Evidence Outline Saltzberg Fall 2003 I. EVIDENCE BASICS A. BASICS i.

Adversarial systemrequires lawyers to act (object, present evidence, respond to objections, etc.) to work. Judge will generally not act unless asked tolike referees or case managers. Although judges may take a more active role under R 403 & R 611. ii. Rule 102Purpose & Constructionrules shall be construed to secure fairness in administration, elimination of unjustifiable expense & delay, and promotion of the ascertainment of truth & proceedings justly determined. iii. Rule 403Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Timerelevant evidence may be excluded if probative value 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. iv. Rule 611Mode and Order of Interrogation & Presentation 1. (a) Control by Courtthe court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to a. (1) make the interrogation and presentation effective for the ascertainment of truth; b. (2) avoid needless consumption of time, and c. (3) protect witnesses from harassment & undue embarrassment. 2. Example: United States v. Reavesprosecution wants trial one month for case in chief, court gives 10 days. Okay for judge to use discretion. v. To get evidence in MUST 1. Be one of the appropriate modes of proof a. ordinary witnesses & lay opinion; b. expert witnesses and opinion; c. hearsay witnesses d. documents e. authentication f. original documents g. judicial notice h. presumptions 2. AND be relevant a. condition of everything offered at trial b. waived if not raised 3. AND not be privileged vi. Common Law Common Sense Objections (rooted in R. 403 & R. 611) 1. NarrativeTell us what you know. or What happened the day of the murder. Needs to be more specific so judge, jury, and opposing counsel knows what is coming & whether or not to object. 2. Non-responsive (only Questioner can use this objection)used after the witness answers and says much more than was asked (response objectionable).

3. Assumes a fact not in evidenceWhen did you stop beating your wife? or If witness testified saw at bar, then ask After the had a few drinks, did you see the leave the bar? Anything NOT in evidence. 4. Compound Questionwhen a single question seeks multiple answers, b/c confusing what the questioner is asking and what the answer will signify to the jury. Hintusually has an and in it 5. Ambiguousa question that is no reasonably clear & specific (also can say vague, misleading, confusing, or unintelligible. 6. Asked & Answeredunder 403 judge can exclude waste of time evidence. 7. Cumulativeexcessive evidence. For example, calling several witnesses to testify on the same issue or introducing numerous similar exhibits. 8. Misstatement of Evidenceconfuses testimony (but usually loses). 9. Argumentativeusually made in response to a rhetorical question. 10. Badgering the witnessargumentative but real mean (loud, too close, etc.) about it. Behavior in an attempt to intimidate the witness.
B.

DIRECT EXAMINATION i. Rule 611(c)NO leading questions on direct examination UNLESS adverse or hostile party. (BUT should not shallso judge has some discretion here.) 1. Exceptions to the rule (leading okay when) a. necessary to develop witnesses testimony; i. examplespreliminary matters not material to case (help expedite trial and little harm to other side), or w/ child witnesses or adult w/ communication problems, or leading questions of a witness whose memory has been exhausted. b. when a party calls a hostile witness; i. refuses to answer questions, ii. consistent hedging on answers, OR iii. surly conduct. c. when a party calls an adverse party; d. or when a party calls a witness identified as an adverse party. 2. Example: United States v. McKennaJudge told defense counsel not to lead on cross unless witness became difficult BUT ordinarily leading Qs are allowed. ii. A leading question = one which clearly suggests the desired response. For example, questions that being w/ Isnt it true that? or end w/ didnt you? Also, many questions that call for only a yes or no answer are leading AND questions that start w/ 5 Ws generally not leading. 1. What did you do next? NOT leading. 2. How tall was the robber? NOT leading. 3. How heavy was the robber? in-between. C. CROSS-EXAMINATION i. Rule 611 (c)leading questions should be permitted on cross ordinarily. 1. Exceptionwhen witness friendly to cross-examiner (up to the discretion of the trial judge to determine who is hostile to whom). ii. Rule 611 (b) Scope of cross-examinationcross-examination should be limited to 1. the subject matter of the direct examination;

2. AND credibility of the witness (always fair game (w/ scope)!); 3. The court may permit inquiry into additional matters in the exercise of discretion (if dont want to bring witness back later). iii. Example: United States v. Segalcross examination may reach tapes not played on direct where on direct testified about meetings and conversations generally. Scope is subject matter, NOT specific exhibits. D. RE-DIRECT i. Judge my find no re-direct necessary (up to judges discretion)
E.

OBJECTIONS i. Rule 103 Rulings on Evidence: 1. (a) Effect of erroneous rulingerror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected AND a. (1) a TIMELY objection or motion to strike appears on the record stating the SPECIFIC GROUND of objection; OR i. dont need rule # but do need specific basis for objection 1. Example of specificity: U.S. v. Wilsonrelevance objection insufficient to raise R 403 objection ii. timely = means BEFORE the witness answers iii. Rationale for timely AND specific objections: Owen v. Patton(1) waiver not sure did consent to the error; and (2) unfair to reverse a trial court on the basis of an issue that it had not had the opportunity to consider. b. (2) in the case of excluding evidence, an offer of proof was made or apparent from the context. 2. (b) Record of offer and rulingthe 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. 3. (c) Hearing of the juryin jury cases proceedings shall be conducted so as to prevent inadmissible evidence from being suggested to the jury. 4. (d) Plain errornothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. ii. Rationaleappellate judge must know what would have been said to know if affected jury/substantial. iii. Types of offers of proof 1. I would have elicited the following info..., 2. submit a prepared outline of testimony, 3. pages of deposition, 4. Q & A form during recess. 5. NOTE: Cross-examiner NOT reqd to make same offer of proof b/c did not prep witness. iv. Objection cannot be overturned on appeal IF court doesnt know what the inconsistent statements are so cannot determine whether substantial right of party affected. U.S. v. Winkle

1. NOTE: once court makes a definitive ruling on the record admitting or excluding evidence, do not need to object again. v. BUT be careful b/c not so sure what is definitive. SAFER to renew objection (if anything at all has changed need to renew). 1. Definitive Rulings = a. trial judge may say ruling definitive; b. hypothetical rulings ARE NOT definitive and may not be appealed (Luce v. US., US (1984)motion in limine judge says if testifies conviction may be used to impeach him, BUT then does not testify c. BUT if decide to bring out the objectionable evidence on direct (as strategy b/c know judge said it would come in) waiver of right to appeal from the ruling admitting the evidence. Ohler v. United States, US (2000). d. **Puts defense attorneys in a sticky position b/c if bring out bad evidence on direct to soften the blow, then NO WAY to appeal the admission of the evidence.** vi. Types of Error (103(d)) 1. Plain Error a. Supreme court has never put limits on plain error (only requires where miscarriage of justice would result. United States v. Young (1985)) b. Generally, Plain Error requires (from United States v. Olano (1993) (interpreting plain error provision in Federal Rules of Criminal Procedure NOT Evidence) i. must be an error; ii. AND must be plain (clear or obvious); iii. AND must affect substantial rights (prejudicial in the sense of affecting the outcome of the case) iv. **also permissive, not mandatory** c. Read Rule 103(d) if you f*** up and forget to do one of the required things above, the record will ONLY be reviewed for plain error. i. United States v. Sprigssting operation for money laundering and cop testifies what learned from others. NO hearsay objection, no error preserved. Resultno judge would have let in had lawyer objected BUT fails plain error test (only review for particularly egregious errors that seriously affect fairness, integrity or public reputation of justice). 2. Harmless Error a. Generally Harmless Error if i. fundamental rights NOT affected ii. must be harmless beyond a reasonable doubt if Constitutional Issue (Chapman v. California, US (1967)). iii. Civil Cases have varying standards iv. other criminal cases have varying standards (depends on the underlying merits of the case) vii. Rule 104 (a) & (b): Who Decides Objections & How

1. Rule 104 (a)Questions of admissibility generally (most evidence disputes) preliminary Qs 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 (JUDGE DECIDES), 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. Rule 104 (b)Relevancy conditioned on factwhen 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. (JUGDE DECIDES) a. Test for R 104 (a) & (b)Can a reasonable juror believe this? 3. Rule 104 (c) Hearing of juryhearings 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. Rule 104 (d) Testimony by accusedthe accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. a. **generally, does NOT waive 5th amendment privilege for testifying preliminary matters 5. Rule 104 (e) Weight and credibilitythis rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. (JURY DECIDEDS)
F.

FUNDAMENTAL EVIDENCE PRINCIPLES i. Whoever invokes a rule or an exception MUST show entitlement to that particular rule or exception. ii. Rules of evidence never trump/bar evidence required by law to prove a claim or defense. iii. Same rules apply to ALL litigants (civil, criminal, Ps and Ds) iv. Goal of evidence rules = justice and opportunity to achieve truth v. Trial judges have discretion BUT balance individual assessment w/ uniformity vi. More evidence does not necessarily = more fair (for example, if leads to prejudice or irrelevant)

II. COMPETENCY A. GENERAL RULE OF COMPETENCY (RULE 601)every person is competent to be a witness EXCEPT as otherwise provided in the rules. BUT in civil proceedings, w/ respect to an element of a claim or defense as to which State law supplies the rule of decision the competency of a witness shall be determined in accordance in State law. i. State law often means Dead Mans Statutes (not recognized in fed. court). ii. Conflicts between state and federal law can cause some problems. III. JUDGE DECIDES competency. (Subject to Rule 401(a))(reasonable juror standard)
B.

WHAT RENDERS A WITNESS INCOMPETENT?

i. Lack of credibility does NOT make witness incompetent. U.S. v. Bedoneprior inconsistent statements DO NOT render witness incompetent. NOT incompetency issue BUT credibility issue. ii. Drug use MAY temporarily render witness incompetent. 1. Trial judge may order witness examined for sobriety (or lack thereof). iii. Mental examinations are the exception, not the rule.
C.

COMPETENCY OF JUROR AS WITNESS (RULE 606) i. Rule 606 1. (a) At the triala 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. 2. (b) Inquiry into validity of verdict or indictmentjuror MAY NOT testify as to any matter or statement occurring during the course of the jurys deliberations or as to the effect of anything on any other jurors mind EXCEPT on the question of extraneous prejudicial information improperly brought to the jurys attention or whether any outside influence was improperly brought to bear upon any juror. ii. What constitutes extraneous prejudicial information? 1. Drug use/sale during the trial DOES NOT constitute extraneous information no more extraneous than virus, lack of food or sleep. Tanner v. United States, US (1987). Jurors alleged drinking, using drugs, and drug sale while jurors for conspiracy to defraud U.S. case. a. Problem (4 Dissenters but no one made this argument to court)jurors committing felonies in jury room BUT prosecutor would not prosecute b/c of conflict of interest (want the jurors to hold the s guilty) BUT if came back w/ acquittal then prosecutor has incentive to convict the jurors. 2. Impermissible discussion of insurance of parties probably DOES NOT count. 3. Pressure into compromise verdicts also probably DOES NOT count. 4. Reading newspaper accounts of the case, a bailiffs comments to the jury concerning the case, or a bribe to a jury DOES constitute extraneous information. Tanner. 5. Ballistic or other tests on evidence may count as external info. 6. Threats to juror or jurors family COUNT. iii. AND juror may only testify that the extraneous information occurred NOT whether it affected/persuaded the jury (that is for the court to determine). COMPETENCY OF JUDGE AS WITNESS (RULE 605)the judge may not testify at trial as a witness (duh).

D.

E.

OATH OR AFFIRMATION (RULE 603)Before testifying, every witness shall be required to declare that the witness 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.

i. No particular oath is required. Ferguson v. Commissioner of Internal Revenue states alternative oath is permitted. 1. As long as it isnt a clever way to permit perjuryfor example I would not lie to stay out of jail b/c may lie for another purpose. ii. God does not have to be mentionedonly needs to be calculated to awaken the witnesss conscience and impress the witness mind with the duty to tell the truth. iii. Witness who cannot take oath IS NOT competent. iv. Some courts say may be waived if not objected to in a timely fashion.
F.

CHILDREN i. Minimal Standardchild must understand that must tell the truth. No minimum age under federal rules BUT some states have presumptions. 1. Most states at 10 or 12. ii. If child is incompetent, hearsay might be admitted (for example, excited utterances). iii. May be difficult to prove child competency, but if dont will lose (if victim is child). Capps v. Commonwealth. MENTAL INCOMPETENCYrigorous standard, Federal Rules strongly disfavor barring witnesses on competency grounds due to mental incapacity. i. United States v. Phibbsfound witnesses with history of delusions who had spent time in mental health facilities competent b/c mental abilities were not so limited that they did not have sufficient capacity to perceive events, to remember them, and to describe them for the benefit of the trier of fact. ii. (Questions about pages 74 to 78) INTERPRETERS (RULE 604)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. i. An interpreter must qualify as an expert (under Daulbert, see below), thus methodology must be reliable. 1. Rule 702 requires interpreter must possess sufficient knowledge, skill, experience, training, or education. ii. Interpreter must take oath to make true translation. iii. Interpreter-nurse who claims to be able to understand patient cannot testify where there is no objective test to show accurate interpretation. 1. Watson v. Statewitness not shown to be able to communicate compounded by interpreter whose interpretation could not be tested.

G.

H.

I.

FOUNDATIONAL COMPETENCY i. Lack of Personal Knowledge (Rule 602) 1. Lack of Personal Knowledge (Rule 602)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. (Subject to R 703 relation to expert witnesses.) 2. Judge evaluates under R 104(b)must be enough evidence to support a finding by a reasonable jury that the witness perceived the facts. 3. What is sufficient personal knowledge? a. Generally a witnesss claim of own knowledge is sufficient. United States v. Davis. (If someone says, I saw it that is enough UNLESS no reasonable person could believe the person actually saw it. b. Absolute certainty is NOT required. (Effects weight not admissibility). c. Inconsistency does NOT negate a claim of personal knowledge. d. Lay opinion requires personal knowledge. Rule 701. i. Gladden vs. Stateopinion as to drunk driving based on sufficient knowledge. ii. Seeing something quickly is usually enough (Adkins v. Dirickson) BUT sheer speculation or imagining a fact is not sufficient personal knowledge (United States v. Lanci). e. Rule 602 DOES NOT preclude (admissible) hearsay statements assuming the witness heard the statement being made. Witness may not have personal knowledge of the ACT, but had personal knowledge that the statement was made and the situation surrounding the hearsay exception (had personal knowledge that the utterance was excited. i. State v. Bouchardmother of 3 year old heard child say Grandpa did it after found blood around daughters lower abdominal and vaginal areas. f. Generally speaking, one person cannot have personal knowledge of another persons reason (what is going on in anothers persons head). ii. Refreshing Recollection (Rule 612) 1. Writing Used to Refresh Memory (612)except as other wise provided, if a witness uses a writing to refresh his memory for the purpose of testifying either a. (1) while testifying (absolute right to see document), OR b. (2) before testifying IF the court in its discretion determines it is necessary in the interests of justice. (discretionary right to see document c. **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.** d. AND 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. 2. Refreshing Basics a. It is standard practice to refresh a witness recollection. b. ANYTHING may be used to refresh recollection. i. Baker v. Stateokay to use officers report BUT use to refresh may waive privilege and work product.

3. Evidentiary Value of Refreshing Documents a. A document to refresh used by refreshing counsel solely to refresh (NOT to prove or disprove truth of contents). b. A document to refresh used by opposing counsel is to show memory claim is false (NOT to prove or disprove truth of contents) iii. Recorded Recollection (Rule 803(5)) 1. Rule 803(5)the following are not excluded by the hearsay rule, even though the declarant is unavailable as a witnessa memorandum or record concerning a matter about which a. A witness once had knowledge; AND b. But now has insufficient recollection to enable the witness to testify fully and accurately; AND c. Shown to have been made or adopted by the witness; AND d. When the matter was fresh in the witness memory; AND e. to reflect that knowledge correctly. 2. 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 (usually b/c of an inconsistency). 3. Rationaledont want a forgotten recorded recollection to have more weight in the jury room than live testimony. 4. May be used by a reluctant witness BUT witness must lay foundation. a. U.S. v. Williamswitness admits statement was accurate while memory was fresh but now is claiming cannot remember (unusual case b/c direct examiner is fighting witnesswont say wasnt accurate b/c it was a statement to the FBI and doesnt want to be prosecuted for lying to them BUT reluctant to testify so saying dont remember). 5. Meaning of fresh is a flexible standard (discretion of trial judge). a. United States v. Senakcourt admitted statement made 3 years after the events took place. b. A minority of jurisdictions require the memo to be made or adopted by the witness at our about the time of the events. 6. Made or adoptedwitness need not record or sign statement (another person can) but may need BOTH people to lay foundation. 7. Witness can exclude the statement by claiming memory was not good or the statements were not accurate. (Question for whether foundation is satisfied is for trial judge104(a).) iv. Hypnotically Refreshed Memory 1. Most jurisdictions say NEVER. a. A witness other than the defendant himself may not offer testimony to the extent that it is enhanced through hypnosis. People v. Zayas. 2. Some say taint witness when hypnotize so witness CANNNOT testify. 3. Except in criminal case where defendant has the right to testify on his own behalf and that right outweighs the States interest in excluding prejudicial evidence. Rock v. Arkansas, US (1987)

4. Some jurisdictions say maybe. a. Borawick v. Shay. Used the following non-exclusive factors to determine whether or not to allow hypnotically refreshed testimony (did not allow testimony): i. Whether used to refresh OR part of therapy; ii. Whether the witness was subject to suggestion; iii. Whether a record of the session was kept; iv. Whether the hypnotist was sufficiently qualified; v. Whether corroborating evidence exists to support the reliability of the refreshed memories; vi. Whether the witness was highly hypnotizable and more prone to suggestion; expert testimony offered by both parties as to the procedures used. III. RELEVANCE A. DEFINITION OF RELEVANT EVIDENCE (RULE 401)Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probably than it would w/out the evidence. B. BASIC RELEVANCE PRINCIPLES i. Relevance includes materialitycurrent relevance requires that evidence must shed some light on those issues that are properly in dispute. 1. Common law materialitywhether issues of consequence to action 2. Common law relevancewhether more or less probably to make things true ii. Any tendency of a fact to make it more or less probable is relevant. 1. United States v. Fosterdrug deal 2 people in car, one arrested & convicted. Attorney asked officer if could see 2nd person in car and objection irrelevant sustained, attorney asked officer if put out 2nd person ID over radio, objection irrelevant sustained. Conviction reversedb/c officers inability to see into car casts doubt on to the officers ID of defendant. iii. BUT evidence may be too remote (even if relevant) 1. For example, barring testimony defendant wore seatbelt 1 week before accident or road was icy 2 weeks before accident (BUT this is really a 403 limitation). iv. Relevancy is not = to sufficiency. 1. Evidence may be relevant AND admissible; 2. AND may also be insufficient to meet the burden. v. To be relevant, it must be any fact of consequence to the action (make it more or less likely one side will prove something needs to prove). 1. United States v. Hallwhere government has no physical corroborative evidence of drug possession/distribution brings in DEA agent, testified that often there is no other physical drug evidence when there is a kingpin or a conspiracy situation BUT neither of those things are true in this case (no other evidence to prove that). Irrelevantreversed. a. Dangersuggests agent may know something not telling jury. 2. Whether something is a fact of consequence may turn on substantive law what must be proved (for example, causation or proximity for emotional distress

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claims or in statutory rape whether defendant thought victim was older is not at issue). vi. Failure to introduce evidence may be relevant evidence. 1. United States v. Toryacceptable for defense attorney to bring up that prosecution did not show surveillance tapes in their possession during bank robbery trial. C. CONDITIONAL RELEVANCE i. Rule 104(b)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. (Trial judge has discretion to either require proof of the condition in advance OR to admit the evidence of the fact subject to connecting up by later proof of the condition.) ii. Example: Homicide Case 1. Prosecution evidence that defendants cousin had shotgun 2. Only relevant if shotgun is tied to defendant (ex, defendant borrowed it from cousin on day victim shot) 3. Evidence regarding the cousins shotgun and defendants access to it is ONLY relevant if there is also evidence that the defendant shot victim a. **Must be sufficient evidence (preponderance) for jury to find ALL 3 facts.** iii. Rule 104(b) applies in 4 situations: 1. When fact B is needed to make fact A relevant; 2. Personal knowledge (Rule 602); 3. Authentication (Rule 901); 4. Rule 1008Best Evidence Rule iv. Remember, cases are proved pieces at a time.
D.

RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE GENERALLY INADMISSIBLE (RULE 402)all relevant evidence is admissible, except as other wise provided by the Constitution of the United States, by Acts 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. i. Still REQUIRES OBJECTION. ii. Judge determines relevance (based on logic & experience). iii. Direct & Circumstantial Evidence 1. Relevance of Direct evidence (if believed, proves a point)only question is whether it relates to an issue that is properly in dispute. 2. Relevance of Circumstantial evidence (requires inferences)where an inference is required between the proof itself and the ultimate fact o be established judge uses logic and experience to determine whether admission of the evidence will advance the case. 3. Neither is more powerfuljudge instructs jury that both powerful. a. Imagine large money draw and purchase of plane ticket before murder or standing over w/ smoking gun (circumstantial) vs. long ago, far away eye-witness testimony (direct).

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iv. The federal statute that makes it a crime to promise anything of value for testimony DOES NOT prohibit plea bargain agreements. United States v. Lowery (11th) 1. Notes that State Bar Rules (or any State Law) not sources of exclusion under Rule 402); a. But where State law has been incorporated, State law governs. For example, State competency rules govern under Rule 601. b. McDade Amendment subjecting federal lawyers to state rules NOT intended to create rules of evidence or exclusion (only professional responsibility) 2. Requires explicit exclusionary language to exclude otherwise relevant evidence. a. Interprets federal law to exclude plea bargain agreements.
E.

