard from in seven ears is presumed to be deceased.
          • 3) Death which occurs suddenly and violently is presumed to be accidental, as opposed to suicide.
          • 4) A party is presumed to have the requisite capacity to enter into a contract.
          • 5) A man and woman who hold themselves out as H and W are presumed to have entered into lawful contract of marriage.
          • 6) Goods entrusted to a bailee in good workable condition, which are returned in a damaged condition, results in presumption that the damage was caused by the negligence of the bailee.
          • 7) A person shown to be an employee of a party is presumed to have been acting within course and scope of his employment
      2. 3 Major Uses of Presumptions:
        • 1. Improper Method—Factual Inference:
          • Ex. Given A we infer B (Basic fact >> leads to inferred fact)
          • This is NOT a presumption
        • 2. Improper Method—Rule of Law (Conclusive Presumption)
          • Ex. Anyone under age of 7 may be not be prosecuted for a crime.
            • Word presumption being brought into this does NOT make it presumption
          • In “conclusive presumptions” a basic fact leads to the conclusion that a presumed fact MUST be found (i.e. under age 7 >> cannot be prosecuted)
        • 3. True Presumption:
          • Shifts burden from party who normally has burden to other party on that issue/element ALONE
          • FRE imposes on party against whom presumption is directed the burden of going forward with evidence to rebut or meet the presumption
          • There should always be basic fact AND presumed fact
      3. FRE Rule 301. Presumptions in General in Civil Actions and Proceedings:
        • In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
          • Applicability of Rule 301:
            • Rule 301 applies only where “not otherwise provided for by Act of Congress.” Therefore if presumption is created by federal statute, the statute itself may provide for a shift in the burden of persuasion as part of the presumption.
            • Rule 302 adopts the position that presumptions are matters of substantive law rather than procedure. Therefore state presumption rules govern, when they deal with elements of claims or defenses governed by state law.
      4. Rule 302. Applicability of State Law in Civil Actions and Proceedings:
        • In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
      5. Ways to Attack Presumptions:
        • 1) Evidence Disputing the Basic Fact (that leads to the presumed fact)
          • Presumption applies only if trier of fact finds basic fact is established >> becomes jury question if sufficient evidence disputed evidence
          • No Evidence Contesting Presumed Fact:
            • In this situation, presumed fact is established (assuming basic fact established)
            • Court in this case is REQUIRED to instruct jury that presumed fact MUST be taken as established  this distinguishes presumption from permissible inference
        • 2) Evidence Disputing the Presumed Fact:
          • 1) Cogent and compelling evidence – reasonable jury could not find otherwise (Presumption completely overcome)
          • 2) Evidence sufficient to raise jury questions (different views)
            • “Bursting Bubble View”: Since presumption shifts only burden of going forward, presumption disappears when sufficient evidence to raise a jury question is submitted
              • FRE 301  adopts this view where State law provides rule of decision
              • Example: P injured in car accident and sues car owner
                • P provides ownership and thereby gives rise to presumption that driver was agent of owner while operating car.
                • Owner presents evidence that driver was his NOT agent, thereby presenting sufficient evidence so that jury could find that no agency existed
            • “Morgan View”: A presumption shifts the burden of persuasion to disprove the existence of the presumed fact.
              • 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
            • Counterproof Sufficient to Raise Jury Question—“California View”
              • CA follows same rule as FRE for presumptions based upon probability and logical inference
              • CA follows Morgan view for presumptions based on public policy
            • Other Views:
              • 1) Presumption exists until substantial and contradicted evidence is offered against the presumed fact
              • 2) Presumptions exist until the adverse party offers counter proof that the jury believes.
              • 3) Equipoise View: Presumptions exist until the jury believes that the non-existence of the presumed fact is as likely as its existence
        • 3) Evidence Disputing Presumed Fact and Basic Fact:
          • Yup
      6. Other Presumption Notes:
        • 1) Failed Attempt to Attack Presumption:
          • If no evidence is given to contest the presumed fact and no evidence is given to contest basic fact, then the side with the burden of going forward loses on this issue
          • Ex. Insurance company has burden of going forward and showing evidence that husband is alive
            • If they fail to meet burden W wins on that issue and it doesn’t go to jury
        • 2) Conflicting Presumptions:
          • If 2 or more presumptions apply, court will generally utilize the presumption that has the more significant public policy considerations.
        • 3) Allowable Criminal Inferences:
          • Cannot place any burdens on the defendant to demonstrate innocence (b/c there’s presumption of innocence until proven guilty)
          • HOWEVER jury can infer criminal elements provided inference is logically based
            • Fact to be inferred must rationally follow from basic fact
            • Must be clear that something is a logical factual inference and NOT a presumption
        • 4) Res Ipsa Loquitor: The Thing Speaks for Itself:
          • Generally this is just an inference and not an actual shifting of the burden
  3. Relevance:
    1. Introduction to Relevance:
      1. General Notes:
        • Relevance Defined:
          • Every word describing factors that bear on the decisions we make and problems we set out to solve
          • Carries meaning only in context, where context is set by substantive law and issues raised
            • Criminal Cases = issues raised by information or indictment and D’s plea
            • Civil Cases = pleadings raise issues, though they are refined through discovery and pretrial conferences and motions
        • Direct v. Circumstantial Evidence:
          • Direct:
            • Describes evidence that, if accepted as genuine or believed true necessarily establishes the point for which it is offered (if E is believed, trier of fact must conclude that he was employed by corporation)
          • Circumstantial:
            • Evidence that, even if fully credited, may nevertheless fail to support the point in question, simply b/c an alternative explanation seems as probable or more probable (ex. E was seen loading truck but other facts suggest he was helping friend employed by Corp.)
            • This is where challenges arise in administering requirement of logical relevancy and assessing sufficiency of proof to take case to jury
    2. Logical Relevance:
      1. Relevance and Materiality:
        • FRE 401. Definition of “Relevant Evidence”
          • “Relvenat evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
        • FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible:
          • All relevant evidence is admissible, except as otherwise provided by the Constitution of the US, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
        • Old Chief v. United States (Supreme Court of US, 1997):
          • Facts:
            • D charged w/ being convicted felon in possession of firearm, assault w/ deadly weapon etc. >> to prevent crime history from coming out D attempts to stipulate to previous conviction (assault causing serious bodily injury)
            • D wanted jury only to know that he had past conviction “punishable by imprisonment exceeding 1 year but didn’t want names/nature of assault revealed
          • Legal Issue:
            • Was name of prior conviction relevant under FRE 401? YES
          • Holding/Rationale:
            • Relevancy: Info was clearly relevant >> matter was whether it created undue prejudice. Therefore TJ should weigh probative value of evidence against unfair prejudice caused
            • Stipulation: P didn’t want D to be able to stipulate away effect of relevant info
          • Takeaway Principles:
            • Past convictions are generally “relevant” b/c they have tendency to make crime more probably
        • Establishing Relevance—The Evidential Hypothesis:
          • Components of Evidential Hypothesis:
            • 1) One or more “general premise(s)” (about way of world/human nature)
            • 2) At least one specific premise linking proof to general premise
            • 3) Sets out conclusion toward which evidence points
          • Deductive Argument:
            • One in which stated premises necessarily lead to particular conclusion
            • Ex. General (major) premise = all humans are mortal >> Specific (minor) premise = Socrates is human
          • Inductive Argument:
            • Less categorical >> conclusion does not necessarily follow from premises though they support conclusion
            • Ex. Proving that D robbed bank by evidence that he stated an intent to do so
              • Major premises is that “people who intend to do something likely do it” and “people who state an intent likely have it”
              • Minor premise is that “D stated intent to rob the bank”
          • Flight and Evidential Hypotheses:
            • Evidence of efforts to avoid capture = generally admissible BUT does not create presumption of guilt
      2. Exclusion of Evidence for Confusion or Prejudice:
        • FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time:
          • Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
        • State v. Chapple (Arizona Supreme Court, 1983):
          • Facts:
            • D (on trial for murder) contends that TC erred by admitting pictures of charred body and skull of victim
          • Legal Issue:
            • Did TC err in admitting photos into evidence under the FRE? YES
          • Holding/Rationale:
            • Relevancy and Prejudice:
              • Photos of victim may be relevant BUT they may be inadmissible under 403 if they have tendency to prejudice jury against person charged w/ offense
              • Rule = exhibits which tend to inflame jury must first be found relevant. TC must then consider probative value of exhibits and determine whether outweighs danger of prejudice (RULE 403)
              • Standard of Review: Discretion of TC not disturbed on appeal unless clear abuse
            • Application:
              • Photos had almost no probative value so it was SUBSTANTIALLY outweighed by danger of unfair prejudice >> therefore clear abuse and admission was in ERROR
          • Takeaway Principles:
            • Court won’t allow P to inflame jury w/ gruesome photos unless probative value is high
        • Old Chief v. United States II (Supreme Court of US, 1997):
          • Facts:
            • Same facts as above
          • Legal Issue:
          • Holding/Rationale:
            • Application of 403: Probative value from knowing actual crime (as opposed to just stipulation of a felony) is not sufficiently high so as to warrant refusing stipulation (refusing the D request that felony be stipulated as irrelevant)
        • CA v. Federal Law:
          • Under FRE, in order to be relevant evidence does NOT need to be in dispute but in CA it does
          • CA Evidence Code 352: Courts have power to exclude if unfair prejudice substantially outweighs probative value
        • Limited Admissibility and Context:
          • General Notes:
            • Instead of 403 another approach is to admit evidence and give limiting instruction
            • Used when evidence is authorized on one point and not another
          • FRE 105. Limited Admissibility:
            • When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
          • FRE 106. Remainder of or Related Writings or Recorded Statements:
            • When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
            • NOTE: Prohibits parties from taking statements out of context
      3. Relevancy and Functions of Judge and Jury:
        • Types of Relevancy and Respective Responsibilities:
          • Simple Relevance:
            • Judge decides whether evidence tends to establish point under 401
          • Conditional Relevance:
            • FRE. 104(b). Relevancy Conditioned on Fact:
              • When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
            • NOTE: Judge performs ONLY screening function to determine whether reasonable juror could determine something based on condition of fact >> then jury decides
            • EXAMPLE: P in bank robbery case seeks to introduce evidence that D owned blue shirt and white jeans >> relevant b/c witness at crime saw bank robbery run from scene wearing blue shirt and white jeans
              • Relevancy is conditioned on whether witness actually saw this so judge decides if it’s reasonable for juror to believe and if so lets jury make determination
          • For the Ears of the Jury:
            • FRE. 104(c). Hearing of Jury:
              • Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interest of justice require, or when an accused is a witness and so requests.
          • Weight and Sufficiency Distinguished:
            • FRE. 104(e). Weight and Credibility:
              • This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
            • NOTE: Judge decides whether evidence is relevant (sufficiency of relevancy) and jury determines whether it’s credibility (what weight to give evidence)
      4. The Relevance of Probative Analysis:
        • People v. Collins (CA Supreme Court, 1968):
          • Facts:
            • H and W found guilty of robbery >> victim says women had blonde hair w/ ponytail and witness said woman got into yellow car driven by black man w/ beard
            • P attempts to establish W and H = criminals b/c they\ W is blonde and H is black w/ beard >> they have professor testify/roughly calculate that the Probability % of this combo is so small that they are likely the same people
          • Legal Issue:
            • Did TC err in admitting evidence pertaining to mathematical theory of probability? YES
          • Holding/Rationale:
            • Errors Introduce by Probability/Statistics Testimony:
              • 1) Testimony itself lacks adequate foundation
              • 2) Testimony distracts juror from their function of weighing evidence on issue of guilt by encouraging them to rely on illogical math
          • Takeaway Principles:
            • Mathematical theories of probabilities CANNOT be submitted as evidence b/c they improperly limit role of jury
            • Can POSSIBLY use statistical evidence to create presumption and switch burden of going forward to D
    3. Relevance and Character Evidence:
      1. Introduction:
        • General Notes on Character Evidence:
          • Character:
            • Describes person’s inclinations and suggests their innateness
            • Admissibility Generally:
              • Character Evidence comes in in 2 ways:
                • 1) As an element of charged offense:
                • 2) Circumstantially:
                  • When character evidence is used for purpose of suggesting an inference that person acted on occasion in question consistently w/ his character (Ex. D can enter character evidence to show tendencies towards peacefulness in murder trial and P can rebut same)
          • Methods Used to Prove Character:
            • 1) Specific Acts (ex. Did John Doe hit his wife at bar last year?)
            • 2) Reputation Testimony (ex. Are you aware of John Doe’s reputation for violence?)
            • 3) Opinion Testimony: (ex. In your opinion, is John Doe a violent person?)
      2. Purposes for Introducing Character Evidence:
        • Purposes for Introducing Character Evidence:
          • FRE 405. Methods of Proving Character:
            • (a) Reputation or Opinion:
              • In all cases in which evidence of character or a trait if a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
            • (b) Specific Instances of Conduct:
              • 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.
          • Element of Charge:
            • 1st determine actual elements >> character almost never an essential element of criminal charge but sometimes used in the following civil cases:
              • 1) Child custody dispute: Parental fitness is assessed in order to serve interest of child (Character, in sense of being good parent, is at issue)
              • 2) Defamation: truth is a defense to a defamation claim
              • 3) Wrongful death case: Amount of recoverable damages turns on worth of decedent to P so P recovers less if D shows that deceased was alcoholic, etc.
              • 4) Employment Litigation
              • 5) Negligent Entrustment: P alleges D was negligent in permitting another to operate his equipment and that the other negligently injured P. P must prove D was careless (character).
      3. FRE 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes:
        • (a) Character evidence generally:Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
          • (1) 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 of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered  by the prosecution;
            • NOTE: under 404(a)(1) and (2) evidence of character MUST be related to type of crime D is accused of (ex. Honesty is pertinent character trait in fraud case)
          • (2) Character of alleged victim: In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime 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;
            • NOTE: Let’s P attack character of D if D attacks character of alleged victim
          • (3) Character of witness: Evidence of the character of a witness, as provided in Rules 607, 608, 609.
        • (b) Other crimes, wrongs, or acts
          • Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
      4. Prior Acts as Proof of Motive, Intent, Plan and Related Points:
        • General Notes:
          • 404(b) doesn’t allow prior bad acts to prove crime, BUT they may be admissible to prove intent, knowledge, motive, opportunity, etc (SEE FRE 404(b) directly above)
            • Ex. In fed court for drug case, govt, offers evidence that on other occasion D sold drugs, as proof that on this occasion he intended to sell similar drugs found in his possession
            • Note: 404(b) doesn’t mandate it be criminal or bad act (evidence of overdrawn bank account could be admissible to show motive to commit theft)
          • Prejudice Review: Court MUST however weight probative value against unfair prejudice to D under 403 (court screenes to ensure this, but then jury determines weight of evidence)
          • Result: 404(b) makes basic rule against evidence kind of a sham
        • 4 Part Test Under Which Judge:
          • 1) decides whether evidence is offered for proper purpose
          • 2) decides whether it is relevant for that purpose (simple relevance)
          • 3) decides whether its probative worth is outweighed by the risk of unfair prejudice (pragmatic relevance), and
          • 4) give limiting instruction
        • Admissibility of Prior Act Leading to Conviction:
          • Depends on 2 issues:
            • 1) Simple Relevance >> Does committing prior crime (selling drugs) tend to prove some particular point (say intent) in case at hand?
            • 2) Pragmatic Relevance (unfair prejudice) >> Court can either 1) looks at whether admission will have unfair prejudicial effect of angering/distracting jury OR 2) think issue is question of conditional relevance to be resolved by jury under FRE 104(b)
      5. REVIEW: Ways that Character Evidence Can Come In?
        • 1) Circumstantially or Element of Crime:
          • a) Element of Crime = very rare
            • Can use specific instances of conduct in this scenario in civil AND criminal cases
          • b) Circumstantially
            • 1) Look at civil or criminal case:
              • If civil >> circumstantial not admissible to show propensity in civil case
              • If criminal >> limited circumstances under 404(a)(1) and 404(a)(2)
            • 2) 404(a)(1) Character of Accused:
              • During D’s Case: If D or D’s witness takes stand and talks to D’s peacefulness through Reputation or Opinion testimony >> P can “rebut same” and can use Reptuation, Opinion, or Specific Instances
              • During P’s Case: If D’s counsel asks questions RE character during cross-examination of it’s client when client is adverse witness for P THEN P can re-direct and ask questions RE character w/ R, O or SI
            • 3) 404(a)(2) Character of Victim:
              • If D attacks character of alleged victim, then P can attack character of D
              • Self Defense Argument: D claiming self defense and saying alleged victim was 1st aggressor wouldn’t ordinarily be character attack but 404(a)(2) says in HOMICIDE case ONLY this opens door for P to rebut same/attack D’s character
      6. Character Evidence and Relevancy in Sex Offense Cases:
        • FRE 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition
          • (a) Evidence generally inadmissible:
            • The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
              • (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
              • (2) Evidence offered to prove any alleged victim’s sexual predisposition.
