Evidence Outline: Ramirez

Evidence Outline

Ramirez

 

v  Background of Evidence Rules

Ø  Law of Evidence Governs:

§  Trials AND

§  Other Evidentiary Hearings

Ø  Rules are Cumulative.  Have to Get Past all the Hurdles

Ø  Default Position = Free Proof

§  Do the Rules of Evidence Improve on This?

·         Foster Ascertaining the Truth?

·         Help Juries Reach the Right Decisions?

§  Any Value in Free Proof?

·         There is Value To Party Carrying the Burden of Proof

·         Gives Power to Attorneys to Decide What Comes In

·         Juries Able Have Full Information

§  What Value in the Rules of Evidence?

·         Doesn’t Allow Juries to be Swayed by “Bad” Information (Reliability)

·         Streamlines Cases (Efficiency)

·         Evidence of these Effects in the Evidence Rules

¨       Relevance, Reliability and Efficiency

Ø  403

Ø  Character Evidence

¨       Specific Exclusions – External Policy Consideration

Ø  Liability Insurance – Shouldn’t Matter to the Determination of Award or to Fault

Ø  Settlement/Plea Bargain Discussions – Want to Encourage Settlement

¨       Hearsay – Reliability

¨       Privilege – External Policy Considerations

¨       Non-Opinion Rule – Reliability

Ø  Just the Facts, Don’t Care About Opinions

Ø  Exception: Experts in Certain Circumstances

¨       Best-Evidence Rule –Reliability

Ø  Writing Should Be Shown vs Testimony About What Was in a Writing

¨       Authentication –  Reliability

Ø   Need to Prove Evidence is Real 

v  Introduction to Relevance: Common Sense Inference and Factual Theory of the Case

Ø  Federal Rules 401- 403

Ø  401 Relevancy Rule Low Threshold: Evidence Have ANY Tendency to Make the Existence of a Fact That is of Consequence to the Determination of the Action More or Less Probable than it Would be Without the Evidence.

§  Rule Brake Down:

·         (1) Evidence Having ANY Tendency

·         (2) to Make the Existence of a Fact that is of Consequence to the Determination of the Action

¨       Fact Important Bc of the Law: Material, Crucial

·         (3) More or Less Probable Than it Would be WITHOUT THE EVIDENCE

¨       Lower Standard Than More Likely Than Not

§  Low Threshold, Around 2%

§  Factual Theory – The Story the Trial Attorney Creates for the Jury 

·         Schemas –People’s Ideas About How the World Should and Does Work

¨       Against Schema = Not Credible Testimony/Argument - If Testimony or Actions Go Against the Schema of How Things Usually Occur After a Crime this Can Discredit the Story/Argument

·         Facts => Law => Factual Story

¨       Factual Theory Helps Determine Which Facts are Relevant.

·         Opening Statement - Important Bc it’s the First Time the Attorney Tells His Story

§  If First Link in Chain of Evidence is Weak, it Will Probably Have Low Probative Value but Still be Relevant

·         If the First Link is True, It Will Likely be VERY Probative

§  Background Facts are Sometimes Irrelevant  

Ø  402 Relevant Evidence Generally Admissible, All Relevant Evidence is Admissible, Except as Otherwise Provided by the Constitution of the United States, by Act of Congress, by theses rules, or by other Rules Prescribed by the Supreme Court pursuant to Statutory Authority.  Evidence Which is Not Relevant is Not Admissible.

Ø  403 Discretionary Exclusion, Weighs Toward Admissibility – 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

§  Rule Brake Down:

·         Evidence May Be Excluded IF:

¨       Probative Value is Substantially Outweighed by the Danger of:

Ø  Unfair Prejudice

§  Excessive Emotional or Irrational Effects (that could distort the accuracy and integrity of the fact finding process.)

§  Almost Everything the Opponent does to You is Prejudicial to You, but That Doesn’t Mean it Won’t be Let in

§  Example: Bloody Murder Scene Picture When Another is Less Gory.  Could be B & W Instead of Color.

Ø  Confusion of the Issues

Ø  Misleading the Jury

§  Statistics Often Out – Subject of Statistic is Likely Relevant and Will Come in but Statistics May Not

§  DNA Usually In – Probability is So High or Low that DNA Belonged to Suspect & Scientifically Proven

Ø  Undue Delay

Ø  Waste of Time OR

Ø  Needless Presentation of Cumulative Evidence

·         Efficiency Concerns – Cumulative, Undue Delay, Waste of Time

·         Reliability – Confusion, Misleading, Prejudice

·         Surprise Not an Independent Ground for Exclusion

·         Balancing: Court May Consider

¨       Centrality of Point to be Proved

¨       Need for Particular Evidence

¨       Availability of Alternate Proof

¨       Likelihood Jury Will Understand Limiting Instruction Under 105 

§  Leans Toward Admissibility  - When Probative Value is Equal to a Ground for Exclusion, The Evidence Comes In

§  Universal Fallback Provision – Can ALWAYS Assert 403 to Try to Exclude Evidence

Ø  Circumstantial v. Direct Evidence

§  Circumstantial Evidence = Evidence Which Requires an Inference to Help Prove the Fact

·         Does Not Assert the Existence of a Fact but an Increased Probability of the Fact.

·         Considered as Good as Direct Evidence

·         Examples:

¨       Footsteps;

¨       Indications of a Guilty Mind: Escape, Use of Alias, Disguise, Fabricating or Concealing Evidence, Lying, Bribes, Threat

§  Direct Evidence = Evidence that Asserts the Existence of the Fact to be Proven

§  Photos

·         Foundation: Needs to be a Foundational Witness for Photos who Can Confirm that Scene was as Depicted in Photos

·         Accurately Depicting Scene of Crime – It Doesn’t Matter When Photo Was Taken As Long as It Accurately Depicts Scenes That Night

¨       Witness Needs to Testify About Changes - Need Someone to Testify About Changes

·         Moral Force of Picture of V Inside Courtroom - Picture Allows Victim to the in Courtroom.  Has Valid “Moral Force”

·         Alternatives

¨       Offer Diagram Instead of a Picture

¨       Stipulate to Certain Fact – Courts are Inclined to Allow Prosecution to Prove Case as They Want, However

Ø  Forced Stipulations are Usually Only With Prior Convictions

v  Relevance: Character Evidence, Prior Bad Acts

Ø  Federal Rules 404-405

Ø  Character Evidence – Applies to ALL Parties and All Types of Cases: Civil, Criminal, Prosecution, Defense, Plaintiff

Ø  404 (a) - Evidence of a Person's Character or a Trait of Character is Not Admissible for the Purpose of Proving Action in Conformity Therewith on a Particular Occasion, EXCEPT:

In a Criminal Case, Evidence of a Pertinent Trait of Character Offered by an Accused, or by the Prosecution to Rebut the Same, OR IF Evidence of a Trait of Character of the Alleged Victim of the Crime is Offered by an Accused and Admitted Under Rule 404(a)(2), Evidence of the Same Trait of Character of the Accused Offered by the Prosecution;

In a Criminal Case, and Subject to the Limitations Imposed by Rule 412, Evidence of a Pertinent Trait of Character of the Alleged Victim of the Crime Offered by An Accused, or by the Prosecution to Rebut the Same, or Evidence of a Character Trait of Peacefulness of the Alleged Victim Offered by the Prosecution in a Homicide Case to Rebut Evidence that the Alleged Victim was the First Aggressor;

Evidence of the Character of a Witness, as Provided in Rules 607, 608, and 609.

§  Rule Brake Down 404(a), Outright Prohibition on Character Evidence - Evidence of Character (Propensity to Engage in a Particular Conduct) is Not Admissible for the Purpose of Proving Action in Conformity Therewith on a Particular Occasion, EXCEPT

·         In Criminal Cases

¨       Character Evidence About D

Ø  (1) If D Introduces Evidence of a Pertinent Trait of Character About Himself: On His Own Mercy Rule

§  D can Offer a Pertinent Trait of his Character to Show it is Unlikely he Committed the Charged Offense

§  D Does Not Raise the Issue of His Own Character By

·         Taking the Stand

·         Claiming Self-Defense OR

·         Proving General Background Info

§  D Does Raise the Issue By

·         Saying He is

¨       Peaceful OR

¨       Law Abiding

Ø  (2) Then Prosecution May Rebut the Same Trait

¨       Character Evidence About V

Ø  (1) D Can Introduce Evidence of a Pertinent Character Trait of the V (Such as a Violent Nature to Prove V was the First Aggressor)

Ø  (2) If So, Prosecution Can Call Character Ws to Rebut that Trait

ALSO

Ø  (3) Prosecution May Introduce Evidence That V was Peaceful to Rebut Evidence He was the First Aggressor

·         In Criminal or Civil Cases

¨       Character Evidence May be Introduced to Impeach or Rehabilitate the Credibility of a W under 607, 608, or 609.

§  Rationale:

·         People Change

·         Biases Jury, Reliability

¨       Jury May

Ø  Overvalue Propensity to do Act in Conformity With Character Again.

Ø  Be Distracted By or Overvalue Character

·         Low Probative Value - Even though This is How People Typically Judge Each Other, Character Evidence is Not Very Predictive of How People Acted at the Particular Time in Question 

§  Prior Bad Acts Do Not Have to Occur Before the Cause of Action or Crime. 

·         Prior Bad Act Has to Occur Before the Testimony but Not Before the Harm Causing Event.

Ø  404(b) Evidence of Other Crimes, Wrongs, or Acts is Not Admissible to Prove the Character of a Person in Order to Show Action in Conformity Therewith.  It May, However, be Admissible for Other Purposes, such as Proof of Motive, Opportunity, Intent, Preparation, Plan, Knowledge, Identity, or Absence of Mistake or Accident, Provided that Upon Request by the Accused, the Prosecution in a Criminal Case SHALL Provide Reasonable Notice in Advance of Trial, or During Trial if the Court Excuses Pretrial Notice on Good Cause Shown, of the General Nature of ANY Such Evidence it Intends to Introduce at Trial.

§  Rule Brake Down 404(b), Prior Bad Act

·         Character Evidence Can be Used to Show Proof of

¨       Motive;

¨       Opportunity;

¨       Intent;

¨       Preparation;

¨       Plan;

¨       Knowledge;

¨       Identity; OR

Ø  M.O. Has to Be Pretty Specific Signature.  I.e. Certain Bomb  

¨       Absence of Mistake or Accident

·         Includes Crimes, Wrongs, or Acts

·         Prosecution Needs to Provide Notice

·         Not an Exception to Character Rule

§  Can be Acquitted and Prior Bad Act Can Still Come In Under 404(b)

§  The Person Against Whom Evidence is Brought Does Not Have to be a Witness

Ø  405 Methods of Proving Character
(a) Reputation or Opinion. In ALL Cases in Which Evidence of Character or a Trait of Character of a Person is Admissible, Proof MAY be Made by Testimony as to Reputation or by Testimony in the Form of an Opinion. On Cross-Examination, Inquiry is Allowable into Relevant Specific Instances of Conduct.
(b) Specific Instances of Conduct. In Cases in Which Character or a Trait of Character of a Person is an Essential Element of a Charge, Claim, or Defense, Proof MAY also be Made of Specific Instances of that Person's Conduct.

§  405(a)

·         Rule Brake Down

¨       Direct: Reputation or Opinion about Character,

¨       Cross-Exam: Instances of Particular Conduct  

·         Rationale:

¨       Specific Incidents are too Time-Consuming to Prove on Direct and May be Collateral

·         Foundation for Opinion

¨       How Well I Know D

¨       How Long I’ve Known Him

·         Foundation for Reputation

¨       Run in Same Circles

¨       Been in Community for X Years

·         Good Faith Basis for Q Asked on Cross-Examination – The Person Asking About Specific Instances of Conduct on Cross Must Have a Good Faith Basis for Rebutting the Opinion or Reputation (that the Specific Instances of Conduct Are True)

§  405(b)

·         Sometimes Character is an Element of the Substantive Law or Defense. If So, Then No Longer Character Evidence

§  403’s Affect

·         Comes Into Play with the Line in 403(a)Which Evidence of Character or a Trait of Character of a Person is Admissible.”

·         Character Evidence is Generally Very Prejudicial and May be Kept Out Under 403  

v  Relevance: Conditional Relevance

Ø  Federal Rule 104

Ø  Rule 104.  Preliminary Questions
(a) Questions of Admissibility Generally. Preliminary Questions Concerning the Qualification of a Person to be a Witness, the Existence of a Privilege, or the Admissibility of Evidence SHALL be Determined by the Court, Subject to the Provisions of Subdivision (b). In Making its Determination it is Not Bound by the Rules of Evidence Except those with Respect to Privileges. 
(b) Relevancy Conditioned on Fact. When the Relevancy of Evidence Depends upon the Fulfillment of a Condition of Fact, the Court SHALL Admit it upon, or Subject to, the Introduction of Evidence Sufficient to Support a Finding of the Fulfillment of the Condition.
(c) Hearing of Jury. Hearings on the Admissibility of Confessions SHALL in ALL Cases be Conducted out of the Hearing of the Jury. Hearings on Other Preliminary Matters SHALL be so Conducted When the Interests of Justice Require, or When an Accused is a Witness and so Requests.
(d) Testimony by Accused. The Accused Does Not, by Testifying Upon a Preliminary Matter, Become Subject to Cross-Examination as to Other Issues in the Case.
(e) Weight and Credibility. This Rule Does Not Limit the Right of a Party to Introduce Before the Jury Evidence Relevant to Weight or Credibility.

§  Rule Brake Down

·         104(a) Preliminary Qs of Qualifications of Witnesses, Existence of Privilege, or Admissibility of Evidence are Determined by the Court

¨       Standard: Preponderance of Evidence

Ø  Judge Has to be Convinced

SUBJECT TO

·         104(b) - If Evidence is ONLY Admissible IF Something Else it True, The Court SHALL Admit it Upon, or Subject to, The Introduction of Evidence Proving that Other Thing to be True.

¨       First Question For Judge: Whether the Jury Should Even Hear Facts

Ø  Standard: Was There Evidence Sufficient to Support a Jury Finding that the Second Statement is True by a Preponderance of the Evidence

§  Approximately: 10%

¨       Second Question for the Jury: Whether There Was a Preponderance of Evidence for the Second Fact

¨       Jury Instructions: A Party Can Ask for Jury Instructions that Juror Only Consider Fact A, if They Believe Fact B to be True.

·         104(c) Prejudicial Hearings

¨       Hearings About Admissibility of Confessions MUST be Made Away from the Jury. 

¨       Other Matters Should be Conducted the Same Way if Justice Requires or When Accused is a Witness and So Requests.

¨       Mechanisms

Ø  Sidebar

Ø  Jury Excused from Courtroom

·         104(d) D Can Participate in Pretrial Motions W/out Being Subject to Cross-Examination on Other Issues in the Case.

·         104(e) This Rule Does not Limit the Right of a Party to Introduce Before the Jury Evidence Relating to Weight OR Credibility.

¨       Party Can Put the Evidence in Context for the Jury.

§  Analysis

·         Consider in Terms of 404(a) & 404(b)

¨       P Will Try to Bring in Nasty Stuff About D

¨       404(a) Judge Will Say Whether Evidence is Character Evidence or Deals With Motive, Knowledge, Opportunity, Absence of Mistake, Etc…

Ø  104(a) Discussion Will Involve the Relevance, Whether Evidence is Character Evidence or Not, & 403 Arguments

¨       404(b) Prior Bad Act is Only Relevant if D did the Things Bad Thing

Ø  104(a) and 104(b) Analysis

§  104(a) Assume Bad Thing Was Done to Consider Relevance

§  104(b) Determine Whether There is Evidence Sufficient for a Jury to Find D Committed the Bad Act (10%)

Ø  Occurs With When D Was Acquitted or Otherwise Cases Not Convicted

§  Self Defense – Prosecution Needs to Prove it Was Not Self-Defense

¨       CONCLUSION 404(b) Issues Often Come Up as 104 Relevancy Issues

·         Potential Character Evidence

¨       First Q?  Is the Evidence Character Evidence?