EXCLUSION OF RELEVANT EVIDENCE ON GROUPS OF PREJUDICE, CONFUSION OR WASTE OF TIME (RULE 403)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. i. 403 Basics 1. Most common objection (explains argumentative, asked & answer, and other common law objections). a. Harm must SUBSTANTIALLY outweigh probative value (There is a presumption in favor of admitting evidence). 2. Power to exclude is rarely invoked. 3. Harm = unfair prejudice, confusion or misleading, undue delay or waste of time or needless cumulative evidence. 4. Credibility questions still for fact-finder. 5. Error under 403 will be found ONLY if the trial judges decision cannot be supported by reasonable argument (much deference to trial judge). 6. Balancing should be on the record (for appeal court). 7. ONLY unfair prejudice matters while ALL probative evidence matters. 8. **Prejudice not a wise argument to make in bench trialbetter to say undue delay. ii. 403 Balancing 1. Failure to let defense bring in deposition that plaintiff initially introduced to corroborate plaintiff (that later turned out to be impossible and therefore lies) withdrawn by the plaintiff was error (should have let in)was 401 relevant AND NOT unduly prejudicial under 403 b/c suborning perjury is a serious offense and can be considered by the jury. McQueeny v. Wilmington Trust. a. Extremely probative of plaintiffs desperate attempt to corroborate story with a liar (probably lying) AND not unduly or unfairly prejudicial b/c of the abhorrent conduct. (rightly prejudicial) 2. May admit the inference that destroyed document had bad stuff on it for destroyer as relevant (and not unduly prejudice) evidence if destroyer had reason to know litigation pending. Blinzer v. Marriot Intl

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a. But see Hinkle v. City of Clarksburg where excised bullet from corpse could in wrongful death suit against the police was excluded from evidence (not an abuse of discretion. 3. Gay sexual materials and KY Jelly not admissible to so knowledge of illegal sexual acts b/c too prejudicial (and not probative of guilt or anything but homosexual desire). People of the Territory of Guam v. Shymanovitz (9th) middle school guidance counselor charged w/ sexual abuse of boys. Found 6 sexually explicit magazines at his apartment (testimony about 2 stories out of the 6 magazines), surgical gloves, K-Y jelly, & childrens underwear. Prosecutor alleged evidence knowledge of illegal acts and various forms of deviant sexuality. a. Probative valuesmall b/c everyone knows child abuse is illegal AND everyone knows it is possible for adults to have sex with children (it does not show knowledge of a specific act); b. Unfair prejudiceanti-homosexual sentiment; connection of homosexuals w/ child molesters; and jurors could be prejudice b/c other type of sexual deviance (ky jelly, surgical gloves); c. Noteonly would be relevant if could connect up to other evidence child testifies to use of surgical gloves or exact sexual act & words in article (but not generally). iii. Traditional Applications of Rule 403 1. Flight, Escape, and Cashgenerally conduct admissible as an admission of consciousness of guilt as long as short period of time between crime (or cash surplus) and fleeing scene. a. Evidence of escape admissible where escaped from custody 7 days after arrestnot unduly prejudicial to infer consciousness of guilt from escape. United States v. Hankins b. Bribing a juror, threatening a witness, giving a false exculpatory story is also evidence ordinarily held relevant to the defendants consciousness of guilt. 2. Poverty or Wealthgenerally supposed to be irrelevant. a. Ability to pay should not determine amount plaintiff gets/does not get. b. Exception for punitive damages. i. Must know value of defendants wealth in order to access an appropriate punishment in the form of punitive damages. Hall v. Montgomery Ward ii. Bifurcation may be in order for fairness (to not escalate the actual damages as well). c. Only okay in criminal cases to show sudden accumulation of wealth or motive d. Ordinarily evidence of poverty is inadmissible to show motive to steal. 3. Similar Events a. Similar events may be relevant to prove product defect or negligence b. BUT the degree of similarity matters.

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4.

5.

6.

7.

c. Courts fear trials w/in trials (more complicated to jury, longer trial, undue delayless likely to be admitted b/c adds to the harm). i. Similar plane crash deemed insufficiently similar to justify admission by trial judge, upheld (much deference to trial judge). Nachtschein v. Beech Aircraftneed SUBSTANTIAL SIMILARITY. d. More likely admissibility of similar accidents to prove NOTICE. i. Absence of similar accident claims may also be relevant. Pandit v. Am Honda Motor Co. Experiments & Experience a. Accident reconstructions require substantial similarity and accident recreations must be different. Fusco v. Gen. Motors. Corp.General motors tape was neither (too similar to just represent general principles and not similar enough to be a recreation). b. When an experiment is entered to explain certain scientific principles to the jury (as demonstrative evidence) rather than to show how exactly the accident occurred, then the demonstration does not need to be substantially similar to the conditions of the accident BUT must be properly conducted and different. Gilbert v. Cosco, Inc.car seat placed on sled and sent down hill to show principle different enough from the car accident. i. In fact, in must NOT APPEAR to be too similar to the accident UNLESS conditions are identical. Other Related Acts a. Evidence of other lawsuits or claims by plaintiff generally NOT relevant (unless under Rule 404(b)schemes). i. Exception would be for history of false or fraudulent claims BUT just litigiousness will probably not get in. b. Prior dealings between parties may be relevant. (course of performance and course of dealings) c. Other sales may be relevant as the best evidence of value of property in a market economy. Gruesome Pictures a. Rare case photos unduly prejudicial. b. Photos before autopsygenerally okay. (Probative b/c corroborate the verbal description of the crime and not UNDULY prejudicial.) Terry v. State. c. Photos AFTER autopsyso horrible reversible error. (Not probative of anything that the defendant did and extremely prejudicial b/c atrocious.) Terry v. State. d. X-ray showing broken arm admissible b/c shows severity of the crime and illustrates testimony. Terry v. State. e. Pictures of the crime scene are generally admissible for an expert to illustrate testimony as long as says will help testimony. Lopinson (?) Alternative Perpetrator Evidence

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a. Trial court did not err in excluding the evidence of another possible perpetrator OR the suspension of the investigation of another terrorist group. United States v. McVeigh. i. Saltzberg believes showing that 1) anti government group, 2) acquired components of bomb, 3) planned to bomb Murrah building, & 4) John Doe 1 & 2 look a likes show up after bombing enough similarity to leave evidence of alternative perpetrator b/c relevant to show sloppy investigation AND that he was not the culprit BUT does not believe would not have reversed the result (b/c of the large amount of evidence). ii. The use of the gruesome facts about people being maimed & injuries sustained are on the fence. Generally gory details of the suffering okay in penalty stage BUT not in the guilt stage b/c has virtually no probative value on the issue of guilt. b. Efforts to cast another person as the actual perpetrator generally must be something more than remote or speculative (more than a red herring) BUT how much more depends on the jurisdiction. iv. Evidentiary Alternatives & Stipulations 1. **Old Chief v. United States, US (1997) charged w/ felony in possession of a fire arm and assault w/ a dangerous weapon. offered to stipulate he had a felony conviction BUT prosecution refused to stipulate in order to bring out the specific type of felony conviction at trial. Trial judge let conviction in. HELD, letting the conviction in violated R 403 b/c probative value little (agreed to stipulate felony conviction) and prejudicial value strong b/c similar nature of the prior conviction (for assault causing serious bodily injury). Reversed conviction. a. Souter (majority-5) i. Undue prejudice = propensity; generalizing a s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged; ii. No item of evidence is an island (would encourage offers of prejudicial evidence). If one item is extremely prejudicial and an alternative is not, trial judge must consider substituting the alternative; iii. Congress treated all prior felons alike in the statute (no specific provision for violent felons or felons who are charged w/ similar crimes later)so the nature of the felony is irrelevant under the substantive law. iv. BUT not the power of narratives syllogism is not a story AND the power of the prosecution to prosecute as it likesbut limit when s right to a fair trial is on the line. 1. Practical effectStipulations rarely required. b. OConner (dissent-4)

15

IV. ARTICLE IV GENERALLYcodification of the common law & the right result of Rule 403 exclusions. (Basically saying in these circumstances the evidence is more unduly prejudicial than probative and dont want to take the chance anyone will get it wrong.) A. SUBSEQUENT REMEDIAL MEASURES (RULE 407) i. Rule 407When, 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 measure(s) 1. is NOT admissible to prove a. negligence, b. culpable conduct, c. a defect in a product, d. a defect in a products design, e. OR a need for a warning or instruction. 2. This rule does not require the exclusion of evidence of subsequent measures (IS admissible) when offered for a. another purpose (if controverted) b. such as proving ownership, c. control, d. or feasibility of precautionary measures, e. OR impeachment. ii. Rule 407 IS NOT subject to balancing. BUT if offered for another purpose then can make a 403 objection. iii. Rationale of 407 1. Substantive tort law standard of care = know or should have know at the time accident NOT after; 2. to encourage (not punish) repairs; 3. avoids confusing the jury (causation). iv. 407 Basics 1. Broad coveragechanges in design or policy ARE covered; firing employees covered, etc. a. Covers customer letters to doctors who put in artificial leg part sent AFTER the injury properly EXCLUDED. Cameron v. Otto Bock Orthopedic. 2. Repairs must be AFTER the harm. 3. Third party subsequent repairs are not necessarily excluded. (But Rule 403 may result in exclusion.) 4. NOTEwhen lawyer says lighting was SAFEST available, then controverts the feasible options AND opens the flood gates for subsequent measures that are safer, feasible alternatives b/c they have not been implement. a. BUT feasibility rarely implemented b/c s will concede feasibility but argue that even had the change been made the injury would have still occurred. 5. Impeachment exception applies when expert or witness says safest or best product. Then can impeach w/ subsequent remedial measure.
B.

COMPROMISE (RULE 408)

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i. Rule 408Evidence of (1) furnishing or offering or promising to furnish, OR (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity of amount. Evidence of conduct or statements made in compromise negotiations also NOT admissible (if offered to). 1. NOT admissible IF a. to prove liability for or invalidity of the claim b. or its amount 2. BUT comes IN IF a. otherwise discoverable merely b/c presented in negotiations. b. OR if it is offered for another purpose SUCH as i. proving bias or prejudice of a witness, ii. negating a contention of undue delay, iii. OR proving an effort to obstruct a criminal investigation/prosecution (obstruction of justice) ii. Rational of 408 (Compromise Exception)to encourage compromise iii. (1) Must be dispute BUT here judge finds implicit dispute AND (2) confidentiality of settlements not required. Alpex Computer Corp. v. Nintendo sent letters to video game people asking to licensee patents (form letter); sued lost who refused to licensee; some settled; then put ad in paper for same settlement offer w/ the rest. Issue: Whether an offer can be made when ONLY one side believes there is a dispute? (Nintendo did not think infringing AND had not been sued.) Evidence excluded. 1. District Judge saysimplicit dispute B/C a. thought either patent invalid; b. no infringement; c. could get away w/ it. 2. Salzburg thinks this is going a little far w/ disputecertainly in dispute when sued or when told will be sued. a. Notewhy dont say sorry after a car accident B/C admissible b/c no dispute yet (have not been sued yet). 3. Salzburg agrees settlements/offers do not have to be confidential BUT cannot be marketing strategies. 4. (?) What is the point of this case? (?) iv. Settlements show bias when that got something in exchange for testimony (or something in relation to the case). 1. Settlement let in when settled against one in exchange for $10 AND a witness in case against other . McShain v. Cesnna Aircraft. v. Impeachment purposessplit over whether settlement statements/negotiations can be used for impeachment for prior inconsistent statements. (of someone who tried to settle but failed) vi. Split on whether settlement negotiations in CIVIL cases are admissible in subsequent CRIMINAL legislation. vii. NO distinction exists between the offeror and the offeree in 408. Pierce v. F.R. Tripler & Co cannot enter into evidence that offered to settle case by giving job in different subsidiary.

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viii. When evidence being offered for another purpose (proving bias or prejudice of a witness, negating a contention of undue delay, OR obstruction of justice), then 403 applies. (May lead to excluding evidence BUT cannot get evidence in.) ix. Remember, a party to a completed settlement may sue to enforce it (valid K).
C.

PAYMENT OF MEDICAL & SIMILAR EXPENSES (RULE 409)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. i. NO dispute need to have arisen. ii. BUT statements admitting fault ARE admissible. 1. I will pay your doctors billsnot admissible. 2. I will pay your doctors bills b/c it is all my faultadmissible. iii. Rationaleto encourage good Samaritans BUT semantic trap for those who dont know the rule.

d. Plea Bargains, Plea Discussions, & Related Statements (Rule 410) i. Rule 410: Except as otherwise provided in this rule, evidence of the following is NOT in any civil or criminal proceeding, admissible against the 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 contender; 3. any statement made in course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the above pleas; OR 4. any statement made in the course of pleas discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea later withdrawn. 5. BUT such statements (1 through 4) ARE admissible a. in any proceeding wherein another statement made in the course of the same plea or plea discussion has been introduced and the statement ought in fairness be considered w/ it (let the cat out of the bag, opened the doorrule of completeness); b. OR in a criminal proceeding for perjury or false statement IF the statement was made by the AND under oath AND on the record AND in the presence of counsel. ii. Rule 410 Analysis/Basics 1. Encourages plea bargaining; 2. Applies in ALL subsequent cases (criminal AND civil) (vs. R 408 Compromise Rule which does not make clear if applies in criminal); 3. NO impeachment use of the statements. United States v. Udeagu 4. Plea vs. Confession a. plea = conviction, says I am guilty, admission of all the elements of the crime charged (all guilty pleas are confessions) b. confession = talks only about facts (not all confessions are pleas)

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5. Split on whether exclusion applies to ONLY the prosecuting attorney or the prosecuting attorneys minions (for example, DEA officer). Some courts predicate on whether officers/persons have ability to bargain. a. BUT most courts say others dont count (DEA, FBI, officers) which makes the rule less powerful (Salzburg). iii. CAN waive plea bargain protection. United States v. Mezzanatto, US (1995) upheld govt agreement w/ that said, If you lie to the US, we will stop talking to you AND everything you said is fair game for impeachment purposes. 1. Rejected idea that waiver will frustrate bargaining. 2. Found imbalance of power BUT not coercion. 3. Concurrence (3)only allow statements in for impeachment AND not in prosecutors case-in-chief. 4. Dissent (2) iv. Extends Mezzanatto waiver of Rule 410 protection to prosecutions case-in-chief. United States v. Burch aggress to cooperate & waives Rule 410 protection in plea agreement AND colloquy w/ trial judge prior to entering plea. e. Liability Insurance (Rule 411) i. Rule 411Evidence that a person was or was not insured against liability 1. is NOT admissible upon the issue of whether a. the person acted negligently or otherwise wrongfully. 2. IS admissible (this rule does NOT require the exclusion of evidence of insurance against liability) when offered for another purpose, such as a. proof of agency, (if contested) b. ownership, (if contested) c. or control, (if contested) d. or bias or prejudice of a witness. ii. To prove bias may come in if an expert witness in a medical malpractice action was employed by the liability coverer. Charter v. Chleborad. iii. Reserves judgment on the use of liability insurance coverage to come into evidence in a negligence action to prove that City can pay damages where city has put forth a lack of funds defense for not keeping roads in reasonable repair. Bernier v. Board of County of Road Commissioners. *very fact specific*--if -city focuses too much on lack of funds, then judge will let in liability insurance coverage. 1. Slippery slope? iv. Rationaleto prevent liability insurance from making jury not decide case (who cares? insurance will pay). V. CHARACTER EVIDENCE A. CHARACTER EVIDENCE BASICS i. Substantive character evidence vs. Impeachment use of character evidence 1. Substantive = trait of a persons character is relevant to an issue of the crime. For example, showing in murder case is aggressive. 2. Impeachment use = attempt to discredit witness testimony so witness looks unworthy of belief (liar). For example, showing that a witness in a murder case has several perjury convictions (crimes of untruthfulness). (NOTHING to do w/ issues in the case)

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ii. Character in issue vs. Circumstantial use of character evidence 1. Character in issue = when persons character is a material fact under substantive law. For example, in a libel/defamation case when truthfulness is a defense, then character is in issue. (also negligent entrustment) (allowed) 2. Circumstantial use of character evidence = introduce evidence to show /person acted in conformance w/ her character generally. For example, showing the aggressive victim attacked first. (generally not allowed)
B.

CHARACTER EVIDENCE GENERALLY (RULE 404(A)) i. Rule 404(a)Evidence of a persons character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion EXCEPT: 1. (1) Character of accusedevidence 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 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; 2. (2) Character of alleged victimevidence 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. 3. (3) Character of witness. See Rules 607, 608, & 609. ii. Rationale of 404(a) 1. Character evidence is unreliablepeople act situationally. a. Steal when hungry, lie when serves them, etc. 2. AND jury may not care about bad person who is or victimbarrier to justice. 3. Rule addressed the propensity to act generally (Rule 608 will deal w/ the propensity to tell the truth specifically). iii. What is Admissible? 1. If character evidence is in issue (element of crime or defense), then admissible, AND may be proven by reputation, opinion, and *specific instances of conduct.* (*specific conduct only okay when character in issue* a. For example, in negligent entrustment cases (Van Houten-Maynard v. ANR Pipeline Co.negligent to let driver drive b/c of drivers character so must show drivers character); b. defamation (Schafer v. Timesues for defamation BUT has lots of prior convictionsmust establish reputation defaming); c. Child custody; d. Fraudulent Misrepresentation (example, misrepresentation as to qualifications as stock brokerbut not simple fraud); e. Negligent Hiring or Supervision; f. and Entrapment (I am not the kind of person to do this normallyto show entrapped.)

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2. Generally, propensity/circumstantial use of character evidence inadmissible in civil cases (the accused interpreted to mean criminal). a. Language of the rule precludes the use of propensity character evidence in civil cases. Ginter v. Northwestern Mutual Life Ins. Co. b. In quasi-criminal-civil cases (assault/sexual battery for example) MOST courts do not allow propensity/circumstantial character evidence BUT some do. 3. In a criminal case, the prosecution may NOT offer character evidence concerning the in its case-in-chief. a. In criminal cases, has the right to introduce character evidence BUT opens the door for the prosecution to rebut and cross-examine defense witness w/ regard to character. b. Prosecution may not anticipate character evidence (or sneak in back door w/ What is your alias? Fast Eddie for car theft trial where nickname can be relevant to prove ID) Often, alias prejudicial. United States v. Williamsremand for new trial where Fast Eddie got in prosecutions case-in-chief where there was little other evidence. i. Nickname may get in for ID where it is the only way jury can make sense of undercover tapes. United States v. Delpit 4. Prosecution may rebut character evidence of defense AND may cross defense witness; proof may be made by only reputation or opinion. Michelson. a. **Both defense and prosecution can only use reputation or opinion (and NOT specific acts) when using proper pertinent character evidence. 5. Pertinent character traits under 404(a)(1) & (2) are often good moral character and law abidingness BUT NOT often truthfulness or honesty (exception for bribery & receiving stolen goods). 6. In a criminal case, character evidence of a pertinent trait of a VICTIM is admissible if first offered by , after which the state may offer rebuttal evidence as to the VICTIM as well as the on the SAME trait; proof only by reputation and opinion. (NO specific acts.) a. United States v. Keiser shot victim; Defense = necessity to save brother; victim threatened s brother in hallway; victims violent character admissible ONLY as reputation or opinion evidence B/C said victim threatened. i. ?? So anytime claim self defense open self up to character attack AND open victim up for character +. ?? b. 2001 Amendment expanded scope to rebut on as well as victims character on specific trait. 7. In a homicide case, if the offers evidence that the deceased was the first aggressor, the prosecution may then offer rebuttal evidence of the peacefulness of the victim; proof made only by reputation and opinion. a. State v. Hicksdefense opening statement calls victim obnoxious, cutting type, then prosecutor asks witness whether they ever saw victim quarrel or engage in a physical violence at a bar. Should have been

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excluded b/c specific actsnot reputation or opinion BUT waived b/c did not object. 8. In a criminal case, when character is an essential element of a charge, claim, or defense, proof may be made by reputation, opinion, AND specific instances of conduct. 9. Any character witness may be cross-examined concerning that witnesss knowledge of specific instances of pertinent bad acts committed by the person whose character that witness has endorsed; the cross examiner must have good faith proof that the acts occurred a. BUT the questions must RELATE to the character trait in question. Overturned conviction for weapons charges where character witness testified to honest and law abidingness and then prosecutor asked on cross about child support and sexual harassment charges (civil). U.S. v. Holt b. For example, okay in United States v. Bruguier charged w/ sexual abuse of daughter and witness say good father. Prosecutor ask did you know about finding of substantial neglect? and supervision of and spouse by child protective services? i. **remember not admitted to prove substance only admitted to prove how well know .** c. AND cannot ask has your opinion of the changed since charged w/ this crime B/C against the presumption of innocence. (Guilt-assuming hypotheticals are a no-no.) d. Witness treated as a character witness easilydoor may if ask about s reliability or responsibility or even family devotness. United States v. Dahlin e. Example, character witness testifies to law abidingness or good moral character. Did you know that the was convicted 3 times last year for beating his wife? (Have you heardif it is only a rumor) 10. Time period of character evidence controlled by scope of DEFENSEif defense (who controls scope of the testimony) takes the character evidence back 20 years, then the cross can go back 20 years. Michelson. 11. Reputation & Rumorsexaminer must have a good faith basis to ask about rumors w/ regard to reputation. 12. Note: Training or ability or experience IS admissible always, not considered propensity/character evidence. 13. Problem w/ character evidencenarrower frame question (good father) sounds like specific acts but broader (law abidingness) opens the door too wide. iv. Type of Evidence Admissible 1. Rule 405 (a) Reputation or opinionIn all cases in which character evidence IS admissible proof may be made by testimony as to reputation or in the form of opinion. On cross, inquiry is allowable into relevant specific instances of conduct. 2. Rule 405 (b) Specific instances of conductIn cases in which character evidence IS AN essential element of a charge, or defense, proof, may ALSO be

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made of specific instances of that persons conduct. (**when character is in issue)

C.