          • (b) Exceptions.
            • (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
              • (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
              • (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
              • (C) evidence the exclusion of which would violate the constitutional rights of the defendant.
            • (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.  Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
          • (c) Procedure to determine admissibility.
            • (1) A party intending to offer evidence under subdivision (b) must –
              • (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
              • (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.
            • (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard.  The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
        • FRE 413. Evidence of Similar Crimes in Sexual Assault Cases
          • (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
          • (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
          • (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
          • (d) For purposes of this rule and Rule 415, “offense of sexual assault” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved—
            • (1) any conduct proscribed by chapter 109 A of title 18, United States Code;
            • (2) contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person;
            • (3) contact, without consent, between the genitals or anus of the defendant and any part of another person’s body;
            • (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or
            • (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).
        • FRE 414. Evidence of Similar Crimes in Child Molestation Cases
          • (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
          • (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
          • (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
          • (d) For purposes of this rule and Rule 415 “child” means a person below the age of fourteen, and “offense of child molestation” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved—
            • (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;
            • (2) any conduct proscribed by chapter 110 of title 18, United States Code;
            • (3) contact between any part of the defendant’s body or an object and the genitals or anus of a child;
            • (4) contact between the genitals or anus of the defendant and any part of the body of a child;
            • (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or
            • (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).
        • FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
          • (a) In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and 414 of these rules.
          • (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
          • (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
        • FRE’s and Sexual Assault Cases Generally:
          • FRE 412: Prevents D from attacking credibility of assault victim w/ past sexual history but allows for evidence that someone else may have been perpetratorin instance of offense charged
            • Victim cannot testify to her virgin-ness before assault
          • FRE 413: Provides where D is accused of sexual assault, evidence of other offenses is admissible and may considered on any matter which is relevant
            • This type of character evidence not inherently prejudicial and kept out as under other character rules BUT can still be kept out under 403 if probative value is substantially outweighed by danger of unfair prejudice
          • FRE 414: Provides where D is accused of child molestation, evidence of other molestation offeses is admissible and may be considered for its bearing on any matter to which it’s relevant
          • FRE 415: Extends doctrines of 413/414 to civil cases w/ issues of sexual assault/child molestation
    4. Habit, Routine Practice and Relevancy:
      1. General Notes:
        • Habit:
          • Denotes one’s regular response to a repeated situation; “Person’s regular practice of meeting a particular kind of situation w/ a specific type of conduct”
          • In contract to “character evidence” habit is freely admitted and viewed as relevant to prove conduct whether or not corroborated
      2. FRE 406. Habit; Routine Practice:
        • Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
    5. Remedial Measures and Relevancy:
      1. General Notes:
        • FRE 407 excludes evidence showing remedial measures that were taken for
        • Public Policy Reason: courts want to encourage the fixing of defects/problems
      2. FRE 407. Subsequent Remedial Measures
        • When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
      3. Tuer v. McDonald (Court of Appeals of Maryland 1997):
        • Facts:
          • P sues hospital/doc for malpractice after P’s husband dies of cardiac arrest >> D followed typical protocol and stopped giving helpful drug to patient before surgery (b/c of risk it causes in surgery) but surgery had to be delayd and husband died as a result of lack of drug
          • D then changed policy >> P claimed 1) change was not remedial measure b/c D claimed prior protocol was correct, and 2) P was entitled to prove change to show continuing drug was feasible
        • Legal Issue:
          • Was proof of change in protocol admissible to show feasibility and impeach testimony that restarting drug would be unsafe? NO (under circumstances of case)
        • Holding/Rationale:
          • Feasibility v. Safety:
            • 407 exempts subsequent remedial measures evidence from exclusionary provision when offered to prove feasibility of precautionary measure when said to be not possible
            • Application >> D did not say administration of drug was not feasible, but that it was not safe given P’s condition
        • Takeaway Principles:
          • Evidence not admissibility to show feasibility when doc does not deny feasibility but denies safety
    6. Settlement Negotiations, Plea Bargaining, and Relevancy:
      1. General Notes:
        • FRE 408 bars proof of settlement conduct, offers or negotiations as proof of liability UNLESS used to show bias or for impeachment purposes
        • FRE 410 bars plea discussions in criminal cases (intended to encourage pleas)
      2. FRE 408. Compromise and Offers to Compromise:
        • (a) Prohibited uses:
          • Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
            • (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and
            • (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
        • (b) Permitted Uses:
          • This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
      3. FRE 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements:
        • Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
          • (1) a plea of guilty which was later withdrawn;
          • (2) a plea of nolo contendere;
          • (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
          • (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
        • However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
    7. Medical Expense Payments, Liability Insurance and Relevancy:
      1. General Notes:
        • FRE 409: provides that proof of paying for injuries sustained by another in belief that you are responsible or even as Good Samaritan is inadmissible to prove liability >> want to encourage this behavior
        • FRE 411: bars evidence of insurance coverage to support arguments that one intends to be careless
      2. FRE 409. Payment of Medical and Similar Expenses:
        • Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
      3. FRE 411. Liability Insurance:
        • Evidence that a person was or was not insured against liability is not admissible upon the issue whether the persona acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
  4. Impeachment of Witnesses:
    1. Introduction:
      1. General Notes:
        • FRE 607. Who May Impeach:
          • The credibility of a witness may be attacked by any party, including the party calling the witness.
          • NOTE: Abolishes common law rule requiring vouching for all your witnesses (can now call adverse/hostile witnesses) >> Abolishes voucher
        • FRE 611: Mode and Order of Interrogation and Presentation:
          • (a) Control by court.
            • The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
          • (b) Scope of cross-examination.
            • Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
          • (c) Leading questions.
            • Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
      2. Categories of Impeachment:
        • 1) Perception/Personal Knowledge:
        • 2) Memory—Bridge of Temporal Gap Btwn Time Past and Time Present
        • 3) Mental Capacity:
          • Definite but nonspecific method (bring doubt to words generally)
        • 4) Bias, Prejudice, Interest, and Corruption:
          • Definite but nonspecific method (bring doubt to words generally)
          • Non-collateral
        • 5) Prior Criminal Conviction:
        • 6) Prior Non-Conviction Acts Bearing on Truthfulness/Untruthfulness:
          • Non-collateral and governed by 609
        • 7) Prior Inconsistent Statement:
          • Specific but indefinite methods (calls into doubt particular points of testimony but indefinite b/c they don’t reveal underlying cause)
          • Maybe collateral/non-collateral depending on how important issues are to case
          • Governed by 613
        • 8) Opinion and/or Reputation Evidence of Character:
          • Rule 404(a) provides exceptions for when character can be utilized as evidence
          • Rule 404(a)(3) HOWEVER allows character evidence for impeachment (to show that D has character of being a liar) and all D has to do to open door is take the stand
          • Definite but nonspecific method (bring doubt to words generally)
          • Collateral
        • 9) Contradiction:
          • Specific but indefinite methods (calls into doubt particular points of testimony but indefinite b/c they don’t reveal underlying cause)
      3. Collateral v. Non-Collateral Evidence:
        • Collateral Evidence = Evidence that has no important independent significance. You cannot “prove up” collateral evidence if denied.
        • Non-Collateral Evidence = Evidence that has important independent significance. You can “prove up” non-collateral evidence.
    2. Nonspecific Impeachment
      1. Bias and Motivation:
        • General Notes:
          • Impeachment by bias not prohibited by FRE although not specifically permitted
          • Retainer = bears directly on bias that’s why it’s better for party calling witness receiving payment (expert) to bring out fact of payment during direct examination
          • Example:
            • Q = Isn’t it true that you have been paid $50,000 by the defendant to come here and testify? A = NO.
            • Non-collateral therefore P can prove up the $50,000 payment to this witness.
        • United States v. Abel (United States Supreme Court, 1984):
          • Facts:
            • Abel (D) and 2 others (1 being E) are indicted for robbery >> E pleads guilty and agrees to testify against D >> D said he’d counter E’s testimony w/ M’s (M knew E in prison when E said he planned to commit crime and implicate D to get better treatment)
            • P said they’d show E and D’s participation in “Aryan Brotherhood” gang >> D says prejudicial and court says E’s testimony of it’ll only come in if D denies >> M denies and E testifies
          • Legal Issue:
            • Since D did not take standard, was E’s testimony implicating D as a member of gang improper to impeach D and did it prejudice him by mere association?
          • Holding:
            • Evidence showing M and D’s membership in gang was sufficiently probative of M’s possible bias toward D to warrant admission into evidence
          • Rationale:
            • 6th Amendment and FRE: 6th requires that D have opportunity to show bias on part of prosecution witness and 401 allows relevant evidence >> therefore permissible to impeach witness to show bias
            • Application:E’s testimony about gang makes M’s bias more probable >> relevant to support inference of bias for impeachment purposes >> testimony’s probative value outweighs prejudicial effect
      2. Sensory and Mental Capacity:
        • General Notes:
          • Attacking party may seek to show that witness had only brief chance to see/hear what’s described in testimony or that she labors under defects in sensory capacity that may affect observation
          • Example = Attacking Party can show that witness was under influence of drugs
          • Limitation = If psych report finds witness competent, D can’t cross
            • One’s psychiatric history is an area of great personal privacy which can only be invaded on cross when required in interests of justice (otherwise cross of minimal probative value is manifestly unfair and demeaning)
        • Requirements to Include Mental Impairment Cross:
          • Witness’ mental impairment, to constitute proper subject for cross, must:
            • 1) Have been “at a time probatively related to the time period about which he was attempting to testify”
            • 2) Must go to the witness’s qualification to testify and ability to recall, and
            • 3) Must not introduce into the case a collateral issue which would necessitate allowing the govt to introduce testimony explaining the matter
      3. Character for “Truth and Veracity”
        • General Notes:
          • FRE 608(b): allows introduction of prior acts to show character for untruthfulness but makes it collateral in the sense that it can’t be proved up if witness denies it
            • Makes method of attack under 608(b) rare b/c
              • 1) If they say no, you can’t prove it up and you look stupid
              • 2) You often don’t know about these kind of things (eg lying on resume)
            • 608(b) Test = Witness may be crossed on prior bad act resulting in no crim. conviction if:
              • 1) The examiner has a factual predicate for the question, AND
              • 2) The bad act bears directly upon the veracity of the witness in respect to the issues involved in the trial
              • 3) Used on Cross examination
              • 4) If TC exercises discretion and allows such evidence
          • FRE 609: Authorizes and regulates attacks based on showing untruthfulness through nonconviction misconduct, cross examination on convictions, and use of character witnesses
          • Relationship Between 404, 608 and 609:
            • If D testifies in murder trial, FRE 608 and 609 entitle P to try to suggest he’s by disposition “dishonest” BUT >> FRE 404 continues to bar evidence that he is by disposition violent
        • Methods for Showing Untruthful Disposition:
          • 1) Cross-examining target witness about nonconviction misconduct casting doubt on honesty (608)
          • 2) Cross-examining about certain kinds of convictions (609)
          • 3) Testimony by a character witness that target witness is untruthful
        • 1) Cross Examination on Nonconviction Misconduct:
          • FRE 608. Evidence of Character and Conduct of Witness:
            • (a) Opinion and reputation evidence of character.
              • The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
            • (b) Specific instances of conduct.
              • Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
              • The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.
          • General Notes:
            • Process = suggest witness is disposed to be untruthful by bringing out on cross instances of nonconviction misconduct that seem to bear on veracity
            • Limitation = 608(b) indicates specific instances relating to untruthfulness are in discretion of TC
            • Test = witness may be crossed on prior bad act that has not resulted in conviction if:
              • 1) The examiner has a factual predicate for the question, AND
              • 2) The bad act bears directly upon the veracity of the witness in respect to the issues involved in the trial
          • 3 Approaches to Looking at 608(b):
            • 1) Broad View: Holds that virtually all conduct indicating bad character indicates untruthfulness, including robbery and assault
            • 2) Middle View: Behavior seeking personal advantage by taking from others in violation of the rights reflects on veracity
            • 3) Narrow View: Considers crime bearing on veracity only if it involves falsehood or deception, such as forgery or perjury
          • Appeals for the 7thCircuit, 1999:
            • Facts:
              • D on trial for conspiracy to distribute cocaine w/ P and K >> P testifies against D and D wants to attack credibility by showing P got leniency for testimony and that P had drug dealing/use history
              • P makes motion in limine to block cross on threats P made to witness testifying in related case (to prevent him from testifying against P)
            • Legal Issue:
              • Do the impeachment rules permit questioning related to P’s threats? YES
            • Holding/Rationale:
              • Which View to Apply: Court thinks Narrow and Broad views are too extreme
              • Application: Threatening to cause physical harm to person = behavior seeking advantage in violation of rights reflects on veracity and suggests P might not hesitate to lie for leniency
              • Collateral: If P denied threats this would be collateral
        • 2) Cross Examination on Prior Convictions:
          • General Notes:
            • FRE 609General Explanation:
              • (a): Allows cross-examiner to ask about the following:
                • (1) Felonies by non-accused—Evidence that witness other than accuse has been convicted of crime admitted only if:
                  • 1) Allowed after Rule 403 consideration (errs on side of admitting)
                  • 2) Crime is felony (punishable by death or imprisonment in excess of 1 year)
                  • 3) Subject to limitations of 609(b), (c) and (d)
                • (1) Felonies by accused—Evidence that accused has been convicted of crime admitted if:
                  • 1) TC court determines that probative value of admitting evidence outweighs its prejudicial effect on accused (errs on the side of pushing evidence out)
                  • 2) Crime is a felony
                  • 3) Subject to limitations of 609(b), (c) and (d)
                • (2) Convictions for either felonies or misdemeanors involving dishonestyor false statement
                  • REQUIRED admissibility, rule does not allow for 403 balancing HOWEVER limitations of 609(b), (c), and (d) still apply
                  • 609(a)(2) applies to witnesses including criminal D
              • (b) Creates 10 year time limit >> convictions after are excluded
              • (c) Excludes convictions where there was pardon/annulment or witness found to be innocent
              • (d) Youthful brushes w/ law generally inadmissible
              • (e) Permits cross on convictions despite pendency of an appeal
          • FRE 609. Impeachment by Evidence of Conviction of Crime
            • (a) General rule.
              • For the purpose of attacking the character for truthfulness of a witness,
                • (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
                  • NOTE: This refers to evidence not involving dishonesty or false statement and occurs when: 1) Evidence that witness other than accused has been convicted of such a crime OR 2) Evidence that an accused has been convicted of such crime
                  • Example Acts that Don’t Qualify as Going to Truthfulness = murder, assault, sale of drugs, sexual crimes, arson, prostitution
                • (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
                  • NOTE: court means crimes like perjury, false statement, criminal fraud, embezzlement, false pretense, etc.
            • (b) Time limit.
              • Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
                • NOTE: Conviction can more than 10 yrs old if they were released from confinement and served less than 10 yrs of sentence
                  • Unclear when to measure 10 years (from trial start, when he testifies, when charges are brought, etc)
                • EX: Conviction happened 15 years ago, D has probation for 10 yrs >> if probation is revoked and he goes back to jail?
                  • Probation NOT generally considered confinement
                  • If probation revoked courts see difference w/ technical probation violation and substantive (committing another crime)
            • (c) Effect of pardon, annulment, or certificate of rehabilitation.
              • Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
            • (d) Juvenile adjudications.
              • Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
            • (e) Pendency of appeal.