¨       Second Q?  Is it Relevant?

·         Conditional Relevance Issues

¨       Need to Introduce Evidence That Second Thing Occurred for it To be Admitted

Ø  If Introduced, 104(e) Still Allows Introduction of Evidence That Weighs on Whether Second Thing Did Not Really Occur

¨       403 Limited Admissibility and Confusion Argument - Can Argue Confusion of Jury As to Use of Evidence for Limited Purposes               

v  Relevance: Habit, Custom, Character

Ø  Federal Rule 406

Ø  Rule 406.  Habit; Routine Practice
Evidence of the Habit of a Person OR of the Routine Practice of an Organization, Whether Corroborated or Not and Regardless of the Presence of Eyewitnesses, is Relevant to Prove that the Conduct of the Person or Organization on a Particular Occasion was in Conformity with the Habit or Routine Practice.

§  Rule Brake Down – 406 Habit of Person or Routine Practice of Org is Relevant to Prove Conduct Was in Conformity With the Habit or Routine Practice

§  Hypo Example: Q is a Careless Driver.  She Never Stops.

·         1st Part is Character Evidence and Inadmissible

·         2nd Part is Admissible Habit Evidence

§  Issues:

·         Adequacy of Sampling – Person Who Testifies Needs to Have Observed the Habit a Number of Times

·         Uniformity of Response – The Habit of the Person Need to Occur With a Sufficient Amount of Regularity. Doesn’t Need to be Every Time but Should be Almost Every Time. 

·         Must Be Unreflective, Semi-Automatic – Not Volitional

¨       Example:

Ø  Habit: Going Down Stairway Two Stairs at a Time

Ø  Volitional: Staying Home on Sundays for Sabbath

§  Not Everything Religious is Not a Habit However

·         Analysis

¨       Process

Ø  First Q: Is there Adequacy of Sampling; a Semiautomatic Response; and Uniformity of Response

Ø  Second Q: Is the Evidence Offered to Show a Tendency to Comply W/ the Habit? (Action in Conformity Therewith)

¨       104(a) Question – If Not Habit Evidence, it Might be Character Evidence

·         MUST Prove Habit

·         Routine Practice Of Organization Can Come in As Well

v  Specific Exclusions

Ø  Federal Rules 407-415

Ø  407. Subsequent Remedial Measures
When, After an Injury or Harm Allegedly Caused by an Event, Measures are Taken that, if Taken Previously, Would Have Made the Injury or Harm Less Likely to Occur, Evidence of the Subsequent Measures is Not Admissible to Prove Negligence, Culpable Conduct, a Defect in a Product, a Defect in a Product's Design, or a Need for a Warning or Instruction. This Rule Does Not Require the Exclusion of Evidence of Subsequent Measures when Offered for Another Purpose, such as Proving Ownership, Control, or Feasibility of Precautionary Measures, if Controverted, or Impeachment.

§  Rule Brake Down 407

·         (1) Harm +  

·         (2) Remedial Measure After the Fact: Someone Fixes Something Making the Injury Less Likely to Occur

·         = Not Admissible to Show:

¨       Negligence;

¨       Culpable Conduct;

¨       Defective Product;

¨       Defective Product Design; OR

¨       Need for a Warning or Instruction 

·         = Admissible to Show Other Things

¨       Ownership

¨       Control

¨       Feasibility of Precautionary Measures if Controverted

¨       Impeachment  

§  Rationale:

·         Want People to Make Things as Safe as Possible

·         Also Typically Has Low Probative Value

¨       Don’t Want Jury to See it as a Concession it is Not Safe

§  Analysis

·         MUST BE

¨       Injury

¨       Action Taken to Remedy it

Ø  Can Be a Procedural Change

¨       Subsequent Measure Makes Injury Less Likely to Occur

Ø  Have to Show

§  Safety Improved OR

§  Misbehavior Curbed

·         Injury MUST Take Place Before Remedial Measures

Ø  Rule 408. Compromise and Offers to Compromise
(a) Prohibited uses.--Evidence of the following is not admissible on behalf of ANY party, WHEN offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, OR to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, EXCEPT when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

§  Rule Brake Down 408, Settlements and Medical Payments

·         Statements Made During Compromised Negotiations of a Disputed Claim;

¨       Claim = Lawsuit

Ø  May be a Claim - Letter From an Attorney

Ø  Not a Claim - Rightfully Anticipating a Claim

¨       Disputed = As to Validity or Amount

¨       Statement Made After the Claim is Asserted are Excluded

¨       EXCEPT when Offered in a Criminal Case and the Negotiations Related to a Claim by a Public Office or Agency in the Exercise of Regulatory, Investigative, or Enforcement Authority

AND

·         Evidence of Offering, Promising, or Furnishing a Settlement or Accepting, Offering or Promising to Accept a Settlement    

·         May Not Be Used to 

¨       Prove Liability;

¨       Prove the Invalidity of a Claim; OR

¨       Impeach a Witness By Prior Inconsistent Statements Made in Settlement Talks  

·         But May Be Used to  

¨       Negate Contentions of Delay,

¨       Prove Bias

¨       Prove Prejudice of a Witness (W has already settled her own claim or was unsuccessful in settling a claim)

¨       Obstructing Criminal Investigation (buy off prosecutor)

¨       For Other Purposes: Not Exhaustive List

Ø  Proof of the Agreement in Breach Case

§  Rationale

·         External Policy Concern: Want People to Settle Their Cases

·         Reliability - Not Always Relevant.  Sometimes People Settle to Get it Out of the Way

§  Analysis

·         Argue 403 Exceptions if Information is Let in Under This Rule 

·         Statements Made in Settlement Agreements are Not Excludable if Otherwise Discoverable

·         408 Does Not Cover Failure to Make an Offer

¨       Might Fail 403, D Has a Right to a Trial on the Claim

Ø  Rule 409. Payment of Medical and Similar Expenses
Evidence of Furnishing or Offering or Promising to Pay Medical, Hospital, or Similar Expenses Occasioned by an Injury is Not Admissible to Prove Liability for the Injury.

§  Rule Brake Down, 409 Medical, Hospital, or Similar Expenses

·         Broader Than 408 – Does Not Have to be in the Midst of Compromise Negotiations.

¨       Does Not Need to be a Claim

·         More Narrow Than 408 – Furnishing, Offering, or Promising to Pay is All that is Covered

§  Rationale:

·         Reliability:  May Not be Probative of Fault

·         External Policy Consideration - Want People to Help Pay for Injuries to Others

Ø  Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

EXCEPT as Otherwise Provided in This Rule, Evidence of the Following is NOT, in Any Civil or Criminal Proceeding, Admissible Against the Defendant who Made the Plea or Was a Participant in the Plea Discussions:

(1) a Plea of Guilty Which was Later Withdrawn;

(2) a Plea of Nolo Contendere;

(3) ANY Statement Made in the Course of ANY Proceedings under Rule 11 of the Federal Rules of Criminal Procedure or Comparable State Procedure Regarding Either of the Foregoing Pleas; OR

(4) ANY Statement Made in the Course of Plea Discussions with an Attorney for the Prosecuting Authority Which Do Not Result in a Plea of Guilty or which Result in a Plea of Guilty Later Withdrawn.

However, Such a Statement is Admissible

(i)                 in ANY Proceeding Wherein Another Statement Made in the Course of the Same Plea or Plea Discussions has Been Introduced and the Statement Ought in Fairness be Considered Contemporaneously with it, OR

(ii)                in a Criminal Proceeding for Perjury or False Statement IF the Statement was Made by the Defendant under Oath, on the Record and in the Presence of Counsel.

§  Rule Brake Down 410, Plea Negotiations (Criminal Side of 408)

·         Inadmissible Against a D

¨       Guilty Plea Later Withdrawn

¨       Nolo Contendere Plea

Ø  No Contest – D Does Not Admit Guilt But Will Be Convicted W/out a Jury.  Plea Can’t Be Used Against D as Proof of Guilt in a Civil Trial.

¨       Any Statement Made in the Course of Any Proceeding Under FR of Criminal Procedure 11 (Proceeding Where D Enters the Plea)

¨       Any Statements Made in the Course of Pleas Discussions

Ø  Rationale: Want to Encourage People to Plea. 90% of case plea in CA.

§  MUST Occur  in the Midst of Plea Discussions, Narrow

·         Exceptions (Not Super Relevant)

¨       If D Offers Part of Plea into Evidence, Other Parts Will be Admitted to Understand the Whole.

¨       False Statements Made by D under Oath, On the Record, and in the Presence of Counsel in a Criminal Proceeding for Perjury are Admissible.

§  Rationale: Rule is For the Benefit of the D

§  Analysis

·         Guilty Pleas Can Always Come in If They are Not Withdrawn

·         Exhaustive List of Exceptions: Only the Exceptions Listed Apply.

¨       If D Offers Part of Plea Other Parts Will be Admitted if Necessary in Fairness

¨       False Statements Given are Admissible in Perjury Proceeding if they Were Given Under Oath, on the Record, and with D’s Attorney Present

¨       CANNOT Impeach D

·         D Can Use Evidence Against Prosecution

Ø  Rule 411. Liability Insurance
Evidence that a Person Was or Was Not Insured Against Liability is NOT Admissible Upon the Issue Whether the Person Acted Negligently or Otherwise Wrongfully. This Rule Does NOT Require the Exclusion of Evidence of Insurance Against Liability When Offered for Another Purpose, such as Proof of Agency, Ownership, or Control, or Bias or Prejudice of a Witness.

§  Rule Brake Down 411, Insurance

·         Evidence that a Person Was or Was Not Insured

¨       Not Admissible Upon to Prove

Ø  Negligence OR

Ø  Otherwise Wrongful Actions

¨       Is Admissible to Show

Ø  Proof of Agency;

Ø  Ownership or Control; OR

Ø  Bias or Prejudice of a Witness (employed by the insurance co)

§  Rationale:

·         Reliability: Don’t Want Juries to Find for P Just Bc D Will (through insurance co so not really paying) or Will Not be Able to Pay

¨       Reverse: Cannot infer from not being insured that the person would be extra careful.

¨       Insurance Companies Lobbied Hard for This

§  Analysis

·         ONLY EVIDENCE OF LIABILITY INSURANCE IS EXCLUDED

¨       Life Insurance Policies are Admissible

¨       Homeowners Polices are Liability Insurance and So Excludable

·         Having OR Not Having Insurance is Inadmissible

·         Allegiance With Insurance Company is Admissible to Show Bias

Ø  Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition

(a) Evidence Generally Inadmissible.--The Following Evidence is NOT Admissible in ANY Civil or Criminal Proceeding Involving Alleged Sexual Misconduct EXCEPT as Provided in Subdivisions (b) and (c):

(1) Evidence Offered to Prove that ANY Alleged Victim Engaged in Other Sexual Behavior.

(2) Evidence Offered to Prove ANY Alleged Victim's Sexual Predisposition.
(b) Exceptions.—

(1) In a Criminal Case, the Following Evidence is Admissible, IF Otherwise Admissible Under These Rules:

(A) Evidence of Specific Instances of Sexual Behavior by the Alleged Victim Offered to Prove that a Person Other than the Accused was the Source of Semen, Injury or other Physical Evidence;

(B) Evidence of Specific Instances of Sexual Behavior by the Alleged Victim with Respect to the Person Accused of the Sexual Misconduct Offered by the Accused to Prove Consent By the Prosecution; AND

(C) Evidence the Exclusion of Which Would Violate the Constitutional Rights of the Defendant.

(2) In a Civil Case, Evidence Offered to Prove the Sexual Behavior or Sexual Predisposition of ANY Alleged Victim is Admissible IF it is Otherwise Admissible under these Rules and its Probative Value Substantially Outweighs the Danger of Harm to ANY Victim AND of Unfair Prejudice to ANY Party. Evidence of an Alleged Victim's Reputation is Admissible ONLY IF it has been Placed in Controversy by the Alleged Victim.

(c) Procedure to Determine Admissibility.--

(1) A Party Intending to Offer Evidence Under subdivision (b) MUST--

(A) File a Written Motion at Least 14 days Before Trial Specifically Describing the Evidence and Stating the Purpose for Which it is Offered UNLESS the Court, for Good Cause Requires a Different Time for Filing or Permits Filing During Trial; AND

(B) Serve the Motion on ALL Parties AND Notify the Alleged Victim or, when Appropriate, the Alleged Victim's Guardian or Representative.

(2) Before Admitting Evidence Under this Rule the Court MUST Conduct a Hearing in Camera AND Afford the Victim and Parties a Right to Attend and Be Heard. The Motion, Related Papers, and the Record of the Hearing MUST be Sealed and Remain Under Seal UNLESS the Court Orders Otherwise.

Ø  Relation to 404, D Can Offer Character Evidence of Victim Subject to 412

§  Rule Brake Down 412 –

·         V’s Prior Sexual Conduct Does Not Come in in Criminal Proceeding Involving Sexual Misconduct

¨       EXCEPT Instances of Sexual Conduct

Ø  With Someone Else to Prove That Semen, Injury, or Other Physical Evidence Came From Someone Else OR

Ø  With the Accused to Prove Consent

·         V’s Prior Sexual Conduct Does Not Come in in Civil Proceeding Involving Sexual Misconduct

¨       EXCEPT Evidence to Prove Sexual Behavior or Predisposition Where

Ø  Probative Value Substantially Outweighs the Danger of Harm to ANY Victim AND of Unfair Prejudice to ANY Party

¨       V’s Reputation IF it Has Been Placed in Controversy by V

§  How 404 and 412 are Different

·         404

¨       D Can Offer Character Evidence About V

¨       Slanted Away from Prosecution in a Sense

¨       Proved by Reputation and Opinion Evident

·         412

¨       D Generally Cannot Offer Character Evidence Against the V

¨       Slanted Toward Prosecution

¨       Proof Introduced by Specific Instances of Conduct Rather than Reputation

Ø  Sex W/ Another to Explain Injury, Semen, Physical Evidence

Ø  Sex W/ D to Prove or Disprove Consent

¨       Requires Notice

§  Rationale

·         Encourages Vs Not to Fear Bringing Claims - If V knows that their sexual history will be called into question, V will be less likely to bring forward the claim.

·         Stigma Attached to Women and Sex - Women are often deemed as promiscuous.

·         Low Probative Value in Terms of Specific Instance of Sexual Conduct - Past sexual history has low probative value concerning  whether a V consented to sex with D. 

·         Credibility Issues - Credibility is important in these cases as it is often a he said she said game.  Protecting credibility of V.

Ø  413, 414, 415 Fourth Exception to 404(a)

§  413 In a Criminal Case Where D is Accused of a Sexual Assault, Evidence of a Prior Sexual Assault Comes in for Any Reason Even Character Evidence

·         Notice Required

§  414 – Prior Acts of Child Molestation Come in in Criminal Cases Where D is Accused of Child Molestation for ANY Relevant Reason Even Character Evidence

·         Notice Required

§  415 – Prior Acts of Sexual Assault and Child Molestation Can Come in Civil Cases

·         Notice Required

§  Rationale: Political Pressure

·         Tendency to Commit Crime Again (Particular Interest that is Very Particular)

·         Often Involve Consents – He Said She Said

·         Children are Often Inconsistent Witnesses

§  Has to be Notice to D that P is Going to Offer This Type of Evidence

§  Does Not Need to be Conviction, Can Just be Any Prior Act

Ø  Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government SHALL disclose the evidence to the defendant, including statements of witnesses OR a summary of the substance of ANY testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--

(1) any conduct proscribed by chapter 109A of title 18, United States Code;

(2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;

(3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; OR

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)- (4).