OTHER CRIMES OR ACTS (RULE 404(B)) i. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (Rule 404 (b))evidence of other crimes, wrongs, or acts 1. is NOT admissible a. to prove the character of a person in order to show action in conformity therewith. 2. (MAY be admissible) It may however, be admissible for other purposes, such as a. proof of motive, b. opportunity, c. intent, d. preparation, e. plan, f. knowledge, g. identity, h. OR absence of mistake or accident, i. W/ notice requirement (for criminal cases ONLY)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 produce at trial. ii. Basic Principles of 404(b) (Specific Act Character Rule) 1. Only evidence offered for a NON-PROPENSITY PURPOSE admissible. a. BUT then 403 appliesprobative value of non-propensity purpose (plan, opportunity, etc.) versus likelihood it will be used as propensity. (will ALWAYS make a 403 objection also). b. 4 part test (most courts) for assessing bad acts evidence under 403 (US v. Rackstraw): i. evidence MUST be offered for a proper (not-for-character) purpose; ii. evidence must be relevant for that purpose; iii. the trial court must make a 403 determination that the probative value of the bad act for the proper purpose is substantially outweighed by its unfair prejudice (if used as character evidence); iv. the trial court shall (upon request) instruct the jury that the evidence of similar acts is to be considered ONLY for the purpose admitted (limiting jury instruction). 2. Most litigated rule next to 403. (dynamite evidence b/c of misuse) 3. Specific Act evidence has a greater probative value than reputation or opinion. 4. 404(b) can be used in civil cases. 5. Notice requirement

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a. b. c. d. e.

only criminal; only for government; must request notice; only general notice reqd; judge may delay notice until trial.

iii. Plan & Identity Exception 1. To be probative enough common plan evidence to show identity must be particular/special or connected in some way. a. Common plan can be used to show identity of BUT use of stolen car and uses of nylon stockings on face w/ using a gun and vaulting over the bank counter IS NOT enough of a common plan to show identity to justify the use of specific act evidence. United States v. Carroll 2. BUT it does not have to elevate to the level of a signature crime. United States v. Muniz.okay to let in glass drug use paraphernalia in s room when found drugs in mailbox b/c goes to (increases likelihood he controlled) control over drugs in mailbox. iv. Motive Exception (Ask how specifically does the bad act tie up w/ motivemore specific and particular the connection, more likely to be admitted.) 1. When act tied in w/ motive, then act is admissible. United States v. Potter accused of trading oral sex for prescribing; okay to let in sexual activity B/C showed motive of WHY doctor would improperly prescribe drugs, lack of good faith w/ legitimate medical purposes. Purpose = motive, not to smear Drs character 2. s affiliation w/ prison gang properly admitted as MOTIVE for murder of stranger b/c needed to initiate into prison gang. United States v. Santiago. 3. Error to admit arson of car 16 months earlier to prove arson of restaurant when financially down on luck NOT admissible in case for arson of restaurant. U.S. v. Varoudakis a. Not connected enough to show motivereally saying had the propensity to commit arson when needs money. b. ALL need to show motive is INSURANCEso not that probative. 4. (Generally) Drug use as MOTIVE for theft is suspectalthough particular ties between drug use and events can exist. a. For example, if tie to a particular drug transaction (and not just drug use generally)ordered drugs Monday, robbed bank Tuesday, and paid for drugs Wednesday. v. Intent or Knowledge Exception 1. United States v. Hearst used defense of duress (kidnapped heiress), the govt needs to show was not acting under duress so CAN ADMIT s involvement in a LATER robbery b/c it shows willingly engaged in other criminal activity w/ persons of the same group. a. Bad acts (shooting in air to help captors escape)highly probative of absence of duress (innocent intent) which is the main a defense.

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b. Timing (after crime) does not disqualify evidence. 2. Prior drug convictions admissible to show KNOWLEDGE where s defense was I didnt know there was drugs in the car, I was just driving someone to the airport. United States v. Martinez a. If say I didnt know what was going on when charged w/ a crime better not have committed a similar crime in the past b/c if close enough will be admissible to show KNOWLEDGE. 3. To show intent or knowledge, the prior bad act/conviction must be 1) not too remote in time and 2) similar in character (exampledrugs, big shipment each time or small shipment each time to show knowledge). US v. Mejia-Uribe found error where admitted previous drug convictions 15 years old and for on time single sale where current case involved large scale ongoing operation. 4. s prior threats and acts of violence against his wife are admissible to show intent to have wife killed. US v. Wynnconnection between crime and threats (not threats against wife, then killed boss). vi. Other Not-For-Character Exceptions For Previous Bad Acts 1. Multiple previous mysterious deaths admissible to show absence of mistake (b/c % wise this does not happen that often so something is up) and signature. United States v. Woods charged w/ murder of 8 month old foster son; from 1945 to 1969 nine children to had access suffered same death (crib death); admissible even previous deaths not charged as crimes. a. BUT not admissible to prove common plan (in power point) (Why?) 2. Not required to stipulate to avoid admission of prior bad act evidence when used to show intent and knowledge. US v. Crowder arrested for selling crack; had previous arrest for drug dealing a few blocks away; defense is mistaken identity and willing to stipulate whoever DID possess the drugs intended to distribute. a. Gave Old Chief a very narrow reading. b. Unlikely can stipulate to the INTENT (Woodswilling to concede whoever had the drugs had intent to distribute) element of the crime as opposed to the STATUS (Old Chiefwilling to concede that had a felony conviction making him status as felon and eligible for conviction under a statute barring felons from having weapons) element. c. Dissentreally being offered to show propensity (to deal drugs) and that majority reads first sentence of 404(b) out of contextrequires the govt to ADMIT it is using prior conviction for an incorrect purpose to be excluded (which the govt will never do). 3. Rule 404(b) Standard of Proof and Role of Judge a. Supreme finds 404(b) a relevance rulejudges role to assess by a preponderance (if a reasonable jury could find that the TVs were stolen b/c of low price, then let in). Huddleston v. United States, US 1988. charged w/ selling stolen tapes. claimed sold goods on commission (pawn shop). objectednot enough evidence selling stolen TVS (only evidence bought TVS for $28, low price). Issue: What is the

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standard of proof for 404(b)how much do you have to prove the bad acts occurred? i. Judge determines probative & prejudicial effect AND utility of limiting instruction; ii. Judge uses 104(b)not fact-finder (reasonable juror standard). b. Acquittal DOES NOT preclude use of previous bad acts b/c the standard of proof is different (preponderance vs. beyond a reasonable doubt). Dowling v. United States, US (1990) c. Some states require trial judge to find clear and convincing evidence of other acts. d. Arrest is generally NOT sufficient to prove act. United States v. Robinsona mere arrest w/out any showing of the underlying act or circumstances was not probative of intent, knowledge, or any other permissible purpose. 4. Acts Inextricably Intertwined w/ Crime Charged a. If INEXTRICABLY INTERTWINED w/ crime, then acts ARE not bad acts under 404(b). b. Test is whether the acts inextricably intertwined w/ basic elements of the crime charged. c. For example, acts in a conspiracy case where govt proffers evidence of an act committed during the course and in furtherance of the conspiracy is inextricably intertwined. d. Means NO notice requirement AND not exception explanation (theory of intent, motive, etc.).
D.

HABIT (RULE 406) i. Habit: Routine Practice (Rule 406)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 w/ the habit or routine practice. ii. Distinguishing Character & Habit 1. Habit = specificity and regularity; habit = high % of (# of times act done/ # of total possible times). Requires adequate sample, uniformity in response, and particularity. a. A deliberate and repetitive practices on a regular basis is habit. Halloran v. Virginia Chemicalsauto mechanics use of immersion coil to heat refrigerant can is to level of habit and admissible. b. Organizational habitneed routinized aspects of organizational activity in a structured organization. c. Burden of proving habit is on proponentwho wants habit IN. 2. Character = general description of ones disposition. 3. Court finds habit to react violently on repeated occasions toward authority figuresadmits prior acts (habit of acting violently toward police/authority). Perrin v. Anderson. (Minority) had 4 prior incidents of violence in jail and responding to police officers.

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iii. Rationalehabit thought more reliable than character evidence.

E.

RAPE SHIELD (ONLY TESTED ON R. 413, 1 QUESTION) i. Evidence of Similar Crimes in Sexual Assault Cases (Rule 413) 1. (a) IN A CRIMINAL CASE in which the defendant is accused of an offense of sexual assault, evidence of the defendants 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. 2. (b) (Notice & disclosure) 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. 3. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. 4. (d) (Definition of Sexual Assault) For purposes of this rule and Rule 415, An 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 a. (1) any conduct proscribed by chapter 109A of title 18, United States Code; b. (2) contact, without consent, between any part of the defendants body or an object and the genitals or anus of another person; c. (3) contact, without consent, between the genitals or anus of the defendant and any part of another persons body; d. (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or e. (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)B(4). ii. Scope of the Rules Permitting Use of the s Prior Sex Offenses 1. More liberal admissibility of s prior sexual offenses; 2. NO limiting instruction is required. 3. Unclear whether 413 & 415 permit 403 to exclude sex assault evidence that is unduly prejudicial (but 414 IS subject to 403 balancingUS v. LeMay (9th)) iii. Rationalebelieve sexual criminals & pedophiles much more likely to be recidivists; also difficulty to prove sex crimes.

VI. FOUNDATIONAL REQUIREMENTS: AUTHENTICATION (RULE 901) A. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION (RULE 901) i. (a) General Provisionthe 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. ii. (b) Illustrationsby way of illustration only, and NOT by way of limitation, the following are examples of authentication conformity w/ the requirements of this rule: 1. (1) Testimony of witness w/ knowledgetestimony that a mater is what it is claimed to be.

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2. (4) Distinctive characteristics and the likeappearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction w/ circumstances. B. BASICS OF AUTHENTICATION i. Courts DO NOT assume that evidence is what the proponent claims, therefore proponent MUST demonstrate what evidence IS and how it RELATES to the case. ii. Judge is not fact-finderbut screener like 104(b). iii. Lots of ways to authenticate evidence. C. REAL EVIDENCE (REAL STUFFWALLET , BAG, ETC.) i. Chain of Custodyone form of authentication (that object passed through many hands before getting to court is actually the object claimed to be and wasnt swapped out by a fake). 1. No chain of custody is required for a UNIQUE ITEM. Lockhart v. McCotter govt should have introduced evidence on chain of custody but since victim IDd wallet and officer identified and sufficiently unique and did not appear altered okay. 2. Most courts hold that break in chain of custody goes to weight, NOT admissibility. U.S. v. Miller 3. Strictness of chain of custody may depend on importance of evidence. 4. Tampering w/ evidence (moving) in violation of local rules will render evidence inadmisable. US v. Edwards.possession of cocaine w/ intent to distribute overturned; arrested and found bag w/ baggies looking like crack; girlfriend told police Edward left w/ black bag but refused to testify; police failed to inventory appears belonging to Edwards found in car; Bail receipt w/ Edwards name found by prosecutor on first day of trial; conviction reversed b/c receipt should not have been admitted b/c prosecutor tampered w/ the bag by removing it from the courtroom in violation of local rules. a. Also, emphasis on govt need to keep accurate record of all evidence obtained and where it is at all times. 5. In usual drug case, important chain of custody is from original seizure to analysis of substanceany substantial gap is fatal (b/c key evidence). a. A gap AFTER drug testing less fatal.
D.

DEMONSTRATIVE EVIDENCE i. Definition of Demonstrative Evidence 1. Demonstrative evidence has no probative value in itself, but serves merely as a visual aid to the jury in comprehending the verbal testimony of a witness (a model, map, X-ray, etc.) Smith v. Ohio Oil Co. 2. Demonstrative evidence must be 1) relevant and 2) the use of the object must actually be explanatory. Smith v. Ohio Oil Co. Also, wide discretion to trial judge. ii. Photographs, Video Tapes, and Recordings 1. Basic Foundation Questions a. I Show you what has been marked s exhibit A, Can you identify it? What is it? (Plus for photos add) Is it a fair (or true) and accurate depiction of _______?

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2. Must fairly and accurately depict the thing (collision, injury, etc.). 3. Pictures must only show what witness says saw. Brown v. Barnespictures taken 1 year after accident showing the intersection in question w/ an obscured view of the stop sign in question are admissible to show witness view of stop sign was obstructed. a. Some say same is true for videos & tapesenough for witness to say This is what I saw. b. BUT greater foundation for tape recordings may be needed. i. May have to prove (US v. Branch): 1. recording devise was capable of recording; 2. operator was competent to operate machine; 3. recording is correct rendition of occurrence; 4. no changes, additions or deletions have been made; 5. recordings preserved in the manner shown to court; 6. speakers are identified; 7. no impermissible inducement. ii. and other additional foundational factors to show tape accurate depiction of what is heard in court. 4. Does not matter when photos taken or who took them or why. 5. The witness who authenticates a photo DOES NOT need to have an independent recollection of the sceneenough knew they are were the pictures taken on the night of the crime/accident/whatever and in your possession. State v. Madison 6. Surveillance filmsfoundation may be laid as to the process (Rule 901(9) below) and chain of custody. No live witness needed. US v. Taylor. 7. Conflicts over whether or not fair & accurate depiction go to credibility NOT admissibility.

iii. X-Rays 1. X-rays are demonstrative evidence. 2. Foundation usually laid by doctor, technician, or circumstances. King v. WilliamsDr. who ordered X-rays can testify to authenticate where saw X-rays after and technician not available. 3. Rule 901(9) Process or systemevidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
E.

HANDWRITING i. Rule 901(b)(2): Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of litigation. 1. Does the limitation bind the trial judge (considering 901(b) says illustrations not limitations)?

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ii. Only need to see person write signature once to testifygoes to weight not admissibility. In Re Diggins Estateif seen enough that witness can form an opinion to testify, then that is enough. iii. Familiarity is enough BUT limitation on timing. Familiarity must PRECEDE litigation. US v. Pitts iv. BUT the jury can compare handwriting even where expert is not conclusive (but attorney must show sample genuine). US v. Ranta 1. Attorney can give sample of handwriting (before legislation) for jury to compare. US v. Pastore v. Circumstantial evidence of handwriting okay. US v. McMahonwhere much evidence to show author of incriminating note (observed passing it, repeated s previous conversation, note used I suggesting passer was author) then circumstantial evidence enough to authenticate note handwriting. 1. Can also show info. in note ONLY accessible to author.
F.

VOICE IDENTIFICATION i. Related Rule 401(b) Provisionsauthentication by illustration 1. (b)(4) Distinctive characteristics and the likeappearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction w/ circumstances; 2. (b)(5) Voice identificationsIdentification 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 to the alleged speaker. a. familiarity, not expert testimony, needed 3. (b)(6) Telephone Conversationstelephone 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. a. Mere assertion of identity is not sufficient evidence of authentication ii. Voice Identification Basics 1. Reason for concernif did not see how did know who was speaking? a. Trier of fact must know what inference a witness drew to determine it was the person in Q to decide whether the inference is persuasive. 2. Any familiarity w/ Voice will suffice a. Two meetings sufficient. US v. Saulter b. Agent may hear voice AFTER tape is made. US v. Watsonfamiliarity w/ voice may occur before or after recordings. 3. Circumstantial evidence or contextual evidence may produce authentication. US v. Parkercontext of the conversation can identify the speaker (IDed as husband of caller by calling wife calling her his old lady in conversation.)

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4. Calls to a business and call was related to that business are generally admissible (no matter who answers) plus self identification. Barrickman v. National Utilities & Rule 901(b)(6) 5. Affirmative presumption that the person answering phone can transact business for company.
G.

PUBLIC RECORDS (901 & 902) i. Rule Basis 1. Rule 901(b)(7): Illustrations for authentication okay... a. (7) Public records or reportsevidence 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. 2. Rule 902: Self-Authentication: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required w/ respect to the following: a. (4) Certified copies of public recordsa copy of an official record or record or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or flied 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 w/ the Rules or any Act of Congress, etc. ii. Documents that are self-authenticating (no testimony reqd)official publications (statutes & regulations), newspapers, periodicals, trade inscriptions (product labels), acknowledge/notarized documents, commercial paper, & related documents. 1. Notestill may be hearsay or other evidence objection. BUSINESS RECORDS (RULE 902(11) & (12) i. Rule 902Extrinsic evidence of authenticity as a condition precedent to admissibility is not required w/ respect to the following 1. (11) Certified domestic records of regularly conducted activitythe original or duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) w/ a written declaration certifying the record a. (A) was made AT OR NEAR THE TIME of the occurrence of the matters set forth by, or from information transmitted by, a person w/ knowledge of those matters; b. (B) was KEPT by the regularly conducted activity; c. AND (C) was made by the regularly conducted activity AS REGULAR PRACTICE. d. **Requires notice and make record available for inspection. 2. (12) Certified foreign records of regularly conducted activitysame deal but foreign records. Only differencemust be signed in a manner that, if falsely made, would subject maker to criminal penalty under laws of the country where the declaration is signed.

H.

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I.

RULE 903: SUBSCRIBING WITNESS (TESTIMONY UNNECESSARY)The testimony of a subscribing witness is not necessary to authenticate a writing unless reqd by the laws of jurisdiction whose governs. i. few federal casesmostly in will cases (where substantive state law applies)

VII. BEST EVIDENCE RULE (ORIGINAL DOCUMENT RULE) A. FEDERAL RULES OF EVIDENCE 10001 TO 1008 a. Rule 1001 Definitions i. (1) Writings and recordingsconsist 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. ii. (2) Photographsinclude still photographs, X-ray films, video tapes, and motion pictures. iii. (3) Originals of a writing or recordingis 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 there from. 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. iv. (4) Duplicateis 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 rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. b. Rule 1002 Requirement of Originalto prove the content of the writing, recording, or photograph, the ORIGINAL writing, recording, or photograph is required, EXCEPT as otherwise provided by Acts of Congress. c. Rule 1003 Admissibility of Duplicatesa duplicate is admissible to the same extent as an original UNLESS i. (1) a genuine question is raised as to the authenticity of the original; ii. (2) OR in the circumstances it would be unfair to admit the duplicate in lieu of the original. d. Rule 1004 Admissibility of Other Evidence of Contentsthe original is NOT required, and other evidence of the contents of a writing, recording, or photograph if admissible IF (exceptions to original reqd): i. (1) Originals lost or destroyedall originals are lots or have been destroyed, unless the proponent lost or destroyed them in bad faith; OR ii. (2) Originals not obtainableno original can be obtained by any available judicial process or procedure; OR iii. (3) Original in possession of opponentat 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 subject to proof at the hearing, and that party does not produce the original at the hearing; OR iv. (4) Collateral matterswriting, recording, photo not related to a controlling issue.

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e. Rule 1005 Public Recordsthe 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. f. Rule 1006 Summariesthe 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. g. Rule 1007 Testimony or Written Admission of Partycontents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that partys written admission, WITHOUT accounting for the non-production of the original. h. Rule 1008 Functions of Court and JuryWhen the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. i. Judge cannot usurp jurys role to decide merits 1. Was there ever a writing? 2. Which is the original? (if two) 3. What other evidence is credible? ii. All other questions are for the judge under Rule 104(a)

b. General Rules & Summary i. Applies to writings, recordings, & photos ONLY. ii. No general rule REQUIRES best evidencebut adversarial litigation does. iii. Keyto prove the content thereof. iv. Rationaleanti-fraud, efficiency rule. b. Proving the Contents of a Writing or Recording i. If there is a written contract, it is the best evidence in a K dispute. BUT where all 3 originals were destroyed and no bad faith, oral testimony is admitted (would not have been admitted had K been available). DeMarco v. Ohio Decorative Products. 1. Notewhether a document is essential to proving something is a question of substantive law rather than evidence. ii. In real estate dispute, deed is the best evidence.

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iii. Will is best evidence of will (state law may require). iv. Dispute over meaning of judgment or settlement, actual judgment or settlement best evidence. v. The original is NOT required simply b/c a document has been created. 1. BUT need to ask whether the CONTENTS of the document are disputed. 2. AND witnesses w/ personal knowledge generally may testify even though there is also a document available. a. Testimony to being married is okaycertificate not required. b. Testimony to receiving money okayreceipt not required. c. Testimony to salary received is okaybooks not required. vi. Generally, a party may use a document to prove a fact OR prove that fact through testimony that is INDEPENDENT of the document (not I saw the document and it said, but truly independent), OR offer both the document AND the testimony. c. Best Evidence Analysis i. Is the piece of evidence offered a writing or recording? ii. Is the piece of evidence offered to prove the contents thereof? iii. If yes to BOTH, then best evidence rule applies. iv. Applying Best Evidence Rule 1. Does Proponent offer either the original or a duplicate? a. If original, rule satisfied. b. If duplicate, Rule 1003: A duplicate is admissible to the same extent as the original UNLESS i. genuine question is raised as to the authenticity OR ii. in the circumstances it would be unfair to admit the duplicate in lieu of the original. 1. If neither & duplicate admitted, best evidence satisfied. c. If no original OR duplicate, Rule 1004: Other evidence of contents is admissible IF i. original lost or destroyed (good faith)? ii. OR original not obtainable? iii. OR original in possession of opponent? iv. OR collateral matter? 1. If one of those is found, best evidence is satisfied and other evidence comes in. 2. If one of those is NOT found, other evidence DOES NOT come in. d. Writing Defined i. See Rule 1001consist of letters, words, numbers or their equivalent set in handwriting, typewriting, printing, photocopying, photo-stating, photographing, magnetic impulse, mechanical or electronic records, or other form of date compilation. ii. Drawings are writings and subject to Best Evidence Rule. Seiler v. Lucasfilm. original drawings are required to prove infringement; since has no originals or copies AND court finds bad faith, nothing relating to drawings (no testimony) is admissible.

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iii. BUT where no bad faith and no original copies testimony is admissible regarding K. DeMarco iv. There can be more than one original writingparties intent controls. 1. For example, a carbon copy is also an original. Greater Kan. City Laborers Pension Fund v. Thummel e. Chattels (not subject to Best Evidence Rule) i. Generally NOT writings w/in the rule. ii. Some things that may be a chattel & a writing up to trial judges discretion to treat evidence as one or the other. United States v. Duffy. Not error to treat shirt w/ D.U.F. written on it as a chattel and not a writing (NOT subjection to the Best Evidence Rule). 1. Rationalesince writing short little danger of witness not recalling writing. 2. AND terms of writing were not central to the case against shirt was only collateral evidence of the crime. 3. AND only one piece of evidence in a substantial case against . iii. Signs, license plates, things in the world w/ letters on them are all chattels and generally do not count as writings under the best evidence rule. iv. Rationaletoo burdensome to produce actual thing. f. Tape Recordings i. Witness w/ personal knowledge of a tape recording may testify to it notwithstanding the fact that there is a tape, transcript or record. US v. Fagantape recording not required b/c testimony regarding recollection of conversation NOT content of tape. 1. Agent may testify to his recollection of conversations whether or not tape that exists is audible. US v. Howard ii. BUT the tape, transcript or record may be used by opponent to attack recollection.

g. Pictures, Films, & X-Rays i. Motion pictures are within the ambit of photograph in Rule 1001(2), and an original of a motion picture includes the negative or any print thereof; the work print or cut negative, as well as the answer print and release prints of motion pictures (all) = originals. United States v. Levinefilm shown to prove the contents (porn allegations) of subject to the best evidence rule, but all (of the above) cuts of the film are considered originals. ii. (Generally,) films or videotapes created to show HOW an event occurred demonstrative videosnot offered as evidence of the actual event NOT subject to the best evidence rule. iii. (Generally), the best evidence does NOT apply to photos b/c they are used for demonstrative purposesto show what saw or a scene that is familiar and adopts picture as testimony or uses picture to illustrate testimony. 1. BUT if used to prove the contents thereof then best evidence rule applies. (? Confusedcan someone clear up this distinction for me?)