              • The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
          • United States v. Lipscomb (US Court of Appeals District of Columbia Circuit, 1983):
            • Fact:
              • In 2nd jury trial for heroin possession D is convicted >> D testified at 1st trial (hung jury) and impeach on cross about robbery conviction 8 year earlier
              • D made motion in limine to prevent cross but judge permitted under 609(a)(1)
            • Legal Issue:
              • Does 609 permit impeachment through prior convictions? YES
            • Holding/Rationale:
          • “Gordon Factors” That Bear on Probativeness:
            • 1) Nature of Conviction
            • 2) Its recency or remoteness
            • 3) Whether it is similar to charged offense
            • 4) Whether D’s record is otherwise clean (convictions are presumably more probative of credibility if they show continuing pattern rather than isolated instances)
            • 5) The importance of credibility issues
            • 6) The importance of getting D’s own testimony
            • NOTE: Factors using in weighing ONLY under 609(a)(1) b/c no weighing under 609(a)(2)
          • Luce v. United States (US Supreme Court, 1984):
            • Facts:
              • D charged w/ conspiracy/possession of cocaine >> During trial D moved to preclude govt from using 1974 conviction (for possession) to impeach
            • Legal Issue:
              • Was D, who did not testify at trial, entitled to review of DC’s ruling denying motion to forbid use of prior conviction to impeach his credibility? NO
            • Holding/Rationale:
              • Speculative Harm/Requirement of Testimony:
                • Possible harm from impeachment by prior conviction is speculative b/c D never testified >> court says if you want to preserve impeachment issue on appeal you must testify and be impeached
            • Takeaway Principles:
              • To raise and preserve for review the claim of improper impeachment w/ a prior conviction, D MUST testify
        • 3) Testimony by a character witness that target witness is untruthful
          • Would come in under 608(a) to rebut same
          • Truthfulness of your own witness: Cannot use evidence of truthful character of your witness until witness’ veracity has been attacked by opinion/reputation evidence >> then you can bring in specific acts
            • Ex. Holly on trial for murder of John can’t have Connie testify to Holly’s reputation for honesty UNTIL credibility is attacked
    3. Specific Impeachment:
      1. Prior Inconsistent Statements:
        • General Notes:
          • If witness’s testimony differs on some point from prior statements, the attacking party may cross examine on these statements and prove them by extrinsic evidence
        • FRE 613. Prior Statements of Witnesses
          • (a) Examining witness concerning prior statement:
            • In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
              • NOTE: Don’t have to approach subject gently >> opposing counsel entitled to request to see statement to repair damage
          • (b) Extrinsic evidence of prior inconsistent statement of witness.
            • Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in 801(d)(2)
              • NOTE: If prior inconsistency is proved by extrinsic evidence, witness must generally have opportunity to explain/den it and adverse party must have chance to interrogate her
        • Impeachment and Otherwise Inadmissible Evidence:
          • United States v. Webster (US Court of Appeals for 7thCircuit, 1984):
            • Facts:
              • D convicted of aiding/abetting robbery >> Govt calls co-robbery K to stand (who pled guilty) and impeach him by showing prior inconsistent statement inculpating D
              • Court gave limiting instruction that jury only consider statements for impeachment >> D argues this is insufficient b/c govt should not be allowed to get in admissible evidence before jury by calling K & using out-of-court statement (otherwise inadmissible hearsay) to impeach him
            • Legal Issue:
              • Is impeachment by prior inconsistent statement permitted where evidence is not otherwise admissible? DEPENDS
            • Holding/Rationale:
              • Rule: Impeachment by prior inconsistent statement may not be permitted where employed as mere subterfuge to get before jury evidence not otherwise admissible. Court determines subterfugre by looking at whether there was good faith.
              • Application: No bad faith by P b/c P asked judge to examine outside jury presence
            • Takeaway Principles:
              • Impeachment by prior inconsistent statement otherwise inadmissible permitted if done in good faith
              • NOTE: Party cannot call party solely for impeachment purposes
          • Harris v. New York (US Supreme Court, 1971):
            • Facts:
              • D charged w/ selling heroin >> on cross govt asks D about statements made after arrest (inadmissible statements not mentioned in case-in-chief) which partially contradicted D’s testimony
              • Court instructed jury that statements only went to D’s credibility, not guilt >> D appeals
            • Legal Issue:
              • Was impeachment with evidence not otherwise admissible permissible in this case?
            • Holding/Rationale:
              • Miranda Rights: Barred P from making case w/ statements accused made while in custody prior to having/waiving counsel >> HOWEVER Miranda does not mean that evidenced barred in case in chief is barred for all purposes
              • Application: D shouldn’t be able to use Miranda as shield >> unfair if P is prevented from showing D’s lies when he’s obligated to speak truthfully on stand
            • Takeaway Principles:
              • Court has said you can use otherwise INADMISSIBLE evidence to impeach witness
        • Using Silence for Impeachment:
          • Jenkins v. Anderson (US Supreme Court, 1980):
            • Facts:
              • D commits murder but is not apprehended until 2 wks later when he turns himself in  contends it was self-defense at trial
              • P uses D’s silence (in not coming forward for 2 wks) to impeach credibility by suggesting that D would have spoken out had he killed in self-defense
            • Legal Issue:
              • Does use of pre-arrest silence to impeach D’s credibility violate either the 5th or 14th amendment to Constitution? NO (e.g. Silence BEFORE arrest CAN be used to impeach, silence AFTER arrest constitutes your 5th and 14th Amendment right)
            • Holding/Rationale:
              • Approach: In determining whether constitutional right has been impermissibly burdened, court should consider legitimacy of challenged govt practice >> Impeachment is key to advancing truth/determining credibility >> therefore legit
              • Recognition: Court accepts side effect that D is discouraged from exercising constitutional right of silence b/c it may be used against him
              • Unfairness Under 14th Amendment: No unfairness under b/c silence happened before reading of rights
            • Takeaway Principles:
              • Pre-arrest silence CAN be used to impeach BUT post-arrest and post-miranda silence CANNOT be used to impeach prior inconsistent statement
            • Jurisdictional Note:
              • Courts don’t have to allow impeacment through prearrest silence >> each jurisdiction can formulate own rules of evidence
      2. Contradiction:
        • General Notes:
          • Impeaching Witness by Contradiction = showing that something he said in testimony isn’t true
          • Process = Can be done on cross (by getting him to admit a lie) OR by extrinsic evidence (testimony from someone else, writing/recording) OR be creative
        • Limitations and Counterproof:
          • Court recognizes that all contradicting counterproof has some impeaching effect but they let it in ONLY if it has additional relevance in case –some relevance independent of contradicting effect
          • 3 Kinds of Counterproof:
            • 1) Counterproof that not only contradicts but tends to prove substantive point (evidence that tends to go to merits as well) >> usually admissible
            • 2) Counterproof that not only contradicts but tends to prove some other impeaching point >> usually gets in because it shows bias too
            • 3) Counterproof that ONLY contradicts >> generally excluded b/c it lacks relevancy aparty from contradicting witness
              • Can be admitted if court thinks it’s NOT possible for witness to be innocently mistaken
        • Necessary Degree of Contradiction:
          • United States v. Havens (US Supreme Court, 1980):
            • Facts:
              • D convicted of importing cocaine >> D’s friend M is searched at customs and they find cocaine on him in sewn in patches >> they search D’s luggage and find shirt used to sew on patches
              • AC held that illegally seized evidence (as this was) may be used for impeachment only if evidence contradicts particular statement by D during examination
            • Legal Issue:
              • Can evidence suppressed as fruit of unlawful search and seizure nevertheless be used to impeach D’s false trial testimony, given in response to proper cross-examination, where evidence does not squarely contradict D’s testimony on direct?
            • Holding/Rationale:
              • Direct/Cross—Contradiction Issue: Just b/c evidence does not directly contradict statement made on direct, doesn’t mean it’s kept out
                • Rule = If matters would be suggested to reasonably competent cross-examiner by D’s testimony, then P can introduce questions to impeach
              • Truth Issues: System seeks truthful conclusion and system would fail if D’s were permitted to use perjury as means of keeping key evidence out >> Limitations should be extended to direct AND cross otherwise function of cross is lost to lying
            • Takeaway Principles:
              • Evidence suppressed as fruit of unlawful search and seizure can be used to impeach false testimony when evidence does not squarely contradict testimony
    4. Repairing Credibility and Approaching Possible Impeachment:
      1. Taking Out the “Sting on Direct Examination:
        • It is permissible on direct
          • 1) for any party to adduce testimony by his expert to the effect that she is being paid for her services in the case,
          • 2) for the prosecution or the defense to bring out that its witness has been convicted of previous crimes,
          • 3) for the prosecutor to bring out that its witness has entered into plea bargain, and
          • 4) for any party to bring out that its witness has some connection or affinity with the party..
      2. Repairing Credibility:
        • Methods:
          • Explanation by impeached witness
          • Prior consistent statements
          • Character Evidence of truthfulness
            • 1) Cannot bolster credibility until AFTER witness truthfulness has first been attacked
            • 2) Character witness may then testify (opinion or reputation) as to the truthful disposition of attacked witness
        • Limitations on What Constitutes Attack:
          • Evidence that simply contradicts testimony given by witness does NOT invite rehabilitation/repair
        • Evidence of Good Character:
          • 608(a) authorizes court to admit opinion/reputation testimony supporting credibility AFTER character for truthfulness has been attacked
        • United States v. Medical Therapy Sciences (United States Court of Appeals 2ndCircuit, 1978):
          • Facts:
            • D convicted of filing false claims for Medicare payments and getting double payment
            • Govt had D’s employee—who helped file claims—testify against D and D contends TC erred in permitting govt to call character witness to bolster employee’s credibility
          • Legal Issue:
            • Did TC err in allowing testimony from character witness to bolster employee’s credibility? YES
          • Holding/Rationale:
            • Rule 608(a): Rule doesn’t preclude party from offering character evidence under circumstances when it anticipates impeachment, rather, the event that triggers the applicability of rule is attack on witness’ veracity
            • Application: P brought out bad info about itself (through impeachment) and then tried to repair credibility >> can’t do this unless there’s attack from D >> credibility not attacked simple b/c you impeach your own witness to take sting out
      3. Rule 610. Religious Beliefs or Opinions
        • 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.
          • NOTE: Religiousness can’t be used to impair/enhance credibility >> BUT can enter to show bias
  5. The Best Evidence Doctrine:
    1. Introduction:
      1. General Notes:
        • Best Evidence Rule:
          • Does not mean that you have to put evidence forward >> rename “Original Document Rule”
          • Came about in old common law before industrial revolution/copier when there was distrust for handmade copies
        • Procedure:
          • 1) First ask if the rule is implicated
            • Look to FRE 1002
          • 2) Then ask if you have to use the original, or if there is an exception
            • If Best Evidence Rule applies then:
              • 1) Generally, duplicate is admissible to same extent as original
              • 2) However, duplicate is NOT admissible if unfair or genuine issue is raised about it’s authenticity of original
              • 3) Even if original is required, if production is impossible it may be excused
            • Exceptions Where Original Need Not Be Produced:
              • 1) Original lost or destroyed
              • 2) Original not obtainable
              • 3) Original in possession of opponent
              • 4) Collateral
        • Reasoning Behind Best Evidence Rule:
          • 1) Written word traditionally has special sanctity in legal affairs, justifying more stringent proof requirements
          • 2) Any method of proving the content of writing other than writing itself is distinctly inferior
          • 3) Modern photocopy methods have not always been available and copies of writings have been viewed w/ suspicion
          • 4) Production of original writings assures completeness and prevents segments from being removed from their context
          • 5) Examining the writing may help resolve disputes over authenticity
      2. FRE 1001. Definitions:
        • For purposes of this article the following definitions are applicable:
          • (1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
          • (2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.
          • (3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”.
          • (4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.
      3. FRE 1002. Requirement of Original:
        • To provide the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
      4. FRE 1003. Admissibility of Duplicates:
        • A duplicate is admissible to the same extent as an original unless:
          • 1) a genuine question is raised as to the authenticity of the original or
          • 2) in the circumstances it would be unfair to admit the duplicate in lieu of the original
      5. FRE 1004. Admissibility of Other Evidence of Contents:
        • The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—
          • 1) Original Lost of Destroyed: All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith or
          • 2) Original Not Obtainable: No original can be obtained by any available judicial process or procedure; or
          • 3) Original in Possession of Opponent: At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
          • 4) Collateral Matters: The writing, recording, or photograph is not closely related to a controlling issue.
    2. Best Evidence Rule Applied:
      1. United States v. Duffy (US Court of Appeals for 5thCircuit, 1972):
        • Facts:
          • D convicted of knowingly transporting stolen car (same car from repair shop D worked in in FL) from FL to CA >> D claims he hitch-hiked to CA
          • Police officer and FBI agent testify that in trunk was suitcase w/ shirt w/ mark “DUF” >> D objects to admission of testimony and asks for shirt to be produced >> TC overrules, D appeals
        • Legal Issue:
          • Did TC’s decision not to require shirt, violate the Best Evidence Rule? NO b/c rule not applicable
        • Holding/Rationale:
          • Applicability: Step #1 >> Does best evidence rule apply? Not here because shirt w/ mark is not considered writing (court considers it chattel). Even if court has considered it writing, it was collateral to the case according to the court
        • Takeaway Principles:
          • This is an extremely unlikely ruling
      2. Guidelines for TC Judge in Determining Applicability of Best Evidence Rule:
        • The term collateral and the defining phrase used in 1004(4) imply that it is the unimportance of the matter in question to the issues in the case which count. No doubt this factor is significant, but other facts that are equally important include:
          • 1) The simplicity or complexity of content and consequent risk of error in admitting a testimonial account
          • 2) The strength of the proffered evidence of content, taking into account corroborative witnesses or evidence and the presence or absence of bias or self-interest on the part of the witnesses
          • 3) The breadth of the margin for error within which mistake in a testimonial description would not undermine the point to be proved
          • 4) The presence or absence or an actual dispute as to content
          • 5) The ease or difficulty of producing the original, and
          • 6) The reasons why the proponent of other proof of content does not have or offer the original itself
      3. Meyers v. United States (US Court of Appeals, District of Columbia Circuit, 1948):
        • Facts:
          • M on trial for suborning perjury and D2 on trial for perjury >> Govt. attempts to prove that D2 lied in testimony to Senate Committee by using testimony of Chief Counsel to Committee as to whas was said >> M appeals this procedure
        • Legal Issue:
          • Was it reversible error to allow Chief to testify as to what D2 said to subcommittee? NO
        • Holding/Rationale:
          • Applicability of Best Evidence Rule: Best evidence rule DOES NOT apply because it is limited to cases where contents of writing are to be prove >> here there was no attempt to prove contents of writing
        • Takeaway Principles:
          • Best Evidence Doctrine does not apply unless you are trying to prove contents of writing
          • Even if Best Evidence Rule applied, testimony would be OK b/c there is no hierarchy of probative value
    3. Production of Original Excused:
      1. Sylvania Electric Products v. Flanagan (US Court of Appeal for First Circuit, 1965):
        • Facts:
          • D hired P to make parking lot (not including removal) >> Last day under contract D makes oral agreement w/ P that he’ll pay him more for removal >> D then refuses to pay
          • D appeals saying TC erred in admitting “Summary of Invoices and Tally Sheets” under Best Evidence Doctrine:
        • Legal Issue:
          • Did TC err by not requiring the original copies to be submitted? YES
        • Holding/Rationale:
          • Summary of Tally Sheets/Invoices: Best Evidence Rule applies b/c we’re trying to prove content of tally sheets/invoices and therefore originals are necessary UNLESS property showing is made that they fit an exception (i.e. are unavailable)
          • Application: P failed to show that sheets were unavailable
    4. Other Related Rules:
      1. FRE 1005. Public Records:
        • The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
      2. FRE 1006. Summaries:
        • The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
      3. FRE 1007. Testimony or Written Admission of Party:
        • Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.
  6. Foundational Evidence, Authentication:
    1. Introduction:
      1. General Notes:
        • Foundation = Mechanism to screen out evidence that isn’t reliable (If no foundation present, you might not know what your proper objections are)
      2. General Requirement of Authentication (Laying the Foundation):
        • 1) General requirement of authentication or identification is satisfied by the proponent providing evidence that the matter in question is that it claims is to be
        • 2) Mark all exhibits for identification >> Find out how court wants it done and comply. Do not wait until last minute (should be done well in advance)
        • 3) Organize a copy of all your marked exhibits in a binder for the court
        • 4) Be sure you’re prepared to authenticate each of your marked exhibits. Consider requests for admission and/or stipulations.
        • 5) Authenticate a given exhibit (e.g. have a witness testify that the exhibit is what it claims to be)
        • 6) Offer the exhibit into evidence. Be sure to keep a proof and exhibit checklist
        • 7) Permit opposing counsel the opportunity to review it.