Ø  Rule 414. Evidence of Similar Crimes in Child Molestation Cases

(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on ANY matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--

(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;

(2) any conduct proscribed by chapter 110 of title 18, United States Code;

(3) contact between any part of the defendant's body or an object and the genitals or anus of a child;

(4) contact between the genitals or anus of the defendant and any part of the body of a child;

(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; OR

(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)- (5).

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

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.
(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

v  Introduction to Impeachment: Discrediting a Witness

Ø  Federal Rules 607-610

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

Ø  608. Evidence of Character and Conduct of Witness
(a) Opinion and Reputation Evidence of Character. The Credibility of a Witness MAY be Attacked or Supported by Evidence in the Form of Opinion or Reputation, but Subject to These Limitations: (1) the Evidence MAY refer ONLY to Character for Truthfulness or Untruthfulness, AND (2) Evidence of Truthful Character is Admissible ONLY AFTER the Character of the Witness for Truthfulness has Been Attacked by Opinion or Reputation Evidence or Otherwise.
(b) Specific Instances of Conduct. Specific Instances of the Conduct of a Witness, for the Purpose of Attacking or Supporting the Witness' Character for Truthfulness, Other Than Conviction of Crime as Provided in Rule 609, MAY NOT be Proved by Extrinsic Evidence. They May, However, in the Discretion of the Court, IF Probative of Truthfulness OR Untruthfulness, Be Inquired into on Cross-Examination of the Witness (1) Concerning the Witness' Character for Truthfulness or Untruthfulness, OR (2) Concerning the Character for Truthfulness or Untruthfulness of Another Witness as to Which Character the Witness Being Cross-Examined Has Testified.
The Giving of Testimony, Whether by an Accused or by Any Other Witness, Does NOT Operate as a Waiver of the Accused's or the Witness' Privilege Against Self-incrimination when Examined with Respect to Matters that Relate Only to Character for Truthfulness.

§  608 Rule Brake Down

·         Can Bring in Evidence of W’s Character for Truthfulness or Untruthfulness

¨       By Reputation or Opinion Evidence on Direct

¨       By Specific Instances of Conduct on Cross

Ø  Who

§  Ask W About Own Instances OR

§  Ask Character W About Instances of Person He is Testifying For

Ø  Example: Lying on Employment Application

Ø  Effect of Denial

§  Cannot Bring in Extrinsic Evidence

§  Can Refresh Ws Memory By Showing Deposition or Asking About Events that Led to Instance

¨       Can Only Credit Ws After an Attack 

§  Cannot Be Proved by Extrinsic Evidence

Ø  Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule.--For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a Witness other than an accused has been convicted of a crime SHALL be admitted, subject to Rule 403, IF the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, AND evidence that an accused has been convicted of such a crime SHALL be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; AND

(2) evidence that ANY Witness has been convicted of a crime SHALL be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(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.
(c) Effect of pardon, annulment, or certificate of rehabilitation.--Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, AND that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, OR (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court MAY, however, in a criminal case allow evidence of a juvenile adjudication of a Witness other than the accused IF conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

§  609, Impeachment by Conviction Rule Brake Down

·         (a)(1) Felonies (Crimes Punishable by One Year or More in Prison) Come in

¨       Different Standards Based on Who W is

Ø  Criminal Ds – IF Probative Value Outweighs Prejudicial Effect 

§  Tilts Toward Inadmissibility

Ø  Other Ws – Subject to 403

·         (a)(2) Felonies OR Misdemeanors That Involved Dishonesty or False Statements 

¨       NOT SUBJECT TO 403!!!

·         Time Limit – If More Than 10 Years Since Time of Conviction or Release Whichever is LATER

¨       Presumption Against Admissibility (interests of justice given facts and probative value substantially outweighs prej. effect)

¨       Written Notice Required

·         Pardon OR Statement of Rehabilitation = Generally Not Admissible

·         Juvenile = Not Admissible if Juvenile is the Accused, Otherwise Generally Not Admissible (unless would attack cred of adult and admission is nec for a fair determination of guilt or innocence)

·         Appeal Doesn’t Matter in Terms of Admissibility, Can Show Evidence that Appeal is in Place

§  Rationale: Bc W is a Law Violator, W Has Shown a Disrespect for Society and May be Less Truthful

§  Analysis

·         Theft is Sometimes Considered a Crime of Dishonesty and Sometimes Not

¨       Depends on the Jxn

·         ALL THAT COMES IN IS THE CONVICTION

¨       No Details of the Crime are Allowed in

Ø  Rule 610. Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

§  Rule Brake Down 610

·         Cannot Uses Religious Affiliation to Go Toward Character for Truthfulness or Untruthfulness

§  Religion Can go to Other Things Such as Bias

§  Can Testify About Religious Work

§  Priests Can Wear Garb

Ø  Common Law, 401 (relevancy test) + 402 (relevant info generally admissible, irrelevant info generally inadmissible) Admissible Bc Relevant

§  Bias – W is Biased Toward Someone

§  Prejudice – W is Prejudiced Against Someone

§  Interest – W Stands to Gain from the Case

§  Corruption – W Has Been Bought Off as a W

§  Other Motive to Lie

§  Capacity – Defects in Sensory or Mental Capacities

·          Affects Ability to Perceive 

·         Sensory

¨       Sight, Hearing

·         Mental

¨       Memory

Ø  Drugs or Alcohol May Affect 

¨       Sometimes: Emotional, Psychological Considerations

§  Analysis

·         Relevant – YES

·         Extrinsic Evidence – YES

·         Capacity is Personal – One Person’s Ability to Perceive is Irrelevant to the Issue of Whether Another Person Was Able to Perceive

·         Need Attack Before Support Can be Given 

§  Contradiction and Prior Inconsistent Statements

·         Prior Inconsistent Statements – Says Something Once (Need Not be in Testimony), But Testified to Something Different.

·         Contradiction

·         Analysis

¨       Collateral: Maybe if not as Essential Part of the Claim

¨       Extrinsic Evidence: Not if Collateral

¨       Need Attack Before Support Can be Given 

Ø  Analysis

§  W MUST Have Testified to be Impeached

·         Person Cannot Be Impeached UNLESS and UNTILL He Has Testified

§  Cannot Use Extrinsic Evidence to Impeach Testimony on Opinion/Reputation for Untruthfulness (bc collateral) Under 608 or 609 (Specific Instances of Conduct)

§  Can Credit Ws ONLY AFTER An Attack

·         What is an Attack?

¨       Bias or Interest – NO

¨       Contradiction/Prior Inconsistent Statement May or May Not be an Attack

§  Must be a Good Faith Basis for the Attack

§  MUST be a Good Faith Basis for Questions on Cross-Examination  

§  Foundation

·         Reputation Testimony - W Must Be Acquainted with the Community Where Principal W Lives, Works, Goes to School, Socializes, Etc…

·         Opinion Testimony – W Has Known the Principal W for Some Matter of Time on a Personal, Business, or Professional Basis 

v  Impeachment: Character for (Un)Truthfulness, Prior Crimes

Ø  Federal Rule 607-610

Ø  Analysis

§  Crimes MUST (1) Go to Truthfulness or (2) Be Felonies to be Admitted

·         Stealing as a Prior Crime May or May Not Go to Truthfulness Depending on the Jxn 

·         Fraud, Perjury, Counterfeiting, Bribery  = Crime of Untruthfulness

·         403 DOES NOT APPLY TO CRIMES Under 609(a)(2)

·         Detail, Circumstances, Facts of Crime Do Not Come in Under 609: ONLY CONVICTION COMES IN

¨       If Convicted Person Wants to Discuss the Matter, He Can Open the Door to Admissibility

¨       Can Do An End Run Around 609 and Ask About Details Under 608 IF Does NOT REFER TO THE CONVICTION

Ø  CANNOT BRING IN EXTRINSIC EVIDENCE IF W DENIES

Ø  Court May Apply Same Limits as 609

Ø  Some Say Cannot Do End Run around and Specific Rule Trumps General One

·         Remember Time Limit Problem

¨       Start Date: Day Convicted or Released from Confinement

¨       End Date: When Complaint Filed or D Indicted 

§  Character for Integrity and Fair Dealing May Not Go to Truthfulness

§  Cannot Bring in Extrinsic Evidence Under 608 and 609

§  Must be Good Faith Basis For Qs on Cross

§  Specific Instances Can Come In on Cross of a Person/W or a Character W for a Person

v  Impeachment: Prior Inconsistent Statements, “Contradiction” and Collateral Impeachment

Ø  Federal Rules 801(d)(1)(a), 613

Ø  Rule 801(d)(1)(a)

(d) Statements which are not hearsay. A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition,

Ø  Rule 613. Prior Statements of Witnesses
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible UNLESS the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

§  613 Rule Brake Down

·         W MUST be Afforded an Opportunity to Explain or Deny Extrinsic Evidence of a Prior Inconsistent Statement AND

·         The Opposite Party MUST be Afforded an Opportunity to Interrogate the W Thereon  

§  Analysis

·         Laywer’s Statements are Imputed to Cs

¨       Lawyer’s Stipulations are Not Imputed to Cs

v  Impeachment and Rehabilitation, Prior Consistent Statements

Ø  Federal Rules 801(d)(1)(b) Statements which are not hearsay.

Ø  A statement is not hearsay if--(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,

§  Rule Brake Down 801(d)(1)(b)

·         Prior Consistent Statement (need not be given in court)

·         Offered to Rebut Express or Implied Charge of Improper Influence or Motive  

·         Prior Statement Precedes the Motive

§  Analysis

·         Cannot Be Brought in If Impeached by Prior Inconsistent Statement

·         Expert Testimony About Truthfulness is Questionable

¨       Experts Can Testify About Specialty

v  Rulings on Evidence and Making the Record

Ø  Federal Rule 103

§  (a) Effect of Erroneous Ruling.--Error May NOT be Predicated Upon a Ruling Which Admits or Excludes Evidence UNLESS a Substantial Right of the Party is Affected, AND

(1) Objection.--In Case the Ruling is One Admitting Evidence, a Timely Objection OR Motion to Strike Appears of Record, Stating the Specific Ground of Objection, if the specific ground was not apparent from the context; OR

(2) Offer of Proof.--In Case the Ruling is One Excluding Evidence, the Substance of the Evidence was Made Known to the Court by Offer or Was Apparent From the Context within Which Questions Were Asked.

Once the Court Makes a Definitive Ruling on the Record Admitting or Excluding Evidence, Either at or Before Trial, a Party Need NOT Renew an Objection or Offer of Proof to Preserve a Claim of Error for Appeal.
(b) Record of Offer and Ruling.--The Court MAY Add ANY Other or Further Statement Which Shows the Character of the Evidence, the Form in Which it was Offered, the Objection Made, and the Ruling Thereon. It May Direct the Making of an Offer in Question and Answer Form.
(c) Hearing of Jury.--In Jury Cases, Proceedings SHALL be Conducted, to the Extent Practicable, so as to Prevent Inadmissible Evidence from Being Suggested to the Jury by ANY Means, such as Making Statements or Offers of Proof or Asking Questions in the Hearing of the Jury.
(d) Plain Error.--Nothing in this Rule Precludes Taking Notice of Plain Errors Affecting Substantial Rights Although They were Not Brought to the Attention of the Court.

Ø  Rulings on Evidence & Appeals Based on Evidentiary Rulings: How to Make the Best Case for the Potential Appeal & How to Avoid an Appeal

§  Rationale:

·         Strong Policy Toward Finality of Judgment

·         Encouraging Lawyers to be Good Lawyers at Trial and Judges to Make Good Rulings

§  103 No Appeal Based on Reversible Error of Admittance or Exclusion of Evidence Unless

·         Substantial Right of a Party is Affected (Needed to Have Made a Difference)

¨       If Evidence Comes in Another Way, The Error is Harmless

¨       If the Evidence Against One Party is Overwhelming, Then Many Smaller Errors Will Not Matter

¨       If the Evidence Against a Party is Merely Adequate, Inclusion or Exclusion May Be a Reversible Error

¨       If a Party Argued Admission Under an Incorrect Theory, He Cannot Argue its Inclusion or Exclusion Was an Error on Appeal

·         Specific Ground for Objection Was Stated (unless the specific ground is apparent, safer to include grounds for objection.)

·         Inclusion of Evidence

¨       Objection Was Timely Made After the Question was Asked

¨       Motion to Strike Ok if Didn’t Have Opportunity to Object or Couldn’t Have Anticipated What W was Going to Say 

¨       Can Move for a Mistrial if there Was a Really Bad Error

·         Exclusion of Evidence

¨       Informal Offer of Proof, Approach Judge and Say W Would Say A, B, + C, (Needs to be in the Record for the Appeal)

¨       Formal Offer of Proof, Exclude Jury + Transcribe and Then Say What Can be Admitted

·         Motions in Limine (Occur Just Before Trial), If You Get a Definitive Ruling, You Don’t Have to Object Later

¨       Real Question is Whether the Ruling Was Definitive: If Unsure, Safer Practice is to Object Later

¨       Practical Effect

Ø  What Evidences Comes in at Trial Really Affects the Theory of the Case 

Ø  Therefore Motions in Limine Can be Very Valuable

Ø  Tentative Rulings May be Hard to Deal With as Result as Well 

§  Limiting the Effect on the Jury – The Trial SHALL be Conducted so as to Prevent Inadmissible Evidence from Being Suggested to the Jury by ANY Means, such as Making Statements of Offers of Proof or Asking Questions in the Hearing of a Jury

¨       Sidebar is Ok

§  Plain Error - Nothing in the Rule Precludes Taking Notice of Plain Error Affecting Substantial Rights Although They Were not Brought to the Attention of the Court 

·         Subtlety, Terrible Error Not Enough, Needs to Substantially Affect Rights - Not Enough that a Ruling Screams Out as an Error, it Needs to Have a Substantial Effect on the Case

§  Opening the Door – When One Party Introduces Evidence, Another Introduces Counterproof to Refute or Contradict the Initial Evidence, and the First Party Objects to the Counterproof or Loses the Case and Claims Error in Admitting It, The Objection or Claim of Error is Usually Rejected Because the First Party Opened the Door

·         Montoya’s Interpretation – One Party Cannot Complain that Info Was Wrongly Used if He Used it Affirmatively

¨       I.e., Closing Argument – If a Party Objects to the Inclusion of Evidence and the Objection is Overruled and They Use the Evidence in Their Closing Argument, the Party Has Used the Evidence to Their Advantage and Cannot Object to its Inclusion on Appeal

¨       Can Call Evidence into Question or Refute it W/o Affirmatively Using it

·         Fighting Fire With Fire, Waiving Objections – If One Party Introduces Inadmissible Evidence and the Other Side Fails to Object, Can the Other Side Rebut With More Inadmissible Evidence?

¨       In CA = NO

¨       Other Jxns, Maybe

§  Prosecution Cannot Urge Errors on Appeal Because They Can Never Appeal

Ø  Federal Rule 105 Limited Admissibility - When Evidence Which is Admissible as to One Party or For One Purpose but NOT Admissible as to Another Party OR for Another Purpose is Admitted, the Court, Upon Request, SHALL Restrict the Evidence to its Proper Scope and Instruct the Jury Accordingly.

Ø  Federal Rule 106 Remainder of or Related Writings or Recorded Statements
(Rule of Completion)
-
When a Writing OR Recorded Statement or Part Thereof is Introduced by a party, An Adverse Party MAY Require the Introduction at That Time of ANY Other Part or ANY Other Writing or Recorded Statement Which Ought in Fairness to be Considered Contemporaneously With It.