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iv. (Generally,) X-Rays ARE subject to the best evidence rule. 1. However, Rule 703 allows an expert to have an opinion based on matters NOT in evidence (present rule must be read as limited accordingly). 2. Hospital records which may be admitted as business records commonly contain reports interpreting x-rays by a radiologist (expert), and these reports NOT excluded by the best evidence rule. c. Duplicates & Secondary Evidence v. Duplicates 1. Duplicates are readily admissible. Rule 1003tries to do away w/ technical best evidence objections (rationaletechnology). 2. Duplicates need not be perfect. United States v. Sinclair 3. Duplicates NOT okay when genuine issue of authenticity is raised. Rule 1003 (1). a. Genuine issue w/ checks where problem w/ matching fronts and backs of the checks. Ruberto v. Commissioner b. Genuine issue when duplicate has key part missing or incomplete. Amoco Prod. v. USmost critical part of deep not completely reproduced. c. Courts more concerned about altering of recordingsmore foundation may be required for a duplicate recording. US v. Balzano d. Burden of showing genuine issue of authenticity is on the objecting party (who wants the duplicate to stay OUT). vi. Secondary (Other) Evidence 1. If no duplicate or original, can bring in secondary evidence if prove originals destroyed/lost (in good faith), original not obtainable, original in possession of opponent, or collateral matter. Rule 1004 (much discretion to trial judge to determine if these have been filled) a. Burden on party who wants the evidence IN to prove one of these factors. 2. Where brochure destroyed in fire (caused by allegedly defective product), witness may testify as to contents. Neville Construction Co. v. Cook Paint and Varnish 3. Generally, no preferred degree of secondary evidence BUT judge may order search for original. a. And as a mater of tactics, party will try to offer most reliable form of secondary evidence. d. Summaries (Rule 1006) a. Summaries of writings or records ARE ONLY admissible IF the UNDERLYING WRITINGS or recordings would be admissible. US v. North American Reporting prosecutor introduced chart showing over-billing (from time sheets); attempted to introduce chart proporting to summarize instances where under billed hours (own word & memory). s chart inadmissible. i. Chart based on out of court statements inadmissible. US v. Pelullo

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b. Foundationneed to give opponent opportunity to examine summary so that adversary can object to accuracy. c. Summaries (clear way of submitting substantive evidence that is massive) NOT the same as summaries of trail evidence (pedagogical summaryaid to summarize already admitted evidence). d. Common summariesanything as long as fairly representative of underlying info.; employers personnel records, medical files, phone call summaries, surveillance logs, loan applications part of fraud, etc. VIII. OPINIONS TESTIMONY A. LAY OPINION (RULE 701) i. Opinion Testimony by Lay Witness (Rule 701)If the witness is NOT testifying as an expert, the witness testimony in the form of opinions or inferences is limited to 1. those opinions or inferences which are a. (a) rationally based on the perception of the witness, b. (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue, c. AND (c) NOT based on scientific, technical, or other specialized knowledge w/ in scope of 702. ii. Opinion on Ultimate Issue (Rule 704) 1. (a)Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is NOT objectionable b/c it embraces an ultimate issue to be decided by the tried of fact. 2. (b) No expert witness testifying w/ respect to mental state or condition of in a criminal case may state an opinion or inference as to whether the did or did not have the mental state or condition constituting an element of the crime. iii. Rationally Based on Perception (R 701(a)) 1. Rationally based turns on 1st hand knowledge (witness is NOT 13th juror w/ a vote on the casemust have something more than trier of fact). 2. Witness does not have sufficient personal knowledge where could not rationally perceive (see or experience) the event in question. a. Gorby v. Schneider Tank Lineswitness truck driver could not opine whether did everything possible to avoid accident b/c did NOT see the accident NOR did driver have personal knowledge of trucks safety features. b. United States v. Hoffnersince none of the witnesses were present when any of the patients received improper prescriptions their opinions were as to s intent were NOT based on any rational perceptions or observations. c. US v. Gibsonwitness not allowed to testify what could have seen if had binoculars if didnt actually have binoculars. 3. BUT personal knowledge need not be perfect and 100% complete. US v. Rivera lay person could testify to meaning of records of an illegal drug operation even though she did not prepare ALL the records b/c she prepared some of them AND was trained by one of the bosses to prepare records.

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4. Whether rationally based w/in discretion of trial court. 5. Lay witnesses may draw reasonable inferences from the facts they know. a. US v. Santosemployees could testify to boss management style (dictatorial and intrusive) BUT could not testify that believed (inference) boss ordered 3rd party to fire the contractors (b/c they did not have ANY personal knowledge of that). (close calldepends how small or large the office was and how well they knew their boss whether or not reasonable). 6. BUT complete speculation is NOT permissible (not rationally based on perception under 701(a)). iv. Helpful to a clear understanding of the witness testimony or the determination of a fact in issue (Rule 701(b)) 1. Where the witnesses testimony amounts to nothing more than a vote, the testimony is not allowedneeds to ADD something more. a. US v. Reaadmission of testimony that MUST have known was participating in a tax evasion scheme (intent of ) error where attempt to introduce meaningless assertions that amount little more than choosing up sidesexclusion for lack of helpfulness under 701. i. Witness in no better position to observe everything observed by (stuff jury already knows). ii. More helpful if witness draws inferences from more than observed events already in evidencebut from job history, personal. b. US v. Fowler (?) compare w/ Fowler on PPT c. Krueger (?) compare w/ Kreuger on PPT? d. Kostelecky v. NL Acme Toolevidence that merely tells the jury how to vote/what results to reach is not sufficiently helpful to be admissible. v. Ultimate Issue 1. There is NO ultimate issue restrictiononly personal knowledge restriction. a. US v. Yazzieimproper to exclude lay witnesss testimony on how old girl looked (at least 16) in statutory rape case. 2. BUT evidence that merely tells the jury how to vote/what results to reach is not sufficiently helpful to be admissible. Kostelecky v. NL Acme ToolCoworkers accident report that said accident was s fault should not have been admitted. 3. Witnesses cannot simply make legal conclusions. Torres v. County of Oakland witness cannot answer whether believed was subject to racial discrimination but question could have been phrased to ask witness about treatment of and other things to elicit similar information that DID NOT ask for a legal conclusion. 4. Lay opinion can come close to legal conclusion (and actually be the ultimate issue) and still be admissible.

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a. US v. Koonwitness can testify that officer was out of control at time of beating and that officer went to office to report use of excessive force at time where ultimate issue was whether willfully used unreasonable force. b. US v. Espinoerror where prosecution asked on cross whether he was admitting the conspiracyBUT could have asked Did you have an agreement to sell cocaine? vi. Line Between Expert & Lay Testimony 1. US v. Figueroa-Lopezerror to call agents to testify as lay witnesses to practices of experienced drug traffickers. 2. 2000 Amendmentlay witness CANNOT give testimony based on scientific, technical or other specialized knowledge. a. Comments i. ask what ordinary people would know (must be common knowledge); ii. NATURE of testimony matters (ex. senior citizen sees drug deal; testimony that was a steerer = expert; testimony that dropped drugs = lay) b. Lay witnesses use reasoning familiar in everyday life vs. experts specialized in some way. c. Witness can be lay and expert witness BUT IF expert must lay expert testimony foundation.
B.

EXPERT OPINION TESTIMONY i. Testimony of Experts (Rule 702)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; 3. AND the witness has applied the principles and methods reliably to the facts of the case. ii. Summary of Expert Requirements 1. specialized knowledge that will assist trier of fact; 2. qualifications by knowledge, skill, experience, training OR education; 3. sufficient facts or data; 4. reliable principles and methods; 5. reliable application of principles and methods. iii. Qualification of Experts 1. Expert provided a non-scientific opinion (not based on scientific norm)junk science plus credentials did not qualify as expert. Berry v. City of Detroit officer shoots traffic suspect in back; needs to prove responsibility of city.

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Expert Opinioncitys failure to train officers was cause of accident inadmissible (no connection to City; JML for city). 2. A witness may be an expert on the basis of EXPERIENCE. a. Police officers may have expertise regarding vehicles or investigating auto accidents. Satcher v. Honda Motorno error in allowing former police officer testify that motorcycle crass guards are effective in reducing injuries. 3. Specificity & Specialty IS Reqd: A witness may be an expert in a subject BUT NOT as to the particular subjection. a. McCullock v. HB Fullerexpert on unventilated glue pot not admissible b/c need for ventilation system/dangers of glue not in dispute issue was failure to warn. b. Question is not whether witness has qualifications generally BUT whether has training/experience/whatever w/ respect to the ISSUES being tried. c. BUT dont want TOO super specialized b/c danger that specialization can be so stringently applied to exclude most objective experts. 4. Experts who switch sides in litigation. a. Some courts permit expert to be called BUT prohibit reference to fact originally obtained by adversary. b. Others refuse to permit w/out a showing of NEED. c. BUT reference to previous retention can become admissible if counsel attacks the qualifications of the expert (to rebut). iv. Proper Subject Matter for Expert Testimony 1. Expert testimony CANNOT override the law. a. Scott v. Sears & Roebuckslip and fall case in VA (which places duty of care upon persons on sidewalks open to the public). Error to instruct Jury that Spalling of concrete even if Distracting was not an excuse for under VA law (when expert testified that Spalling was an effective distraction and an accident waiting to happen). v. Assist the Trier of Fact 1. Courts generally hold that expert testimony is on a proper subject matter if it deals w/ an issue that is not of common knowledge to the trier of fact. a. State v. GibbsOKAY for Agents to testify to code words. 2. AND testimony that relates to matters w/in the common knowledge of the trier of fact has been held inadmissible. a. US v. Cruztestimony that drug dealers use intermediaries for drug deals NOT helpful. (Saltzberg questions this?) b. US v. Castillotestimony that drug dealers force buyers to use drugs at gunpoint found not helpful b/c NY juror would know this to be case. vi. Requirement that Expert be RELIABLE 1. NEW scientific evidence test: requires 1) scientific knowledge must rest on a reliable foundation (reliability) AND 2) fit to facts of the case (relevance).

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Daubert v. Merrell Dow US (1993) (important)s suing chemical company for benedictin drug causing birth defects; only 1 expert on causation. Expert not a. Daubert Factors i. Can theory be tested? Hypothesis tested (falsified)? ii. Subject to peer review & publication? 1. new techniques may not be published; 2. some limited interest (or if too narrow) may not be published; iii. Rate of error; iv. General Acceptance good AND skepticism bad (Fry lives on as one of the Daubert Factors) b. Judge makes 104(a) determination of admissibility of expert. c. General Acceptance Test (Alone) Rejectedthe thing from which the deduction is made must be sufficiently established to have general acceptance in the particular field. Fry v. USoverruled by Daubert. 2. Abuse of discretion is the appropriate standard of review for excluding/including evidence of scientific expert testimony under Daubert trial judge is the GATEKEEPER. General Electric v. Joiner US (1997) lung cancer alleged to be caused by exposure to PCBs; District Court granted Summary Judgment; Court of Appeals Revd; Strict Standard of Review for Exclusion; Supreme Court Reverses a. Majority i. lawtrial judge gatekeeper; admissibility of evidence review not same a summary judgment. ABUSE OF DISCRETION proper SOR. ii. as appliedcourt finds no abuse of discretion by district court in excluding expert witness 1. animal studiesmice massive dosages; 2. epidemiological studiesno statistical showing (problem multiple toxinsnot only that no PCB expert except in Japan) 3. Conclusions and Methodology not entirely distinct b. Breyer (concurring)emphasis on court-appointed expert (under 706); judges are the gatekeepers BUT they are not scientific experts (here toxicologists). c. Stevens (concurring and dissenting)would remanded for consideration under new standard of appellate review. 3. Do NOT need ALL of the Daubert factors to have reliability. Westberry v. Gislaved Bummi Ab (4th)suit by worker for failure to warn about danger of breathing airborne talcum powder that allegedly caused several sinus surgeries. No studies, no peer review, no lab data. No one knows EXACTLY how much exposure a. Expert can show that one thing CAN cause the problem AND then exclude/rule out OTHER factors (differential diagnosis); where no one knows exactly how much exposure but evidence suggests LOTS and

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was exposed to LOTS; AND where expert says if is right, would change mind. b. Even though no studies, peer reviewed lab/work data BUT still proper expert under Daubert. 4. Gatekeeper role applies to ALL expert testimony (not just scientific experts). Kumho Tire Co v. Carmichael US (1999)tire made in 1988 installed before 1993; driven 7,000 miles since installed; dist. court excluded evidence; granted SJ; Court of appeals revd; Supreme Court reverse Court of Appealsproper to exclude evidence. a. Breyer (majority) i. Trial judge may consider Daubert Factors BUT has discretion; ii. same latitude to determine how to assess reliability as to ruling (discretion as to procedure AND discretion as to decision); iii. IMPORTANT that expert uses same level of intellectual rigor inside courtroom as used outside in particular field; iv. Here, expert could not say whether tire went 5K or 50K miles; subjective analysis; saw tire on morning of deposition; inconsistent b/c filed report but never saw tire; no evidence that is the industry standard (that others in the industry do the SAME thing) b. Scalia w/ OConner & Thomas (concurring) i. discretion of trial court in choosing manner of expert reliability is NOT discretion to abandon the gate-keeping function; ii. ONLY discretion to choose among reasonable means of excluding expertise that is junk science; iii. More adherence to Daubert factorswhile not holy writ, failure to apply them in a particular case could be unreasonable and therefore an abuse of discretion. 5. 2000 Amendment to Rule 702: added 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 reliability to the facts of the case. a. codifies Daubert & Kumho; b. identifies OTHER FACTORS in Note i. whether experts are developed opinions out of independent research OR research for litigation purposes; ii. whether expert has unjustifiably extrapolated from an accepted primes to an unfounded conclusions; iii. whether expert has adequately accounted for obvious alternative explanations; iv. whether the expert is being as careful as would be in regular professional work outside paid litigation counseling; v. whether field of expertise claimed by expert is know to reach reliable results for the type of opinion the expert would give;

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c. Amendment states rejection of expert should be exception, the rule (not necessarily true in practice.) d. Use of expert does not mean jury should be told someone expert (how do you establish foundation?) vii. Basis of Opinion and Underlying Data 1. Bases of Opinion Testimony by Experts (Rule 703)facts or date in particular case upon which an expert bases an opinion or inference may be those perceived by or made know to the expert at or before hearing. If of a type reasonably relied upon by experts in the particular field for forming opinions or interferes 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 experts opinion substantially outweighs their prejudicial effect. 2. 703 Breakdown a. (1) Experts MUST get information related to case; b. (2) permits experts to rely in court on data used out of court; c. (3) reverse 403 analysis test for telling jury inadmissible facts and data. (added in 2002for hearsay for example) 3. An expert CAN be called upon to answer a hypothetical question BUT hard to do b/c of discovery rules. 4. Disclosure of Facts or Date Underlying Expert Opinion (Rule 705)expert may testify in terms of opinion or inferences and give reasons therefore w/out first testifying to the underlying facts or data, UNLESS the court requires otherwise. The expert may in any event be reqd to disclose the underlying facts or date on cross. 5. 705 & 703 Read Together a. 705may reveal admissible facts or data AND 703restricts revealing inadmissible facts or data b. Cross-Examiner may explore facts and Dataopens the door to facts that would otherwise be inadmissible c. Typical of experts to read and rely on depositions (no error). Thomas v. Metz d. Experts may attend trial. e. When inadmissible evidence is let in b/c of expert, a limiting instruction should be given upon request that information is not being let in for its truth. Engebesten v. Fairchild Aircraft. f. Experts may listen to testimony OR hypothetical Qs may be posed. 6. Effect of Daubert (should be none) a. The reasonable reliance requirement of 703 is much more narrow that the inquiry into whether experts opinion is helpful under 702.

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b. Proper delineation is Rule 703 is satisfied once there is a showing that an experts testimony is based on the type of data a reasonable expert in the field would use. DOES not go to methodology or reliabilitythat is still up for challenge under 702 if necessary. c. Distinction between 703 (regulates experts use of inadmissible information) and 702 (regulates helpfulness, adequacy of basis, and reliability of the expert opinion) also made in Daubertheld 702 and 703 not the same exclusions. i. 702 = foundation reqd; ii. 703 = quality of info. relied upon by expert (if inadmissible) viii. Ultimate Issue Rule 704 (b)No expert witness testifying w/ respect to mental state or condition of in a criminal case may state an opinion or inference as to whether the did or did not have the mental state or condition constituting an element of the crime. (part of insanity defense reform after Hinkley) 1. US v. Thigpen a. OKAY for govt to ask if schizophrenic can appreciate wrongfulness of acts B/C general nature of disease and typical effects ARE admissible; b. BUT cannot ask thinly veiled hypotheticals w/ s characteristics. c. Problemjury wants to know what are the usual characteristics and how do they relate to THIS AND cannot get to info about specific w/out testifying to the ultimate issue (mental state of criminal ). 2. US v. Brownokay to ask whether major depressive order makes a person unable to understand the wrongfulness of acts when had a major depressive order. BUT not okay to testify as to in particular. 3. AND s experts explanations of mental state in a criminal case do not get in either. (although the mental states DO get injury left w/ no info. on what to make of it) ix. Court Appointed Experts (Rule 706) 1. (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. 2. (b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus

44

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. 3. (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. 4. (d) Parties. Experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection. x. Rule 706 Basics 1. rarely used; 2. parties dont like them; 3. increase cost of litigation; 4. may have own idiosyncrasies; 5. judges know most cases will settlereluctant to appoint one; 6. gives judge lots of powercannot force someone to be an expert BUT can pick whoever judge wants. 7. Should tell jury court appointed? Up to judge. IX. HEARSAY DEFINED A. DEFINITIONS (RULE 801): The following definitions apply under this article: i. (a) Statement. A statement is 1. (1) an oral or written assertion OR 2. (2) nonverbal conduct of a person, if it is intended by the person as an assertion. ii. (b) Declarant. A declarant is a person who makes a statement. iii. (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. b. Declarant i. Declarants MUST be human. 1. People v. Centolellabloodhounds who barked out of court are NOT declarants (may be a question for an expert regarding reliability BUT not hearsay). 2. City of Webster v. Quickradar guns/machines are not declarants. ii. BUT people can use machines to generate hearsay. 1. For example, computer generated printouts can be hearsaydeclarant is the generator of the assertion. For example, a report on what people in the office said their favorite lunch spots were. (?) c. Truth of the Matter Asserted i. When law attaches significance to utterances, NOT hearsay. 1. For example, legal relationshipswords spoken to create agency relationships, promissory notes, wills, leases, and assignments are all NONhearsay when offered to show existence of legal relationships.

45

ii.

iii.

iv. v.

vi.

2. Statements that create substantive rights and liabilities are not hearsay. United States v. BellucciFDIC certificate insuring bank no hearsay b/c affects the legal rights of the parties; like a written K. If a party must prove a statement to prevail or a claim or defense, statement NOT hearsay. 1. Offers and acceptances of oral K not hearsayb/c key to legal issue in case. Creaghe v. Iowa Home Mutual Casualty (and note objective theory of K does not care if words spoken were true, only what a reasonable person would assume/expect based on the oral terms)insured statement to cancel policy has legal effect. Statements offered to prove they were said (such as false or misleading statements) NOT that they are actually true, are admissible, NOT hearsay. 1. United States v. Anfieldfalse statements (perjury) are not offered for truth and are admissible (trying to prove statements FALSE). 2. Fraud, defamation, securities fraud, perjury, slander, etc. a. Even if the ultimate issue is to prove later that the statements were false must FIRST prove they were said. b. Fraudulent statements NOT hearsay. US v. Adkins 3. US v. Jones. Threats are NOT hearsay. Laws, regulations, treaties, etc. are NOT hearsay (not true or false just are). Orders and questions usually NOT hearsay (UNLESS contain a factual assertion). 1. For example, Where is the store? Not hearsay; BUT Where is the store b/c I have to get some wine for my hot date?end of statement can be stricken. 2. Order to cancel insurance policy admissible. Creaghe (also has legal effect) 3. Demands are admissible b/c not truthful or untruthfulthey are effective or ineffective. Offeror controls purposemay offer out of court statement for another purpose other than to prove the truth. 1. Out of court statement to show effect on the listener (state of mind). a. McClure v. Statehusband shoots wife; statements of wifes infidelity non-hearsay b/c admissible to show effect on listener (listener-husbands state of mind where lower crime for provocation). i. Notedepends on legal standard, if no difference if wife was cheating in jurisdiction (no provocation) then not admissible. b. US v. Norwoodwhere received credit card and was told by declarant it was okay to use b/c had permission admissible b/c it is offered for state of mind (NOT to prove there was actually permission to use the card). c. US v. Cantrustatements made by DEA agent where s defense is entrapment are admissible (goes to state of mindhow statements effected listener- AND to legal defense AND not offered to prove truth but to prove they were SAID.) d. Vinyard v. Vinyard Funeral Homethat listener had notice of the problem (slip & fall case) and did not act. e. Statement offered to prove in no state of mind to confess (to show officer was lying). US v. Sadlers lawyers testimony was that

46

2.

3.

4.

5.

6.