        • 8) Obtain court ruling. Be sure you understand the ruling and ways you can satisfy judge’s concerns, if any, regarding admission of the exhibit.
        • 9) Be sure to make a record if the court rules against you.
        • 10) If admitted, publish the exhibit to the jury the most effective way allowed.
        • NOTE: Court has discretion
      3. Example Problem:
        • Facts: In case against Holly for murder of John, the prosecution moves into evidence a knife found at the murder scene. The prosecution does not call any witness to testify that this knife is the one found at the murder scene. The prosecution, however, does call a pathologist, who testifies that John was killed by multiple stab wounds.Holly’s counsel objects to the admission of the knife. The prosecution argues that this is a matter for the jury to decide under Rule 104(b). What is the correct ruling?
          • Sustained (well taken objection) – there must be ample evidence for the jury to decide one way or the other and prosecution didn’t put anything in
    2. Authentication:
      1. General Notes:
        • Authentication = authenticating an item of evidence means offering “evidence sufficient to support a finding that the matter in question is what its proponent claims (901(a))
          • 902: allows for “self-authentication” for trade inscriptions that would include at least the lavel on a can of peas and perhaps logos that would appear in newspaper ads
        • Screening Mechanism—104(b):
          • Trial judge plays a screening function, passing ultimate decision on authenticity to jury >> BUT if proponent offers no proof of authenticity to enable jury to find an exhibit authentic then it must be excluded
        • Steps to Authenticating and Introducing Exhibit:
          • 1) Getting the court reporter to mark the exhibit for identification
          • 2) Offering testimony identifying or describing the exhibit (heart of authentication process)
          • 3) Offering the exhibit in evidence
          • 4) Letting counsel for other parties examine it
          • 5) Giving the other lawyers a chance to object.
          • 6) Submitting the exhibit to the court to examine if it wishes to do so
          • 7) Getting a ruling
          • 8) Asking permission to present the exhibit, if admitted, to the jury by reading it to them or showing it to them
      2. FRE 901. Requirements of Authentication Or Identification:
        • (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
        • (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
          • (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
          • (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
          • (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
          • (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
          • (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
          • (6) Telephone conversations. Telephone conversations, 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 (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) 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 telephone.
          • (7) Public records or reports. 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, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
          • (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
          • (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
          • (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.
    3. The Tangible Objects:
      1. United States v. Johnson (United States Court of Appeals for the Ninth Circuit, 1980):
        • Facts:
          • D convicted of assault resulting in injury w/ an ax >> Ax was seized from D’s home and admitted but D argues that there was insufficient foundation or authentication
          • D argues this was error b/c victim who testified that he thought ax was same one from assault failed to distinguish this ax from any other
        • Legal Issue:
          • Was there sufficient authentication of the ax to support its admission into evidence? YES
        • Holding/Rationale:
          • Rule 901: authentication is condition present for admissibility that is satisfied by sufficient evidence to support finding that matter in question is what proponent claims
          • Application: Although record reveals that ID of ax may not have been free from doubt, witness was pretty sure it was weapon used against him >> based on this reasonable juror could have concluded ax was same weapon used in assault
      2. United States v. Howard-Arias (1982):
        • Facts:
          • D was on board ship rescued by coast guard who found pot on the boat >> D argues that they can’t prove authentication b/c no proof of chain of custody from boat to trial
        • Legal Issue:
          • What is the rule regarding Chain of Custody and authentication?
        • Holding/Rationale:
          • Chain of Custody Rule: Real evidence MUST be authenticated prior to its admission into evidence. Ultimate question is whether authentication testimony was sufficiently complete so as to convince the court that it is improbable that the original item was switched/tampered w/ before trial
            • Resolution rests on discretion of trial judge
          • Application: Court admits evidence even though special agent who received pot from costguard wasn’t able to testify >> Chain of Custody NOT broken b/c it wasn’t initial person who seized drugs  it might affect weight of evidence but it’s admissible
        • Takeaway Principles:
          • Court will allow some missing links in chain of title SO LONG AS they are NOT the original ink in the chain
    4. Writings:
      1. General Notes:
        • Must prove that particular person signed or authored writing >> someone can ID signature based on familiarity
        • 901(b)(2): Allows nonexpert opinion on handwriting
        • 901(b)(3): Comparison by trier or expert witnesses with specimens which have been authenticated
        • Rule 901(b)(4): Distinctive characteristics and the like (i.e. appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.)
        • Common Law Reply Doctrine: Writing can be seen as coming from B if it can be shown to be a response to an earlier writing from A to B
      2. United States v. Bagaric (US Court of Appeals for Second Circuit, 1983):
        • Facts:
          • Ds were convicted of RICO violations >> 1D challenges admission of evidence linking him to co-racketeer >> Evidence = letter discovered from search of D’s home
        • Legal Issue:
          • Was letter properly authenticated? YES
        • Holding/Rationale:
          • Rule RE Authentication: Authentication finding may be based entirely on circumstantial evidence including appearance, contents, substance, etc
          • Application: Letter was addressed to D and contents went to authentication
        • Takeaway Principles:
          • Authentication can be based on circumstantial evidence
    5. Tape Recordings:
      1. Turnage v. State (Supreme Court of Minnesota, 2006):
        • Facts:
          • D convicted of murder >> Prosecution introduces tape evidence and D argues there was no foundation to establish tape-recorded copies of his telephone calls were same as originals
        • Legal Issue:
          • Is there a genuine issue of authenticity? NO
        • Holding/Rationale:
          • Standard of Review: TC has broad discretion and Standard of Review = abuse of discretion
          • Application: TC didn’t abuse discretion b/c 1) initial digital recordings of conversations satisfy required foundation elements and would have been admissible as original tape recordings AND 2) duplicated copies of digital tapes satisfied the requirement for admitting a duplicate recording
    6. Telephone Conversations:
      1. United States v. Pool (US Court of Appeals for 5thCircuit, 1981):
        • Facts:
          • D’s convicting of dealing/importing pot >> D appeals conviction of using phone call for indictment of grounds that call alleged to be from him was insufficiently authenticated
          • Convo was with DEA undercover agent but NOT recorded >> D ID-ed by DEA based on convo
        • Legal Issue:
          • Was the conversation properly authentication? NO
        • Holding/Rationale:
          • Rule for ID-ing Phone Conversations: A phone call out of blue from one who IDs himself as X may not be in itself, sufficient authentication of the call as in fact coming from X
          • Application: Standard of admissibility is prima facie and evidence may be circumstantial BUT not this is not sufficient
    7. Self-Authentication:
      1. General Notes:
        • FRE 902 allows for admissibility of self-authenticating exhibits BUT does not bar counter proof by opponent
        • Examples: Newspaper and label on candy bar are self-authenticating under 902
        • Self-Authentication Basics:
          • 1) Extrinsic evidence not required for foundation
          • 2) Rule 902 sets forth 10 situations where this applies
          • 3) In no instance is the opposite party foreclosed from disputing authenticity
      2. FRE 902. Self-Authentication:
        • Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
          • (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
          • (2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
          • (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
          • (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.
          • (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
          • (6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
          • (7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
          • (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
          • (9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
          • (10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.
          • (11) Certified domestic records of regularly conducted activity.  The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian  or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:
            • (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
            • (B) was kept in the course of the regularly conducted activity; and
            • (C) was made by the regularly conducted activity as a regular practice.
            • A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
          • (12) Certified foreign records of regularly conducted activity.  In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian  or other qualified person certifying that the record:
            • (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
            • (B) was kept in the course of the regularly conducted activity; and
            • (C) was made by the regularly conducted activity as a regular practice.
            • The declaration must be signed in a  manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
    8. Demonstrative Evidence:
      1. Belli, Demonstrative Evidence: Seeing is Believing (1980)
        • General Notes:
          • Demonstrative Evidence = anything which appeals to the jurors’ senses (something to see, touch, taste, smell, or listen to)
        • The Uses of Demonstrative Evidence:
          • Demonstrative evidence used for 3 major purposes:
            • 1) to establish the liability of D
            • 2) to illustrate the full extent and severity of P’s injuries, and
            • 3) to complement the written transcript for use on appeal
        • Types of Demonstrative Evidence:
          • Photos are most frequently used type of demonstrative evidence
          • When P was injured, photos are especially important in raising juror emotions and obtaining a higher award
        • Notes:
          • Belli refers to demonstrative evidence as anything that appeals to senses  Definition is broader than most others b/c it could encompass testimony
          • Most commentators distinguish between “real” evidence (tangible objects) and “demonstrative” evidence (evidence having no independent probative value that serves as visual aid in understanding testimony or other evidence)
          • Admissibility with Tests or Experiments:
            • Admissibility of evidence depends upon a foundational showing of substantial similarity between the tests conducted and actual conditions. Perfect identity between experimental and actual conditions is neither attainable nor required. Dissimilarities effect the weight of the evidence, not admissibility.
            • Finally, the decision whether to admit or exclude evidence of experiments in a particular case rests largely in discretion of trial judge and his decision will not be overturned on appeal absent a clear showing of abuse of discretion.
  7. Hearsay:
    1. Introduction:
      1. What is Hearsay?
        • Hearsay: Out of court statement offered for the truth of the matter asserted
          • Ex. #1: Bystander’s statement is offered to prove what it asserts = hearsay
          • Ex. #2: X testifies that he received letter from bystander Y that says Z = hearsay
      2. Reasons to Exlcude Hearsay:
        • 1) Absence of Cross Examination:
          • Out of court statements are not subject to truth truth-testing technique
        • 2) Absence of Demeanor Evidence:
          • Out of court delcarant (bsyander for example) is not under gaze of trier of fact at least at the time he speaks, so trier lacks those impressions and clues which voice, inflection, expression and appearance convey
        • 3) Absence of Oath:
          • Usually out of court declarant was not under oath at the time he spoke so the trier of fact has no indication that he felt any sense of moral or legal obligation to speak the truth
      3. Hearsay Risks:
        • There are 4 hearsay risks associated w/ out-of-court statements”
          • 1) Risk of Misconception:
            • Risk not only a function of sensory capacity but physical circumstance and of mental capacity and psychological condition
          • 2) Risk of Faulty Memory:
            • Cross-examination may be very useful in establishing, eliminating or reducing uncertainties that would arise from memory  ability not available w/ hearsay
          • 3) Risk of Misstatement:
            • This is the risk of ambiguity or faulty narration
            • Cross-examination (not available w/ hearsay) can get at the limits and intended meaning of what Bystander has to say
          • 4) Risk of Distortion:
            • Whether conscious or unconscious
      4. What is A Statement?
        • Assertive Conduct:
          • Hearsay risks appear with verbal expression AND with nonverbal conduct where the actor has assertive intent
          • In this sense a statement—for hearsay purposes—can be verbal and nonverbal
            • Ex. Nodding, shaking of the head, shrugging of the shoulders in answer to question or pointing as a means of identifying
        • Nonassertive Conduct:
          • General Notes:
            • Certain nonassertive conduct can also implicate the hearsay risks and be considered a statement
          • Wright v. Doe D. Tatham (Court of Exechequer Chamber, 1837):
            • Facts:
              • P—sole heir to M—brings suit to set aside will (allegedly procured by fault) which left valuable property to D
              • D offers letters (from ppl who had died before trial written to M before death) which indicated that H was a rationale person
            • Legal Issue:
              • Were letters admissible as proof that D possessed rationalness, etc? NO
            • Holding/Rationale:
              • Truth of Statement Asserted Rule: Proof of particular fact, which is not itself matter in issue, but which is relevant only as implying a statement or opinion of a 3rd person on matter in issue, is inadmissible in all cases where such statement or opinion not an oath would be inadmissible
              • Application: Letters were meant to prove exactly what they say, competence of testator, and were therefore properly rejected as mere statements/opinions of writer
          • Cain v. George (United States Court of Appeals for the Fifth Circuit, 1969);
            • Facts:
              • Parents bring wrongful death suit for son who died from carbon monoxide poisoning while in D’s hotel  P alleges gas was improperly installed
              • P loses and appeals contending that TC erred in allowing testimony evidence of motel owners concerning guests who stayed in room and made no complaints
            • Legal Issue:
              • Was testimony hearsay? NO
            • Holding/Rationale:
              • Testimony was merely to whether motel owner had knowledge of anyone being harmed by heater  NOT hearsay evidence as it derived value solely from credit to be given to witnesses themselves
          • United States v. Check (US Court of Appeals for the Second Circuit, 1978):
            • Facts:
              • D = patrolman in NYPD who was convicted of possessing cocaine  Spinelli = detective who operated undercover and key witness against D who worked with informant Cali  C and S go to dinner and C goes outside to talk to D  C returns, talks with S
              • At trial, b/c prosecution can’t ask S what C said w/out hearsay problem, prosecution asks S what he said to draw out conversation
            • Legal Issue:
              • Was S’s testimony a form of hearsay? YES  new trial
            • Holding/Rationale:
              • Jury: Jury learned from S’s testimony, C’s statements Since out-of-court statements uttered by C, introduced by S, were being offered to prove truth of matters asserted in them this was hearsay
                • Didn’t matter that testimony included S’s own statements, b/c testimony was a transparent attempt to incorporate into officer’s testimony info supplied by informant who did not testify at trial
      5. Hearsay Overal:
        • 5 Main Groups of Exceptions:
          • 1) Statements by Declarants Who Testify:
            • Rule 801(d)(1)
          • 2) Admissions:
            • Rule 801(d)(2)  5 variations on single idea = admissions doctrine
          • 3) Unrestricted Exceptions:
            • Rule 803 = 23 unrestricted exceptions
          • 4) Statements By Unavailable Declarants:
            • 804 (has five exceptions) that can be invoked only if the declarant is unavailable as a witness under 804(a)
          • 5) Catchall:
            • Rule 807 = Catchall exception
        • Confrontation Clause:
          • Applies in federal and state courts and is the idea that the accused has the right to be confronted with Witnesses against him and has long been the reason against for blocking out of court statements (even some that fit within hearsay exception)
          • CC constrains ONLY prosecutors (not accused) and its exceptions apply to all parties in both civil and criminal trials
          • Restrictions to Confrontation Clause:
            • In Crawford Supreme Court held that CC applies only to “testimonial” statements (statements cannot be used against accused unless he has chance to cross-examine declarant)
          • Exceptions to Confrontation Clause
            • 1) Declarant testifies at trial where he can be cross-examined
              • Prior opportunity to be cross-examined, at deposition or prelim hearing may also be sufficient
            • 2) Forfeiture:
              • Court allows use of statements by witnesses who are “unavailable” b/c they cannot or won’t testify on account of “wrongful” behavior by party against who the statements are offered
              • Usually invoked against criminal Ds and behavior = threatening/killing witnesses
            • 3) Other Statements:
              • Coconspirator statements are admissible, and dying declarations too
    2. When A Statement Is Not Hearsay:
      1. General Notes:
        • 6 Common Purposes for Offering Statements:
          • 1) Impeachment
          • 2) Verbal Acts (or part of acts)
          • 3) Effect on listener or reader
          • 4) Verbal objects
          • 5) Circumstantial evidence of state of mind, and
          • 6) Circumstantial evidence of memory or belief
        • Tackling a Hearsay Problem:
          • 1) Recognize whether it’s hearsay or not hearsay
          • 2) If hearsay/nonhearsay filter through other rules to see if it fits within an exception that makes it admissible or inadmissible
          • 3) Make sure hearsay rule applies before looking at exceptions
        • Statements Which Are Not Hearsay:
          • Rule 801(d) provides special rules defining certain statements as NONhearsay:
            • 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)
            • NOTE: Statements used for Impeachment are ALWAYS Nonhearsay
            • 801: Statement is hearsay when offered to prove the truth of the matter asserted  Therefore a statement is not hearsaywhen offered for any other purposes
      2. FRE 801. Definitions:
        • The following definitions apply under this article:
          • (a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
          • (b) Declarant. A “declarant” is a person who makes a statement.
          • (c) Hearsay. “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.