§  Rule of Completion, 106 – If in Admitting Part of a Writing or Recorded Statement the Whole Needs to be Admitted to Provide Context, the Party Against Whom it is Offered Can Insist that the Other Part be Introduced at That Time

·         Analysis

¨       Does Not Apply to ORAL Statements, Only Applies to Written or Recorded Statements

v  Real and Demonstrative Evidence

Ø  Federal Rule 901 Requirement of Authentication or Identification
(a) General Provision
. The Requirement of Authentication or Identification as a Condition Precedent to Admissibility is Satisfied by Evidence Sufficient to Support a Finding that the Matter in Question is What its Proponent Claims.
(b) Illustrations
. By Way of Illustration Only, and Not by Way of Limitation, the Following are Examples of Authentication or Identification Conforming with the Requirements of this Rule:

(1) Testimony of witness with knowledge. Testimony That a Matter is What it is Claimed to be.

(2) Nonexpert Opinion on Handwriting. Nonexpert Opinion as to the Genuineness of Handwriting, Based upon Familiarity NOT Acquired for Purposes of the Litigation.

(3) Comparison by Trier or Expert Witness. Comparison by the Trier of Fact or by Expert Witnesses with Specimens Which have Been Authenticated.

(4) Distinctive Characteristics and the Like. Appearance, Contents, Substance, Internal Patterns, or Other Distinctive Characteristics, Taken in Conjunction with Circumstances.

(5) Voice Identification. Identification of a Voice, Whether Heard Firsthand or Through Mechanical or Electronic Transmission or Recording, by Opinion Based upon Hearing the Voice at ANY Time Under Circumstances Connecting it With the Alleged Speaker.

(6) Telephone Conversations. Telephone Conversations, by Evidence that a Call was Made to the Number Assigned at the Time by the Telephone Company to a Particular Person or Business, IF

(A) in the Case of a Person, Circumstances, Including Self-Identification, Show the Person Answering to be the One Called, OR

(B) in the Case of a Business, the Call was Made to a Place of Business and the Conversation Related to Business Reasonably Transacted Over the Telephone.

(7) Public Records or Reports. Evidence that a Writing Authorized by Law to be Recorded or Filed and in Fact Recorded or Filed in a Public Office, or a Purported Public Record, Report, Statement, or Data Compilation, in ANY Form, is From the Public Office Where Items of This Nature are Kept.

(8) Ancient Documents or Data Compilation. Evidence that a Document or Data Compilation, in ANY Form,

(A) is in Such Condition as to Create No Suspicion Concerning its Authenticity, (B) was in a Place Where it, If Authentic, Would Likely Be, AND

(C) has Been in Existence 20 Years or More at the Time it is Offered.

(9) Process or System. Evidence Describing a Process or System Used to Produce a Result and Showing that the Process or System Produces an Accurate Result.

(10) Methods Provided by Statute or Rule. Any Method of Authentication or Identification Provided by Act of Congress or by Other Rules Prescribed by the Supreme Court Pursuant to Statutory Authority.

§  Standard – Is There Evidence Sufficient to Support a Jury Finding that the Exhibit is Authentic (what the proponent claims)?

§  104(b) Conditional Relevancy Issue

·         Exhibit Evidence is Sometimes ONLY Relevant if it was THE Knife, Candlestick, Gun That Was Used at the Scene to Commit the Crime

·         Sometimes Evidence Does Not Need to Be THE Item to be Relevant

¨       Example

Ø  Book by McIntyre in Easterfield Library

Ø  Long Neck Bottle Used in Bar Fight

¨       Can Show the Jury a Different Item of the Same Type and Still Be Relevant

§  Satisfying the Standard

·         Police Officer’s Testimony Often Enough - Often, it is Enough for the Police Officer to Testify as to What he Found at the Scene and What he Did with the Evidence.

·         Testing, Must Establish Purity of Substance - If Evidence Was Subject to Testing, The Proponent MUST Established it Has Not Been Tainted or Corrupted in Anyway

¨       Chain of Custody – Established When One or More Witnesses First Describes the Initial Recovery of the Object and Others Describe the Handling of the Object and Passing it Along to Others

Ø  How to Establish – Calling Each Person Who Had Custody from the Time of the Relevant Event Until the Trial and Offering Testimony Showing

§  (1) When They Took Custody and From Whom

§  (2) The Precautions They took to Preserve the Item

§  (3) The Item Was Not Changed, Substituted, or Tampered With While They Had It

§  (4) When They Relinquished Custody and to Whom AND

§  (5) That the Item Offered Appears to Be in the Same Condition as When They Had Custody of It

Ø  Practical Application – Evidence Was Returned to the Evidence Locker Every Day After it was Tested

§  Need at Least Two Ws

·         Person Who Put it in Locker

·         Person Who Took it Out of Locker

§  Don’t Need an Airtight Chain

§  Sometimes there Can be a Gap in the Chain: Goes to Weight, Not Admissibility

§  Need to be Reasonably Certain it Wasn’t Contaminated   

§  Don’t Need Chain of Custody As Much After Something Has Been Tested, but is Often Introduced

§  901(b) Illustrations

·         Testimony of a Witness With Knowledge 901(b)(1)

¨       Elements

Ø  Basis for Identification Required – Some Identification of Distinguishing Characteristics Such as a Serial Number of Initials on the Handle

Ø  In the Same Condition – The Object Appears to be in the Same Condition it Was at the Time of the Events Giving Rise to the Litigation

Ø  If Not in Same Condition, Explanation of Changes

¨       Writing – A Writing Can be Authenticated by the W Who Wrote or Executed it or By Others Who Have Personal Knowledge

Ø  Saw Another Write or Sign a Document

Ø  Saw the Writing Before

Ø  Familiar With its Contents

¨       Photograph – W w/ Knowledge Who Testifies that the Photograph Accurately Represents the Scene Depicted at the Relevant Time 

·         Handwriting

¨       901(b)(2) - Nonexpert Opinion on Handwriting Based Upon Familiarity Not Acquired for Purposes of Litigation

Ø  Someone Familiar With the Handwriting OR

Ø  Who Saw Person Write Out the Document 

¨       901(b)(3) - Comparison by Trier of Fact or Expert W w/ Specimens Which Have Been Authenticated

Ø  Comparison to Known Exemplar – Tax Return, Force D to Write Name 10 Times    

¨       901(b)(4) Distinctive Characteristics and the Like – Appearance, Contents, Substance, Internal Patterns, or Other Distinctive Characteristics, Taken in Conjunction with Circumstances

Ø  Examples

§  Use of Words or Phrases

§  Letter Head

§  Patterns

·         Spellings or Misspelling

·         Jargon

·         Slang

·         Punctuation

·         Syntax, Abbreviation, Paragraph Structure

§  Content – May Reveal Knowledge that is Sufficiently Distinctive to Support a Finding that it was Authored by a Particular Individual Who Had Such Knowledge

§  Writing Cannot be Authenticated As Being From or Connected to a Person Simply Because it Bears His Name

·         However, Distinctive Nicknames or Identity Can be One Factor Along with Others Used to Authenticate

·         Voice Identification 901(b)(5) – Identification of a Voice, Whether Heard Firsthand or Through Mechanical or Electronic Transmission or Recording, by Opinion Based Upon Hearing the Voice at Any Time Under the Circumstances Connecting it With the Alleged Speaker

¨       W Requirement - Personal Knowledge of the Voice

¨       Incoming Call Cannot Be Authenticated by Self-Identification of the Caller – “Hi It’s Joey” is Not Enough

Ø  Need Phone Records (Directory)

·         Telephone Conversations 901(b)(6) – Telephone Conversations by Evidence that a Call Was Made to the Number Assigned at the Time by the Telephone Company to a Particular Person or Business, if (A) in the Case of a Person, Circumstances, Including Self-Identification, Show the Person Answering to be the One Called, or (B) in the Case of a Business, the Call was Made to a Place of Business and the Transaction Related to Business Reasonably Transacted Over the Telephone.

¨       Outgoing Telephone Calls

Ø  Call Was Made to the Person at the Number Assigned by the Telephone Company AND

Ø  Person Identified Himself

OR

Ø  Circumstances Other Than Self-Authentication Reveal The Person to be the One Called

¨       Business

Ø  Call Was Placed Using the Number Assigned to the Business AND

Ø  Conversation Related to Business Reasonably Transacted Over the Telephone

·         Public Records or Reports 901(b)(7) – Evidence that a Writing Authorized by Law to be Recorded or Filed and in Fact Recorded or Filed in a Public Office, or a Purported Public Record, Report, Statement, or Data Compilation, in ANY Form, is From the Public Officer Where Items of This Nature are Kept 

¨       Covers Things That the Self-Authenticating Public Record Provision, 902, Does Not. 

Ø  If There is Not a Seal on the Document, Bring it in Here

¨       Requirements

Ø  Fits Category of

§  Writings Authorized by Law to be Recorded or Filed Which are in Fact Recorded or Filed OR

§  Purported Public Record, Report, Statement, or Data Compilation in ANY Form

AND

Ø  Is From the Public Office Where it Would Normally be Kept

·         Ancient Documents or Data Compilations 901(b)(8) – Evidence that a Document or Data Compilation, in ANY Form, (A) is in such Condition as to Create No Suspicion Concerning its Authenticity, (B) was in a Place Where it, If Authentic, Would Likely Be, and (C) has Been in Existence for 20 Years or More at the Time it is Offered

¨       Elements

Ø  At Least 20 Years Old

Ø  Unsuspicious Appearance AND

Ø  Found in a Place Where One Would Expect it to Be Authentic  

·         Process or System 901(b)(9) – Evidence Describing a Process or System Used to Produce a Result and Showing that the Process or System Produces an Accurate Result

¨       Examples

Ø  X-Rays, Computer Output, Polls, Surveys, Things Where No One Was There to Physically Observe: ATM Photographs

¨       Have to Show the Science of the Process to Authenticate the Thing Made

·         Methods Provided by Statute or Rule 901(b)(10) – Any Method of Authentication or Identification Provided by Act of Congress or by Other Rules Prescribed by the Supreme Court Pursuant to Statutory Authority 

¨       Example - Deposition Transcripts, Court-Reported Trial Transcripts

Ø  Rule 902. Self-Authentication - Extrinsic Evidence of Authenticity as a Condition Precedent to Admissibility is NOT Required with Respect to the Following:

(1) Domestic Public Documents Under Seal. A Document Bearing a Seal Purporting to be that of the United States, or of any State, District, Commonwealth, Territory, or Insular Possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a Political Subdivision, Department, Officer, or Agency Thereof, and a Signature Purporting to be an Attestation or Execution.

(2) Domestic Public Documents Not Under Seal. A Document Purporting to Bear the Signature in the Official Capacity of an Officer or Employee of ANY Entity Included in Paragraph (1) hereof, Having No Seal, IF a Public Officer Having a Seal and Having Official Duties in the District or Political Subdivision of the Officer or Employee Certifies Under Seal that the Signer has the Official Capacity and That the Signature is Genuine.

(3) Foreign Public Documents. A Document Purporting to be Executed or Attested in an Official Capacity by a Person Authorized by the Laws of a Foreign Country to Make the Execution or Attestation, and Accompanied by a Final Certification as to the Genuineness of the Signature and Official Position

(A) of the Executing or Attesting Person, OR

(B) of ANY Foreign Official Whose Certificate of Genuineness of Signature and Official Position Relates to the Execution or Attestation OR is in a Chain of Certificates of Genuineness of Signature and Official Position Relating to the Execution or Attestation.

A Final Certification MAY be Made by a Secretary of an Embassy or Legation, Consul General, Consul, Vice Consul, or Consular Agent of the United States, or a Diplomatic or Consular Official of the Foreign Country Assigned or Accredited to the United States. IF Reasonable Opportunity has Been Given to ALL Parties to Investigate the Authenticity and Accuracy of Official Documents, the Court MAY, for Good Cause Shown, Order That They be Treated as Presumptively Authentic Without Final Certification or Permit them to be Evidenced by an Attested Summary With or Without Final Certification.

(4) Certified Copies of Public Records. A Copy of an Official Record or Report or Entry Therein, or of a Document Authorized by Law to be Recorded or Filed and Actually Recorded or Filed in a Public Office, including Data Compilations in ANY Form, Certified as Correct by the Custodian or Other Person Authorized to Make the Certification, by Certificate Complying with Paragraph (1), (2), or (3) of this Rule or Complying with ANY Act of Congress or Rule Prescribed by the Supreme Court Pursuant to Statutory Authority.

(5) Official Publications. Books, Pamphlets, or Other Publications Purporting to be Issued by Public Authority.

(6) Newspapers and Periodicals. Printed Materials Purporting to be Newspapers or Periodicals.

(7) Trade Inscriptions and the Like. Inscriptions, Signs, Tags, or Labels Purporting to have been Affixed in the Course of Business and Indicating Ownership, Control, or Origin.

(8) Acknowledged Documents. Documents Accompanied by a Certificate of Acknowledgment Executed in the Manner Provided by Law by a Notary Public or Other Officer Authorized by Law to Take Acknowledgments.

(9) Commercial Paper and Related Documents. Commercial Paper, Signatures Thereon, and Documents Relating Thereto to the Extent Provided by General Commercial Law.

(10) Presumptions Under Acts of Congress. Any Signature, Document, or Other Matter Declared by Act of Congress to be Presumptively or Prima Facie Genuine or Authentic.

(11) Certified Domestic Records of Regularly Conducted Activity.--The Original OR a Duplicate of a Domestic Record of Regularly Conducted Activity that Would be Admissible under Rule 803(6) IF Accompanied by a Written Declaration of its Custodian or Other Qualified Person, in a Manner Complying with ANY Act of Congress or Rule Prescribed by the Supreme Court Pursuant to Statutory Authority, Certifying that the Record—

(A) was Made at or Near the Time of the Occurrence of the Matters Set Forth by, or From Information Transmitted by, a Person with Knowledge of Those Matters;

(B) was Kept in the Course of the Regularly Conducted Activity; and

(C) was Made by the Regularly Conducted Activity as a Regular Practice.

A Party Intending to Offer a Record into Evidence under this Paragraph MUST Provide Written Notice of that Intention to ALL Adverse Parties, and MUST Make the Record and Declaration Available for Inspection Sufficiently in Advance of Their Offer into Evidence to Provide an Adverse Party with a Fair Opportunity to Challenge Them.