7. 8. 9.

moments before confession, spoke to the attorney and unequivocally asserted innocence. (**excluded but Saltzburg disagrees**) Out of court statement to impeach another witness (show another witness is lying). a. Statement offered to prove in no state of mind to confess (to show officer was lying). US v. Sadlers lawyers testimony was that moments before confession, spoke to the attorney and unequivocally asserted innocence. (**excluded but Saltzburg disagrees**) Out of court statement to explain state of mind of declarant. a. Depends, for example, spouses statement I hate you in front of large group not admissible to prove hatred BUT b/c said in front of large group may be admissible for state of mind of declarant as circumstantial evidence. (?) Out of court statement to explain action of witness. a. For example, police officer said I arrested the b/c X said The robbed the bank. (noterelevant at suppression hearing but not at trial) Out of court statements to prove notice. a. Complaints offered to prove NOTICE not hearsay. Vinyard v. Vinyard Funeral Home b. BUT must be out of court statement knew or should have known about (negligence duty of care standard). George v. Celotex Corp. obscure unpublished report 1947 report on the dangers of asbestos not admitted for a non-hearsay (NOTICE) purpose. c. Statement to prove notice must be BEFORE (not after) an accident. Out of court statement to prove intent to commit crime (think of circumstantial evidence). a. US v. Wicksrecipe for making drugs found in s house NOT hearsay. NOT true or false (no one cares if the recipe works), just circumstantial evidence. b. Other examples, drug ledgers; drug records w/ names, $, & beeper #s (where amounts and #s were excluded); receipts (not for truth) but to link various s together. BUT if offered for another purpose, that purpose MUST be RELEVANT. a. Police statement RELEVANT at suppression hearing BUT NOT at trial. Where out of court statements offered for another purpose, a limiting instruction will be given (105). 403 objection may be made where evidence will surely be used for its truth DESPITE the limiting instruction. a. Shepard v. US

D.

ASSERTIVE AND NON-ASSERTIVE CONDUCT i. Assertive Conduct 1. 801(a)a statement is (2) non-verbal conduct of a person, if it is intended by the person as an assertion. 2. Response to a question w/ action is assertive conduct w/in 801(a)(2).

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a. When officer asks wife to give clothes husband bore day of the murder and wife gives officer clothes, assertion = Husband wore these clothes on the day of the murder. Stevenson v. Commonwealthsubject to hearsay rule. b. Pointing at something is assertive conduct. US v. Caro pointed at location of drug source to DEA agents. c. Nodding is assertive conduct. US v. Katsourgrakisfriend nodded affirmatively when asked whether he had been paid by the to burn the dinner = hearsay (BUT still admissible b/c declaration against personal interest). 3. Implied assertions are assertions w/in 801(a)(2). a. Statement should be treated as hearsay whenever it is offered to prove the truth of either an express OR implied assertion so long as the trial judge finds that the declarant intended to communicate that assertion when he made the statement. (INTENT based approach Saltzburg) i. AskDid the INTEND to communicate an assertion? If yes, then hearsay. b. Inadmissible where out of court statement assumes involvement in crime. US v. ReynoldsI didnt tell them anything about you () in conspiracy to steal a social security check. Prosecution claims not offered to prove that he didnt say anything to them; BUT problem IS offered to prove was involved. c. US v. Ybarrawifes statement that husband wont come home while police are there IS hearsay. IMPLIES that -husband lives there (and offered to prove husband lived there where a firearm was found). (*Court got it wrong.*) i. NoteYeah, he lives here and he wont be coming back until the police leave clearly hearsay. NO substantial difference b/c conveying same thing. d. A bet is NOT offered for its truth and does not assert anything (it is like an order). US v. Zenni e. Rationalemust exclude implied assertions b/c if only excluded express assertions it would swallow up the whole hearsay rule (b/c people dont talk in express assertions all the time). i. For example, 1. express = Bob is a sharp shooter. 2. implied = Bob can shot a tick of a running jaguar at 200 yards; or Have you ever seen anyone shot a rifle like Bob? ii. BOTH types of statements must be excluded if they are offered for the truth of the matter asserted b/c have same effect on jury (think Bob is a good shot w/ a rifle) and neither can be crossed or verified (BOTH types subject to hearsay justifications). ii. Non-assertive conduct

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1. A bet is NOT offered for its truth and does not assert anything (it is like an order). US v. Zenni a. Noteproblem is foundation (?) e. NO getting hearsay in the Back Doorcannot escape the hearsay rule by asking witness, Now, what did you say after X spoke to you? if purpose is to INFER what X said from context. i. US v. Checkinformant not there; only officer knows what informant told him; prosecutor cannot ask about police officers end of the conversation b/c = transparent attempt to incorporate into the officers testimony information supplied by the informant who did NOT testify at trial. f. Is there Hearsay, Ask i. Did declarant make a statement? ii. Is the assertion OTHER than one made while testifying in the trial or hearing? iii. Is the statement offered for the truth of the matter asserted? g. Hearsay Concernsthe witness cannot answer the following questions b/c no cross possible. i. Did the Declarant believe what s/he said? [sarcasmnarrative] ii. Did declarant say what intended to say? [narrative] iii. Did witness understand? [narrative] iv. Was declarant being honest, kidding or lying? [sincerity] v. Did the declarant have good knowledge? [perception] vi. Did the declarant actually see/hear the event clearly? [perception] vii. Did the declarant actually remember the event? [memory] X. STATEMENTS THAT ARE NOT HEARSAY A. RULE 801(D): A STATEMENT IS NOT HEARSAY IF i. (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, AND the statement is 1. (A) inconsistent with the declarants testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, OR 2. (B) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, OR 3. (C) one of identification of a person made after perceiving the person; OR ii. (2) Admission by party-opponent. The statement is offered against a party AND 1. is (A) the partys own statement, in either an individual or a representative capacity; OR 2. (B) a statement of which the party has manifested an adoption or belief in its truth; OR 3. (C) a statement by a person authorized by the party to make a statement concerning the subject: OR 4. (D) a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship: OR 5. (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

49

but are not alone sufficient to establish the declarants 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).
B.

PRIOR STATEMENTS MADE UNDER OATH (DECLARANT IS A WITNESS UNDER 801(D)(1)(A)) i. Prior INCONSISTENT Statementsprior inconsistent statements given under oath ARE admissible (to prove the truth of the matter asserted). 1. Grand jury testimony is admissible if inconsistent. 2. NO prior opportunity for cross-examination is required. (says in power-point but rules seems to say prior cross opportunity IS reqd b/c allows grand jury testimony IN?) 3. Definition of other proceeding includes deposition, hearing, trial, and grand jury hearing. a. Sworn statements to postal inspectors NOT a proceeding. US v. Livingston. b. Statements made to investigative agents did not qualify as other proceeding even though made under oath. US v. Day; c. Pre-trial interview w/ adverse witness even though transcribed by a court reporter was not admissible b/c not trial-like proceeding. US v. Perez. 4. INCONSISTENCY does NOT require diametrically opposed statements may be found in evasive answers, inability to recall, silence or changes in position. US v. Williams. a. Inconsistency IS NOT found if a witness genuinely lacks memory of the underlying facts previously spoke/testified aboutprevious statement DOES NOT come in; b. Inconsistency IS found if witness is feigning lack of memory b/c witness is trying to use lack of memory as a lame excuse to distance self from previous statementthen previous statement comes IN. 5. Statements admissible under R 801(d)(1)(A) can be given the same weight as trial testimony. a. Prior inconsistent statements while admissible are not SUFFICIENT as the sole proof of an allegation central to litigation. US v. Orrico. b. BUT NOTESaltzbergs power point says whether sufficient to prove case w/out supporting evidence doubtful but possible. 6. Prior inconsistent statements that do not qualify under 801(d)(1)(A) MAY be used to IMPEACH witness under 613 (even though not admissible as substantive proof)when a prior inconsistent statement is offered ONLY for impeachment and not for its truth the judge should instruct the jury accordingly (that it cannot be considered for the truth of the matter asserted b/c did not fall properly under 801(d)(1)(A)). a. Some states (CA) admit all prior inconsistent statements for their truth, but the federal rules do NOT. 7. Rationale of 801(d)(1)(A) Admission of Prior Inconsistent Statements

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a. At common law, all prior inconsistent statements [PIS] were hearsay b/c usually requires reliability AND PISs cast doubt on reliability. b. Rule reaches a compromise by admitting PIS for their truth and excluding others; c. Believe okay to come in IF (check these off for INCONSISTENT to come in) i. same witness testified previously AND was subject to cross; ii. statement is inconsistent; iii. statements was made under oath subject to penalty to perjury; iv. statement was made at a trial, hearing, proceeding or deposition. d. Okay b/c record made; oath made; justice wanted it for witness intimidation. ii. Prior CONSISTENT Statementsprior consistent statements offered TO REBUT an express or implied charge against the declarant of recent fabrication or improper influence or motive ARE admissible. 1. Prior consistent statement must be made BEFORE alleged improper motive or influence (motive to lie) arose. Tome v. US, US (1995) accused of sexual abuse of daughter; claims daughter lied to stay w/ mother. (Therefore, statements made before custody battle admissible but once child had motive to lie to live w/ mother, then inadmissible.) a. Kennedy (majority)relies on advisory committees notes; presumption that legislature did not intend to change settled law. b. Breyer w/ Rehnquist, OConner & Thomas (dissenting)NO absolute rule that post-motive statements are not relevant. May be a far more powerful motive to tell the truth working during the time of the postmotive statement c. Tome does not bind state courts (evidence Rule decision, not constitutional rights decision). 2. An express or implied charge against declarant of recent fabrication or improper influence exists when a. govt witness asked whether witness hoped to secure clemency from testimony. US v. Montaguethen can bring in prior consistent statements. b. there is excessive cross examination. US v. Cherryextensive cross challenged core of victims testimony in a sex abuse case constituted an implied charge of fabrication justifying admissibility of prior consistent statements. 3. Trial judge decides whether a charge of fabrication has been made. 4. A prior consistent statement may be introduced/corroborated by a 3rd party witness. a. Literal requirements of Rule 801 can be met even when a 3rd party witness testified to what attacked witness told him. US v. Hebeka govt choose to have 3rd party witness testify to rehabilitate credibility of star witness (after implication of fabrication to avoid prosecution).

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5. Prior consistent statements may be offered for a NON-hearsay use w/out satisfying Rule 801. a. To explain the circumstances of an inconsistent statement. b. Criminal may use prior consistent statement to rebut govt allegation that defense was an afterthought. US v. Lewis c. Rule 801 (that motive to lie must not have existed before the statement were made) NEED NOT be met in order to admit prior consistent statements which are offered solely to rehabilitate a witness rather than as evidence of truth of the matter asserted. US v. Harris 6. Rationale of 801(d)(1)(B) Admission of Prior Consistent Statements a. At common law, prior consistent statements (PCS) only admissible to rehabilitate a witness BUT not for truth. i. B/C lies often told not more truthful; no reason to encourage witness to practice testimony; waste of time to call witnesses to testify to repetitive story. b. 801(d)(1)(B) Essentially assumes that i. certain prior consistent statements are especially important; ii. triers will use them for their truth anyway b/c they are same as trial testimony (no prejudice). c. If trial testimony is believed, PCS will be believed; If trial testimony is disbelieved; PCS will be disbelieved. iii. Prior IDENTIFICATIONSmade AFTER perceiving the person ARE admissible. 1. Identification may be consistent or inconsistent w/ trial testimony. 2. Subject to cross examination does not require memory. US v. Owens, US (1988)prison counselor assaulted 4/12; unable to recall assailant 4/19; recalls 5/5; at trail cannot remember seeing assailant BUT recalls 5/5 ID. a. Majority i. Court distinguishes Rule 803(a)(3) definition of unavailability of witness to include memory loss. ii. Confrontation clause satisfied if witness is present for cross examinations. 3. BUT subject to cross examination does require testifying at trial. A witness who refuses to testify at trial is NOT subject to cross examination. 4. AND even if witness cannot recall making ID, 3rd party can testify that witness did make identification. a. US v. BlackmanFBI agent took stand to testify that bank teller had previously IDd the from a photo-spread so bank tellers previous ID was admissible even though bank teller could not ID at trial. 5. Identification based on sketch admissible as a prior identification. US v. Moskowitz 6. Rationale of 801(d)(1)(C) Prior Identifications a. prior identifications are MORE reliable than trail ids.
C.

ADMISSIONS BY A PARTY

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i. Rule 801(d)(2) Admission by party-opponent. The statement is offered against a party AND 1. is (A) the partys own statement, in either an individual or a representative capacity; OR 2. (B) a statement of which the party has manifested an adoption or belief in its truth; OR 3. (C) a statement by a person authorized by the party to make a statement concerning the subject: OR 4. (D) a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship: OR 5. (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 declarants 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).

ii. Admissions Generally 1. No showing of personal knowledge is required (unlike other hearsay). a. Statement that wolf bit child by keeper of the wolf admissible against keeper EVEN THOUGH keeper did not see wolf bite the child. Mahlandt v. Wild Candid Survival & Research 2. Trial judge decides whether a statement is admissiblemay have to find facts under Rule 104(a). 3. Admissions are ONLY admissible AGAINST parties who made or are responsible for statementslimiting instructions are giving in muli-party cases (Brutton important below). 4. Co-s or co-s generally are not party-opponents. a. US v. Harwoodstatement by co- in which co- admitted sole responsibility for crime could not be admitted in favor of the other . The govt is the party-opponent and only govt could have offered the evidence. b. BUT a counter or cross claim in a civil case could make co-s party opponents. 5. Admissions are NOT declarations against interest. a. Statement need not have been incriminatory at the time it was made for the statement to qualify as an admission. US v. Turner made statements to govt in misguided attempt to exculpate himself, statements proved false and govt admitted them at trail as evidence of s consciousness of guilt. Properly admitted as admissions. 6. Admissions still subject to 404(b) and 403.

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iii. Admissions by a Party (801(d)(2)(A)) 1. Admissions only admissible AGAINST party. a. s statement to accountant admissible against him BUT may not elicit statements he made. State v. Johnsonwillfully failing to withhold taxes. Self-serving statements to accountant not admissible. 2. Rational of 801(d)(2)(A) Admission by a Partypeople are accountable for their own statementsbased on responsibility NOT reliability; at common law admissions were exceptions to the hearsay rule; iv. Adoptive Admissions (801(d)(2)(B) 1. Rule 801(d)(2)(B) = a statement of which a party has manifested an adoption or belief in its truth. 2. If a normal/reasonable person would have denied an assertion, then it is an adoptive admission. a. US v. Hoosier convicted of armed bank robbery; witness testifies that told witness plan to rob bank; witness saw w/ money and diamond rings; girlfriend refers to sacks of money in roomall together = adoptive admission. b. Southern Stone v. SingerUnreasonable to assume failure to respond to letter is an adoptive admission UNLESS it was reasonable under the circumstances for the sender to expect recipient to respond and to correct erroneous information. 3. Mere possession of documents PROBABLY not enough to adopt statements as true. a. US v. Ordonezpossession of drug ledgers not sufficient to constitute adoptive admissions; b. BUT see US v. Gildrug ledger properly admitted for its truth as adoptive admission where ledger found on s coffee table; transactions described corresponded w/ the s activities observed by police; and entries corresponded w/ a separate ledger prepared by . 4. Admitting statement as adoptive admission is dependent upon a showing that party heard statement and understood it (under rule 104(b)). a. Before admitting a statement as an adoptive admission, judge must determine that a reasonable juror could find that the comprehended and acquiesced in the statement. US v. Joshi. 5. Party also needs opportunity to deny accusation. 6. Constitutional limitations to adoptive admissions (not on test?). a. Cannot use silence after Miranda warning. Doyle v. Ohio; b. BUT can use silence before Miranda warning to impeach . 7. Rationale of 801(d)(2)(B)fair to hold someone to statements s/he adopts. v. Authorized Admissions & Admissions By Agent 1. Rule 801(d)(2)(C) & (D) a. (C) a statement by a person authorized by the party to make a statement concerning the subject: OR

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2.

3.

4.

5.

6.

7.

b. (D) a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship: OR Agents statements are admissible against Company (one in control) BUT Companys statements are not admissible against agent. Mahlandt v. Wild Canid Survival & ResearchPoos keeps wolf at home and belongs to WC; 3 year old Daniel found w/ wolf (Sophie) and injured; no witnesses to injury; Poos talks w/ person who found child and sister & childs mother; Poos goes to WC and leaves President a note that says Sophie bit a child; Poos Orally tells president same thing; BOD minutes reflect wolf bit child; sues Poos and WC. a. Poos statements are admissible Against Poos (himself) under (d)(2)(A); b. Poos statements are admissible Against WC (b/c agent) under (d)(2)(D) within scope of employment AND during existing relationship; c. Minutes are Admissible Against WCunder (d)(2)(C) BUT not admissible against Poos b/c they are not his agent, he is theirsno authorization (C) and no agency (D) d. IRRELEVANT that Poos lacked person knowledge The agent does not have to make the statement in front of a 3rd party to be admissible. a. Reid Bros. Logging v. Ketchickancourt admitted report on s business that had been prepared by an agent at the request of despite fact that report had not been delivered to anyone other than the executives in the s business. b. MahlandtPoos note to president was admissible. An expert witness retained by a party is not admissible against the party as an agency admission. Kirk v. Raymarkexpert witness not an employee, AND witness at previous trial AND b/c expert giving expert testimony fail to see how expert is an agent for the party who called him or her. There must be some other evidence of the agency relationship OTHER than the hearsay statement itself. a. US v. Bensingercontents of statement alone are not sufficient to establish the declarants authority under (C), (D), or (E). BUT circumstantial evidence is okay to establish the agency/employment relationship. a. Pappas v. Middle Earth Condoperson slipped and fell; called condo office to complain; person who came to fix walkway; person said walkway was icy and poorly maintainedadmissible b/c unlikely under the circumstances person was just a passing by stander or that he was not an employee acting w/in the scope of employment. Scope of employment is KEY. a. Employers statements that was fired b/c of age were OUTSIDE scope of employment (b/c hiring and firing not part of their job)would be different had authority to hire & fire.. Hill v. Spiegelage discrimination case; Spiegel employees said fired b/c of age; failed to demonstrate statements were w/in scope of employment. b. Difference of opinion on whether rule applies to govt employees.

55

c. One employee can be the agent of another employee if the relationship between the two was tantamount to principal/agent. Zaken v. Boerer d. A lawyers statements may be admissible against the client as agency admissions BUT the court uses caution in criminal cases. US v. McKeon i. McKeon Court found to get in a criminal case need to examine 1. need true inconsistent statements between arguments; 2. that statements were equivalent to testimonial statements of ( authorized statements); 3. court should determine by a preponderance of evidence that the prosecution seeks to draw a fair inference from the inconsistency and that no innocent explanation exists. ii. NOTEattorney-as-agent admissions are often found in civil cases where pleadings are superseded or inconsistent positions are taken in separate litigation. 8. Personal knowledge IS NOT reqd of an agent. (Remember Poos & Sophie) 9. Judge decides whether declarant was authorized to make statement preponderance standard. 10. Judge decides whether agent was w/in scope of employmentpreponderance standard. 11. Rationale of C & Dfair to hold persons to statements authorized; respondeat superior notion; agents and employees unlikely to say untruthful negative things about employers while working for them. vi. Admissions of Co-Conspirators 1. Rule 801(d)(2)(E) a statement by a co-conspirator 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 declarants 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). 2. Who is a Co-conspirator: the out of court statement MAY be considered when the judge is determining whether the two parties are co-conspirators (and whether or not to let the co-conspirators out of court statement in for its truth). Bourjaily v. US, US (1987)Greathouse is an informant; agrees to sell a kilo of coke to Lonardo; Lonardo calls Greathouse to say has gentleman w/ some Qs; Greathouse speaks w/ friend about quality and price; deal arranged for hotel parking lot; Greathouse & Bourjaily both in cars; Lonardo takes drugs to Bourjaily; cops arrest Bourjaily and Lonardo. a. Issue: Whether Lonardos statements on the phone were admissible against Bourjaily? b. Rehnquist (majority) (3 main points) i. preponderance of evidence standard applies to factual disputes (re: evidence rulings);

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3. 4. 5. 6.

7.

ii. contents of challenged statements CAN be considered [under R 104(a) judge can consider anything NOT privileged]; 1. rejects bootstrapping argument iii. statements that satisfy a firmly rooted hearsay exception satisfy confrontation rule (if longstanding way to get evidence in, then no constitutional problem exists). c. How much independent evidence (that the parties are coconspirators) is needed to get the co-conspirators statement in? i. Need SOME amount of independent evidence to get coconspirators hearsay in (1997 amendment to rule 801(d)(2) itself); ii. Evidence must be at least fairly incriminating on its ownUS v. Silvermanbrother-sister association too innocent to connect to conspiracy. iii. Must be at least suspicion of conspiracy iv. In practice, courts almost ALWAYS find independent evidence. It is not necessary that the govt charge a conspiracy to take advantage of R 801(d)(2)(E) allowing into evidence admissions of co-conspirators out of court statements. US v. Stratton. AND the mere fact that the declarant has been acquitted of criminal conspiracy charges does not render the statements made by the declarant inadmissible under 801(d)(2)(E). US v. Peralta Courts may admit the evidence of a co-conspirators out of court statement for its truth conditionallythat will connect up and prove is a co-conspirator later in the trial. IN FURTHERANCE OF is read VERY broadlyanything that helps conspiracy. a. US v. Harrisstatements in hospital of two people who happen to stage accidents to defraud insurance companies discussing how to better stage accidents enough to consider co-conspirators B/C furthers conspiracy. i. casual admissions or attempt to stage accidents better? b. The statement must be made w/ intent to further the conspiracy (statement to blame or point the finger on other co-conspirators or to blow off steam will NOT be admissible). i. blowing of steam or anxiety to girlfriendNO; ii. keeping other co-conspirators abreast of what is going on; what went wrongYES. iii. giving information on a drug deal to an undercover copYES. c. Statements to law enforcement admitting guilt will not be in furtherance even if made during the conspiracy. d. Statements made in furtherance of ANOTER conspiracy may be admitted. DURING THE CONSPIRACYconspiracy ends when all the goals or met or all conspirators are arrested.