          • (d) Statements which are not hearsay.A statement is not hearsay if—
            • (1) Prior statement by witness. The 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 subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
            • (2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
              • The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
      3. Nonhearsay Under 801(d)(1):
        • 801(d)(1): defines as “not hearsay” 3 different kinds of prior statements by testifying witnesses:
          • A) Certain prior inconsistencies – prior inconsistent statement won’t be hearsay if 3 conditions are met:
            • 1) Witness must be cross-examinable concerning prior statement
            • 2) Statement must be inconsistent w/ present testimony
            • 3) Statement must have been made under oath in a prior proceeding or deposition
          • B) Certain prior consistencies
          • C) Statements of identification
      4. Prior Inconsistent Statements: 801(d)(1)(A)
        • State v. Smith (Washington Supreme Court, 1982):
          • Facts:
            • Assault victim writes statement on form supplied by police in which she names D as assailant  oath signed under penalty of perjury
            • At trial, victim names another man as attacker (out of fear) and TC allowed prior inconsistent statement to be used substantively but later grants new trial b/c 801(d)(1)(A) didn’t apply
          • Legal Issue:
            • What do the words “other proceeding” mean in the context of 801(d)(1)(A)?
          • Holding/Rationale:
            • Other Proceeding: NOT TRUE that every sworn statement give at police station is admissible  court must consider 2 purposes: 1) remove doubt as to making of prior statement, and 2) provide at least minimal guarantees of truthfulness which an oath and circumstance of a formalized proceeding to assure  court says this counts
            • 1st Statement Nonhearsay: All 3 requirements of 801(d)(1)(A) are met [subject to cross at trial, inconsistent, signed under oath and at “other proceeding”] therefore statement was admissible and helpful to find true attacker
          • Takeaway Principles:
            • “Other Proceeding” is a discretionary term but federal cases subject station house affidavits are excluded under federal rules as “other proceeding”
            • No mandate that “other proceeding” needed to have opportunity for cross examination
            • Preliminary hearings and grand jury proceedings would be “other proceedings”
      5. Prior Consistent Statement: 801(d)(1)(B)
        • General Notes:
          • 3 Conditions for Prior Consistent Statements to be Admissible as NonHearsay under 801(d)(1)(B)
            • 1) Witness must be cross-examinable at trial concerning prior statement
            • 2) Statement must be consistent with present testimony
            • 3) Statement must be offered to rebut a charge of “recent fabrication or improper influence or motive”
              • Ex. Cross examiner might suggest that witness just made it up or changed his story b/c he was cajoled, paid or frightened
            • LIMITATION = Only allowed if the statement was made before the alleged fabrication, influence or motive came into existence
          • Examples of Prior Consistent Statements Allowed Under Common Law:
            • 1) W’s credibility is attached by prior inconsistent statement. W denies making statement. Prior consistent statement may be used to support denial of making such prior inconsistent statement (i.e. rehabilitate W’s credibility)
            • 2) W’s memory is attacked …
            • 3) W’s credibility is attacked by claims of recent fabrication or improper influence or motive. Prior consistent statement used to rebut this charge or recent fabrication or improper motive or influence
        • Tome v. United States (United States v. Supreme Court, 1995):
          • Facts:
            • D convicted of abusing daughter  during cross defense suggests she was motivated by desire to live w/ mother  court lets in statements by daughter to babysitter, social worker and doctors to rebut charge of fabrication
            • Court allows on basis that they refuted claim of wanting to live w/ mom  D appeals
          • Legal Issue:
            • Are out of court consistent statement made after alleged fabrication, or after alleged improper influence or motive arose, admissible under FRE 801(d)(1)(b)? NO
          • Holding/Rationale:
            • Temporal Requirement: 801(d)(1)(B) embodies common law rule that prior consistentn statement introduced to rebut charge of recent fabrication must have been made before alleged fabrication
          • Takeaway Principles:
            • To use prior consistent statement to rebut charge of recent fabrication statement must have been made BEFORE time of alleged fabrication, motive, etc.
      6. Prior Statements of Identification: 801(d)(1)(C):
        • General Notes:
          • Since pretrial IDs are more reliable, 801(d)(1)(C) creates another NONHEARSAY statement for previous statements of identification made by witness after perceiving subject, provided that witness is subject to cross at trial concerning statement
          • Limitations—Wade-Gilbert Doctrine:
            • Establishes a per se rule that blocks use of some pretrial statements of ID that might fit 801(d)(1)(C)—those obtained in postindictment lineups where D is denied counsel (or possibly those obtained in unnecessarily suggestive circumstances)
          • Requirements for Statement of Prior ID:
            • 1) Declarant testifies at trial and is subject to cross concerning statement
            • 2) Statement is one of identification of a person made after perceiving the person
        • State v. Motta (Hawaii Supreme Court, 1983):
          • Facts:
            • Coffee house is rubbed by D  victim gives description to police artist who draws sketch and positively ID’s him at preliminary hearing
            • D contends that TC erred in admitting sketch based on cashier’s description b/c it was inadmissible hearsay (b/c statement made other by one other than declarant)
          • Legal Issue:
            • Was the sketch hearsay or admissible? Sketch = nonhearsay under 801(d)(1)(C)
          • Holding/Rationale:
            • Sketch: Can be liked to person making ID of person after perceiving them and fits under 801(d)(1)(C) as NONHEARSAY so long as: 1) declarant testifies at trial AND 2) is subject to cross examination
          • Takeaway Principles:
            • Description given to sketch artist can be considered identification
      7. Notes about 801(d)(1) Generall:
        • Basic requirements for (A), (B) and (C) of 801(d)(1):
          • 1) Declarant testifies at trial
            • If declarant is dead you don’t have to look at nonhearsay under 801(d)(1)
          • 2) Declarant s subject to cross:
            • Rule doesn’t say witness has to be cross-examinable concerning the “subject matter” of the statement  they must only be cross-examinable “concerning the statement”
            • THEREFORE if witness takes stand and remembers making statement but does not remember subject matter of statement that is enough
      8. Exceptions in FRE 801(d)(2)—Admission by Party Opponent:
        • General Notes:
          • Prior admissions by a party opponent can be used to impeach, but they can also be used substantively as nonhearsay even if statements made out of court for the truth of the matter asserted under 801(d)(2)
          • Reasoning For Allowing Party Opponent Admissions as Nonhearsay:
            • 1) Parties to a lawsuit should be forced to live up to their statement or explain it
            • 2) The other side is going to make or have the opportunity to make you do that
            • 3) ACN tell us that admissions by party opponent are excluded from hearsay b/c their admission into evidence is result of adversary system not hearsay provisions
      9. Individual Admissions Under 801(d)(2)(A):
        • General Notes:
          • 801(d)(2)(A): The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity
          • Prior Guilty Pleas: Usually such pleas are admitted in later damage suits arising from incident
            • Plea of nolo contender can sometimes help (not admissible in later civil suit, but requires D to submit to punishment and allow entry of criminal judgment against him and courts don’t always allow such pleas)
        • Bruton v. United Stats (United States Supreme Court, 1968):
          • Facts:
            • B and E convicted of armed robbery  Postal inspector testifies that E made oral confession that he and B committed robbery while being interrogated at jail
            • Jury was instructed to consider confession by E NOT as against anyone but E (not B)
          • Legal Issue:
            • Was it proper to let in E’s confession with only a limiting instruction? NO
          • Holding/Rationale:
            • Limiting Instruction: Not sufficient to stop jury from considering evidence as against B
            • Confrontation Rule: Admitting Evidence also violates B’s 6th amendment right to confront accuser
          • Takeaway Principles:
            • You could get around this by redacting the “B did it part” and just have the “I did it part” or you could try them separately
        • Limitations on Admission:
          • 403: We must argue that admission is cumulative or it’s level of unfair prejudice outweighs probative value of admission
        • Adoptive Admission:
          • United States v. Hooser:
            • Facts:
              • H was convicted of armed robbery and witness R testifies that he’d been with D before/after robbery and that D’s GF made comments about how much $ they had
              • D argues testimony from R concerning GF’s statements = inadmissible hearsay
            • Legal Issue:
              • Was testimony RE girlfriend’s statements hearsay? NO
            • Holding/Rationale:
              • Adoptive Admission: Statement was made n D’s presence with R and GF and “under total circumstances court believes that probable human behavior would have been for D promptly to deny his girlfriend’s statement if it had no been true.”
          • Doyle v. Ohio (United States Supreme Court, 1976):
            • Facts:
              • D and W convicted of selling pot to informant B  B was to meet D and W to get pot but shortchanged them $  they come back looking for him and are arrested
              • Defense tries to showing that arresting officers never saw what happened  D and W claims they were going to buy but changed mind  Prosecution asks why they never told this story to police arrest after reading of Miranda rights
            • Legal Issue:
              • Does use of post-Miranda warning silence violate due process? YES
            • Holding/Rationale:
              • Miranda: Silence after Miranda may be nothing more than arrestee’s exercise of rights THEREFORE unfair to allow arrested person’s silence to be used against him
            • Takeaway Principles:
              • Using D’s silence at time of arrest (after receiving Miranda warnings) for impeachment purposes or substantive under 801(d)(2) violates Due Process Clause of 14th Amendment
        • Admission by Speaking Agents:
          • General Notes:
            • Agency law = defines conditions under which one person may act for another
              • There are conditions under which a statement by one person is viewed as an admission by another and considered nonhearsay
              • Reasoning = When 1 person hires another person to speak for him, it is fair to allow the words of the latter to establish facts at trial against former
            • 801(d)(2)(C): The statement is offered against a party and is …(C) a statement by a person authorized by the party to make a statement concerning the subject
          • Notes on Admission in Judicial Proceedings:
            • Pleadings from prior lawsuits, as well as pleadings superseded by amendment in pending suit, are generally admissible against party who filed them (so are answers to interrogatories)
            • Under FRCP 36(a) a matter admitted is conclusively established in pending suit, but is NOT an admission for any other pupose
        • Admission by Employees and Agents:
          • 801(d)(2)(D): The statement is offered against a party and is …(D) a statement by the party’s agent or servant concerning a matter within the scope of his employment made during the existence of the relationship
            • Distinguishable from 801(d)(2)(C) b/c someone might not be authorized specifically but is making statement in course and scope of employment
            • Most employers don’t authorized employees to make statements that are harmful to company, but statements can be admitted under D
          • Multi or “Layered Hearsay”:
            • Statements by employees often rest upon or repeast what others have said in workplace so keep in mind that under FRE 805, multiple or layered hearsay is admissible if each statement fits an exception
          • Government Admissions:
            • General Notes:
              • Traditionally, statements by public employees have not been admissible against gvmt on grounds that:
                • 1) such people do not have the same sort of personal stake in the outcome of any dispute as private employees have, and
                • 2) agents cannot bind the sovereign
            • Mahlandt v. Wild Canid Survival & Research Center (US Court of Appeals 8thCircuit, 1978):
              • Facts:
                • Action for damages arising from wolf attack on child  Wolf-keeper’s employer made statement to keeper (Owen) “Own would you call me…[wof] bit a child that came into your yard”  there was also evidence from meeting that referred to wolf biting child
                • TC excluded note and minutes b/c sources didn’t have personal knowledge (PK) and were hearsay
              • Legal Issue:
                • Are statements admissible as nonhearsay admission under 801(d)(2)?
              • Holding/Rationale:
                • Note and 801(d)(2)(D) and PK: No express requirement of PK on part of declarant under this rule therefore it applies and statements should be admissible as nonhearsay
                • Meeting Minutes: Falls under 801(d)(2)(C) which doesn’t suggest board meeting minutes can be used against non-participating corporate employees  therefore not admissible
              • Takeaway Principles:
                • 801(d)(2)(D) covers statements made in the course of employment even if the speaker doesn’t have personal knowledge
        • Co-conspirator Statements:
          • General Notes:
            • 801(d)(2)(E): A statement is not hearsay if—The statement is offered against a party and is …(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
            • Conspiracy = some type of agreement and intent (Ex. If you have A, B, and C in conspiracy and they’re making statements during pendency of conspiracy in furtherance of conspiracy THEN admissions by A, for example, as to what A says, is also an admission by B and C)
              • Rule: If one conspirator makes damaging statement during pendency of conspiracy AND in furtherance of conspiracy, it is an admission and is as if all other conspirators also made the statement
            • No Charge Required: Conspiracy does not have to be charged
              • Example: Disbarred lawyer does time in federal person and is released  brags that he’s excellent sailor and gets call from buddy inside federal prison. Buddy and lawyer come up with scheme where lawyer will buy pot in Asia and sail boat back to buddy who’s waiting. Lawyer decides he wants to steal drugs and not give them to buddy he calls his son and they create scam. Son makes various statements in furtherance of this scam. In charges against buddy and lawyer for conspiracy to distribute drugs, prosecutor wants to use statements of son and can do so under a new “uncharged conspiracy” to steal drugs from prison buddy
          • Requirements of 801(d)(2)(E):
            • A coconspirator statement is admissible if:
              • 1) Declarant and defendant conspired (coventurer requirement), and
              • 2) The statement was made during the course of the venture (pendency requirement), and
              • 3) The statement was made in furtherance thereof (furtherance requirement)
          • Application of Excpetion Difficult Because:
            • 1) Proof of conspiracy is invariably circumstantial and difficult
            • 2) The conventurer requirement introduces a problem of coincidence b/c conspiracy is both a predicate fact in the exception and an element of guilt or innocence
            • 3) Coconspirator statements often assert or imply that delcarant and D conspired, which introduces the problem of bootstrapping b/c statements asserts very fact on which its admissibility depends
          • Bourjaily v. United States (Unites States Supreme Court, 1987):
            • Facts:
              • FBI undercover agent arranged to sell cocaine to L and D  L says on phone that D has questions about cocaine  FBI guy talks to D and they arrange time for deal  D and L are arrested
              • Govt seeks to get L’s out of court statements on phone in under 801(d)(2)(E)  D argues that b/c he has no opportunity to cross L this violates right to confrontation
              • D thinks there must be independent evidence (other than statements sought to be admitted) to prove existence of conspiracy
            • Legal Issue:
              • Were out of court statements admissible as evidence of a conspiracy? YES
            • Holding/Rationale:
              • Bootstrapping: Court says bootstrapping (using statements sought to be admitted as part of conspiracy are ok to use to prove conspiracy existence) is OK because Rule 104 permits court to look at any evidence it wishes in determining conspiracy under 801(d)(2)(E)  judge gets this 104 determination
            • Takeaway Principles:
              • Conspiracy facts/statements themselves (which are sought to be admitted as nonhearsay) can be used to prove the existence of a conspiracy so that they may be admitted under 801(d)(2)(E) which requires proof of conspiracy
      10. Hearsay/NonHearsay Recap:
        • Hearsay General Notes:
          • 1) First step = determine if hearsay
            • a) Determine arguable statement and declarant
            • b) Ask whether it was out of court
            • c) As whether it was offered for the truth of the matter asserted
    3. Hearsay Exceptions:
      1. General Notes About Exceptions:
        • Basic Idea = Rules recognize excpetions based on certain situations/statements made for the truth of the matter asserted that are trustworthy enough to let them in
        • Hearsay Exception Categories:
          • 1) Rule 803: Hearsay Exceptions—Availabability of Declarant Immaterial
            • 23 Exceptions
          • 2) Rule 804: Hearsay Exceptions—Declarant Unavailable
          • 3) Rule 807: Residual Exception
        • Hearsay within Hearsay—Rule 805:
          • “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms w/ an exception to the hearsay rule provided in these rules.”
          • If you have hearsay within hearsay, then each piece has to be analyzed to be nonhearay or fit within an exception
      2. Rule 803: Hearsay Exceptions—Availability of Declarant Immaterial:
        • Excited Utterances and Present Sense Impression:
          • 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:
              • (1) Present sense impression.
                • A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
                • REASON: Substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation
              • (2) Excited utterance.
                • A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
                • REASON: Circumstances may provide condition of excitement which temporarily stills capacity of reflection and produces utterances free of conscious fabrication.
          • United States v. Arnold:
            • Facts:
              • Daugther to GF of F makes statements out of court that prosecution wants to use for truth of matter asserted (“he’s got a gun, he’s going to kill me” during 911 call)
            • Legal Issue:
              • Were the statements admissible under a hearsay exception? YES
            • Holding/Rationale:
              • Present Sense Impression: Court says statements were close enough in time because declarant was still in distress that they are admissible despite being hearsay under exception 803(1)
          • Present Impression v. Excited Utterance:
            • Present Sense Impression:
              • 1) Any even or condition
              • 2) Statement must describe or explain event
              • 3) Made while perceiving or immediately thereafter
            • Excited Utterance:
              • 1) Startling event or condition
              • 2) Statement need only to relate to a startling event
              • 3) Made while declarant under stress excitement caused by event
        • Then Existing Mental, Emotional or Physical Conditions:
          • 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: (3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
          • Examples:
            • 1) “Yesterday I had shooting pain down my arm”—Does NOT fit within exception
            • 2) “I have a shooting pain donw my arm” – Does fit within exception
            • 3) “I’m going to Mexico this weekend” –Does fit within exception
          • Approach:
            • 1) Ask yourself if the evidence is being used to prove current, future or past condition?