(12) Certified Foreign Records of Regularly Conducted Activity.--In a Civil Case, the Original or a Duplicate of a Foreign Record of Regularly Conducted Activity that Would be Admissible under Rule 803(6) IF Accompanied by a Written Declaration by its Custodian or Other Qualified Person Certifying that the Record—

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; AND

(C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

§  Self-Authentication 902

·         Rationale:

¨       Difficult to Counterfeit 

¨       Easy to Prove Authenticity

·         Domestic Public Documents Under Seal 902(1)

¨       Elements

Ø  Official Signature of “Attestation or Execution” AND

§  Attestations Means – Signer Examined and Found to be Genuine

§  Execution Means – Document was Written or Adopted by Signer

Ø  An Appropriate Seal

¨       Original Documents ONLY

·         Domestic Public Documents Not Under Seal 902(2)

¨       Elements

Ø  Original Public Document or Record

Ø  Signature in Official Capacity of an Officer or Employee of a Designated Governmental Agency That Has No Seal AND

Ø  Another Signature by an Officer With Official Duties in the Jxn Certifies Under Seal (Signed and Sealed Certificate)

§  That The Signer Has Official Capacity AND

§  That the Signature is Genuine

·         Foreign Public Documents 902(3)

¨       Elements

Ø  Documents Must Bear the Signature of an Authorized Foreign Official “In an Official Capacity” AND

Ø  Proper Certification

§  Final Certification By

·         Diplomatic or Consular Officer Directly OR

·         Chain of Certificates by Superior of Original Signer, Higher Authority, Second Higher Authority, Etc… Until the Diplomatic or Consular Officer AND

·         Attest to the Genuineness of the Signature AND

·         The Authority of the Signer

·         Certified Copies of Public Records 902(4)

¨       Rationale

Ø  Often Used Because Parties Do Not Generally Have Original Public Documents

¨       Elements

Ø  Custodian or Other Authorized Person Certify the Copy as Correct by Complying with Either 902(1),  (2), or (3), or with a Federal Statute of Rule Prescribed by the Supreme Court

§  Certificate Must Have a Seal That Gives Further Indication of Reliability

·         Official Publications 902(5)

¨       Does Not Include Privately Published Books

¨       Need to be Originals

·         Newspapers and Periodicals 902(6)

¨       Does Not Need to be Widely Known or Circulated

¨       Rationale

Ø  Forgery Extremely Difficult

¨       Extrinsic Evidence May Still be Necessary to Establish Authorship of

Ø  Particular Articles

Ø  Letters to the Editor

Ø  Responsibility for Classified or Feature Advertisements

·         Trade Inscriptions 902(7)

¨       Examples

Ø  Signs

Ø  Tags

Ø  Labels

Purported to have been Affixed in the Course of Business and Indicating

Ø  Ownership

Ø  Control OR

Ø  Origin

¨       Elements

Ø  Inscription MUST Have Been Affixed in the Course of Business AND

Ø  MUST Indicate Ownership, Control, or Origin

·         Acknowledged Documents 902(8)

¨       Seal Not Required

¨       Certificate Probably Should Include

Ø  Person Went Before a Public Official Authorized to Take Acknowledgement

Ø  His Identity Was Known an Official AND

Ø  He Swore Under Oath to the Official that the Executed the Document Under His Own Free Will

·         Commercial Paper and Related Documents 902(9)

·         Presumptions Under Act of Congress 902(10)

¨       Examples

Ø  Tax Returns

Ø  SEC Registrations

Ø  Transcripts of Court Proceedings

Ø  Naturalization Records

·         Certified Copies of Records of Regularly Conducted Activity 902(11) + (12)

¨       Elements

Ø  Must be Made by the Custodian of the Record or by Another Person Sufficiently Familiar with the Record

Ø  Made in the Manner Required by the Business Records Exception to the Hearsay Rule 803(6)

§  Made in the Course of a Regularly Conducted Business

§  Record Was Regularly Kept

§  Made Quickly After the Event

Ø  Notice Requirement 

¨       Rationale: Because the Business Relies on Records in its Day to Day Functions, They are Probably Valid and Trustworthy  

Ø  Rule 903. Subscribing Witness' Testimony Unnecessary - The Testimony of a Subscribing Witness is NOT Necessary to Authenticate a Writing UNLESS Required by the Laws of the Jurisdiction Whose Laws Govern the Validity of the Writing.

§  Comment – A Proponent Who Offers in Evidence an Attested Writing Need Not Call the Subscribing Ws to Authenticate it EXCEPT Where the Law So Requires

Ø  Foundation Photograph, “I am Showing You …”

§  I am Showing You What has Previously Been Marked as P’s Exhibit #1 for Identification.  Do you Recognize it?

§  What is It?

§  How do You Recognize it?

§  Is it a Fair and Accurate Depiction of the _____?  OR Does it Appear to Be in the Same Condition as it Was Then?

§  Your Honor, We Move Plaintiff’s Exhibit #1 for Identification into Evidence as Plaintiff’s Exhibit One

Ø  Foundation Tangible Object, “I am Handing You…”

§  I am Handing You What Has Previously Been Marked People’s Exhibit #1 for Identification.  Do You Recognize It?

§  What is it?

§  How Do You Recognize it?

§  Is it in the Same Condition as it was When You Recovered it?

§  Your Honor, We Move People’s Exhibit #1 for Identification into Evidence as People’s Exhibit #1.

v  Demonstrative Evidence

Ø  Definition(s)

§  Anything that Appeals to the Senses (too broad) – Reaches Almost Everything

§  Evidence That Conveys a Firsthand Sense Impression (intermediate) – Excludes Testimony that is a Secondhand Recounting of a Ws Perceptions

§  Illustrative Evidence (narrow) - Includes Evidence Used to Explain or Illustrate but Does Not Have Substantive Force of Its Own

Ø  Drawings, Charts, Diagrams, Maps and Models

§  Foundation: Testimony That the Evidence is an Accurate Portrayal of the Matter in Question by Person Who Actually Perceived the Matter Depicted

·         Questions

¨       Is This a Fair and Accurate Portrayal of the Actual Thing?

¨       Would Having this Diagram Assist You With Giving Your Testimony?

§  Things to Scale

·         Need Person Who Did Measurements to Testify

§  Not to Scale Can Be Admitted Too if Not Too Misleading

v  Best Evidence Rule

Ø  Federal Rules 1001-1008

Ø  Rule 1001. Definitions For Purposes of this Article the Following Definitions are Applicable:

(1) Writings and Recordings. "Writings" and "Recordings" Consist of Letters, Words, or Numbers, or Their Equivalent, Set Down by Handwriting, Typewriting, Printing, Photostating, Photographing, Magnetic Impulse, Mechanical or Electronic Recording, or Other Form of Data Compilation.

(2) Photographs. "Photographs" Include Still Photographs, X-ray Films, Video Tapes, and Motion Pictures.

(3) Original. An "Original" of a Writing or Recording is the Writing or Recording Itself OR ANY Counterpart Intended to Have the Same Effect by a Person Executing or Issuing it. An "Original" of a Photograph Includes the Negative or ANY Print Therefrom. If Data are Stored in a Computer or Similar Device, ANY Printout or Other Output Readable by Sight, Shown to Reflect the Data Accurately, is an "Original".

(4) Duplicate. A "Duplicate" is a Counterpart Produced by the Same Impression as the Original, or from the Same Matrix, or by Means of Photography, Including Enlargements and Miniatures, or by Mechanical or Electronic Re-Recording, or by Chemical Reproduction, or by Other Equivalent Techniques Which Accurately Reproduces the Original.

Ø  Rule 1002. Requirement of Original (Crux of the Rule)

To Prove the Content of a Writing, Recording, or Photograph, the Original Writing, Recording, or Photograph is Required, EXCEPT as Otherwise Provided in these Rules or by Act of Congress.

Ø  Rule 1003. Admissibility of Duplicates

A Duplicate is Admissible to the Same Extent as an Original Unless

(1) a Genuine Question is Raised as to the Authenticity of the Original OR

(2) in the Circumstances it Would be Unfair to Admit the Duplicate in Lieu of the Original.

Ø  Rule 1004. Admissibility of Other Evidence of Contents
The Original is NOT Required, AND Other Evidence of the Contents of a Writing, Recording, OR Photograph is Admissible IF—

(1) Originals Lost or Destroyed. ALL Originals are Lost or Have Been Destroyed, UNLESS the Proponent Lost or Destroyed Them in Bad Faith; OR

(2) Original Not Obtainable. No Original Can be Obtained by ANY Available Judicial Process or Procedure; OR

(3) Original in Possession of Opponent. At a Time When an Original was Under the Control of the Party Against Whom Offered, that Party Was Put on Notice, by the Pleadings or Otherwise, that the Contents Would be a Subject of Proof at the Hearing, and that Party Does Not Produce the Original at the Hearing; OR

(4) Collateral Matters. The Writing, Recording, or Photograph is Not Closely Related to a Controlling Issue.

Ø  Rule 1005. Public Records

The Contents of an Official Record, or of a Document Authorized to be Recorded or Filed and Actually Recorded or Filed, Including Data Compilations in ANY Form, IF Otherwise Admissible, MAY be Proved by Copy, Certified as Correct in Accordance with Rule 902 or Testified to be Correct by a Witness who has Compared it with the Original. IF a Copy Which Complies with the Foregoing Cannot be Obtained by the Exercise of Reasonable Diligence, then Other Evidence of the Contents May be Given.

Ø  Rule 1006. Summaries

The Contents of Voluminous Writings, Recordings, or Photographs Which Cannot Conveniently be Examined in Court MAY be Presented in the Form of a Chart, Summary, or Calculation. The Originals, or Duplicates, SHALL be Made Available for Examination or Copying, or Both, by Other Parties at Reasonable Time and Place. The Court MAY Order That They be Produced in Court.

Ø  Rule 1007. Testimony or Written Admission of Party

Contents of Writings, Recordings, or Photographs MAY be Proved by the Testimony or Deposition of the Party Against Whom Offered or by that Party's Written Admission, Without Accounting for the Nonproduction of the Original.

Ø  Rule 1008. Functions of Court and Jury

When 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.

Ø  Comments

§  Rationale:

·         Writing Can be Too Lengthy to Be Able to Remember Precisely

·         Actual Terms are Often Important in a Writing

§  1001  For Writings, Recordings, and Photographs (Sometimes Works of Art) The Court Don’t Want to Hear What a W Has to Say About It, The Court Wants the Best Evidence, The ACTUAL THING

§  1002 (Crux of the Rule)To Prove the Content of a Writing, Recording, or Photograph the Actual Thing is Required 

·         If You Can Prove What You Want to Prove W/out Trying to Prove the Content of a Writing, Recording, or Photograph you CAN.

¨       Try to Prove Another Way

¨       Can Prove By Personal Knowledge

·         Example

¨       Receipt

Ø  Cannot Say – They Receipt Said I Spent $10

Ø  Can Say – I Went Shopping and Spent $10

¨       Marriage  

Ø  Cannot Say – The Wedding Certificate Says They are Married

Ø  Can Say - I Saw Them Get Married

·         1003 – A Duplicate (Photo Copy or Photo) is Admissible in Lieu of the Original As Long as

¨       There is Not an Issue With the Authenticity of the Original OR

¨       It Would be Unfair to Admit the Duplicate in Lieu of the Original

·         1004 – Original is Not Required and Other Evidence of the Content is Admissible IF The Original is

¨       Lost or Missing and Not Destroyed by Proponent in Bad Faith

Ø  Negligence ≠ Bad Faith

¨       Not Obtainable by Legal Means

¨       In Possession of Opponent Who Was Given Notice and Doesn’t Produce

¨       Speaks Only to Collateral Maters

¨       Note: There is No Hierarchy - If a Duplicate Exists, Do Not Have to Use it Over Other Means

·         1001-1004 Are ALL 104(a) Questions

·         1005 – Can Prove The Contents of a Public Record by a “Copy, Certified as Correct in Accordance with 902 or Testified to be Correct by a W Who Has Compared it With the Original.  In Cases Where Such a Copy Cannot be Obtained by Exercise of Reasonable Diligence, Other Evidence of Content May be Received

¨       Hierarchy - Stands in Contrast to 1004 in That it Prescribes a Hierarchy

Ø  Must Try to Prove Contest of a Public Record by

§  1st – A Copy Certified Under 902 or Testimony of a W Stating the Copy is Correct Who Has Compared the Copy With the Original

§  2nd – Other Evidence May be Introduced

·         1007 – Do Not Need to Produce Original When Evidence is Offered Against a Party Who Has Admitted to its Contents

·         1008Functions of the Judge and the Jury

¨       Questions for the Judge, 104(a)

Ø  Whether an Item Constitutes a “Writing, Recording, or Photograph”

Ø  Whether a “Writing, Recording, or Photograph” is an Original

Ø  Whether a Something is a Duplicate Under 1004

Ø  Whether a Genuine Question of Authenticity Has Been Raised Under 1003(1)

Ø  Whether it Would be Unfair to Receive the Duplicate v. the Original Under 1003(2)

Ø  Whether the Original Has Been Lost or Destroyed Under 1004(1)

Ø  Whether the Original Has been Lost or Destroyed in Bad Faith Under 1004(1)

Ø  Whether the Original is Unobtainable by Judicial Process Under 1004(2)

Ø  Whether the Original is in the Possession of the Opponent and Proper Notice Was Given Under 1004(3)

Ø  Whether the Evidence Goes to a Collateral Matter Under 1004(4)

Ø  Whether a Copy of a Public Record Has been Properly Certified under 1005

Ø  Whether a Certified or Compared Copy Cannot be Obtained with “Reasonable Diligence” under 1005 AND

Ø  Whether Writings are Too Voluminous to be Examined in Court Under 1006

¨       Questions for the Jury, 104(b)

Ø  Whether a Writing That Party Seeks to Prove Ever Existed

Ø  Whether Another Writing Produced at Trial is the Original

Ø  Whether Other Evidence of Contents Correctly Reflects the Contents

·         Once the Original is Admitted, W Can Be Asked to Read it

¨       Have to Satisfy the Best Evidence Rule Before Contents Can be Published to the Jury

·         Handwritten Notes Constitute Best Evidence

v  Introduction to Hearsay

Ø  Federal Rules 801-806, 801(a)-(c)

Ø  Rule 801. Definitions

The following definitions apply under this article:

(a) Statement. A "statement" is

(1) an oral or written assertion OR

(2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay. A statement is not hearsay if—

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

(A) inconsistent with the declarant's testimony, AND was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, OR

(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, OR

(C) one of identification of a person made after perceiving the person; OR

(2) Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity OR

(B) a statement of which the party has manifested an adoption or belief in its truth, OR

(C) a statement by a person authorized by the party to make a statement concerning the subject, OR

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, OR

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Ø  Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

Ø  Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

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

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

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

(6) Records of Regularly Conducted Activity.--A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(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.

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

(A) the activities of the office or agency, OR

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

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

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

(21) Reputation as to character. Reputation of a person's character among associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

Ø  Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; OR

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; OR

(3) testifies to a lack of memory of the subject matter of the declarant's statement; OR

(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) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

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) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's 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 declarant's 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) Statement of personal or family history.

(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; OR

(B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) 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.

Ø  Rule 805. Hearsay Within Hearsay

Hearsay 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.

Ø  Rule 806. Attacking and Supporting Credibility of Declarant

When 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.

Ø  What is Hearsay?

§  “Hearsay is an Out-of-Court Statement Offered for the Truth of the Matter Asserted”

§  Why it is Not Allowed, Rationale:

·         Hearsay Risks

¨       Misrepresentation

¨       Faulty Memory  

·         Safeguards of the Trial Process, When Someone is In Court it is Easier to Tell if They are Lying

¨       Demeanor – The Demeanor of the W is Readily Apparent

¨       Oath – Ws Have to Take an Oath

¨       Cross Examination – W is Subject to Cross-Examination and his Story Can be Tested as To 

Ø  Recollection

Ø  Sincerity

Ø  Perception

Ø  Narration

·         Empirical Evidence is Different and Cannot Be Tested This Way

·         Different Case When W as to What Declarant Perceived is in Court

¨       W Subject to

Ø  Oath

Ø  Demeanor

Ø  Cross-Examination

¨       BUT Trier of Fact Cannot Examine Declarant’s Perception, Narration, Recollection, and Sincerity

§  Note: Someone Can Always Testify About What He Perceived (vs Said)

Ø  What is a Statement?