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a. The conspiracy may continue if all the proceeds have not been distributed. US v. Mojica-Baezbank robbery conspiracy not over until all $ divided; b. If plan abandoned not during conspiracy. US v. Tsegang members statements made 8 months after attempted murder not DURING conspiracy b/c by then clear plan abandoned. c. Statements made to evade detection may be DURING conspiracy. i. BUT usually when acts of concealment are done after the central objectives have been attained, for the purpose of covering up the crime they are inadmissible. US v. Serrano; ii. Otherwise the SOL on conspiracy cases would never end. Grunewald v. US, US. d. After all conspirators arrested, no longer DURING. US v. Perez-Garcia error to admit statement mad after and all co-conspirators had been arrested and conspiracy had been terminated. 8. NOTEthe person to whom the statement is made does not have to be a co-conspirator. (just needs to be said BY a co-conspirator (declarant = coconspirator); could be to spouse, undercover cop, etc.) vii. Relationship Between Agency and Co-Conspirator Admissions 1. City of Tuscaloosa v. Harcros Chemicalsprice fixing conspiracy alleged; SJ for on all claims; a. Late CEO of 1 -company admits conspiracy to friends; admission is admissible against HIS company under 801(d)(2)(D) scope of employment; NOT admissible against other s b/c NOT in furtherance of the conspiracy (to brag to friends); b. Double Hearsaywidow of sales manager says, My husband told me that Ragusa (VP for Harcros), said We are fixing prices. i. Ragusas Statement is (d)(2)(D) w/in scope of employment; ii. Husbands Statement FailsNOT involved w/ product being price fixed so NOT w/ scope of his employment (if was then (d) (2)(D) would apply to husband, too iii. SO Inadmissible. D. RATIONALE OF EXEMPTIONS i. No practical difference between exemptions and exclusionsif an out of court statement fits into EITHER it is admissible (and if it fits into NEITHER it is excluded); ii. Common law called everything exceptions. XI. HEARSAY EXCEPTIONSDECLARANT UNAVAILABLE A. RULE 804. HEARSAY EXCEPTIONS i. (a) Definition of unavailability. Unavailability as a witness includes situations in which the declarant 1. (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or 2. (2) persists in refusing to testify concerning the subject matter of the declarants statement despite an order of the court to do so; or

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3. (3) testifies to a lack of memory of the subject matter of the declarants statement; or 4. (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 5. (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarants attendance or testimony) by process or other reasonable means. 6. 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.
B.

804 GENERALLY i. For hearsay exceptions that require unavailability, must establish (1) unavailability and (2) the exception. ii. Trial judge decides factual questions under Rule 104(a) (preponderance standard for judge). iii. Burden of proving entitlement to a rule is on the proponent (whoever wants to invoke the exception to get the hearsay in has the burden of showing (1) unavailability and (2) elements of the exception.) PRIVILEGE & REFUSAL (804(A)(1) & (A)(2) i. The party who asserts privilege has the burden of proving it. ii. MUST call the witness and witness must invoke 5th Amendment right against selfincrimination in order to have witness be unavailable under 804(a)(1). 1. US v. Pelton & Richcannot assume witness will invoke 5th Amendment right against self incrimination). iii. Judge must exempt witness from testifying OR order witness in contempt for improper refusal in order to be unavailable under 804(a)(1) or 804(a)(2). 1. US v. MacCloskeyprivilege of unavailability requires a ruling by the court; more than just asserting the privilege in open court. iv. A party cannot claim privilege AND unavailability at the same time. 1. US v. Kimball cannot claim 5th Amendment privilege and that therefore that is unavailable so wants to offer transcript of own testimony at first triala seeking to testify and make exculpatory statements must face cross examination. LACK OF MEMORY (804)(A)(3)) i. When trial judge determines witness memory is gone, then witness is unavailable under 804. 1. US v. Amayawitness losses memory after auto accident; wanted continuance to permit expert testimony as to likelihood of memory recover (trial judge has a lot of discretion in memory b/c trial judge determines availability under 104(a) and review for abuse of discretion)no guarantee of memory recovery.

C.

D.

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ii. Memory doesnt need to be permanently gone forever but must be gone for the most part. 1. North Miss. Comm. v. Jonesinsufficient lack of memory for unavailability where witness remembered the general subject matter of a conversation but could not remember certain details.
E.

DEATH OR DISABILITY (804(A)(4)) i. 804(a)(4)death or then existing physical or mental illness or infirmity. ii. Requires serious condition and corroboration. 1. US v. Faisonwire fraud case involving stolen checks; key witness testifies; hung jury; suffers heart attack and is currently in hospital; defense says will wait for key witness; trial judge did not weigh factors (exercise discretion)remand for trial on the issue of whether key witness would be available to testify at a new trial, if not conviction affirmed. (? why is conviction affirmed? b/c admitted hearsay at trial and wanted real witness?) 2. Surgery that would leave indisposed for one to weeks sufficientMutuelles Unies v. Kroll; 3. BUT uncorroborated statement of counsel that witness childs illness insufficient to permit introduction of prior testimony. US v. Acosta. ABSENCE: NO DEPOSITION (804(A)(5) i. Requires attempt to depose for (b)(2) [refuses to come], (b)(3) [memory], (b)(4)[death or disability] but not (1)[proper privilege] or (6) [wrongdoing]. ii. Practically, only matters in declaration against interest cases (b/c others fall under exceptions that do not require unavailability. 1. If deposition made, then statements falling under 804(b)(3) are NO LONGER available for their truth AND can be used to impeach declarant under 806. 2. Campbell v. Colemanminor s alleged were severely burned by a defective gasoline lantern that exploded; Colemans theory was that babysitter overfilled the lighted lantern w/ gasoline, panicked, and threw the lantern out of the house on the children; Coleman deposed babysitter where babysitter denied anything to do w/ accident; Hayes also made statements to various people implicating himself in the accident and they were introduced as declarations against interest. Coleman contended Hays was unavailable on the gound of absence b/c they made a good faith effort to find him. Trial court admitted; BUT Court of Appeals revd b/c Hays was not ABSENT w/in the meaning of 804(a)(5). a. Section concerned w/ the absence of TESTIMONY not the absence of the declarantthus since depos existed declarants testimony was available AND hearsay statements b/came inadmissible. b. **Depo preference creates anomalous results.** c. **Odd to punish Coleman for deposing babysitterdue diligence.** iii. Rationaledeposition as prior testimony is better than hearsay b/c opportunity for cross AND recorded.

F.

g. Procurement or Wrongdoing (804(a)(5))

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i. Not unavailable as a witness if absence is due to procurement of wrongdoing or proponent of statement for the purpose of preventing the witness from attending or testifying. 1. For example, threatening the witness w/ death to him or his family does not make the witness unavailable. ii. Negligently making someone unavailable does not bar hearsay exceptions for unavailability. US v. Mathisaccidentally let the wrong person out of prison. iii. If you free witness from a subpoena, then it is considered wrongdoing and witness is not unavailable for hearsay exception purposes. iv. Government can use their immunity power selectively and unfairlybut the witnesses who invoke their 5th Amendment rights are still unavailable for the purpose of the hearsay rule. US v. Dolahrefusing to grant immunity is not positive action to prevent a witness from testifying that counts as wrongdoing under 804(a)(5). 1. would be different if the govt juggled the sentencing dates to make sure the s still had to invoke their 5th Amendment rights at trial so hearsay testimony will get in. 2. Requires POSITIVE conductnot simply failure to act. v. End result is LOSE-LOSE situationif a party wrongly procures or acquiesces in conduct that results in the unavailability of the witness 1. a statement by the witness is admissible AGAINST the party regardless; 2. that party cannot claim unavailability to get in desired/good hearsay for self.
H.

UNAVAILABILITY EXCEPTIONS (804)(B) i. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 1. (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. 2. (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 declarants death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. 3. (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 4. (4) Statement of personal or family history. a. (A) A statement concerning the declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or

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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. (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. (5) [Other exceptions.] [Transferred to Rule 807] 6. (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.
I.

RULE 804(B): UNAVAILABILITY EXCEPTIONS GENERALLY I. REMEMBER, MUST PROVE (A) UNAVAILABILITY FIRST. FORMER TESTIMONY (804(B)(1)) i. Requirements 1. UNAVAILABLE; 2. former testimony a hearing OR deposition; 3. the party against whom the testimony is offered 4. in a civil action or proceeding a predecessor in interest; 5. hand an opportunity AND 6. similar motive to develop the testimony by direct, cross & redirect. ii. Rationaleprior opportunity w/ similar motive is sufficient, makes it fair to admit hearsay. iii. Predecessor in Interest & Similarity in Motive 1. Expansive reading: similar motive = predecessor in interest. In the Matter of Johns-Manville/Asbestos Casesfinds entities so similarly related overlapping officers & Board of Directors that are same entity. Before cases brought by end users; NOW cases brought by employees BUT court says both cases involved the issue of whether a warning label was appropriate on asbestos products. Drs. testimony admissible. a. Suppliers not predecessors in interestbut only received limiting instruction. 2. Narrow Alternativerequires some juridical relationship between parties. iv. Key: the party who the evidence is offered AGAINST needed to have an opportunity to examine the declarant and that party needed to have a similar motive at the previous examination. 1. In civil cases, it will suffice that a predecessor in interest had an opportunity & motive to examine the testimony similar to that of the party against whom the testimony is now offered. 2. Grand jury testimony is not admissible under 804(b)(1) against a criminal b/c the had no opportunity to cross examine a witness in a grand jury proceeding. 3. BUT a grand jury proceeding may be admissible against the government on a case by case basis. US v. DiNapoli

J.

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a. Sometimes the prosecution will have a similar motive at trial and at the grand jury AND sometimes it wont. b. BUT DiNapoli court found dissimilar motivesRARE that exculpatory grand jury testimony will be admissible against the govt under Rule 804(b)(1). c. Supreme Court rejected s right to use exculpatory grand jury testimony b/c of plain meaning of rule means ONLY allowed to use the testimony if there was a similar motive. US v. Salernocourt rejected adversarial fairness argument that govt shouldnt be able to only offer immunity only if witness gives good testimony and if give exculpatory then no immunity AND then cant use grand jury exculpatory testimony.
K.

DYING DECLARATIONS (804(B)(2)) i. Requirements 1. UNAVAILABLE; 2. prosecution for homicide OR civil proceeding; 3. believes death is imminent; 4. concerning cause or circumstances of what declarant believes to be impending death. ii. Declarants belief in impending death (hard to prove) 1. US v. Quintanamanslaughter conviction; deathbed statement of Lopez; describes May 21 Event; May 26th made dying declaration to Lopezs family attorney; trial judge did not abuse discretion in finding that death was imminent. 2. Must be a settled hopeless expectation that death is near at hand. People v. Nieves 3. Relevant (Nieves) factors to determine belief in impending death are a. statement by declarant as to condition or expectations; b. statements made by medical personnel to declarant as to severity; c. nature and severity of wound as apparent to declarant; d. whether condition appeared to be declining or improving when statement was made; e. whether actions normally associated w/ imminent death such as asking for last rites, disposing property or attempting to make arrangements for care of family members. iii. Personal knowledge is required by the declarant. Shepard v. US, US 1933 suspicion or conjecture is insufficient. iv. Dying declarations can be used by the or the prosecution. v. Rationalewill not die and meet God w/ a lie on lips. vi. PracticallyBETTER to go w/ exited utteranceb/c almost all dying declarations (not Quintana) are excited utterances under 803(2). STATEMENT AGAINST INTEREST (804(B)(3)) i. Requirements 1. UNAVAILABLE; 2. statement which at the time of making was so contrary to declarants

L.

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pecuniary OR proprietary interest; OR tended to subject declarant to civil or criminal liability; OR that a reasonable person would not have made believing it to be true; BUT a statement made to expose to criminal liability and offered to exculpate the accused is NOT admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. ii. Income tax statements are declarations against interest to prove a floor AND each deduction on return is declaration against interest to prove a ceiling. Ghelin v. Johnson. iii. When Sufficiently against Interest 1. Williamson v. US, US (1994) (plurality)Harris stopped on Highway; consents to search and drugs are found. Harris says cocaine belongs to Williamson in telephone conversation (says got cocaine from Cuban and delivering to a dumpster); Harris meets agents and reiterates the telephone conversation; Harris recants, admits lying, and said Williamson was traveling with him in another cardid not want statement on record and did not sign it. Harris invoked 5th Amendment immunity and was held in contempt. a. OConnerNarrow reading of statement against interestonly declarations or remarks w/in a narrative that are self-inculpatory. i. OConner & Scaliaeach statement must be examined (remands for statement by statement analysis) (only OConner & Scalia); ii. Ginsberg w/ Blackmun, Stevens, Souterstatements inadmissible B/C not against interest here; criminal was trying to cooperate and make a deal and nothing he said was a declaration against interest. iii. Kennedy w/ Rehnquist & Thomascollateral statements should be admitted EXCEPT 1) self-serving statements (blame-shifting statements) should be excluded and 2) if statements said b/c of motivation to obtain favorable treatment then entire statement should be excluded. iv. Case remanded b/c 5 justices do not agree w/ Ginsberg5 votes for statement by statement analysis; 4 votes for statements NOT against interest. b. Statement I did it and that son had nothing to do w/ it IS a statement against interest (even if exculpating son). US v. Paguiofather makes statement to exculpate son; transfers all handled by father; now father on the lamb; FULL statement admissible b/c was against fathers interest to criminally implicate himself. 2. So far contrary to language in Rule suggests statement need not be totally disservingBUT interpreted to require more directness. a. Not disserving where did not admit anything remotely criminal but only admitted to being in the room w/ weapons. US v. Butler b. Statement not sufficiently disserving to qualify under 804(b)(3) where the statement did not explicitly expose self to criminal liability declarant must squarely and unequivocally implicate self or expose to civil liability. US v. Hardwoodtwo guys in van w/ drugs; both blamed other; declarant says that other guy in the wrong place, at the

3. 4. 5. 6.

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wrong time and that it would have happened to anyone driving w/ him. Excluded statement and found no error. c. Must look at context to analyze how disserving a statement is. US v. Silversteindeclarants statement that killed prison guard NOT sufficiently disserving b/c already serving 3 life sentences. d. Statements implicating 3rd parties may qualify as sufficiently disserving BUT unlikely for post-arrest statements made to police. 3. After Williamson, statements like Joe and I robbed the bank questionable for how admissible they are when offered to implicate Joe. Lower courts have tended to distinguish between statements made to police officers after arrest (self serving) and statements made to other people before arrest (disserving). a. US v. Mosesdeclarant admitted statements to friend before arrested that friend said he was giving another guy (-Moses) kickbacks and taking care of him money-wise. Statements of declarant implicated him and . 4. Requirement of corroboration to prove not just trying to get off BUT telling truth (when make a blaming & disserving statement in one) ONLY imposed on . a. some courts look to independent evidence to see if supports or contradicts declarants statements; b. other courts look only at circumstances of the declarants statements; c. Some factors from the case law to determine whether declarants exculpatory statement against interest is truthful are i. timing & circumstances statement made; ii. declarants motive in making statement and whether reason to lie; iii. whether declarant repeated statement and did so consistently; iv. party or parities to whom statement was made; v. relationship between the declarant and the opponent of the evidence; vi. nature and strength of independent evidence relevant to the conduct in Q. vii. **Credibility is NOT a proper factor to consider.** 5. BUT has resulted in some courts requiring corroboration for all parties. iv. Declarations Against Interest vs. Party Admissions 1. Admissions exception covers statements by party or agents. Admitted b/c of responsibility (not reliability). 2. Declaration against interest is made by a non-party to the action AND the declarant must be unavailable for trial. Admitted b/c thought to be reliable. v. Rationaledeclarants dont make such statements unless they are true, except one w/ nothing to lose may spare another.

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M.

FAMILY HISTORY (804(B)(4)) i. Requirements 1. Inadmissibility 2. concerning declarants OWN birth, adoption, marriage, divorce or legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history 3. even though declarant had no means of acquiring personal knowledge; OR 4. statement concerning another person regarding the above, 5. IF declarant was related to the other by blood, adoption, marriage or was so intimately associated w/ others family to be likely to have accurate info. ii. Relationship by blood 1. Queen v. Hepburndoes not allow family pedigree evidence b/c s are slaves. a. Duval dissentimportant to admit pedigree evidence especially when freedom hinges on it. iii. Rationale: necessity and practicality FORFEITURE BY WRONGDOING (804(B)(6)) i. Requirements 1. Inadmissibility 2. engaged in wrongdoing; 3. succeeded in getting the witness NOT to come. ii. Co-conspirators waive 6th Amendment confrontation clause AND hearsay exceptions when as a result of certain actions that are in furtherance, within the scope, and reasonably foreseeable as necessary or natural consequence of an ongoing conspiracy. US v. Cherry 1. Co-conspirators waive confrontation of witness when witness was murdered in furtherance of the conspiracy and was foreseeable witness would be murdered and co-conspirators did not stop it; 2. Waiver of 6th Amendment Confrontation Clause and Rule 802 by misconduct. 3. Actual knowledge IS NOT required. 4. Decided under 104(a)preponderance of the evidence standard. 5. Remanded for determination of whether murder was w/in scope, furtherance; and reasonably foreseeable as a necessary and natural consequence of an ongoing drug distribution conspiracy involving the s. III. ANYcriminal or civil, prosecution or party who acquiesces in wrongdoing w/ intent to render declarant unavailable forfeits right to object to the unavailable declarants hearsay statement. 1. For example, if prosecutor intentionally intimidates a witness so that witness refuses to testify, prosecution loses right to interpose hearsay objection w/ respect to any statement that he witness may have. 2. Applies in civil cases.

N.

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XII. HEARSAY EXCEPTIONS NOT REQUIRING DECLARANT UNAVAILABILITY a. Present Sense Impression (803(1)) i. (1) Present sense impressiona statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. ii. 3 requirements of Rule 803(1). US v. Campbell. 1. statement must describe or explain the event prompting it; 2. the declarant must have perceived the event he is describing; 3. the description must be substantially contemporaneous w/ the event. iii. Time period for substantially contemporaneous w/ event not exact BUT short amount of timecase by case determination. 1. Several minutes okay. US v. Parker told bag handler bag was his several minutes before confiscated. 2. 23 minutes okay (in other outline couldnt find in book?) 3. Statement made 15 to 45 minutes after event no contemporaneous enough and thus inadmissible. Hilyer v. Howat Concrete 4. REQUIRES EVIDENCE OF TIME LAPSEif there is no evidence, circumstantial or otherwise, as to the time lapse, statement is inadmissible. iv. Requires personal knowledgewitness must have perceived the event. 1. Medler v. Everest & Jenningscourt properly refused to admit testimony by police offer about what he was told by witness since there was insufficient evidence that the witness had actually perceived the event. v. Most federal courts read a corroboration requirement into 803(1)may be found in in-court testimony of the declarant or testimony from another person who also saw some of what the declarant saw or circumstantial evidence that the event occurred. 1. Govt through hearsay statement and corroborative witnesses together can prove that an event occurred as the declarant described it sufficient to satisfy 803(1). US v. Blankeys charged w/ extortion. Victim said, stuff like tonight cost me a hundred dollars. Even though declarant unavailable and no one else knew what went on in the back there was sufficient circumstantial evidence witnesses could testify to events leading UP to and FOLLOWING the meeting in the back of the shop. Testified that s acted in a very intimidating manner and that s and declarant briefly met in the back of the shop and s came out looking satisfied. vi. Rationalenot enough time to lie; to reflect. b. Excited Utterance (803(2)) i. (2) Excited utterancea statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. ii. Requirements 1. statement made relating to a startling event or condition 2. while declarant under stress or excitement 3. caused by the event or condition.