              • Present sense impression allowed  past not allowed
            • 2) Is it the future behavior of declarant or someone else at issue
              • Can use statement about yourself and other to show only as it relates to you
          • Mutual Life Insurance v. Hillman:
            • Tells us that you can somehow prove that this person also went under this present recollection or current mental state
            • We aren’t just trying to prove what delcarant did  here you’re trying to show that other parties mentioned also did this event
            • U.S. Supreme Court in Hillmon held that such a future statement of intent, if offered that the delcarant actually did go to Chicago, falls within the then existing state of mind exception.
            • ACN 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 under 803(3).
          • United States v. Pheaster:
            • Rules weren’t in effect at time of this case
            • Presents question: are we allowed to use then-existing state of mind exception that others acted in conformity to statement
            • “The Committee intends that the Rule 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.”
        • Statements to Physicians:
          • 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: (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.
            • NOTE: Statements as to fault do not ordinarily qualify under this Rule b/c it is not reasonably pertinent to diagnosis or treatment
          • Blake v. State (Supreme Court of Wyoming, 1997):
            • Facts:
              • D convicted of sexually assaulting stepdaughter  After assault daughter was examined by doctor whom she told that she was forcibly subjected to sexual intercourse w/ stepfather
              • Daughter doesn’t testify at trial does  D objects when doc recounts statements as to perpetrator ID
            • Legal Issue:
              • Was the doctor’s testimony excludible as hearsay or accepted under 803(4)? Admissible under exception
            • Holding/Rationale:
              • General Rule: Statements of ID are generally admitted in child abuse cases (as long as it is pertinent to the mental treatment of the patient) b/c of special character of diagnosis and treatment but there MUST be proper foundation  here statements were helpful in knowing if rape kit was needed
            • Takeaway Principles:
              • In child abuse cases if doc can show that he/she needs to know perpetrator to properly diagnose/perform further exams the evidence is admissible under 803(4)
              • In rape cases the court generally holds that statements to Doc ID-ing assailant are not “pertinent to medical treatment” despite the fact that they may relate to psychological treatment
        • Past Recollection Recorded (803(5)):
          • General Notes:
            • Sometimes witness who can’t remember critical points has written down what he knew and what he wrote may be admissible as a substitute for testimony (or to refresh memory)
          • Requirements for Recorded Recollection Hearsay Exception Under 803(5):
            • 1) Existence of a memo or record
            • 2) The witness lacks present recollection of the matter
            • 3) The witness made must have made or adopted the memo or record
            • 4) The statement/memo/record accurately reflects knowledge he once had
            • 5) The witness must have made/adopted the statement while it was fresh in his mind
            • 6) If admitted, the memo/record must be read into evidence but may not itself be receved as an exhibit unless offered by an adverse party
              • Reasoning = Since statement is taking the place of testimony it would be unfair to send it back to jury b/c that would give it more weight
          • 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: (5) Recorded Recollection: A memorandum or recording 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 wintess’ 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.
          • Ohio v. Scott (Ohio Supreme Court, 1972):
            • Facts:
              • D was convicted of shooting w/ intent to kill  T had convo w/ D just prior to arrest and T gives handwritten statement to police
              • At trial T can’t remember statements and govt uses statement  D says hearsay
            • Legal Issue:
              • Can past recollection recorded rule of evidence be used in a criminal trial and, if used, does it violate D’s 6th Amendment right of confrontation?
            • Holding/Rationale:
              • Past Recollection Recorded Requirements: T meets requirements b/c 1) there was statement to police, 2) witness lacked present recollection at trial, 3) witness made statement to police, 4) statements consisted of facts which witness had 1st hand knowledge, 5) witness gave statements while fresh in mind and 6) statement was read into evidence
          • Baker v. State (1977):
            • Facts:
              • D was convicted of murder and robbery
              • She appeals TC’s refusal to allow her to refresh her present recollection of a police witness by showing him a report written by a fellow officer
              • 3 women get in guys car  get to destination where guy is  get out, take his money and beat him  officer B shows up to crime scene and takes victim to place where suspect is held by officer H
                • As part of cross D sought to elicit from officer, the fact that victim confronted D and said he wasn’t one of the people who attacked/robbed him
                • D sought to use someone else’s police report to refresh recollection was but not allowed
            • Legal Issue:
              • What latitude should a judge permit counsel when a witness takes the stand and says, “I don’t’ remember.”
            • Holding/Rationale:
              • TC erred in refusing to allow D to refresh officer’s recollection by giving him another officer’s report
              • This present recollection refreshed is DIFFERENT from standard for past recollection recorded
        • Business Records (803(6)):
          • 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: (6) Records of Regularly Conduct Activity: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
          • Four Elements of this Exception:
            • 1) Regular Business; Regularly Kept Record =
              • Exception embraces only records of a business institution occupation or calling AND only those records which it regularly generates
            • 2) Personal Knowledge of Source =
              • Source of information must be someone w/ personal knowledge, but person need not be one who made entry  Multiple hearsay could be allowed
            • 3) Contemporaneity =
              • Info must be recorded (or at least gathered) at time of act/event, or when condition was observed  requirement not interpreted literally (i.e. close to time ok)
            • 4) Foundation Testimony =
              • This hearsay exception expressly requires either testimony by the custodian of records or other qualified witness or a certification by such a person (affidavit)
          • Rule for Elements of Exception:
            • 1) Regular: Reaches only records kept in course of regularly conducted business
            • 2) Regular: Regular practice of that business to make that record
            • 3) At: Record made at or near the time of the events recorded therein
            • 4) Personal Knowledge: Made by person w/ PK or made from info transmitted by person w/ PK  Original source of info must have PK—however—other persons in chain of transmission or person who creates record need not have PK
          • Petrocelli v. Gallison (United States Court of Appeals for the First Circuit, 1982):
            • Facts:
              • P sues D (doc) alleging malpractice w/ operation which went wrong and required 2 more
              • P appeals and says TC erred in exclusion of sentence in post-op report and surgical note by other physician that said “During the course of surgery…a nerve was severed.”
            • Legal Issue:
              • Did the court abuse its discretion in excluding parts of hospital record which indicated nerve was earlier severed? NO
            • Holding/Rationale:
              • Source of Statement: Unclear whether statement was merely reflecting patient concern or whether it was concern of doctor  without PK of source statement = hearsay
              • Admissible by Other Means: Although not admissible under 803(6) IF it was statement by patient for medical diagnosis it would be admissible under 803(4)  but P wanted to claim it was doc that said this, not patient
          • Norcon, Inc. v. Kotowski (Supreme Court of Alaska, 1999):
            • Facts:
              • Exxon Valdez oil spill  Exxon retains Veco to perform cleanup  Veo subcontracts for some work w/ Norcon who employs K
              • Supervisor sexually harasses her invites her to room she goes, they drink, he tells her to come back later after consulting w/ supervisor (b/c there is no-alcohol policy) she gets tape recorder and goes in exchange for amnesty
              • Ultimately both are fired  K sues  At trial K tries to get in memo written by security at work Re sexual harassment  D objects and P says it falls within business record exception
              • D claims memo contains double and triple hearsay of informants who provided info contained in memo which was then reiterated in memo
            • Legal Issue:
              • Was the memo admissible? YES/NO
            • Holding/Rationale:
              • Double Hearsay: Sources of info present no substantial problem w/ ordinary business records. All participants including observer/participant furnishing info to be recorded, are acting routinely, under duty of accuracy, w/ employer reliance on result, or in short “in the regular course of business.”
                • IF HOWEVER, supplier of info does not act in regular course, essential link is broken, assurance of accuracy does not extend to info itself, and fact that it may be recorded w/ scrupulous accuracy is of no avail
                • Report not conducted in regular course of business
              • Admissible by Other Means: Although not admissible under 803(6) it can be regarded as nonhearsay as an admission by a party opponent under 801(d)(2)
        • Public Records (803(8))
          • General Notes:
            • 803(8)(B) –Use restriction so that police officers have to testify at trial and face cross
            • 803(8)(C)—Here public official isn’t just observing but making findings based on observations and findings can be based on statements by outside witnesses
              • 3rd party statements are not directly quotable but they aid findings
              • Use restriction = can’t use against criminal D’s in criminal case
          • 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: (8) Public Records and Reports: Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
              • REASON: Exception for public records rests mainly on great responsibility that attends the discharge of govt. functions in democracy  Assumed that public servants go about their tasks w/ care, w/ bias or corruption and that scrutiny and exposure surrounding govt. functions add assurance that public records are trustworthy
          • Baker v. Elcona Homes Corp. (1979):
            • Facts:
              • D car and Ford collide  estates of 4 passengers of D car sue Ford driver and company he was employed by  D claims sun blinded him
              • P appeals  objects to introduction of police report into evidence
            • Legal Issue:
              • Was the report admissible under 803(8)? YES
            • Holding/Rationale:
              • Factual Findings: Court thinks whether light was red/green for D was factual finding within meaning of 803(8)(C) but not quoted statements
              • Trustworthiness: P could have made showing of untrustworthiness of report based on 4 factors:
                • 1) The timeliness of investigation
                • 2) The special skill or experience of the official
                • 3) Whether a hearing was held on the level at which conducted
                • 4) Possible motivational problems
          • United States v. Oates (1977):
            • Facts:
              • Appeal from judgment convicting D of heroin possession  At trial govt introduced report of official who tested substance
            • Legal Issue:
              • Was the report admissible under 803(8)? NO
            • Holding/Rationale:
              • 803(8)(C): Chemist’s report was factual findings resulting from investigation made pursuant to authority granted by law
              • 803(8)(B): Report fails to be public record under B b/c it’s a record of matters observed by “other law enforcement personnel” (court thinks chemist fits in here)
          • 803(8) and Trustworthiness:
            • Even if requirements of 803(8) are met, the report can be kept out if found untrustworthy
            • Factors which determine untrustworthiness determination:
              • 1) The timeliness of the investigation
              • 2) The special skill or experience of the official
              • 3) Whether a hearing was held and the level at which conducted
              • 4) Possible motivational problems
          • CA Rule = 1280:
            • No use restrictions
            • 1) Made by someone within course and scope of public employment
        • Learned Treatise (803(18)):
          • Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.
            • (18) Learned Treatises: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
          • Rule 803(18): permits full use of treatise where:
            • 1) It is shown to be reliable authority, and
            • 2) Either the expert relies on it in direct examination or it is called to his attention on cross examination
          • Baker v. State (1977):
            • Facts:
              • D convicted of murder and robbery
        • Rule 803(21) Reputation as to Character
          • Reputation of a person’s character among associates or in the community.
        • Rule 803(22) Judgment of Previous Conviction
          • Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a peron guilty of a crime punishable by death of imprisonment in excess of one year, to prove any fact
          • Last part addresses 1899 curby case that held that robbery conviction of person other than accused couldn’t be used to prove that property was stolen
      3. Exceptions Under FRE 804—Declarant Unavailable:
        • General Notes:
          • FRE 804 recognizes 5 hearsay exceptions that may be invoked only if declarant is unavailable as a witness  BUT unavailability of declarant does NOT automatically put out-court-statement in
          • Even if someone is in court, he is unavailable for purposes of the rule if he cannot remember, refuses to testify, or properly invokes a privilege
        • FRE 804. Hearsay Exceptions; Declarant Unavailable:
          • (a) Definition of unavailability.
            • “Unavailability as a witness” includes situations in which the declarant—
              • (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or
                • NOTE: D’s can invoke 5th Amendment privilege against self-incrimination in criminal cases
              • (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or
                • NOTE: witness does not cooperate  if refusal rests on wrongful conduct the proponent of the testimony can seek forfeiture exception in 804(b)(6)
              • (3) testifies to a lack of memory of the subject matter of the declarant’s statement;
              • (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
                • NOTE: Sometimes emotional fear (in child abuse cases) causes person to be unavailable to testify
              • (5) is 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 subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.
                • NOTE: Parties must commit diligent search and get deposition testimony where possible
              • A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
        • Barber v. Page (US Supreme Court, 1968):
          • Facts:
            • B and W are tried for armed robbery  at prelim hearing W waives right against self-incrimination and incriminates B (but isn’t crossed by B’s attorney)
            • At trial, prosecution seeks to introduce transcript  B objects
          • Legal Issue:
            • Was W unavailable under FRE such that state could introduce hearsay evidence? NO
          • Holding/Rationale:
            • Attempt to Obtain: State made NO attempt to obtain W at trial  Mere absence of witness from jurisdiction is NOT sufficient grounds for dispensing w/ confrontation at trial
        • FRE 804. Hearsay Exceptions; Declarant Unavailable:
          • (b) Hearsay exceptions.
            • The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
              • (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.
                • NOTE: Allows counsel to use previous testimony SO LONG AS there was sufficient opportunity for cross examination
                  • In Civil Cases  available if party against whom it is offered or his predecessor in interest had a chance to cross examine the declarant in the prior proceedings
                  • In Criminal Cases  the requirement is stricter, since it won’t do that predecessor in interest had chance to cross-examine before
              • (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 while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
              • (3) Statement against interest. A statement 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.
              • (4) Statement of personal or family history. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.
              • (5) [Other exceptions.][Transferred to Rule 807]
              • (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.