§  Statement is Understood Broadly to Include Almost All Human Verbal Expressions, Oral and Written

·         Intention Important - A Statement Includes Any Written or Oral “Assertion” that the Declarant Intends as an Assertion

§  Assertive Behavior – Verbal Expressions

·         Questions and Commands May or May Not be Statements

¨       Fact Laden Statements May Contain Assertions

§  Action or Conduct - Statements Include Nonverbal Expressive and Communicative Behavior When it Amounts to a Substitute for Words AND There is an Intent to Communicate

·         Examples

¨       Shaking Head “No” IF There is an Intent  to Communicate

¨       Non-Verbal Conduct Can Tell Us A lot About Someone, But Unless it is Indented to be Assertive, It is Not a Statement for Hearsay Purposes

¨       Rolling Your Eyes

¨       Diaries – Assert a lot W/out Intending to Convey the Information W/in Them to Anyone

·         Non-Volitional Statements Are Not Intended to Convey Information to Anyone

·         Doesn’t Matter if No One Else Observed the Non-Verbal Conduct as Long as it was Intended to Convey a Message

§  Coded Signals –

·         Coded Expressions Essentially Obscure or Ambiguous to Ordinary Observers Are Viewed as Statements for Hearsay Purposes

§  Nonassertive Behavior – Verbal Expressions

·         Reflexive Verbalizing – Words that are Spoken in a Reflexive and Unthinking Manner Rather Than in a Volition and Thoughtful Way are Not Assertions 

¨       Examples

Ø  “Ouch”

Ø  Swear Words

·         Statements Lacking Factual Content – Common Social Pleasantries such as Words of Greeting, Polite Responses, and Leave taking are Normally Understood in a Ways that Depend Very Much on Tone of Voice, Inflection, Facial Expression, Nonverbal Cues, Setting and Social Custom.  Dictionary Meanings Often Offer Little or No Help to What the Phrases are Likely to Convey such as the Mood or Attitude of the Speaker. 

¨       They are Not Assertion Because They Make no Positive Claim  

¨       Examples

Ø  “Hi Sarah.  Good Morning.  How are You?”

Ø  “I’m Fine.  You Look Well.  Nice to See You.”

Ø  “Gotta Get Back to Work.  I’m on My Way.”

·         Nonvolitional Statements – Some Verbal Expressions that Might Appear to be Assertions are Not Because they may be NonVolitional bc the Speaker Does Not Exercise Normal Self-Control

¨       Examples

Ø  Sleepwalking

Ø  Delusional Utterances

Ø  Statements by Those Who are Drugged, Intoxicated, or Hypnotized 

Ø  Knee Jerk/Reflexes

·         Specialized Senses

¨       Questions and Imperatives – Courts Sometimes Say that Questions and Commands are Nonassertive Even Though Verbal

Ø  Sometimes Assertive

§  Fact Laden Questions or Commands Are Typically Assertive  

¨       Verbal Acts – Courts Sometimes Say that Words Admitted Under the Verbal Act Doctrine are NonAssertive

Ø  Seems Like the Speaker Has Assertive Intent

¨       Nonassertive Verbal Conduct – Commentators Sometimes Say That Nonassertive Verbal Conduct Occurs When a Statement if Offered to Prove Something that is Apparently on the Mind of the Declarant but is Not Among the Ideas He Sought Expressly to Communicate

§  Action or Conduct – Most Human Conduct Sheds Light on the Thinking and Belies of the Actor, Which in Turn Suggests Conclusions About Act, Events, and Conditions in the World.  It Has This Tendancy Even When The Actor Has No Intent to Express or Communicate

·         Examples

¨       Someone Opens an Umbrella bc it is Raining

¨       Someone Puts on a Coat bc it is Cold

·         Not Hearsay If Not Intended as Assertive Conduct

·         Landmark Wright Case – P Offered Letters Written to Dead Lover to Prove the Writer’s Thought Lover Was Competent, that He Was Competent, and That the Will Leaving All His Property to P Was Valid

¨       Holding: Letters Were Hearsay and Evidence of Conduct is Always Hearsay When Offered in Support of a Two-Step Inference

¨       801 Rejects This Broad Conclusion

·         Partly or Wholly Verbal Conduct that is Both Assertive and Performative  

¨       SPLIT!! as to Whether Such Evidence is Hearsay

Ø  Most Say it is Not Hearsay

¨       Examples

Ø  Mugger Saying “Give Me Your Wallet or I’ll Shoot,” is Not Just a Statement But ALSO and Intimidation, Threat, and Force of a Taking

§  Silence and Noncomplaint; Negative Results or Inquiry

·         Noncomplaint is Not Hearsay – Silence Cannot be Hearsay Because There is No Assertive Intent

Ø  When Is It Offered to Prove What it Asserts?

§  Hearsay Uses – Direction Assertions of the Mater to be Proved

§  Indirect Assertions (Proving What the Speaker Intended to Say)

·         State of MindEvery Statement that Directly Asserts Facts Also Indirectly Asserts Something About the Speaker’s State of Mind. 

§  Assertions of Circumstantially Relevant Facts

·         If the Proponent’s Purpose is to Prove the Relevant Point, the Statement is Still Hearsay if it Tends to Prove the Relevant Point ONLY by First Being Taken as Proof of the Actual Point

·         Examples

¨       Fight to Illustrate that Marriage Was Bad

¨       Statement That P Would Get Job to Prove Causality in Defamation Suit

§  Nonhearsay Uses – Verbal Acts, Parts of Acts – When Statements are Used to Show the Character of Nature of Behavior, Such Words are Not Hearsay, But Verbal Acts

·         Definition – Doing Something With Words Rather Than Communicating

¨       Words Have Performative Quality

·         Usually the Words are Legally Significant

·         Examples

¨       Threats

¨       Offers, Acceptances, Rejections

Ø  Contracts

Ø  For Employment

Ø  To Sell Things

¨       Gifts

¨       Claims of Right, Adverse Possession  

¨       Invitation to Apply for a Job

¨       Apology

¨       Accusation

¨       Slander

§  Impeachment – When Offered to Impeach a W, Prior Statements are Universally Judged to be Nonhearsay

·         Compare to Prior Inconsistent Statement Offered for Truth of the Matter Asserted

¨       Subject to Strict Rules of  801(d)(1)(A)

¨       Effect on Closing – Attorney Cannot Say “ _____ is True, So Find This Way,” But He Can Say You Can’t Believe W Because One Time He Said One Thing And Another He Said Another Thing

·         When Coming in to Impeach Any Out of Court Statement Can Come In

·         613 – W Must be Subject to be Recalled, be Subject to Cross-Examination and Have a Chance to Explain the Statement 

¨       Rule 613. Prior Statements of Witnesses

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

§  Effect on the Listener or Reader – In a Large Number of Cases, it is Important to Prove What a Person Actually Knew or Understood, What Info Was Provided to Her (Warning or Notice), or What Pressure She Felt from Urging or Blandishment of Others

·         Uses – Such Statements Can Help Prove

¨       Knowledge

Ø  Example

§  Mr. E and Letter Saying J Needs Encouragement.  His Knowledge Goes to Malice

¨       Notice

¨       Encouragement

¨       Coercion

¨       Person Did Not Have Guilty State of Mind

Ø  Example – J’s Attorney Told Her She Would Lose and Should Plead Guilty.  Shows She Didn’t Plead Guilty Bc She Was Guilty.

·         NOT Hearsay Bc Not Used to Prove What Statements Assert

§  Statements to Prove that Something Was Said

·         Example:  Someone Yells “I’m Alive.”  Because he Could Talk, We Can Tell He Was Alive not Bc of What he Said.  Doesn’t Matter Whether it was True

§  Identifying Characteristics; Verbal Objects and Markers – Out of Court Statements are Not Hearsay When Used to Identify a Speaker or Mark and Event or Point in Time

·         Examples

¨       Automobile License Plate

¨       Insignias and Labels

¨       Bumper Stickers

§  Circumstantial Evidence of State of Mind – Circumstantial Evidence of State of Mind is Not Hearsay When Used to Prove State of Mind or Future Behavior

§  Circumstantial Evidence of Memory or Belief – Usually is Hearsay

Ø  Borderland Doctrine

§  Mixed Act and Assertion

§  Looking Behind a Statement – Proving Unmentioned Acts, Events, or Conditions

Ø  403 Issues

§  Can Use a Limiting Instruction if Evidence Seems Too Much Like Character Evidence

§  Can Also Use Limiting Instruction to Say Evidence Only Comes in To Show Effect on Hearer; Impeachment; Relevant Facts; NOT Truth of the Matter Asserted

v  Hearsay Exclusions

Ø  Prior Statements By the Testifying Witness

§  Prior Inconsistent Statements

·         Federal Rule 801(d)(1)(A)

·         Elements

¨       (1) Statement Must be Inconsistent With Trial Testimony

Ø  The Requirement is Satisfied When a Statement Conflicts by Implication

§  One Statement is Particular and Another General and the 2nd Puts the 1st in Tension

§  One Includes a Point that the Other Omits

§  One is Categorical and the Other is Uncertain

Ø  Prior Positive Statement is Inconsistent With Claimed Lack of Memory

§  Rationale: Someone Influenced W

¨       (2) Made in a Proceeding or Deposition Where W Was Under Oath Subject to the Penalty of Perjury AND

Ø  Grand Jury Testimony, Preliminary Hearing, Prior Trial, or Deposition

§  Sentencing Hearing is NOT Under Oath

Ø  Can be Statement In a Separate Proceeding Involving Different Parties and Transactions

Ø  NOT Statements Made at the Police Station or on the Street to Law Enforcement Agents (even in the form of sworn affidavit)

¨       (3) Subject to Cross-Examination on the Earlier Statement

Ø  A W Who Stonewalls or Remembers Nothing About the Situation in Which he Spoke Cannot be Adequately Cross-Examined

§  Claims of Lack of Memory, Denials of Having Made Prior Statements, and Refusals to Answer Can Effectively Thwart Cross-Examination

Ø  W Needs to Be Subject to Being Recalled if He Has Already Testified 

§  Prior Consistent Statement

·         Federal Rule 801(d)(1)(B)

·         Elements

¨       (1) Statement Must be Consistent With the Present Testimony by the Speaker

¨       (2) Must be Admissible to Rehabilitate Him and Tend to Rebut a Charge of Recent Fabrication or Improper Influence or Motive

Ø  (a) W Must Have Already Testified

Ø  (b) Must Have been an Attack That Raised Recent Fabrication or Improper Influence or Motive AND

§  Bias, Interest

§  Probably an Attack of Influence or Fabrication

·         Claim of Untruthful Disposition

·         Contradiction

·         Prior Inconsistent Statement

§  Not an Attack – Lack of Sensory Knowledge or Capacity

Ø  (c) A Consistent Statement Refutes this Charge, Must Come Before Motive or Influence

§  Only Consistencies That Came Before the Motive or Influence Took Effect are Admissible to Repair Credibility

¨       (3) W Must be Subject to Cross Examination on the Subject

·         Comparison to 801(d)(1)(A)

¨       Broader, ANY Statement Comes In - Broader than Since ANY Statement Sworn or Unsworn, Oral or Written, Uttered in or Out of Court, May Fit That Exception

¨       Narrower, Statement Must Repair Credibility

·         Statement May be Proved by Extrinsic Evidence

§  Statements of Identification –

·         Federal Rule 801(d)(1)(C)

·         A Statement of Identification of a Person After “Perceiving” D Commit a Crime is Not Hearsay If the Speaker Testifies and is Subject to Cross-Examination on the Subject

·         Wide Range of Circumstances

¨       Speaker Saw the Subject Committing the Crime and Later Sees Him Again and Says “He is the One”

Ø  Time Line Doesn’t Matter

Ø  Examples

§  Police Lineup

§  Preliminary Hearing

¨       Statement Based on Firsthand Observation of the Subject Committing the Act Followed by Examination of a Display of Photographs and Identification Made From a Sketch or From Mugshots

·         Elements

¨       (1) Statement of Identification

¨       (2) Perceiving D Commit a Crime

Ø  Seeing

Ø  Direct Sensory Observation

Ø  Hearing the Voice

¨       (3) Subject to Cross Examination (W HAS TO TESTIFY)

·         Allows Testimony by Third Persons to Whom the Identifier Spoke

Ø  Admission by Party Opponents

§  Individual Admissions

·         Rationale – One Should Not Protected Against the Use of His Own Statement

·         Very Broad

¨       Form Doesn’t Matter -  Makes No Difference Whether the Statement is Written or Spoken, is a Nonverbal Cue or Word Substitute, or Even an Underlying Email

¨       Surrounding Circumstances Don’t Matter – Reaches Statements to Police, Testimony, Pleas from Other Proceedings, Recorded Statements, Etc…

¨       Admissions Include Behavior With an Assertive Aspect

¨       No Requirement of Indicia of Reliability

¨       Personal Knowledge Not Required

·         Declarant Not Bound – Most Statements May be Rebutted, Explained, or Denied  

·         Another W Can Testify to What the Other Party Said

§  Spillover Confessions: Bruton Issues

§  Adoptive Admissions, Federal Rule 801(d)(2)(B)  - A Statement is Not Hearsay When it is Offered Against a Party Who “Manifested his Adoption or Belief in its Truth

·         Adoption Clear if W/ Express Agreement – Adoption is Clear IF a

¨       Party Agrees to or Concurs in an Oral Statement by Another,

¨       Hears and Repeats it;

¨       Reads and Signs a Statement Prepared By Another; OR

¨       Act in Compliance With a Statement Made by Another

·         No Adoption Where Declarant Makes Disagreement Clear – There is No Adoption of a Party Makes Clear His Disagreement With a Statement Spoken in His Presence, Although Later Disavowing a Statement Previously Adopted Does Not Remove it From the Category of Adoptive Admission

·         Eliciting Prior Testimony

¨       Testimony Consistent = Adoption: If Testimony is Consistent With that of the Party Herself, or With the General Tenor of the Case She Presented, It Seems Rights to Infer Adoption

¨       Testimony Inconsistent  = No Adoption: If a Party Against Whom Prior Testimony is Offered Sought at the Time to Dissociate Herself From it, Introduces Contradictory Evidence, Impeaches the Ws, or Takes Similar Measures, Adoption Should Not Be Inferred

·         Use of a Written Statement – The Use a Party Makes of a Written Statement Prepared by Another or Her Response (or Nonresponse) to a Written Statement Prepared by Another Can Indicate Her Adoption or Belief in the Truth of the Statement

¨       Example

Ø  Affidavit Offered in to Obtain a Warrant, Judgment, or Court Order

·         Hearing Oral Statement – Adoption of an Oral Statement Turns on Whether a Party Replied or Otherwise Spoke or Acted in a Manner Showing Agreement

·         Adoption by Silence (tacit admissions) – When in Response to a Statement by Another, a Party Does and Says Nothing Indicating a Reaction, Whether Inaction and Silence Indicate Adoption Depends on the Situation

¨       Elements

Ø  (1) Party Heard the Statement

Ø  (2) Matter Asserted Was Within His Knowledge

Ø  (3) The Occasion and Nature of the Statement Were Such That He Would Have Likely Replied if He Did Not Mean to Accept What Was Said

¨       Statement Should be Excluded IF

Ø  The Party Did Not Understand the Statement or Its Significance

Ø  Some Physical or Psychological Factor Explains the Lack of Reply

Ø  The Speaker Was Someone Whom the Party Would Likely Ignore; OR

Ø  Silence Came in Response to Questioning or Comments by a Law Enforcement Officer During Custodial Investigation After Miranda Warnings

¨       Silence in Response to Against Interest Usually = Adoption   Where a Statement Related to One’s Performance of an Obligation or Responsibility (or Breach), or Charges a Criminal Act, or Indicates Some Other Fact that Would Normally Deny or Refute if Incorrect in Order to Protect One’s Interests, the Nature of the Statement Suggest That Silence of Nonresponse Means Adoption

·         Judge and Jury

¨       Tacit Admissions Judge Should Decide, 104(a) – Relevancy Issue

¨       Other Adoptions, Harder to Say

Ø  Majority 104(b) Jury Question 

§  Silence By Accused: Miranda Issues

§  Authorized Admissions

·         Anyone May be Authorized – A Party May Authorize Virtually Anyone to Speak: a Spouse, Parent, Offspring, Friend, Business Partner or Associate, Employee, Attorney, Broker, and So Forth

¨       The Existence and Limits of Such Authority are Determined by Agency Law

¨       Examples

Ø  Letter of Recommendation

Ø  Police Do Not Bind State

Ø  D.A. Binds State

·         Typically Authority is Confined to Certain Subjects – Typically the Authority of a Speaking Agent is Confined to Certain Subjects, Times, or Settings and Statements Outside These Limits are Beyond the Exception 

·         Bootstrapping Problem, Statement Alone Not Enough to Establish Authority But Can be Considered – The Rule Allows a Statement Offered as an Authorized Admission to be “Considered” as Partial Proof of the Fact on Which Admissibility Depends.  However, the Statement Alone is Not Sufficient to Establish the Predicate Facts of Agency and Scope.