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iii. When the declarant is unknown and absent it is almost impossible to establish the requirements for admitting the statement especially personal knowledge and spontaneity. 1. Miller v. Keatinghere no proof unknown declarant actually witnesses the accident. 2. BUT not impossible if declarants personal knowledge CAN be established. US v. Medicobystander ID of license plate to security guard admissible where bystander never found BUT personal knowledge established by fact that the guard saw him look in the direction of the getaway car as he relayed the license number. (present sense impression) iv. Statements too for removed in time to be an excited utterance. 1. 3 hours too long of time for an excited utterance. US v. Marrowboneeven where sexual assault victim went home and told his mother what happened immediately; then called police; then called police again; police did not arrive for 3 hours and then child victim gave statement to police officer. 2. Some courts allow longer amounts of time for SMALL children who allege sexual abuse b/c of belief less likely to fabricate story. 3. Must be so close in time as to have continuous excitement or stress from the time of the event to the time of the statements. 4. NO hard and fast ruleshorter after event, more likely the excited utterance rule will apply. 5. Factors to determine if a significant amount of time has passed between the event AND the utterance; a. nature of startling eventmore startling longer time okay; b. whether declarant in fact appeared to be excited in between; c. whether declarant was unconscious for all or part of the time between time short if the declarant is unconscious b/c no time to fabricate; d. nature of declarantchildren longer time; e. fact that statement is self-serving to declarant (not dispositive); f. if statement describing a previous event also predicts a future event something bad is going to happen shows deliberative thought and not excited-ness. v. Proof of the event can be established w/ the declaration itself. Rule 104(a)allows trial judge to rely on inadmissible evidence BUT ordinarily more will be required. SUCH AS 1. the appearance, behavior, and condition of the declarant may establish that a STARTLING event occurred; 2. or independent testimony such as that of an eye-witness. vi. Some courts have held that the event CANNOT be startling if the declarant planned for the event to occur. 1. US v. Knifepre-planned shooting of a police officer cannot be a startling event when it occurs. vii. BUT if not all of the factors are up to the declarants control, then the element of surprise may create excitement when the event occurs. 1. US v. Mooresecretary planned to expose her boss as a bribe taker if and when she found evidence; actually finding the evidence was starling event b/c the

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event was not within the declarants control; even though hoped for it was nonetheless a surprise when the event occurred. viii. Present Sense Impression v. Excited Utterance 1. 803(2)declarant MUST be excited; MUST relate to a startling event or condition; no express contemporaneous requirementtime can be a little longer. 2. 803(1)declarant MUST be speaking so close in time to the event that he has no opportunity for reflection; MUST describe an event; YES express contemporaneous requirementsmall amount of time allowed. 3. A statement could fall under both. c. Statement of Existing Mental, Emotional or Physical Condition (803(3)) i. (3) Then existing mental, emotional, or physical conditiona statement of the declarants 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 declarants will. ii. Requirements 1. states declarants THEN existing/present physical, emotional, or mental condition; OR 2. intent, motive, planscurrent intentions to do something in the future. 3. BUT statements looking backwards NOT admissible. (exception wills b/c necessityperson who makes will is not longer around; need to know what person thought) a. For example, My leg hurts is admissible; BUT My leg hurts b/c Bob hit me the following part is inadmissible. b. My leg hurt yesterday is NOT admissible. 4. NOTE803(3) DOES NOT permit a statement of memory OR belief to prove the fact remembered or believed. iii. 803(3) codifies Hillmon. Mutual Life Insurance Co of NY v. Hillmon, US (1892) Hillmon sues on 3 insurance policies; uses defense of fraud; all 3 cases consolidated; defense claims Walters was killed at crooked creek (not Hillmon); 2 mistrials where jury could not agree; Walters sister received letter she lost. 1. Hearsayletters that Walters sister received that said I expect to leave Wichita on or about March 5 w/ a certain Mr. Hillmon, and one girlfriend received, I never expected to see when I left home, as I am going w/ a man by the name of Hillmon, who intends to start a sheep ranch. 2. Gray (Majority) a. [practical requirement] A mans state of mind or feeling can only be manifested to others by countenance, attitude, or gesture, or by sounds or words, spoken, or written; b. [necessity] The existence of a particular intention in a certain person at a certain time being a MATERIAL FACT to be proved, evidence that he expressed that intention at the time is as direct evidence of the fact as his own testimony that he then had that intention he would be;

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c. [reliability] while he is still alive his own memory of his state of mind at a former time is not more likely to be clear and true than a bystanders recollection of what he said. d. Letters were competent NOT as narratives as facts BUT as evidence that shortly before time when evidence of disappearance had the INTENTION of going w/ Hillmon. iv. When 803(3) codified disagreement over whether statement of declarants state of mind can be admitted to prove the subsequent conduct of a 3rd party. 1. House saidone persons statement shouldnt be admissible to show 3rd party intent. 2. Senate did not say. 3. 2nd circuit took middle-of-road approachallowing a declarants statement of intent to be admitted to prove the conduct of a non-declarant only when there is independent evidence which connects the declarants statement w/ the nondeclarants activities. v. 803(3) statements by victims subject to Rule 403 analysis. 1. Evidence of a declarants state of mind is admissible ONLY when it creates some inference w/ respect to a disputed issue AND then only if probative value of the statement in proving the declarants state of mind is not substantially outweighed by unfair prejudice suffered by the non-offering party. 2. Declarants state of mind (often fear of the ) is admissible in a homicide case if there is some substantial degree of relevance to a material issue in the case. (US v. Brown) Three classic cases where declarants state of mind is admissible a. if claims self defense, s assertion that deceased first attacked him may be rebutted by the extrajudicial declarations of the victim that he feared the (thus rendering it unlikely that the deceased was in fact the aggressor in the first instance); b. where seeks to defend on the ground that the deceased committed suicide, evidence that the victim had made statements inconsistent w/ a suicidal bent are highly relevant; c. claim of accidental death, for example where s gun went off on accident, then deceased statements of fear as to guns or to himself (showing would never go near and guns) are relevant in that they would tend to rebut his defense. 3. Victim says, I feel b/c he is a killer. MUST analyze probative value of refuting self defense claim AGAINST prejudicial value that evidence will be used for its truth rather than state of mind. 4. If IMPOSSIBLE for jury to use the evidence for ANOTHER specified purpose other than for it truth, then evidence is NOT admissible AND reversible error. Shepard v. United States (1933) charged w/ poisoning wife w/ bi-chloride of mercury. Nurse heard, Dr. Shepard poisoned me. Admitted as dying declaration. Overturned b/c no impending death or absence of hope. was in love w/ other woman. a. Evidence i. Hearsay, Dr. Shepard poisoned me.

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ii. Other Evidencewife became ill, developed severe case of trench mouth; used mouthwash containing mercuric chloride 5 times a day, may have absorbed enough to die. iii. Some evidence may have tended to show suicidal intent; iv. Still other evidence may cast doubt on sufficient mercury to cause death at all. 1. Prosecution called nurse, said wife said she was going to di and prosecution offered testimony b. Decision i. A trial becomes unfair if testimony may be used for a nonproffered purpose; ii. Discrimination so subtle is a feat beyond the compass of ordinary mindsevidence rules are for ORDINARY minds (must adhere to common sense); iii. When the rist of confusion is so great as to upset the balance of advantage, the evidence goes OUT. iv. MUST distinguish between declarations of state of mind about the future (admissible) and declarations of mind about the past (inadmissible) OR will swallow up hearsay rule. c. ALSO Saltzburg notesno foundation that wife had personal knowledge that her husband poisoned her 5. Comparison of Hillmon & Shepard a. Hillmonallows declarants state of mind statement to be offered to prove the SUBSEQUENT conduct of the declarant when probative (under 403); (intent = okay state of mind) b. Shepardprohibits the state of mind statements to be offered to prove PRIOR conduct of ANYONE (memory = okay state of mind); AND here there was no foundation of personal knowledge vi. Rationalespontaneity? Necessity! How else would anyone ever know what anyone else was feeling/experiencing [often difficult to observe someone elses mental, emotional or physical condition].
D.

STATEMENT OF TREATMENT OR DIAGNOSIS (803(4)) i. (4) Statements for purposes of medical diagnosis or treatmentstatements 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. ii. Requirements 1. for medical diagnosis OR treatment; 2. present AND past symptoms come in [backward looking statements are in]; 3. cause pertinent to diagnosis iii. Statements by non-patients are admissible IF for the purpose of getting a medical diagnosis/treatment for patient. iv. Statements must be made in order to CAUSE diagnosis.

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v.

vi.

vii.

viii. ix.

1. Rock v. Huffco Gasemployee sues for injuries for 2 accidents. 1st foot fell through rusted step, then helicoptered to Dr. and given plaster splint; 2nd out 8 days, returns to work, and one month later claims slipped on grease. a. Hearsay #1 = 1 co-worker says rock told him he would fake an injury. i. Rock is dead, so no 801(d)(2); ii. Statement is 803(3) Statement of Intent b. Hearsay #2 = another co-worker says rock told him he faked a slip and fall accident. i. not an admissions against heirs; not 803(3) ii. arguably declaration against interest c. Hearsay #3 = rocks statements to Drs. treating injury i. Dr. said trauma was all that matter AND NOT details, therefore NOT 803(4) b/c NOT in order to cause diagnosis. Statements said to treating physicians the strongest BUT statements to family members and social workers have been held admissible under the medical diagnosis exception so long as statement made for the purposes of obtaining medical treatment or diagnosis. Statements attributing FAULT are excluded by the rule. 1. For example, My back hurts b/c I slipped on some ice at a poorly maintained bus stop. Statement struck by car = in; but that car ran red light = NOT in. Adding red light does NOT effect treatment. EXCEPTION for statements attributing fault that involve child abuse (and maybe spousal abuse and sexual assault). 1. Statement from child-declarant to medical personnel concerning abuse is ordinarily held admissible under the Rule. 2. rationalepertinence prong satisfied b/c pertinent to treatment of child-victim b/c must also be concerned w/ future safety; 3. for treatment motive many courts require finding the child understood was speaking to medical personnel and needed to tell the truth in order to be properly treated. 4. some courts have extended child-abuse exception to spousal abuse. US v. Joe 5. and extended to adult-victims of sexual assault, b/c of possibility of STDs the victims ID of perpetrator is pertinent to victims treatment. Statements to medical experts in the preparation of litigation ADMISSIBLEbut jury may be told was told to expert only for purpose of weighing testimony. 1. Technically, Dr. is retained for a diagnosis. Rationale 1. Dr. will mistreat the faker; 2. Dr. will see fraud; 3. Necessity.

E.

DOUBLE HEARSAY (805)

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i. Rule 805. Hearsay within HearsayHearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. ii. RequirementsMUST have hearsay exception for EACH statement. iii. BE careful to see ALL hearsay in a statement. 1. Many business records and public records have hearsay w/ in a record; Past recollection recorded may contain hearsayexample, cop interviews witness.
F.

BUSINESS RECORDS (803(6)) i. (6) Records of regularly conducted activitya 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. ii. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6)evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. iii. Requirements for Business Records 1. memorandum, report, record, or data compilation in ANY FORM 2. of acts, events, conditions, opinions or diagnoses; 3. made AT or NEAR the time BY or FROM information transmitted by a person WITH knowledge; 4. IF kept w/ in the course of regularly conducted business activity; 5. AND it was the regular practice of that business activity to make such compilations; 6. as shown by testimony of the custodian or other qualified witness; 7. OR by certification; 8. UNLESS the sources of the information or the method or circumstances of preparation indicate lack of trustworthiness. 9. **BUSINESS includes institutions, professions, occupations, calling of every kind whether or not for profit.**

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iv. The Duty Requirementrecording/compilation must be taken b/c of the DUTY OF THE REGULAR BUSINESS TO REPORT THE INFORMATION ACCURATELY. 1. A private memo should NOT be admitted where the memo is NOT made in the pursuance of any duty owning by the person making it OR when made upon information derived from another who made the communication casually & voluntarily and NOT under the sanction of duty or obligation. Johnson v. Lutz policemans report is admissible. 2. Kelly v. Wassermansocial workers report is admissible b/c social welfare was required to keeps such a report and the person who made report individually interviewed . 3. US v. Vigneau involved in drug distribution; sends money orders from NE to TX by Western Union; sender writes name on form on left along w/ recipients name; clerk fills in on right side; computer generates control #. s name on to send to forms is NOT business record b/c NO DUTY to make sure receivers name is correct b/c NO verification of ID by Western Union when recipient picked up money order. 4. US v. Blandthe ATF form sufficient for double hearsay problem that she in fact signed the form purchasing the gun and the manager testified that the employee completing the form has knowledge of the transaction at the time it occurred. OKAY b/c 1) since federal regulations REQUIRE ID of purchaser AND 2) purchasers are under a legal duty to provide truthful information the double hearsay problem satisfied. v. The Double Hearsay Problem of a Business Record 1. can be proved by legal or business DUTY to report accurately; 2. OR the underlying statement satisfies ANOTHER hearsay exception; 3. OR the underlying statement is NOT offered for its truth. vi. Can establish foundation for business records by ANYONE who has acquired knowledge about how records are keptcan testify about regularly conducted business activity. vii. MOST courts construed the ordinary courts and regular practice strictly (minority construe broadly). viii. Courts are VERY suspicious of business records in preparation for litigation. 1. Palmer v. Hoffman, USaccident report may affect the business in that it affords information on which management may act, BUT is not a record made for the systematic conduct of the business AS a business. NOT in regular course of business w/in 803(6)). **Business of railroads is railroading not investigations.** 2. MOST courts have read Palmer that a records in anticipation of litigation are not in the normal course of business to prohibit records favorable to the party preparing them = suspect motivation. 3. BUT if a report is UNFAVORABLE to a party who prepared them, then admissible. ix. Business records of a REPORTER 1. NOTES may be business records; WHAT 3rd party says are not.

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x. Trustworthy requirements keeps records OUT but cannot get records that fail under another prong IN. xi. Computerized records require EXTRA foundation respecting the reliability of the computerization (usually) BUT the standard is the sametreated like paper records. xii. NOTE that there are 3 hearsay exceptions that overlap w/ the Business Records Exception 1. 803(5) Recorded Recollectionmemorandum or record concerning a matter about which a witness ONCE had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness memory and to reflect that knowledge correctly. MAY be read into evidence but may NOT be received as an exhibit UNLESS offered by an adverse party. 2. 803(7) Absence of an Entry in a business recordcan be brought in to prove the nonoccurrence or nonexistence of the matter, if the matter was OF A KIND of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
G.

PUBLIC RECORDS (803(8)) i. (8) Public records and reportsrecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth 1. (A) the activities of the office or agency, OR 2. (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 3. (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. ii. Requirements 1. activities of office or agencyadmissible in ALL cases 2. matters observed by law enforcement; 3. factual findings admissible in civil cases and against govt in criminal cases. iii. Liberal reading of 803(8) requireda court may not exlude an investigative report merely b/c it is an opinion. Beech Aircraft v. Rainey, US (1988)navy training flight crashes; kills lt. commander Rainey and ensign Knowlton; s sued Beech alleging product defect rollback; Lt. Commander (JAG) prepares investigative report; determines pilot error most probably cause of crash. Verdict for Beech. Reverses error in admitting opinions; Appeals Reverses; Supreme reverses and remandsnot necessarily inadmissible. 1. Fact findings include conclusions AND opinionsdifficult to draw the line (is Engine operating at reduced power a fact or opinion?); 2. Liberal reading of 803(8) consistent w/ 701-705; 3. Safeguards are factual findings require factual investigations; trustworthiness requirement IS present in rule.

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iv. LIMITATIONS of 803(8)imposed by the trustworthiness clause 1. opinion, to be admissible, must be made by a QUALIFIED person using reliable methods, and must be based upon sufficient information and investigation. If the govt official would not be able to satisfy the standards for an EXPERT to testify at trial, then no reason to admit officials hearsay statement; 2. opinions nothing more than legal conclusions are excluded. 3. if report is not final report, merely preliminary, not admissible b/c not considered containing factual findings; 4. if report revoked or superseded by the agency that prepared it, no longer contains factual findings w/ in the rule; 5. exclusion of the report is possible if the report appears to have been made under SUSPECT motivation. (if public official has an institutional or political bias, AND the final report is consistent w/ the bias, then subject to exclusion for untrustworthiness); 6. factual findings and conclusions made after a formal hearing are, for good reason, considered more trustworthy than findings made w/out a hearing (lack of hearing is NOT dispositive BUT does cut against admissibility). AND if based on ex parte communications which adversary has NO opportunity to respond, STRONG indication untrustworthy. 7. timeliness of investigation is factor. 8. MAY be excluded by statute. v. Scope of inclusion for criminal law enforcement reports 1. Ministerial reports not in contemplation of specific litigation generally admitted under 803(8)(B). a. breathalyzer report, fingerprint card 2. Law enforcement reports that are adversarial and evaluative in nature are ordinarily excluded. a. US v. Oateschemical cocaine analysis official report should have been excluded as law enforcement report. (minority) 3. Reports not admissible under 803(8) might be admissible under another exception. a. Can try to get in under business records exception. (most courts) 4. Reports admissible if law enforcement personnel/govt offical who made report testify. 5. Reports of NON-law enforcement officials may be admitted in criminal case. vi. 3rd party hearsay (when official who prepared report receives info from others) excludable, BUT courts take flexible approach. 1. given strong presumption public records admissible. 2. Ellis v. International PlaytexCDC report concerning TSS admitted even though based on Drs. w/ no duty to report to CDC BUT admissible b/c no considerable motive for doctors to misrepresent info or to lie to CDC. vii. Special Rational for special exception for PUBLIC records

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1. Assumed that public officials perform duties properly and given many duties will not remember individual details of a transaction to testify. a. [can be reliable W/OUT the regularity requirement of 803(6)] 2. eliminates need for public officials to testify or prepare foundation affidavits more time for public duties. a. [may be admitted w/out affidavit OR foundation witness] viii. Also, hearsay exception for the absence of a public record under 803(10)to prove public record NEVER made. 1. 803(10)requires diligent search failed to disclose the existence of the absent record. Diligence requires reliability and reality if the basis for the exception. If substantial doubt about diligence, absence evidence is excluded. 2. if affidavit, must say search was made. 3. Example, necessary for IRS to prove no taxes ever filed. ix. 803(9) records of vial statisticsbirths, fetal deaths, deaths, marriages, if reort made to public office pursuant to reqd of law. h. Learned Treatises (803(18)) i. (18) Learned treatisesto 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. ii. Requirements 1. used for experts attention to treatise on cross OR 2. can use treatise relied upon by your expert; 3. regarding statements contained in published treatises, periodicals, pamphlets 4. must be established as RELIABLE authority by admission, another expert, or judicial notice; 5. may be READ into testimony or shown IF chart [but NOT shown to jury]. iii. How to video tapes may be learned treatise under 803(18). 1. Constantino v. Herzogmalpractice suit for nerve damage to infants arm; BOTH sides used treatises and used video tape. ISSUE: is video tape a learned treatise? 2. **where treatises define legal standardssuch as standard of care, should be out under 403.** iv. NOT exhibit b/c not substitute for expert and should not be given more weight than trial testimony. (BUT problem b/c cant remember it all.) 1. exception when stipulation; 2. except XIII. Residual Exception to the Hearsay Rule

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a. Residual Exception (807)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 i. that (A) the statement is offered as evidence of a material fact; ii. (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; iii. and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. iv. Notice reqda 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 proponents intention to offer the statement and the particulars of it, including the name and address of the declarant. b. US v. Dents convicted of possession of firearms. Claimed gun owned by 3rd party and did not know gun in car. Grand jury testimony of car salesman said, 1driver photo ID and a woman bough the car. Salesman unavailable. Trial judge admists; i. Revd on appeal for insufficient corroboration b/c driving car not enough. ii. Easterbrook (concurring)says 804(b)(1) applies to grand jury testimony therefore 807 cannot apply (near miss rejects resort to 807. c. Majority of courtsreject Easterbrooks opinion idea that a near miss bars resort to 807. i. 807 says applies only to statement not specifically covered by 803 or 804but what does statement not specifically covered mean? ii. Has been interpreted to mean that if missing something to meet a 803 or 804 exception then must have something EXTRA that is different (doesnt fall under rule, but provides an extra piece of proof). iii. US v. Shawprevious testimony to convict Branch also implicates Shaw; trial and presiding judge and jury AND substantial opportunity for cross; trial court admits; both witnesses required truthful testimony AND one witness had bias against Shaw. Court could have come out either way w/out being revd. d. Factors in Determining Whether Statement is Sufficiently Trustworthy to Qualify as Residual Hearsay i. relationship between declarant and witness; ii. capacity of declarant at time of statement; iii. truthfulness of declarant; iv. whether declarant appeared to carefully consider statement; v. whether declarant recanted or repudiated statement; vi. whether declarant made other statements inconsistent or consistent; vii. whether behavior of the declarant was consistent w/ the content of the statement; viii. whether the declarant had personal knowledge of the event or condition; ix. whether the declarants memory might have been impaired due to lapse of time between event and statement; x. whether the statement as well as the event described is clear and factual or vague and ambiguous; xi. whether statement was made under formal circumstances pursuant to formal duties so would remember accurately;

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e. f. g. h.

xii. whether statement appears to have been made in anticipation of litigation and is favorable to person who made or prepared statement; xiii. whether the declarant was cross-examined by one who had interests similar to the party against whom the statement is made; xiv. whether the statement was given voluntarily or pursuant to grant of immunity; xv. whether declarant was a disinterested bystander or an interested party. Appellate Court CANNOT invoke 807 b/c no chance for pre-trial notice. Pre-trial notice flexibleduring trial is okay. If have LIVE witness as evidence at all, probably cannot use residual hearsay rule. More probative does not mean more credible.

XIV. JUDICIAL NOTICE & PRESUMPTIONS A. JUDICIAL NOTICE (201) i. Rule 201 1. (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. 2. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either a. (1) generally known within the territorial jurisdiction of the trial court OR b. (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. 3. (c) When discretionary. A court may take judicial notice, whether requested or not. 4. (d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. 5. (e) 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. (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. 7. (g) 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. B. JUDICIAL NOTICE GENERALLY i. Substitute for proofprevents unnecessary expense & delay. ii. Adjudicatory facts = involves those parties and this case that would otherwise have to be decided by the trier of fact. iii. legislative facts = apply irrespective of the parties (cocaine is controlled substance no matter who is on trial) iv. The kinds of facts subject to judicial notice ARE 1. generally known OR 2. capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questions. 3. AND NOT subject to reasonable dispute.

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v. Examples of Facts Subject to Judicial Notice 1. whether a street is in business district. Varcoe v. Lee; 2. scientific law; 3. high crime area; 4. period of gestation for humans 9 months; 5. national holiday; 6. interest rates; 7. distance; 8. etc. vi. Examples of where NOT appropriate to take Judicial Notice 1. disputed facts a. whether HIV can be transmitted by spitting; 2. where fact not generally known vii. Court may take judicial notice on its ownsua sponte. (201(c) discretionary judicial notice) 1. party may request reconsideration. viii. Court MUST take judicial notice if requested AND standard is met. (201(d) mandatory judicial notice) ix. Party is entitled to a timely request to be heard. 201(e) x. Judicial notice may be taken at ANY time during the proceeding. 201(f) xi. Judicial Notice in Civil & Criminal Cases 1. Judicial notice MAY be taken on APPEAL in CIVIL cases. 2. Judicial notice MAY NOT be taken on APPEAL in CRIMINAL casesb/c the jury is not required to accept as true things given judicial notice (NOT binding in criminal case). xii. Judicial Notice of Law 1. Federal courts will take notice of state & foreign law. 2. Some states require foreign law to be pleaded & proved. xiii. Other Nuances to Judicial Notice 1. Judicial notice of jurisdiction is properno right to litigate frivolous facts. US v. Bello 2. Jurors can use common sense where judicial notice or proof BUT here was neither. US v. Dior 3. Legislative factsjudge must decide law and meaning of statutory terms. US v. Gould 4. OKAY to take judicial notice of court records. 5. NOT OKAY to take judicial notice of previous fact finding by another judge.
C.

PRESUMPTIONS (301 & 302) i. Rule 301. Presumptions in General in Civil Actions and Proceedingsin 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 non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.