        • Lloyd v. American Export Lines, Inc. (United States Court of Appeals for the 3rdCircui, 1978):
          • Facts:
            • L sues AE for negligence  AE impleads A who counterclaims against L
            • L doesn’t show at trial and AE attempts to use former testimony (transcript taken during proceeding w/ Coast Guard to determine whether merchant docs should be revoked) where L claims A was attacker
            • A didn’t have right to cross examin L at coast guard hearing
          • Legal Issue:
            • Was the transcript admissible under 804(b)(1)? YES
          • Holding/Rationale:
            • Reasonable Means: Under 804(b)(1) reasonable attempts were made to despose and find L
            • Opportunity for Cross: 804(b)(1) allows prior testimony of unavailable witness if party against whom it is offered or person w/ similar motive/interest to his had opportunity to examine the witness  Court thinka A and Coast Guard sufficiently shared interest (of determining culpability)
        • Former Testimony Exception—804(b)(1):
          • Three requirements:
            • 1) Declarant must be unavailable at trial
            • 2) Former testimony must be from a trial, preliminary hearing, deposition, administrative hearing, etc
            • 3) 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
        • Dying Declarations (804(b)(2)):
          • General Notes:
            • Reasoning: Where person understands death is imminent and speaks of his circumstance, the hearsay doctrine has long recognized an exception for his words b/c there’s not incentive to lie
            • Limitations:
              • Declarant need not die, but MUST have belief of impending death
              • If speaker dies, but doesn’t believe they’re going to die, then it doesn’t fit within exception
              • Restricted to homicide cases
            • CA Law—Rule 1242: Doesn’t restrict use of dying declaration to prosecution for homicide or in civil action proceedings
        • Statement Against Interest (804(b)(3))
          • General Notes:
            • Declarations against interest are thought to be trustworthy on ground that a person is unlikely to state facts (or make statements) harming his own interest unless they are true
            • Old Rule: Someone in prison that had nothing to lose would say they committed the crime  Amendment requires govt corroborating circumstances as a condition of admission
          • Use in Civil Cases:
            • Traditionally exception embraced statements against financial proprietary interest
            • One Way Interest: Tax Return Example:
              • Conclusion = Where interest of declarant was to aim high, her statement should be admissible to show a max
            • Circumstantially Adverse Fact:
              • A statement may fir the exceptions without directly speaking of debts or property  therefore a statement admitting fault in context that might give rise to liability or loss to declarant may satisfy the exception
            • Declarant’s Understanding:
              • Exception only helps to pick out reliable statements if declarant understood his own interests and how the fact or statement could affect them
              • Therefore courts exclude statements uttered by persons who lack necessary info
            • Effect of Later Events:
              • Some courts insist that against-interest requirement is not satisfied where statement becomes damaging in light of later unexpected events
          • Use in Criminal Cases:
            • The argument against admitting confessions is that it invited Ds to offer perjured testimony describing 3rd party confessions (from people who’ve died) that were never made, which are hard for prosecutors to investigate (let alone disprove) b/c necessarily the declarant is unavailable
          • Statements Against Social Interest:
            • As originally proposed, FRE 804(b)(3) embraced statements tending to make the declarant “an object of hatred
          • Admission by Party Opponent v. Statement Against Interest:
            • Admission by Party Opponent:
              • 1) Statement only by a party-opponent
              • 2) No unavailability requirement
              • 3) No against interest requirement
              • 4) Party need not have personal knowledge
            • Statement Against Interest:
              • 1) Statements by a witness
              • 2) Witness must be unavailable
              • 3) Must be against declarant’s interest
              • 4) Must be within the declarant’s personal knowledge
          • Williamson v. United States (United States Supreme Court, 1994):
            • Facts:
              • H pulled over and police discover cocaine  H says he’s taking it to W  W was actually driving behind H (saw search)  H later admits W was there
              • H refuses to testify and govt offers what H told police against W  W appeals claiming against-interest exception did not apply nosy
            • Legal Issue:
              • Was the against-interest exception applicable here? NOT necessarily
            • Holding/Rationale:
              • Against Interest Exception 804(b)(3): Fact that person is making a broadly self-inculpatory confession does not make the confession’s non-self-inculpatory party’s more credible  THEREFORE collateral
              • Process: Look at whether statement was sufficiently against the declarant’s interest “that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true”
            • Takeaway Principles:
              • Just because some portions of statement are inculaptory does NOT mean entire thing comes in
          • Corroboration Requirement:
            • For statements tending to expose the declarant to criminal liability and offered to exonerate the accused, FRE 803(b)(3) requires corroboration
            • “Corroborating circumstances” reaches other kinds of circumstantial evidence that supports either the trustworthiness of the particular statement, such as indications that the statement was against interest in some very clear or to an unusual or devastating degree, or that the speaker repeated the statement on other occasions or that the speaker could not have been motivated to falsify for the benefit of the accused
        • Statements Of Personal or Family History: (804(b)(4)):
          • Statements describing “family pedigree” and “family history” are admissible under FRE 804(b)(4) when the declarant is unavailable
          • Exception rests on the assumption that the speaker has adequate information and in practice many statements are made before controversy arises
          • Courts applying exception sometimes exclude self-serving statements, and those motivated by greed, ill will, or other forces suggesting untruthfulness
        • Statements Admissible Because of Forfeiture by Misconduct (804(b)(6)):
          • FRE 804(b)(6) paves the way to admit statements against a party who engaged or acquiesced in wrongdoing that was intended to, and did make the speaker unavailable as a witness
          • Purpsoe = to deal with witness intimidation in criminal cases
          • People v. Moreno (Supreme Court of Colorado, 2007):
            • Facts:
              • People seek review of judgment of AC reversing D’s convictions of sexual assault on a child  DC admitted videotaped interview w/ child victim in lieu of live testimony b/c it would traumatize her
            • Legal Issue:
              • Were victim’s statements out of court admissible on the forfeiture doctrine? NO
            • Holding/Rationale:
              • D doesn’t forfeit right to confront simply by committing criminal act that results in a witness’s unavailability  and TC made no finding that wrongdoing by D was intended to dissuade victim from testifying
          • Casual link necessary between D’s actions and a witness’s unavailability may be established where:
            • 1) D puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure
            • 2) D physically prevents a witness from testifying, or
            • 3) D actively facilitates the carrying out of the witness’s independent intent not to testify
      4. The Catchall Exception—FRE 807
        • General Notes:
          • 807 authorizes courts to admit hearsay that does not fit any other exceptions if it’s nevertheless necessary
          • Dallas County v. Commercial Union Assurance Co.:
            • Dallas sued insurance carrier after clock tower above courthouse collapsed  Insurance carrer claimed it was caused by charred timbers from earlier fire
            • TC admitted old newspaper clipping to prove earlier fire even though it was technically hearsay
        • FRE 807. Residual Exception:
          • A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
        • 5 Requirements for Exception Under 807:
          • 1) Equivalent circumstantial guarantees of trustworthiness
            • Most significant requirement (look at declarant’s partiality, time to fabricate)
          • 2) Evidence of material fact
          • 3) Necessity (Probative)
          • 4) Best serve interest of justice
          • 5) Notice to opponent
        • The Catchall and Proof of Exonerating Facts:
          • State v. Weaver (Supreme Court of Iowa, 1996):
            • Facts:
              • D (babysitter) was charged w/ murder after child died in her care  after guilty verdict D moved for new trial on basis of affidavits from those that heard child’s mother say child hit her head on coffee table before placed in D’s care
            • Legal Issue:
              • Were the affidavits admissible under the catchall provision? YES
            • Holding/Rationale:
              • Factors to Consider in Admissibility Determination: Declarant’s propensity to tell the truth, whether the alleged statements were made under oath, assurance of declarant’s personal knowledge, the time lapse between the alleged even and the statement by mother concerning even, the motivations of mother to make alleged statements, etc
              • Conclusion: Review of factors proves affidavits are sufficiently trustworthy to constitute admissible hearsay
    4. The Confrontation Clause:
      1. General Notes:
        • 6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been previously ascertained by law and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
        • Case law used to mandate higher standard of unavailability in criminal cases:
          • D had to show sufficient initia of reliability for admissibility  Crawford makes clear justice hated the rule from Robert
          • Reliability was wishy-washy and it was hard to determine whether it was satisfied  Crawford made job easier
      2. Crawford:
        • Facts:
          • D (Crawford) assaulted a victim b/c allegedly the victim had raped D’s wife
          • Wife and D gave separate statements  no problem to get D’s statements in but wife’s statements were hearsay
        • Legal Issue:
          • Has criminally accused had right of confrontation?
        • Holding/Rationale:
          • Dramatic shift from reliability determination to determining whether statements were testimonial
          • Court looks at 6th amendment and finds that “witnesses against him” can be read to mean witnesses actually called at time of trial  court then focuses on what is testimonial and was is not
          • Testimonial: If testimonial, the 6th amendment is implicated, if nontestimonial, no 6th amendment concern
          • Confrontation : Criminally accused has right to be in court but can lose right by misbehaving  There’s a right to have prosecution witnesses present at trial and have right to cross examine them and there’s a right to have them in sight of each other
      3. Davis v. Washington:
        • Facts:
          • Prosecution was trying to get statements in made to the 911 operator
        • Legal Issue:
          • Did 911 call constitute an interrogation so as to create testimonial statements? NO—evidence admissible
        • Holding/Rationale:
          • Rule from Crawford RE Testimonial Statements: Crawford barred admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had prior opportunity to cross examination
          • Testimonial v. Nontestimonial Statements:
            • Statements are nontestimonial when made in the court of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
            • Statements 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
          • Applic
          • ation: Since W was actually undergoing/describing events as they occurred to help w/ investigation this was nontestimonial evidence (Emergency was in progress)
      4. Recap of Crawford :
        • 1) Statements that are not hearsay
          • Analysis of these statements don’t change after Crawford
          • Admissions of constitutionally accused don’t violate confrontation clause
        • 2) Prior statements of testifying witnesses
          • No confrontation problem because we’re assuming they were subject to cross examination
          • THEREFORE no problem with 801(d)(1) (A), (B), or (C)
        • 3) Admission by 3rdparty:
          • If you’re in conspiracy and made statements in furthance of conspiracy to undercover cop this might not implicate 6th amendment
        • 4) 803 Exceptions:
          • Excited utterance during interrogation by police at scene of crime
        • 5) 804(b)(2)
          • Probably admitted
        • 6) 804(b)(6) forfeiture:
          • Court states in Crawford that nothing was intended to change rule that if D creates unavailability he can’t then rely on this
  8. Opinion and Expert Testimony:
    1. Lay Opinion Testimony:
      1. General Notes:
        • Common Law Approach:
          • Lay witnesses testify to facts  not opinions based on facts
            • Common law approach was to maintain the dichotomy
          • 3 Reasons for separating fact from opinion in Common Law Approach:
            • 1) Misreading of Old English precedents which sometimes expressed the requirement of firsthand knowledge by rejecting opinion testimony
            • 2) Emergence of expert witnesses who could give opinion created idea that lay witnesses lack special training of experts and therefore shouldn’t be allowed to give opinion testimony
            • 3) Trier of fact should draw its own conclusions
        • FRE Approach:
          • Rule 701 does NOT maintain dichotomy and allows opinion testimony when rationally based on witnesses’ perception and is helpful to trier of fact in understanding testimony
          • Doesn’t invade province of jury because all opinion testimony speaks to issue that must be resolved and jury must determine what to believe
          • In spirit of rules and considerations, modern reviewing courts have approved opinion testimony in the following sorts:
            • 1) In deciding not to promote Y, M did not base his decision on her national origin
            • 2) After accidental fall in stairwell, 10-year old boy underwent “personality change” and his physical, behavioral, and educational performance in school declined
            • 3) The railroad crossing was in poor condition and difficult to get across
            • 4) Claimant was an alcoholic unable to work
            • 5) It seemed that P had time to get out of the way
      2. FRE 701. Opinion Testimony by Lay Witnesses
        • If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
    2. Expert Witnesses Under the Rules:
      1. Who is An Expert:
        • Expert = someone with specialized knowledge
        • Under rule 702, an expert can testify only if what he says will “assist the trier of fact to understand the evidence or to determine a fact in issue.”
        • FRE 702. Testimony by Experts:
          • If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
      2. Bases for Expert Testimony:
        • Under FRE 703 expert witness can base testimony on facts or data of 3 sorts, provided that they are “of a type reasonably relied upon by experts in the particular field,” even if not admitted in evidence.”
        • The types include:
          • 1) Firsthand Knowledge: Facts or data that he learns by firsthand observation “before the hearing”
          • 2) Facts Learned At Trial: Facts or data that he learns “at the hearing”
          • 3) Outside Data: An expert may rely on what amounts to outside data, meaning info he gleans before trial by consulting other sources
            • There are sources that the experts can rely upon to give testimony that can’t be relied on or viewed by jury (even though jury can hear testimony)
        • FRE 703. Bases of Opinion Testimony by Experts:
          • The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their  prejudicial effect.
      3. Formal Problems:
        • Rule 704 abolishes common law restriction on expert testimony barring testimony on ultimate issues
        • Mental Condition as Element of Claim/Defense:
          • Amended Rule 704(b) prevents experts in criminal trials from stating opinions that D had or lacked mental state or condition “constituting an element of the crime charge or of a defense.”
        • FRE 704. Opinion on Ultimate Issues:
          • (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
          • (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
      4. Presentation of Expert Testimony:
        • Foundation of Expert:
          • Usually calling party brings out:
            • 1) educational background, including degree and certificate or license to practice,
            • 2) experience, such as employment or practice in the area, and
            • 3) familiarity w/ subject in suit
        • Qualifying the Witness:
          • Calling party must ask court to “qualify witness as an expert” before he can testify to matters of substance
          • Usually adverse party will stipulate to qualification (if credentials are impressive)
        • Bringing Out Expert Testimony:
          • Rule 705 allows party to ask directly for expert’s opinion w/out disclosure of basis for it  court can require it if it so chooses
          • 2 Reasons for allowing testimony w/out first establishing basis:
            • 1) Frustration felt by lawyers, courts and experts alike with the clumsiness of eliciting opinions by hypothetical questions  takes too long and gets too complicated/confusing
            • 2) Great stride mad by Rule 703 in permitting the expert to base his opinion on outside information
          • Implications of Approach:
            • 1) Increases importance for cross examination
            • 2) FRCP 26 requires that other side is given notice of opinions and basis ahead of testimony
          • FRE 705. Disclosure of Facts or Data Underlying Expert Opinion
            • The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
      5. Court Appointed Experts:
        • Rule 706 authorizes court appointed experts
          • Because of concern that jury will give more weight to their testimony, their source of appointment need not be disclosed Some courts have started to look to Rule 706 to assist them in this process
          • Court has power to appoint its own expert witness if they choose to do so
          • (c) Disclosure of Appointment:
            • “In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appoint the expert witness
        • FRE. 706 Court Appointed Experts:
          • (a) Appointment.
            • The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
          • (b) Compensation.
            • Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.
          • (c) Disclosure of appointment.
            • In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
          • (d) Parties’ experts of own selection.
            • Nothing in this rule limits the parties in calling expert witnesses of their own selection.
    3. Reliability Standard for Scientific and Other Technical Evidence:
      1. Defining a Standard:
        • General Notes:
          • American courts used to require evidence offered as science to satisfy a special standard  it needed to be “generally accepted” in the pertinent scientific community
          • Daubert case changed this and then 702 was amended in response
            • They formally require expert testimony to rest on sufficient facts or data, reflect principles and methods, and reliably apply these principles and methods.
        • Daubert v. Merrel Dow Pharmaceuticals (US Supreme Court, 1993):
          • Facts:
            • Child had birth defects and parents sue D arguing mother’s ingestion of anti-nausea drug caused defects  D moves for SJ and submitted expert affidavit saying no link in studies between drug and defects
            • P submits counter from it’s own expert but TC says it’s not admissible and grants SJ because it wasn’t generally accepted
          • Legal Issue:
            • What is the standard for admitting expert scientific testimony in a federal trial? General acceptance is NOT a necessary precondition to admissibility of scientific evidence under FRE, but trial judge must ensure that expert’s testimony rests on reliable foundation and is relevant
          • Holding/Rationale:
            • Rule 702: Nothing in rule establishes general acceptance as a prerequisite to admissibility (BUT witness must have knowledge that is derived from some scientific method)
            • Considerations to Admissibility of Expert Scientific Testimony: Trial judge must determine, pursuant to FRE 104(a), whether the expert is proposing to testify to:
              • 1) Scientific knowledge that
              • 2) Will assist the trier of fact to understand or determine a fact in issue
              • This requires looking at whether expert applied scientific method to reach conclusion  publication is good sign b/c it permits flaws to be detected by community
        • Requirements Under 702:
          • 1) Scientific evidence must rest on a reliable foundation (i.e. it must be based upon sufficient facts or data and be the product of “reliable” or “trustworthy” principles and methods)
          • 2) The scientific evidence must be relevant to the task at hand (i.e. it will assist the trier of fact to understand or determine a fact in issue); and the witness must apply the principles and methods reliably to the facts of the present case
          • 3) The proffered scientific evidence remains subject to scrutiny under FRE 403 and 703
        • Daubert Sets Standard for All Expert Testimony in Federal Courts and Many Factors Bear on Reliability (Not Limited to These):
          • 1) whether theory is generally accepted in scientific community
          • 2) whether proposed theory can/has been tested
          • 3) whether the theory/subject has been the subject to peer review and publication
            • Mere publication doesn’t show reliability
            • It must be peer-reviewed publishing where people in industry review it before it gets officially published
          • 4) the known or potential rate of error of technique or theory when applied
          • 5) the existence and maintenance of standards and controls
        • Daubery Challenges:
          • Evidence must reliable and relevant but this does NOT mean you have to prove your case twice
      2. Kumho Tire Company, Ltd v. Carmichael (US Supreme Court, 1998):
        • Facts:
          • P sues tire maker after tire blew out and caused accident that killed one of the passengers  P gets expert that finds blowout was caused by defect not inadequately repaired tread punctures
          • TC ruled that the expert testimony was inadmissible b/c methodology failed reliability requirement of FRE 702 and Daubert  P appealed contending that Daubert applies to scientific evidence NOT expert testimony generally
        • Legal Issue:
          • Does ruling apply to only “scientific” testimony or all expert testimony? All expert testimony
        • Holding/Rationale:
          • Daubert: Court held that FRE 702 imposes special obligation upon trial judge to “ensure that any and all scientific testimony, is not only relevant, but reliable.” Daubert referred only to “scientific” knowledge BUT FRE 702 and 703 grant expert witnesses testimonial latitude on assumption that expert’s opinion will have reliable basis in knowledge and experience of his discipline
          • Factors: P wanted judge to consider non-Daubert factors that might bear on judge’s gatekeeping determination:
            • 1) Whether a theory or technique can be tested
            • 2) Whether it has been subjected to peer review and publication
            • 3) Whether, in respect to a particular technique, there is a high “known or potential rate of error” and whether there are “standards controlling the technique’s operation”, AND
            • 4) Whether the theory or technique enjoys “general acceptance” within a “relevant scientific community”
            • Court thinks Daubert factors are not exhaustive
          • Application: Even though court considers other factors that would make P’s expert’s testimony reliable they don’t think it was reliable based on these factors and uphold TC determination
        • Takeaway Principles:
          • Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and circumstances of the particular case
          • 702 requires that scientific and expert testimony be reliable and relevant
        • Standard:
          • The 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.