¨       104(a) Issue 

·         Does Not Require Personal Knowledge – If an Agent is Authorized in a Specific Way to Make a Statement About Facts, It Makes No Difference That She Has No Actual Knowledge and Relay Only What She Has Been Told

·         Civil Pleadings, Interrogatory Answers – With Three Exceptions, Pleadings and Answers to Interrogatories Filed in a Civil Action On Behalf of a Party Qualify as Admissions by a Party

¨       Exceptions

Ø  Civil Litigants are Entitled to Plead Hypothetically, Inconsistently, and in the Alternative – Where Variance Between Pleadings and Interrogatory Answers or Evidence Presented by a Party is Explainable by an Attempt to Take Advantage of This Liberality of Modern Pleading Rules, Using the Pleading as an Evidential Admission Should be Disallowed

Ø  No Real Inconsistency – Where There is No Real Inconsistency Between the Position Taken by the Party at Trial and His Prior Pleadings, Interrogatory Answers of Admissions, Evidence of the Latter May be Properly Excluded Under 401-403 as Irrelevant, Confusing, Misleading, or Prejudicial

Ø  The Party Against Whom Any Such Document is Offered is Entitled to Show, if he can, That it Was Filed Without His Authority – Does Not Necessarily Require Exclusion

¨       Pleadings or Responses to Requests for Admissions that are Withdrawn or Superseded are Not Deprived of All Force as Evidentiary Admission: Earlier Pleadings are Still Ordinary Admissions

¨       Prior Pleadings in a Different Action are Usable as Evidentiary Admissions 

§  Admissions by Agents and Employees

·         Federal Rule 810(d)(2)(D)

·         Elements

¨       (1) Statement By Servant or Agent of Party

¨       (2) Made During the Agency or Employment

Ø  CANNOT Be Made Before or After Relationship

¨       (3) Relating to a Matter W/in Its Scope

¨       (4) Offered Against the Party

·         Examples

¨       I Was On My Way to Deliver the Package When I Got in the Accident – Can be Used to Respondeat Superior

§  Conspirator Statements

·         Elements

¨       (1) Speaker Conspired With the Person Against Whom the Statement is Offered

Ø  (1) Need to Show Party Knew of the Venture AND (2) Intended to Associate With it

Ø  Can Apply to Joint Ventures Too

¨       (2) Statement Was Made During the Conspiracy AND

¨        (3) It Furthered the Conspiracy

Ø  Statement Fits the Aims Motivating the Conspirators

§  Trying to Get Transaction Started

§  Describing Past Occurrences to Other Member to Map Out Future Strategy

§  Keeping Members Current on the Progress and Problems of the Venture

§  Encouraging Cohesiveness Between Members

·         104(a) Question to be Determined by the Judge – Needs to Determine Whether the Predicate Facts Exist (preponderance of evidence?)

·         Proponent Bears the Burden of Proving by a Proponderance of the Evidence that the Exception Applies

·         Proponent MUST Offer Evidence Independent of the Statement  Showing the Conspiracy and D’s Participation With the Speaker

v  Hearsay Exceptions (Availability of Declarant Immaterial)

Ø  Federal Rules 803(1)-(4)

Ø  Present Sense Impression

§  “A Statement Describing or Explaining an Event or Condition Made While the Declarant was Perceiving the Event or Condition, or Immediately Thereafter.

§  Elements

·         (1) Contemporaneous/Immediacy – The Statement MUST be Contemporaneous With the Event or Condition – Made While the Speaker Perceives it or Immediately Thereafter

·         (2) Perceived Event or Condition – The Speaker Must Have Perceived the Event or Condition

¨       Usually Seeing

¨       Sometimes Hearing or Other Sensory Perception

·         (3) Describes or Explains Event or Condition – The Statement MUST Describe or Explain the Event or Condition

§  Example

·         911 Calls

Ø  Excited Utterance

§  “A Statement Relating to a Startling Event or Condition Made while the Declarant was Under the Stress of Excitement Caused by the Event or Condition.”

§  Elements

·         (1) External Stimulus

¨       Examples

Ø  Violent Criminal Assault – Statements by the Victim Implicating the Accused are Routinely Admitted

Ø  Physical Injury – Statements by the Injured Party Describing the Event are Usually Admitted

Ø  Sexual Abuse of Children – Comments by the Child Describing Act and Identifying the Perpetrator are Often Admitted 

·         (2) Excited Reaction

¨       Subjective Standard

¨       Important Factors

Ø  Nature of Event

Ø  Appearance, Behavior, or Condition of Speaker

Ø  Nature or Contents of Statement

Ø  Surprise or Suddenness of Stimulus

Ø  Physical and Psychological Distance from Events 

·         (3) Statement That Related to the Stimulus  

¨       Only a Lose Relationship is Required (contrast w/ present sense where explaining or describing is required.)

§  Timing, Not Necessarily Immediately

·         The Quicker the Better – The More Quickly a Statement Follows the Occasion, the More Likely it is to be a Spontaneous Reaction.

·         Stress Important

¨       Lapse of Minutes are Routinely Upheld Where it is Clear the Speaker is Still Under the Stress that Stilled Reflexive Capacity

¨       Lapses of Several Hours may be Upheld if the Speaker is Under

Ø  Continuing Emotion or Physical Stress

Ø  Loss of Consciousness

Ø  Persistent Pain

Ø  Unabated Fright

Ø  Isolation  

¨       Renewed Stress of Excitement, Split Some Courts Allow – Events May so Traumatize a Person that Long After Stress Subsides a Chance Reminder May Have Great Psychological Impact, Renewing Stress and Excitement and Producing Statements Describing the Original Trauma

Ø  Exception Could Apply in This Setting But Risks Increase

§  Inaccurate Memory

§  Suggestivity of Later Events

§  Judge Decides, 104(a) Question 

·         Can Look at Inadmissible Evidence to Determine Whether Declarant Was Stressed (it was an Excited Utterance)

§  3rd Person Can Lay the Foundation for Excited Utterance of Another & Testify About it

Ø  State of Mind and Physical Condition

§  “A Statement of the Declarant's then Existing state of Mind, Emotion, Sensation, or Physical Condition (such as Intent, Plan, Motive, Design, Mental Feeling, Pain, and Bodily Health), but NOT Including a Statement of Memory or Belief to Prove the Fact Remembered or Believed UNLESS it Relates to the Execution, Revocation, Identification, or Terms of Declarant's Will.”

§  Coverage – Statements That Shed Light on Present Mental Attitudes and Inclinations or Physical Condition of the Speaker

·         State of Mind

¨       Only Then-Existing (Present) State of Mind

Ø  Application

§  Good Faith

§  Intent

§  Knowledge

§  Coercion

§  Mental Anguish 

¨       Cannot Prove Prior State of Mind, Not Meant to Admit Backward Looking Statements

·         Emotion

·         Sensation OR

·         Physical Condition

·         Application

¨       Intent

¨       Plan

¨       Motive

¨       Design

¨       Mental Feeling

¨       Pain, and

¨       Bodily Health

§  Physical Condition – The Exception Reaches Statements Describing Physical Condition where the Issue is Pain and Suffering

·         Must Shed Light on the Condition at the Time         

§  Exception to Exception – A Statement of Memory or Belief Cannot be Used to Prove Facts Remembered or Believed – The Rule Bars Any “Statement of Memory or Belief to Prove the Fact Remembered or Believed.”

·         Exception Will Cases – In Will Cases, Backward Looking Statements Describing Previous Acts and Conditions Should be Admitted to Prove Facts About the Will

¨       Testator’s Frame of Mind

¨       Earlier Feelings

¨       Prior Acts, Events or Conditions

§  Rationale

·         Necessity

·         Trustworthiness

§  Circumstantial Evidence of State of Mind

·         Tathem  

¨       Facts - Testator left his fortune to his stable boy who was his lover.  T’s heirs said T must have been crazy.  Stable boy offer business letters to show that T was not crazy.  The letters were offered not for the truth of the matter asserted but to show that the letter writers assumed T had power and was competent (circumstantial evidence the writers believed T was competent).

¨       Holding - Court Use of Letters to Prove T was Not Crazy Was Hearsay. 

·         The Federal Rules Allow Tathem Uses

¨       Advisory Council, Offered for What Statements Infer Not Truth - In a Case Like Tathem, Evidence is Not Offered for in their Assertive Capacity but for What Can be Inferred from the Statements. 

Ø  Hearsay Issues Arise When Dealing With Assertive Conduct

¨       Rationale: If Someone is Going to Lie About Something, They Will Do it Directly.

Ø  Not as Worried About Sincerity of the Declarant

·         End Run Around the Hearsay Rule? - Some Scholars Argue that When a Party Offers Circumstantial Evidence of What Someone Believes for the Truth of the Matter Asserted/the Belief, Such Evidence Should Not Be Let in Because Doing So Makes and End Run Around the Hearsay Rule.

·         Circumstantial Evidence of State of Mind is Only Sometimes Relevant

¨       Conditional Relevance Issue – Beliefs are Often Only Relevant if the Belief is True

Ø  Statements for Medical Diagnosis

§  “Statements Made for Purposes of Medical Diagnosis or Treatment and Describing Medical History, or Past or Present Symptoms, Pain, or Sensations, or the Inception or General Character of the Cause or External Source Thereof insofar as Reasonably Pertinent to Diagnosis or Treatment.

§  Elements

·         Statement MUST be “Reasonably Pertinent” to Treatment or Diagnosis

¨       Physical Injury

Ø  How, When, and With What - Statements Saying How & When Injury Occurred and Mentioning Important Objects or Implements are Pertinent

§  Can Say “I Was Hit in the Face.”

¨       Illnesses

Ø  Pertinent Statements Include 

§  Time of Onset

§  Apparent Cause

§  Nature of Symptoms

¨       Never Pertinent Blame Casting Statements – The Person or Reason that Caused the Injury Generally is Not Pertinent Except in the Case of Child Abuse

Ø  Cannot Say “I Was Unjustifiably Hit in the Face”

·         Statement to Someone Who Will Diagnose or Treat

¨       Doctors

¨       Family Members Who Bring the Patient to the Hospital or Doctor’s Office

¨       In Hospitals

Ø  Clerical Intake People

Ø  Administrative Assistants

Ø  Nurses

Ø  Orderlies

§  May Not Apply to Statements for the Treatment or Diagnosis of Mental Health Issues - Courts are Not Always Comfortable in Allowing Statements Regarding Mental Health Diagnosis or Treatment Since the Patient Tells the Doctor a Very Large Quantity of Information     

v  Past Recollection Recorded (contrasted with Present Recollection Refreshed)

Ø  Federal Rule 803(5)

Ø  Rationale:

§  Necessity

§  Trustworthiness

·         General Credibility and Circumstances in Which Record was Created Can be Tested and Probed

Ø  Elements

§  Insufficient Memory - Witness Must Have Insufficient Present Memory to Testify “Fully or Accurately” About the Acts, Events, or Conditions Described in His Recorded Recollection

·         Usually Try to Refresh First under 612  If it Fails, Then Resort to Recorded Recollection

§  The Record MUST Have Been Made or Adopted by the Witness

§  The Statement Was Made When the Matter Was Freshly in the Mind of W;

§  The Record MUST be Shown to Correctly Reflect Prior Firsthand Knowledge What the Witness Once Knew; AND

Ø  Person Who Made or Adopted the Statement MUST Now Testify

Ø  Refreshed Memory: To Show Lack of Memory, the Person Offering a Writing as a Recorded Recollection Should Might First Use it to Try to Refresh Memory

§  However, This Technique Should Not Be Used When the Lawyer Thinks W will Not Repeat or Endorse its Substance from Present Memory

Ø  CANNOT BE INTRODUCED AS AN EXHIBIT, CAN ONLY BE READ INTO RECORD

v  Business Records

Ø  Federal Rule 803(6)

Ø  Rationale:

§  Necessity

§  Trustworthiness

Ø  4 Elements & Foundation Requirement

§  (1) Record Made in the Course of Regularly Conducted Business Activity

·         Very Broad – Reaches all kinds of commercial endeavors and nonprofit associations and institutions.

¨       Schools

¨       Churches

¨       Hospitals

¨       Charitable and Educational Institutions

¨       Political Parties

¨       Labor and Trade Associations

¨       Private Clubs and Organizations (if their activities are conducted with some degree of formal routine.)

¨       Illegal Enterprises

¨       Can be a One Person Business      

·         Does Not Reach Personal Records: Diaries, Shopping Lists, Reminder Notes, Household Phone Messages, Checking Account Records, Mileage, Inventories, Etc..

§  (2) Record Must be Regularly Kept – Record Must be Kept as a Matter of Regular Practice

·         Record Cannot be Made Just in Anticipation of Litigation

·         Each Person Who Participates in Making the Record MUST Act in Routine of Business

¨       Multiple Hearsay Aspect Involved in Records Involving Input of More Than One Person So All People MUST be Acting in the Course of Business

·         Email is Not a Record

§  (3) The Source of Information MUST Have Personal Knowledge

·         Others in the Chain of Transmission of Information Do Not Need to Have Personal Knowledge (including the Person who Physically Makes the Record)

§  (4) Information be Recorded Contemporaneously with the Event or Occurrence

Ø  Foundation

§  MUST Describe Recordmaking Process

§  Can be Laid by the Preparer and Original Source of Information, Regular Custodian, or Someone Who Supervised the Making of the Record

§  Either Testimony or Certification

Ø  Trustworthiness Factor – Courts Can Exclude Records that are Not Trustworthy

§  “Unless the source of information or method or circumstances of preparation indicate lack of trustworthiness.”

Ø  Scope

§  Accident Reports Sometimes Fit the Exception

§  Internal Investigations are More Likely to be Admitted Against the Producing Company 

§  Medical Records Often Fit the Exception

§  Computer Records Fit the Exception

§  Email Does Not Fit the Exception

Ø  Absence of Entries in Business Records, Federal Rule 803(7) – Inaction by people or entities in not making an entry may not represent an intention to assert anything, but this rule removes the need to resolve this issue. 

§  Foundation Requirement

·         Business Routinely Kept Records of Matters Like the One Not Mentioned

·         The Matter Not Mentioned Would Have Come to the Attention of Regular Recordkeepers and Would Have Been Recorded

§  Testimony Sounds Like “I Searched the Records and Found no Mention of the Record.”

v  Official Records

Ø  Federal Rule 803(8)

Ø  Very Broad – All Records of Any Form of Any Public Office or Agency, State, Local, Federal, or Foreign

Ø  Three Categories

§  A, Activities of Agency

·         Example – Official Transcript of a Judicial Proceeding, Offered to Prove that an Officer of the Court Administered an Oath to the W

§  B, Matters Observed

·         Elements:

¨       Record MUST be One Agency is Required by Law to Make

¨       Source MUST Have a Legal Duty Both to Observe and Report

·         Use Restriction: Excludes Records Reflecting “Matter Observed by Police Officers and Other Law Enforcement Personnel” in Criminal Cases

·         Source MUST Have Personal Knowledge

§  C, Factual Findings Resulting From an Investigation Made Pursuant to Authority Granted By Law

·         Examples

¨       Investigative Findings on Official Misconduct

¨       Everyday Police Reports on Car Accidents Based on Observing the Scene and Talking to Ws

¨       Safety Studies on Product or Procedures

¨       Reports that Interpret and Draw Conclusions from Underlying Data

Ø  Need to Have Factual Basis and Some Factual Content

·         Use Restriction: Only Allowed

¨       In Civil Cases AND

¨       Against the Government in Criminal Cases

Ø  Cannot Be Used Against D in Criminal Cases

§  Factual Findings CAN Still Be Used Against a Criminal D in Recorded Recollection 

·         Cannot Use Statement to Prove What it Asserts

§  Trustworthiness Factor – Courts Can Exclude Records that are Untrustworthy

·         “Unless the source of information of other circumstances indicate lack of trustworthiness.”