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ii. Rule 302. Applicability of State Law in Civil Actions and Proceedingsin 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. iii. Presumptions Generally 1. only presumption rules are in civil cases = NO presumption rules for criminal cases. 2. State law governs when state law provides rule of decision. a. 3 Places in Evidence Rules where State Law Governs i. 601 Competency ii. 302 Presumptions iii. 501 Privileges 3. Rules govern rebuttable presumptions only. 4. Conclusive presumptions are the same as rules of law. 5. Permissible inferences ARE NOT presumptions. (All circumstantial evidence that is relevant permits inferences. iv. Mechanics = prove 1 fact (triggering fact) , get another one for FREE! (presumed fact) 1. Exampleproperly addressed mail presumed timely received. If prove properly addressed, PRESUMED timely received. 2. BUT disappears if rebuttedBUT if not rebutted is BINDING. 3. Party against whom presumption operates may challenge either fact or both BUT only challenge of the 1st fact rebuts the presumption. For example, evidence that the mail was not timely received DOES NOT rebut the presumption. 4. Presumption = jury instruction that says, if find letter properly addressed, MUST find letter timely received. v. Shifting the Burden 1. Some states and federal statutes shift the burden of persuasion. 2. When burden shifted, the presumption has a lingering effect. Jury NOT told of presumption, just of burden of proof. 3. Results in confusing jury instructions If you find that the child was born during the marriage, the must prove he was NOT the father; otherwise the must prove that he was the father. 4. BUT under rule 301 (federal) burden NEVER shifts. vi. Criminal Cases 1. County Court v. Allenpresence of firearm in car is presumptive evidence of illegal possession. Jury instructed on permissible inference. OK even though juror may hear instruction as command. **OK for judges to point out permissible inferences of circumstantial evidence.** 2. Judges will not use word presumption b/c suggests mandatory to find something. 3. Federal judges may sum up and comment BUT rarely do. vii. Rationalelogic & social policy.

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XV. IMPEACHMENT (MODES) A. TYPES OF ATTACK i. Attack on CHARACTER 1. Should not matter who parties are what issues are. 2. For example, witness is a felon, a liar, a bad actor. ii. Case Specific Attack 1. Biasrelationship to a party (which will vary from case to case). 2. Prior inconsistent statementsrelevant in one case, collateral in another. B. MODES OF IMPEACHMENT i. Oath ii. Perception iii. Recall iv. Communication v. Convictions/Prior Crimes vi. Bad Acts vii. Veracity/Non-truthfulness viii. Prior Inconsistent Statements ix. Contradiction x. Bias C. VOUCHING = (RULE 607) WHO MAY IMPEACHthe credibility of a witness may be attacked by any party, including the party calling the witness. i. Common law party could not impeach own witness. NOW okay to impeach any witness. ii. BUT rule 403 limits some impeachment and trial judge maintains discretion under 611(a) to protect witness from unfair embarrassment OR harassment. iii. And party may NOT call witness solely for impeachment b/c called for an impermissible purpose, if called for good faith purpose then a-okay. 1. For example, cannot call a witness JUST to show had prior statement against and now says statement FOR b/c results in net zero and serves no purpose. NEED something elsesome type of useful evidence. D. REQUIREMENTS FOR ALL IMPEACHMENT MODES i. Good faith basis for inquiryany question that is dealing w/ a SPECIFIC factual allegation must be ground din good faith basis that the matter inquired into actually occurred. (Proof of good faith basis need not be in form of admissible evidence.) ii. Any form of relevant impeachment is permissible UNLESS rule say NO. iii. Must be aware of difference between rules 801(d)(1) and 613. 1. 801(d)(1) = statements are substantive evidence as well as impeaching; 2. 613 = statements are admissible ONLY to impeach. E. ELEMENTS OF COMPETENCY i. 610. Religious Beliefs or Opinionsevidence of beliefs or opinions of a witness on matters of religion is NOT admissible for the purpose of showing that by reason of their nature the witness credibility is impaired or enhanced. ii. Oath requirement may NOT be challenged for lack of belief in God. 1. Cannot cross-examine witness about religious beliefs. US v. Sampol iii. Religious beliefs may be admissible to show 1) bias or 2) motive; 3) employment; 4) hardship (in attending churchstretch).

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F.

RULE 402 = BASIC RELEVANT EVIDENCE FOR IMPEACHMENT i. use of drugs or alcohol is relevance basedability to perceive, recall, or narrate ii. psychiatric historybrings in Rule 403 G. CHARACTER IMPEACHMENT i. Rule 609. Impeachment by Evidence of Conviction of Crime 1. (a) General rule. For the purpose of attacking the credibility of a witness, a. (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 b. (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. 2. (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. 3. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if a. (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 which was punishable by death or imprisonment in excess of one year, OR b. (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. 4. (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. 5. (e) Pendency of appeal. The pendency of an appeal there from does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

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ii. 609(a)(1): Prior Convictions Generally 1. Crimes punishable by imprisonment for MORE THAN 1 YEAR. 2. For ALL witnesses OTHER THAN the accused. 3. Special balancing test for the ACCUSEDprobative value must outweigh prejudicial effect but not substantially (as in 403). a. US v. Haysbank robbery w/ gun & assault charges; s narcotics conviction admissible. does not testify BUT could not appeal b/c hypothetical ruling after Luce. Admissible under (a)(1). b. Crimes of force not dishonestly offences c. Importation of cocaine may be dishonest offence. d. Government MUST show dishonesty element of crime. e. Court found smuggling veracity-related BUT not a(2) offense. 4. Two 609(a)(1) Balancing Tests a. if witness, admissible subject to 403 balancing. b. if , admissible subject to balancing in favor of exclusion. Burden of proof is on the prosecution to show the probative value outweighs the prejudicial effect. s stands good chance of exclusion when i. similar to crime charged now; ii. particularly inflammatory; iii. has been impeached in other ways 5. Recent convictions are more probative. 6. Prejudice = risk conviction will be used as character evidence. 7. Rationalepeople who commit felonies show more disrespect for law and are more likely to lie iii. 609(a)(2): Dishonesty Offenses 1. First ask if the crime a crime of dishonesty or a false statement? a. If yes, then automatically in. b. If no, then ask if felony conviction under 609(a)(1). 2. Two Approaches to Dishonesty Offenses a. Examine the Facts Underlying the Convictionis it a dishonest CRIME. (majority) b. Examine the Elements of Crime for What Convictedwas it committed in a DECIETFUL manner. (minority) 3. FALSE CRIMES = Perjury, criminal fraud, embezzlement, counterfeit $, false police statement, forgery, etc. all are crimes of false statement. 4. NOT FALSE CRIMES = assault/force charges, possession of a weapon, drunkenness, & prostitution. 5. IN-BETWEEN CRIMES = petty larceny, robbery & narcotics possession = dishonesty offences. a. US v. BrackenBank robbery not per se dishonesty offense iv. To Preserve Appeal 1. the must take the stand (Luce v. US) and testify to challenge an in limine motion that can be used for impeachment. 2. BUT cannot elicit evidence on direct or WAIVE appeal. Ohler v. US

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v. 609(b): Time Limit 1. 10 year cut OFF 2. After 10 years, must give adverse party notice that plan to try to use it. a. Presumptive Ban b. Reverse 403 Balancing c. Notice Requirement vi. 609(e): Pendency of Appealconviction awaiting appeal DOES NOT negate impeachment use.
H.

PRIOR BAD ACTS (608) i. Rule 608(b)Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness credibility, 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. (1) concerning the witness character for truthfulness or un-truthfulness, OR 2. (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. 3. The giving of testimony, whether by an accused or by any other witness, DOES NOT OPERATE AS A WAIVER OF THE ACCUSEDS OR THE WITNESS PRIVILEGE AGAINST SELF-INCRIMINATION when examined with respect to matters which relate only to credibility. ii. 608(b) Specific Bad Acts Generally 1. Discretion whether or not to admit. 2. NO extrinsic evidenceacts not worth time to litigate if they are denied. a. Simmons v. Pinkertonslie about passing lie detector test admissible where witness ADMITTED lying. b. Example, ask, Did you steal money from your employer? i. If say no, IMPROPER to ask, Didnt your employer fire you for stealing money. or Were you suspended from the bar for improperly handling money? rd c. 3 Party Actions that are inconsistent w/ the denial of the bad act are INADMISSABLE as testimony that the 3rd party act actually occurred. i. b/c actions are being used to contradict witness denial. (so cannot ask Werent you fired? and cannot bring boss in to say were fired) 3. Extrinsic evidence ban ONLY on 608(b)can admit under another rule. a. Advisory committee changed credibility to say character for truthfulness to narrow the limit the no extrinsic evidence rule. b. Extrinsic evidence ADMISSIBLE to prove bias, challenge competency, and to show inconsistent statements. 4. Rationaleacts may shed light on credibility.

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iii. Examples of Permissible 608(b) Questions 1. Use of aliases 2. False credit card applications 3. Do not have to be criminal. iv. Examples of Impermissible 608(b) Questions 1. drug use; 2. prostitution; 3. litigiousness. v. Requires GOOD FAITH basis for question. i. 608(a): Attacking Witness i. 608 (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. (1) the evidence may refer only to character for truthfulness or un-truthfulness, AND; 2. (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. ii. 608(a) Attacking a Witness Generally 1. ONLY applies AFTER witness testifies (or hearsay statement is introduced). 2. Reputation or Opinion ONLYcharacter for truthfulness or untruthfulness only. 3. CANNOT offer favorable evidence UNTIL witness is attacked. (May be attacked by character or otherwise such as slashing-cross examination.) iii. When Attacked 1. When psychiatric evidence admitted, expert opinion is not attacked. US v. Hiss. iv. Amount of Attack Permissible 1. UP to the discretion of the trial judge. US v. Barnardpot prosecution. s call experts to say witness is sociopath; witness perjured self before grand jury; trial judge had discretion to bar experts when witness already impeached for perjury. v. Experts/Psychiatrists on Truthfulness of Witnesses 1. Usually psychiatric testimony is excluded as to mental condition of witness for capacity to telling truth. 2. BUT where suffers from a disease that makes blurt out web of lies must allow expert to explain disease. US v. Shay j. 613: Inconsistent Statements i. Rule 613 Inconsistent Statements 1. (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. 2. (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

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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 rule 801(d)(2). ii. Rule 613 on Inconsistent Statements Generally 1. Examiner may ask witness about prior statement. 2. NEED NOT show a statement to witness when asking. 3. MUST show statement to opposing counsel on request. 4. MUST give witness chance to explain or deny = when laying a foundation. 5. EXCEPTION = admission by a party. 6. Possible to offer inconsistent statement and recall witness but make sure available. 7. Rationaleinconsistency casts doubt on credibility & needed to give govt fair trial. a. US v. Rogersgovt calls co- who pleaded guilty to robbery; witness says he cannot remember robbery or contents of FBI statement; prosecutor permitted to impeach w/ statement made to FBI; limiting instruction to jury; impeachment NEEDED to give govt fair trial. iii. Relationship to Rule 801(d)(1)(A)may not call a witness simply to get a prior inconsistent statement before a jury UNLESS the statement is admissible as substantive evidence. 1. A party who is SURPRISED will be permitted to impeach. 2. Foundation must be satisfiedwitness must have chance to explain or deny statement. iv. Extrinsic Evidence Can Come in on Impeachment for Prior Inconsistent Statements. 1. US v. Winchenbachalibi witness says he did not know was involved w/ drugs. Made prior statement to agent did knowstatement admissible for impeachment. NO 608(b) bar b/c statement not being offered to prove bad act BUT being offered to show inconsistent statement. k. Collateral Issues i. There is NO federal rule prohibiting contradiction of collateral issuesjudges use 403. ii. Contradiction as to elements of claim or defense will ALWAYS be permitted. iii. Also intent, plan, bias, contradiction, etc. will be admissible. 1. State v. Gore denies living in trailer or ever selling drugs there. Evidence of earlier sales admissible to prove intent. Admissible even if did not testify under 404(b) to prove intent/common plan. 2. US v. RobinsonBIAS not collateral. 3. US v. Beauchampwhere lived collateral (discretion to trial judge). 4. US v. Castillocontradicting broad claims on direct NOT collateral, can be admitted. Here, claims anti-drugs so prior drug arrest can be admitted. iv. Courts may be more reluctant to permit contradiction on cross. l. Bias i. Bias Evidence is Admissible under 401 & 402. US v. Abel, US (1984). 1. Trial Judge did not err in admitting evidence that the Aryan Brotherhood (name not used at trial) was a lying and murderous group.

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2. Also reasons that evidence of bias is admissible even though same evidence would NOT be admissible under 608(b). ii. Extrinsic evidence is admissible to prove bias or any other impeaching fact other than a 608(b) act. iii. Many courts require questions about bias BEFORE extrinsic evidence is offered. iv. Confrontation clause guarantees right to explore bias of govt witnesses. m. Rehabilitation i. Rule 608 (a)(2) 1. (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 a. 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. ii. Govt cannot open door to impeach own witness. 1. US v. Medical Sciencescooperating witness was asked on direct about 2 prior convictions and being accused by company owner of embezzlement. attacked witness about fraud nature of convictions & suggestion of corruption. DOOR is open for rehabilitaton. iii. Prior Consistent Statements 1. 801(d)(1)(B)admits prior consistent statements as non-hearsay; Tome requires statements have preceded motive to falsify. 2. Prior consistent statements may put inconsistent statements in context. a. US v. Harris impeaches witness w/ statement from FBI. Govt offerst consistent statements from same interview. Tome inapplicable. iv. Judge has discretion to decide how much rehab to allow. n. 806 Attacking and Supporting Credibility of Declarant i. Rule 806: Impeachment of Declarantwhen a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant=s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross examination. ii. 806 Generally 1. Hearsay or 801(d) statements (BUT NOT personal admissions) make declarant a witness. 2. Opposing party may impeach witness as if witness testified at trial (no foundation requirement under 613). 3. Offering party may rehabilitate declarant at trial. 4. Opposing party may call declarant and cross examine. 5. Broad reading of inconsistent.

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a. US v. Grantdrugs & firearms and failure to appear. 801(d)(2)(E) statements admitted; offered affidavit from declarant in Jamaica (where hed been deported) that says had no knowledge of deal and made up as partner. Trial judge excludes as NOT inconsistent. Revered b/c TOO narrow. iii. 608 Problem 1. 806 seeks to have opponent as well off re: impeachment as if declarant testified 2. BUT 608(b)s NO extrinsic evidence rule poses a problem. CANNOT impeach w/ prior bad acst if declarant is not present to admit them. XVI. PRIVILEGE A. PRIVILEGES GENERALLY i. Claims of privilege are made when govt agencies or entities seek to compel disclosure of information. ii. Except when the govt seeks to compel discoulsure of information there is no occasion to claim privilege. iii. Ask, who HOLDS privilege. iv. ONLY the HOLDER may claim or waive privilege b. Rule 501. General Rule i. 501: 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. ii. Supreme court submitted 13 privilege rules to congress and disagreement over substance and relations to state law501 was the compromise.
C.

ATTORNEY-CLIENT PRIVILEGE i. Generally 1. NOT the same as work product. 2. Rules of professional responsibility require that confidentially and secrets be preservedprevents disclosure where privilege does not apply. 3. 6th Amendment right to counsel in criminal cases may create some barrier to govt interference. 4. A-C privilege is separate from privilege against self incrimination but BOTH privileges work together when govt subpoenas evidence. ii. A-C Privilege vs. Work Product 1. A-C Privilege = communications from client to lawyer & reverse; lawyer client ONLY; ANY LEGAL advice; ABSOLUTE (no balancing or need reqd); waiver by disclosure to 3rd party.

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2. Work Product = any work generated for litigation (not just communications); anybodys work for client covered; requires ANTICIPATION of litigation; NOT absolute; NO Waiver by showing to 3rd. iii. Costs of Privilege 1. Would clients confide in lawyers absence privilege? no one knows. 2. Key = lawyer tells client that communications are privileged, client relies on privilege and privilege only applies to what client communicates in reliance on privilege. 3. Privilege ONLY protects that which it creates. iv. Advisory Committee Draft 1. Definitions a. Communication = any expression or through which privileged person intends on conveying info to another privileged person or any record containing such an expression; b. Client = person or organization that consults a lawyer to obtain professional legal services; c. Organization = corporation, unincorporated association, partnership, trust, estate etc. d. Lawyer = person who is authorized to practice alw in any domestic or foreign jurisdiction or whom a client reasonably believes to be a lawyer; e. Privileged Person = client that clients lawyer or agent or either who is reasonably necessary to facilitate communications between the two. f. In confidence = if at the time of the communication the communicating person reasonably believes that no one except a privileged person will learn the contents of the communication. v. General Principles 1. General Ruleprotects confidential communication made for purpose of obtaining or providing legal services. 2. Corporate Privilegeagents speak w/in scope of agency or employment to privileged person; need to know for sharing w/ corporation. 3. Joint Representation & Common Interestsprivilege applies against 3rd parties BUT unless joint client aggress privilege does not apply against each other. 4. ONLY client making communication may WAIVE. 5. Communications to agents outside lawyer or lawyers agent NOT privileged. 6. Lawyers may employ assistants, secretaries, paralegals, etc. w/in P. 7. Lawyers may employ experts w/in P. 8. Representative of client not so clear outside corporate seeting. 9. IF client hires expert, NO privilege generally. 10. ONLY LEGAL SERVICESnot tax returns, business advice, etc. 11. Claimants through same deceased clientcommunication relevant to an issue between parties who claim through same deceased client, regardless of whether claims are by testate or intestate succession or by inter vivos transaction.

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a. Rationaletestator would want matter resolved accurately AND ONLY attorney may have info. that will permit accurate resolution. 12. NO privilege if attempt to commit FRAUD or CRIME. a. exception if client uses advice to commit crime or fraud regardless of original purpose. 13. Breach of duty by lawyer or clientas to issue relevant to an issue of breach of duty can disclosemust be able to disclose client owes $ and in malpractice must be able to have . 14. Protected Communication a. when client tells lawyerthis is protected; b. if client creates new documents for lawyer c. documents created outside A-C relationship NOT protected; d. Clients cannot take physical evidence and hide as privileged. e. what lawyer OBSERVES NOT privileged. f. what lawyer HEARS IS privileged. g. Lawyers trip to SEE body NOT privileged. h. ID of client and $ paid = NOT privileged. i. Facts know = NOT privileged. 15. Lawyers CANNOT a. threaten witnesses; b. hide evidence; c. suborn perjury. vi. Federal law on A-C privilege. UpJohn v. US 1. Privileged B/C = a. communications made at request of company; b. to secure legal advice; c. info needed from employees; d. matters w/in scope of duties; e. employees were aware company was seeking legal advice. 2. REJECTS control group approachBROAD definition of client. 3. Privilege ONLY protects that which was created in reliance on it. 4. ONLY communications NOT facts protected. a. Witnesses can be called before grand jury and asked if paid bribes. b. NO immunity for answering simply b/c witness confided in lawyer facts are always fair game. 5. Attorney mental processes receive special work product protection. 6. When interviewing employees, lawyer must tell employees that the CLIENT is the companyotherwise creates joint client situation (where both must consent to waiver). 7. Company can WAIVE privilege for employee, but employee cannot waive privilege for the company. 8. Limits on Privilege a. Communications directed at legal advice ONLY. US v. Woodruff. i. tax prep not privileged; ii. business advice may not be legal.

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b. Facts not privilegedclients name, dates of meetings, fees not privileged. c. Crime-Fraud Exception. (Only when in on it, not when hear about it after.) vii. Privilege & Government Attorneys 1. Executive branch employees must report crimes. a. In re Lindseyattorney in office of president called federal grand jury; no privilege for govt lawyers when grand jury seeks info regarding possible crime; court suggests private advice by deputy white house counsel and assistant to president not privileged; executive branch employees must report crimes. viii. Privilege and the Death of the Client 1. Privilege survives death. Swidler & Berlin v. US, US (1998)grand jury subpoenas notes of lawyers meeting w/ client; privilege survives death. ix. Privilege & Shareholder Litigation 1. When shareholder brings derivative action, no absolute privilege for corporation b/c shareholders own the corporation. Garner v. Wolfinbarger 2. May extend to other fiduciary relationships x. Waiver 1. The HOLDER has the power to waive. 2. Whoever governs corporation has power to waive. 3. Waiver occurs by DISCLOSURE a. MUST disclose what was said to attorney to have waiver; b. repetition of facts NOT waiver unless it is revealed that the same facts were communicated to counsel. 4. Selected waiver is generally prohibited. 5. Inadvertent waiver a. Some courts take a strict liability approachif you fuck up, too bad. b. But more culpability approach. 6. Waiver by defenseadvise of counsel 7. Scope of waiver a. At trial, waiver will be subject to SUBJECT MATTER waiver. b. Before trial, waiver will be more LIMITED. D. MARITAL PRIVILEGE i. Spousal Immunity 1. criminal cases ONLY 2. HOLDER: WITNESS (not ) (even if govt pressure b/c arrested as material witness under Trammel) 3. Requirement: Valid Marriage 4. Purpose: Protect Marriage 5. Duration: As long as Married 6. Exceptions:

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a. b. c. d.

crimes against family joint criminal activity furtherance of crime or fraud extended separation

ii. Marital Communications 1. ALL cases. 2. Holder: BOTH 3. Requires: Valid Marriage AND Confidential Communication (presence of 3rd party invalidates) 4. Protectsonly communications NOT all info. learned 5. Purpose: Protect communication 6. Duration: Forever 7. Exceptions a. crimes against family b. Joint criminal liability c. furtherance of crime or fraud (NOT the same as joint participation) e. Doctor-Patient Privilege i. NO general doctor-patient privilege in federal court. ii. Rationaleno need to encourage medical treatment. iii. Most states have statutory privilege b/c of PRIVACY. iv. Exceptions when medical condition is at issue. v. Fed. R. Civ. P. 26 (c)protective orders can protect against harassment. f. Psychotherapist-Patient Privilege i. Absolute privilege applies to social workers and other mental health workers. Jaffe v. Redmondpolice officer shots and kills and goes to social worker; social worker talks NOT admissible b/c privileged. Court rejects balancing approach. Relies on unenacted 504 and all 50 states have some form of privilege.

XVII. (Civil Procedure Privileges Checklist) Is the communication/document privileged? a. Protected by ATTORNEY-CLIENT PRIVILEGE? (Absolute privilege) i. Said by client or someone seeking to be a client? 1. broad definition of clientincludes subordinates in company BUT NOT independent contractors (Upjohn Co. v. US); 2. NOTEcompany can waive privilege for subordinate BUT subordinate cannot waive privilege for company. 3. regarding LEGAL COMMUNICATION and not just facts? ii. AND to an attorney/subordinate acting as such?

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iii. iv. v. vi.

AND without the presence of strangers? AND for the purposes of legal advice? AND not to commit a fraud or tort? AND claimed (not waived)? 1. lower level employee who shares with in-house counsel no A-C privilege if corporation waives b/c not employees attorney (United States v. Stuckey)

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