      3. Communications Between Expert And Attorney:
        • You used to be able to discover communications between expert and attorney
        • Drafters of the rules changed discovery to shield these improper communications
          • Rule 26 of FRCP will be amended Dec. 1 to protect this information
          • Amendments purport to apply work product protection to expert and lawyer communications as well as draft reports with exceptions
            • Be CAREFUL though, because under rules it seems some could still be produceable
            • Rules make it clear that you may still discover all documents expert created
      4. Novel Approach:
        • Expert hot-tubbing = Both experts are sworn simultaneously and they briefly give opinions and then they have dialogue in front of jury (Maybe this means they’ll be less likely to take extreme positions)
  9. Privileges:
    1. Attorney Client Privilege
      1. FRE 501. General Rule
        • Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
      2. General Notes:
        • Privileges Generally:
          • Privileges protect certain relationships and values even if such protection imposes significant costs on the litigation process
          • Congress had trouble agreeing on privilege rules (13 they drafted) so instead adopted FRE 501, under which privileges are matters of common law developed in light of “reason and experience” BUT congress barred the Court from adopting privilege rules on its own
        • Attorney Client Privilege:
          • Reasons for the Privilege/Other Notes:
            • If the attorney were able to or had to disclose everything said by the client there would be no confidence placed in information told to the attorney
            • Compulsory process clause of 6th Amendment provides that D in criminal case has right to “compulsory process for obtaining witness in his favor” This clause, along with confrontation clause, create a constitutional right to present a defense
        • Professional Services:
          • Privilege applies only to confidential communications made for purpose of rendering professional legal services to the client  often however, attorneys are consulted for other advice in addition to legal advice
          • Taxes: Accounts are not covered by privilege in preparing tax returns, so it makes little sense to let taxpayer invoke privilege merely b/c he hired attorney—according to Court
        • Other Notes:
          • Relationship is formed when client reasonably believes the relationship is formed
          • Attorney client privilege survives death
          • Attorney Client Privilege is consensual
          • Who holds the privilege?
            • If you represent the company, the company holds the privilege. The privilege applies to confidential communications between the lawyer and the client but can be broader to include paralegal and other assistants
      3. Attorney Client Privilege v. Duty of Confidentiality:
        • Duty of Confidentiality:
          • If for example you find through your investigation that your client is being sued in negligent auto case has in fact been convicted of child molestation in the past (through public records)  You CANNOT go around and talk about that
          • That’s because duty of confidentiality is much broader than attorney-client privilege which wouldn’t prohibit you from giving out that information
          • Duty of confidentiality mandates that attorney not relay info (even perhaps public info) about client
        • Attorney Client Privilege:
          • Even if someone isn’t attorney but you speak to them believing they are an attorney the privilege still exists
          • However even if someone is attorney that doesn’t mean that every conversation they have is privileged
      4. Tampering With Evidence and Privilege:
        • People v. Meredith (Supreme Court of CA, 1981):
          • Facts:
            • Ds S and M appeal from murder conviction and robbery of W  M’s conviction rests on eyewitness testimony that he shot and killed W
            • S’s conviction = based on conspiracy w/ M and O  prosecution sought to show place where victim’s wallet was found to support this theory
            • S had told 1st attorney about how he collected wallet and attorney gets it attorney is subpoenaed and says where he got wallet but says other info is privileged communication
          • Legal Issue:
            • Does the privilege encompass a case in which the defense, by removing or altering evidence, interferes w/ the prosecution’s opportunity to discover the evidence? NO  TC did not err in admitting investigator’s testimony concerning location of wallet sergeant
          • Holding/Rationale:
            • Section 954 of Evidence Code: Provides that “the client has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” Attorney’s disclosure to investigator he hired to find wallet wasn’t waiver of privilege b/c it was “reasonably necessary” to transmit info to perform services for client.
            • Removing/Altering Evidence: In doing so, defense effectively deprives P opportunity  to protect privilege in this instance would encourage hiding of evidence. Courts must therefore craft exception to protection extended by attorney-client privilege in cases in which counsel has removed or altered evidence THEREFORE: whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of original location or condition of evidence in question
      5. Extent of Privilege:
        • United States v. Kovel (US Court of Appeal for 2ndCircuit, 1961)
          • Facts:
            • Appeal from sentence for criminal contempt for refusing to answer question asked in course of inquiry by grand jury
            • Kovel = former IRS agent w/ accounting skills now employed by law firm specializing in tax law  govt was investigating tax violation by firm’s client and K was subpoenaed
          • Legal Issue:
            • How does the attorney-client privilege apply to a non-lawyer employed by law firm? Privilege extends (for the most part)
          • Holding/Rationale:
            • Extension of Privilege: “The assistance of agents being indispensable to his work and the communications of the client being often necessarily committed to them by attorney or by client himself, the privilege must include all persons who act as attorney’s agent.” Non-lawyer w/ accounting skills might be necessary to proper representation of client b/c attorney may not have any knowledge in accounting  this shouldn’t destroy privilege
          • Takeaway Principles:
            • What is vital to privilege is that communication be made in confidence for purpose of obtaining legal advice from lawyer
      6. Joint Clients and Pooled Defenses:
        • General Notes:
          • If 2+ clients retain or consult the same attorney w/ respect to matters of common interest, the communications made between the joint clients and the attorney are privileged w/ respect to outsiders
          • THEREFORE joint client can communicate w/ an attorney in presence of another joint client w/out destroying confidentiality
          • In representing multiple clients on single matter, lawyer shall provide “explanations of the implications of the common representations and the advantages and risks.”
        • Pooled Defense Arrangement:
          • L1 is representing A and L2 is representing B
          • Can A and B get in room with L1 and L2 and have conversation that is still privilege?
            • Yes, this is known as pooled defense.
            • Don’t do this unless you have pooled defense agreement that stated that everyone would comply
      7. Client Identity and Attorney-Client Privilege:
        • General Notes:
          • Generally the name of the client is not privileged
          • Paying IRS Case = client identity was confidential because the attorney was hired for the sole purpose of maintaining anonymity
        • Surburban Sew ‘N Sweep v. Swiss Bernina (1981):
          • Facts:
            • Sewing machine retailers sue manufacturer Swiss (D) alleging antitrust violations
            • P searches dumpster outside D’s office and finds drafts of confidential letters from president of co. to lawyer  DC said property in garbage isn’t protected by 4th amendment
          • Legal Issue:
            • Were letters protected by privilege? NO
          • Holding/Rationale:
            • Traditional Rule v. Modern Approach:
              • Old Rule = Placed near absolute responsibility for maintaining confidentiality on parties to communication
              • New Rule = Client must take all possible precautions to insure confidentiality
            • Application:
              • This case lies between the inadvertent disclosure cases where info transmitted in public or otherwise clearly not adequately safeguarded, and involuntary disclosure cases, where info is acquired by 3rd parties in spite of all possible precautions
              • Application  If parties were really concerned w/ confidentiality they should have taken SOME precaution but they took NONE  NO Protection
        • Adequacy of Precautions Taken:
          • In determining whether precautions taken were adequate, there are 2 considerations:
            • 1) The effect on uninhibited consultation between attorney and client of not allowing the privilege in these circumstances; and
            • 2) The ability of the parties to the communication to protect against the disclosures
      8. The Corporate Client:
        • Upjohn Co. v. United States (United States Supreme Court, 1981):
          • Facts:
            • Independent accountants conducting audit of one of Upjohn’s subsidiaries discovered that they’d made payments to foreign govt for procurement of govt business
            • General Counsel for P sends out questionnaire to managers/staff and then submits report to IRS  IRS then demands responses to questionnaires
            • Company declined to produce docs on grounds that they were protected by attorney-client privilege and constituted work product of attorneys prepared in anticipation of litigation
              • DC said summons applied
          • Legal Issue:
            • What is the scope of the attorney-client privilege in the corporate context and what is the applicability of the work-product doctrine in proceedings to enforce tax summonses?
          • Holding:
            • Court concludes that the attorney-client privilege protects the communications involved in this case from compelled disclosure and that the work-product doctrine does apply in tax summons enforcement proceedings
          • Rationale:
            • Extent of Attorney Client Privilege:
              • Applies to giving of professional advice and giving of info to lawyer to enable him to give sound advice
              • Court previously said in corporate context privilege would apply to only senior management  this threatens to limit efforts of counsel
              • Court THEREFORE extends privilege to questionnaires
            • Attorney Memos/Notes from Interviews Work-Product Doctrine:
              • FRCP Rule 26(b)(3) codifies work product doctrine
              • Work product cannot be disclosed simply on showing of substantial need and inability to obtain the equivalent w/out undue hardship  Need FAR stronger showing
      9. Privilege Logs, California Law, In Camera Inspections and Drafts:
        • Privilege Log: For withholding documents, describes who document was to and from and why it’s privilege (this is required if requested under Federal Law)
        • CA Law: Party asking for privilege only has to give facts supporting a prima facie case of privilege. If this is done then party opposing privilege must bear the burden of showing that the claimed privilege does not exist. [Standard of Review—Lower court has extensive discretion]
        • In Camera Inspection: Asks trial judge or special master to review documents outside of presence of parties to see if they’re privileged
        • Drafts of Documents: Just because you file and make public a final document, does not mean that you waive the privilege to the other drafts
      10. Exceptions to Coverage:
        • General Exceptions:
          • 1) Suits between client and lawyer  if client sues for malpractice, she cannot invoke privilege to keep lawyer from proving whatever was said on either side (and vice versa)
          • 2) Lawyer who acts as attesting witness on document executed by client
          • 3) Name of client/attorney and whereabouts
          • 4) Communication in furtherance of crime or fraud
        • In Re Osterhoudt (US Court of Appeals for Nonth Circuit, 1983):
          • Fact:
            • Govt subpoenaes info about legal fees Phaksuan paid to his attorney (Osterhoudt)  Phaksuan moves to quash and appeals denied motion
          • Legal Issue:
            • Did the communications fall within an exception to the general rule barring disclosure where “a strong public policy exists that disclosure of such info would implicate that client in the very criminal activity for which legal advice was sought?” NO
          • Holding/Rationale:
            • General Rule: Identity of attorney’s clients and nature of his fee arrangements w/ his clients are not confidential communications protected by attorney client privilege
            • Possibility of Exception: Court thinks info falls outside scope of privilege b/c info ordinarily reveals no confidential communication btwn attorney and client  NOT b/c info may not be incriminating
            • Application: Info in this case might be incriminating but it was NOT acknowledge of guilt on part of client for offense for which attorney was employed
          • Takeaway Principles:
            • “The name of the client will be considered privileged matter where the circumstances of the case are such that the name of the client is material only for the purpose of showing an acknowledgement of guilt on the part of such client of the very offense on account of which attorney is employed  NOT B/C INFO is incriminating
        • Other Exceptions to Coverage:
          • 1) Lawyer returns stolen property on behalf of unnamed client
            • Attorney-client privilege inapplicable to identity of client who hired attorney to return stolen typewriter
          • 2) Lawyer reports illegal misdeeds or misconduct by some 3rdperson on behalf of an anonymous client
            • Privilege applies
          • 3) Lawyers represents person charged w/ crime but is hired and paid by anonymous 3rdparty
            • Privilege denied  No contention that fee payer was current or former client
        • United States v. Zolin (Unted States Supreme Court, 1989):
          • Facts:
            • IRS investigates Ron Hubbard and seeks documents filed under seal n LA court un unrelated church litigation  IRS brings suit against court clerk (Zolin) to get material
            • Church/Hubbard claim material is privileged  IRS claims crime-fraud exception applied to tapes they wanted
          • Legal Issue:
            • What type of evidence may be used to make ultimate showing of crime-fraud exception?
            • Can the DC, at the request of the party opposing the privilege, review allegedly privileged communications in camera to determine whether the crime-fraud exception applies? YES
            • If such camera review is permitted, the 2nd question is whether some threshold evidentiary showing is needed before DC court may undertake requested review?
          • Holding/Rationale:
            • Material OK to Make Showing:
              • Rule 104(a): “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by court…In making its determination it is not bound by rules of evidence except those w/ respect to privileges.”
              • Old interpretation was that possibly privileged material couldn’t be reviewed b/c it was privileged
              • Now court says that Rule 104(a) does NOT say that all material as to which a claim of privilege is made must be excluded from consideration  therefore in camera review OK
            • Does party seeking in camera review need to make threshold showing?
              • There are burdens on court associated w/ in camera review  therefore some showing necessary
              • Standard = Before engaging in in camera review to determine the applicability of crime-fraud exception, the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of materials may reveal evidence to establish the claim that the crime-fraud exception applies.  then court has discretion
    2. Assertion and Waiver:
      1. General Notes:
        • Client must claim privilege at the right moment or risk losing its protection
        • Attorney cannot claim privilege if client wants to disclose
      2. Asserting the Privilege:
        • Client decides and may claim privilege independently or through lawyer who will then be required to assert on client’s behalf unless she waives privilege
        • Privilege claimant bears burden on establishing entitlement
        • Court should resolved this problem under 104(a)
        • Appellate Review of Privileges:
          • Sometimes party can intervene to say that have privilege (because generally they might not be indicted yet)
          • Ordinarily rules on evidence issues are interlocutory and cannot be reviewed until final judgment BUT sometimes possible when dealing w/ attorney client privilege
      3. Waiver:
        • Rule = generally privilege is waived if its holder “voluntarily discloses or consents to disclosure of any significant part of the matter or communication,” except that a privilege is NOT waived if “the disclosure is itself” privileged
          • Privilege NOT waived if lawyer discloses info w/out client’s consent
          • 502(a) deals with intentional disclosure
          • 502(b) deals with inadvertent disclosure
        • NOTE on CA Evidence Code:
          • “The presiding officer may NOT require disclosure of information claimed to be privileged under this division in order to rule on the claim of privilege.”
      4. Rule 502 Deals with Waiver:
        • Resolves some disagreements about inadvertent disclosure
        • New rule doesn’t alter federal or state law about whether matter is protected by attorney client privilege
      5. Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver:
        • The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
          • (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver
            • When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:
              • 1) the waiver is intentional;
              • 2) the disclosed and undisclosed communications or information concern the same subject matter; and
              • 3) they ought in fairness to be considered together.
            • (b) Inadvertent disclosure.
              • When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:
                • 1) the disclosure is inadvertent;
                • 2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
                • 3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
            • (c) Disclosure Made in a State Proceeding
              • When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:
                • 1) would not be a waiver under this rule if it had been made in a Federal proceeding; or
                • 2) is not a waiver under the law of the State where the disclosure occurred.
            • (d) Controlling effect of court orders.
              • A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court–in which event the disclosure is also not a waiver in any other Federal or State proceeding.
            • (e) Controlling Effect of a Party Agreement
              • An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
            • (f) Controlling Effect of This Rule
              • Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.
            • (g) Definitions
              • In this rule:
                • 1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
                • 2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.”
      6. Jaffey:
        • Facts:
          • Police officer is being sued for wrongful death  she shot guy that had butcher knife who didn’t put weapon down  Other story is that he was unarmed  She goes to see licensed social worker
          • P’s lawyer seeks information  TC judge gives adverse inferences saying that jury is to presume that information in documents damaging
        • Legal Issue:
          • Was the information relayed to social worker privileged? YES
        • Holding/Rationale:
          • Court finds that privilege should be extended to social worker
          • Dissent-Scalia has problem with the fact that they extend it to social worker and not just therapist
      7. Spousal Privileges:
        • 1) Confidential Communications
    • Must be married at time of communication, must be private communication and applies in criminal and civil cases
  • 2) Privilege for Spousal Testimony:
    • Reason for this is to preserve marital relationship and foster family peace
    • In most jurisdictions this applies only in criminal cases and allows spouse of accused to waive privilege
  • Trammel v. United States (United States Supreme Court, 1980):
    • Facts:
      • Trammel was inducted for importing heroin into US and his wife was also indicted as co-conspirator
      • During flight back w/ drugs wife was searched and drugs were found on her  she cooperates w/ DEA in return for leniency
    • Holding/Rationale:
      • Wife has opportunity to waive privilege and testify
      • Testifying spouse holds privilege
      • Must have valid, non-sham marriage at time testimony is sought
      • Then even if spouse perceived these events before marriage, privilege still exists

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