·         Burden is on Objecting Party to Show Untrustworthiness

·         Factors Indicating Trustworthiness

¨       Skill

¨       Expertise

¨       Motivating Factors

¨       Timeliness

¨       Conclusions Have Reasonable Basis

§  Records Prepared by Private Entities are Not Allowed

§  Law Enforcement Reports are Generally Inadmissible When Offered Against Ds in Criminal Cases

·         Most Do Not Fit Clause A, Activities of Agency

·         Clause B Covers Matters Observed but Cannot be Offered in Criminal Cases Against D insofar as it Describes what “Police Officers and Other Law Enforcement Personnel” Observed

¨       Probably Includes Behind the Scenes People Who Aid Law Enforcement Efforts of Police and FBI

Ø  Scientist, Criminologists, Forensic Specialists

·         Clause C Covers Investigative Findings, but Says Material Cannot be Offered Against the Accused    

§  Cannot Use Business Records Exception to Try to Get Evidence in Against D

·         Probably Cannot Resort to Catchall Either

·         Can Probably Use Absence of Public Record

·         Can Resort to Recorded Recollection

§  Experts Can Testify to What was Included in Police Lab Reports, but Reports Themselves May Not Come In

Ø  Self-Authenticating Under 902

v  Vital Statistics

Ø  FRE 803(9) – “Records or Data Compilations, in ANY Form, of Births, Fetal Deaths, Deaths, or Marriages, IF the Report thereof was Made to a Public Office Pursuant to Requirements of law.

Ø  Reaches Both Original Reports and Compilations Made From Them

Ø  Birth Certificates Allowed When Offered to Prove:

§  Date, Time, and Place of Birth

§  Identity and Age of Parents

§  Other Routinely Recorded Facts Such as Weight and Sex or Infant, Identity of Attending Physician

§  Facts Relating to the Health of the Infant, Manner of Delivery, and Routine Tests or Treatments Administered if Customarily Recorded

Ø  Marriage Certificates to Prove:

§  Fact, Date, and Place of Marriage

§  Other Pertinent Facts Routinely Recorded

Ø  Death Certificates to Prove:

§  Date, Time, and Cause of Death

·         Cause and Manner of Death Only Allowed if Physician Helped Prepare, Lay Coroner is Not Enough

v  Absence of Public Record or Entry

Ø  FRE 803(10) – Allows Proponent to Offer a Certificate by the Recordkeeper or Live Testimony Indicating that a Diligent Search Failed to Turn Up a Record or Entry

Ø  Uses

§  (1) To Prove Documents Were Not Filed or Entries Not Made

§  (2) The Event Did Not Happen or Condition Did Not Exist

Ø  Elements

§  The Record in Question Would Normally be Made

§  Diligent Search Was Made

v  Review of Documentary Evidence

v  Minor Exceptions

Ø  Federal Rule 803(11)-(23)

§  FRE 803(11) Records of Religious Organizations. “Statements of Births, Marriages, Divorces, Deaths, Legitimacy, Ancestry, Relationship by Blood or Marriage, or Other Similar Facts of Personal or Family History, Contained in a Regularly Kept Record of a Religious Organization.”

·         Allows Proof of

¨       Fact and Date of Marriage, Baptism, Confirmation, or Death by Such Materials

¨       Facts Provided to Church Officials by Outsiders Who are in a Position to Know and Likely Speak Truthfully

·         Does Not Allow

¨       Amount of Contribution to Prove for Instance Donation in Tax Disputes

¨       Anything Other Than “Facts of Personal or Family History.”

·         Record Must be Regularly Kept

§  FRE 803(12)-(13) Marriage, baptismal and similar certificates. “Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.”

Family Records. “Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.”

·         Certificates of Marriage, Baptism or Other Ceremony or Sacrament

¨       Elements

Ø  Made by the Authorized Religious or Public Official Who Performed the Ceremony or Sacrament 

Ø  Issued at the Time of the Event or Shortly Thereafter

¨       Examples

Ø  Confirmation

Ø  Naturalization

Ø  Induction into Ministry

Ø  Induction into Bar of State or Federal Court

·         Family Records

¨       Elements

Ø  Factual Statement of Personal or Family History

Ø  Of a Permanent or Enduring Nature

§  Contained in Bibles, Genealogies, or Charts

§  Engravings on Rings, Tombstones

§  Inscriptions on Family Portraits

§  FRE 803(14)-(15) Records of documents affecting an interest in property. “The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.”

Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

·         Recorded Documents (14) – Allows Public Records of ANY Documents Affecting Interests in Property to Prove:

¨       Content of Document

¨       Its Execution and Delivery

·         Dispositive Documents

¨       Elements

Ø  Instrument MUST Purport to Establish or Affect an Interest in Property

Ø  Statement MUST be Relevant to the Purpose of the Document

Ø  Later Dealings W/ the Property Cannot be Inconsistent with the Truth of the Statement or Purport of the Document

¨       Examples

Ø  Mortgages

Ø  Deeds

Ø  Appraisals

·         How Related

¨       803(14) Invites the Use of the Recorded Document to Prove the Terms of the Original

¨       803(15) Allows the Use of the Original to Prove the Facts it Asserts

Ø  FRE 803(16) Ancient Documents.  Statements in a document in existence twenty years or more the authenticity of which is established.”

§  Scope: Reaches

·         Letters

·         Diaries

·         Maps

·         Receipts

·         Written Material of All Kinds

§  Elements

·         20 Years or More Old

·         Authenticity Established Under 901

Ø  FRE 803(17) Market reports, commercial publications. “Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.”

§  Elements

·         MUST be Generally Relied On by the Public or People in Specific Commercial or Professional Occupations

§  Examples

·         Price Lists

·         Stock Market Quotes

·         Professional, City, and Phone Directories

·         Mortality Tables

·         Registers: Animals, Ships

·         Compilation of Estimated Value: Comic Books, Postage Stamps

§  Not

·         Treatises

·         Research Papers

·         Studies that Present Evaluative Conclusions

Ø  FRE 803(18) Learned Treatises. “To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. 

§  Elements

·         (1) Proponent MUST Show the Book or Article is Reliable Authority

¨       Offer Expert Testimony

Ø  Expert Knows and Respects the Author and Considers Work Reliable OR

Ø  Experts in the Field Generally Accept the Author’s Work as Authoritative

¨       Judicial Notice

¨       Admission of a W

·         (2) Testifying Expert MUST Rely on the Book or Article on Direct OR Proponent MUST Call it to His Attention on Cross

§  Should be a Published Material

·         Read, Used or Reviewed by Others AND

·         Has Found its Way in Broader User by People in the Relevant Discipline or Profession

§  NOT Received at Exhibits – Passages of the Treatise May be Read into Evidence, But They May Not Be Received as Exhibits

§  Examples

·         Published Treatises

·         Periodicals

·         Pamphlets

§  ON

·         History

·         Medicine OR

·         Other Science or Art

§  NOT

·         Research Papers Never Reviewed by Others

Ø  FRE 803(19)-(21) Reputation concerning personal or family history. “Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.”

(20)Reputation concerning boundaries or general history.  “Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.”

(21) Reputation as to character. “Reputation of a person's character among associates or in the community.”

§  Common Uses for Reputation as to Character

·         Testimony on Reputed Character to Prove Behavior on a Particular Occasion

·         Testimony by One W on the Reputes Character of Another W with Respect to “Truth and Veracity”

§  Character Itself an Issue – Sometimes Character Evidence is Not Used Circumstantially but as Direct Proof of an Element of a Claim or Defense

§  Reputation Among Family Members, Associates, or the Community Based on Personal or Family History 803(19)

·         Three Sources

¨       Family Members

¨       Associates

¨       The Community

·         Can be Used to Prove

¨       Birth or Adoption

¨       Marriage or Divorce,

¨       Death

¨       Legitimacy or Relationship by Blood

¨       Marriage

¨       Ancestry

¨       Other Similar Facts   

§  Does Not Expand Amount of Reputation Evidence Allowed In

·         Rumors May be about Specific Instances of Conduct rather than General Reputation  

Ø  FRE 803(22)-(23) Judgement of Previous Conviction. “Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.”

(23) Judgment as to Personal, Family or General History, or Boundaries.  Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

§  Two Exception in 803 Cover Court Judgments

·         803(22) Felony Convictions Offered to Prove the Essential Underlying Facts

¨       Does Not Reach

Ø  Convictions Based on Nolo Pleas OR

Ø  In Criminal Cases, Use by the Government of Convictions of Persons Other Than D to Prove Facts in the Case

§  Can be Used by the Government to Impeach Ws 

Ø  Arrests or Charges

Ø  Acquittals to Prove the Offense Was Not Committed

¨       Reaches Judgments on Pleas of Guilty

¨       Used to Prove Underlying Facts

Ø  Convictions that are Important in and of Themselves Can Come in Uder FRE 803(8)(A) to Prove the Activities of the Office or Agency

¨       Elements

Ø  Felonies – What Matters is Possible Nature and Extent of Punishment, Not Punishment Actually Imposed

Ø  Finality of Judgment – Reaches Judgments that Might or Might Not be Appealed

·         803(23) Judgments that Tend to Prove Matters of Personal or Family History or Boundaries

v  Hearsay Exceptions Requiring Unavailability

Ø  Federal Rule 804

Ø  Unavailabilty of Declarant

§  (1) Claim of Privilege – W is Unavailable if he is “Exempted by Ruling of the Court on the Ground of Privilege from Testifying Concerning the Subject Matter of His Statements”

·         Elements

¨       Claim of Privilege

Ø  Common Law or Statutory Privilege

Ø  Privilege Against Self-Incrimination

Ø  Party Against Who Statement is Offered Claims a Privilege that Blocks Someone from Testifying

§  A Party Claiming a Privilege CANNOT Offer His Own Statement

Ø  Usually Not Enough to Say the W Would Claim a Privilege UNLESS Clear

¨       Ruling of the Court

§  (2) Refusal to Testify – W is Unavailable if he “Persists in Refusing to Testify Concerning the Subject Matter”

·         Example

¨       When Courts Overrules a Privilege Claim and Tells W to Answer but he Refuses 

¨       Friend of D

¨       W Afraid of D

·         Elements

¨       Calling the W

¨       Putting Qs to Him that Elicit Refusal to Testify

Ø  Concerning the Subject Matter of His Statement = Underlying Facts of Statement NOT Fact that he Spoke Before  

¨       Court Order Directing W to Testify

Ø  Sometimes Enough for a Judge to Say Continued Refusal to Testify Will Result in Contempt of Court

·         Representing that W Will Not Testify is Not Enough

§  (3) Lack of Memory - W is Unavailable if he “Testifies to a Lack of Memory of the Subject Matter of the Statement”

·         Elements

¨       Calling W

¨       Putting Qs About the Subject Matter Asserted or Described in his Statement

Ø  Proponent MUST Make a Good Faith Effort to Bring Out What W Remembers

§  Court Can Require Proponent Try to Refresh W’s Memory

Ø  If W Recalls Part of an Event,

§  Can Use Exception to Get in Rest of Event

§  Cannot Use Exception for a Statement on Some Other Point 

¨       Finding that W No Longer Remembers the Matter

·         A Representation that W Does Not Remember Will Not Suffice

§  (4) Death or Illness - W is Unavailable if he Cannot be Present or Testify bc “Death or then Existing Physical or Mental Illness or Infirmity”

·         Elements

¨       Physical Injury Illness, or Death OR

Ø  Temporary or Minor Illness does NOT Qualify

¨       Mental Illness, Infirmity

Ø  Issue: Can W be Brought into Court Without Suffering Psychic Damage and With a Reasonable Prospect of Being Able to Give Usable Evidence

§  Not a Competency Issue

§  I.E. – Minor Victims of Sexual Abuse

§  (5) Unavoidable Absence - W is Unavailable if He is Absent and the Proponent Cannot “Procure His Attendance by Process of Other Reasonable Means”

·         Elements

¨       Absent and Cannot Procure Testimony by Reasonable Means -  Statements Relating to Dying Declarations, Against Interest Statements, or Statements of Personal Family History: A W is Unavailable IF He is Absent and the Proponent Could Not “Procure His Attendance or Testimony by Process or Other Reasonable Means”

Ø  Amenability of W to Subpoena

§  Civil Cases

·         State Courts – Reaches Throughout State

·         Federal Courts – Anyone in the District on W/in 100 Miles of Site of Testimony (Courthouse)

¨       Sometimes Further When Authorized by Statute

¨       U.S. Nationals or Residents in a Foreign Country Must Return and Appear in Court if Testimony is Necessary in the Interest of Justice and Cannot be Obtained in Admissible Form W/out Her Appearance

·         IF W Evades Process or Frustrates Good Faith Efforts to Obtain Attendance = Proponent Could Not Obtain her Attendance

§  Criminal Cases

·         State Courts – Reaches Throughout the State

·         Federal Courts – Throughout the Nation

¨       Can Release an Incarcerated Person

¨       Can Subpoena a U.S. National or Resident in a Foreign Country

·         IF W Evades Process or Frustrates Good Faith Efforts to Obtain Attendance = Proponent Could Not Obtain her Attendance

·         Prosecutor Has Higher Reasonable Standard Bc: (1) Has More Resources and (2) D Has 6th Amendment Right to Confront Ws

Ø  Prospect of Inducing W to Appear

§  Civil Cases – Proponent Can Try to Persuade W to Testify Voluntarily & May be Expected to Pay Travel and Maintenance Expenses

·         Deposition Testimony = Ok

§  Criminal Cases – More Expected From Prosecutor than Defense.  More Than Just Subpoena

·         Examples

¨       If W Was Once in the Jxn and Might have Been Detained or Encouraged to Remain and is Now Abroad, W is NOT Unavailable

¨       IF Prosecution Mishandles a W, She in Not Unavailable

¨       Prosecution MUST Take Steps Early to Secure W at Trial

Ø  Effort by the Proponent to Take his Deposition (Does Not Apply if Proponent Offers W’s Testimony in Some Other Form)

Ø  Proponent Only Expected to Take Such Steps as Are Reasonable

¨       W Cannot bc Unavailable if Absence Was Result of “Procurement or Wrongdoing by Proponent”

Ø  Intimidation, Murder, Kidnapping, Hiding W = Wrongdoing

Ø  Negligence or Carelessness is Not Wrongdoing

·         Rationale: Necessity

§  Trauma and Psychological Unavailability; Child Abuse Victims

Ø  Hearsay Exceptions

§  Former Testimony

·         Elements

¨       (1) Testimony Given in a Prior Proceeding AND

Ø  Hearing, Proceeding, Grand Jury Inquest, or Deposition: Any Official Inquiry Conducted in a Manner Authorized by Law Whether Judicial, Administrative, Legislative, Investigative, or Inquisitorial

§  Does Not Reach Affidavits (not testimonial)

Ø  Testimony: Statements That are Sworn, Subject to Penalty of Perjury, Made in Response to Questions on the Record

¨       (2) Party Against Whom Testimony is Offered Had an Opportunity and Similar Motive to “Develop” the Testimony by Examining the W at an Earlier Time

Ø  Opportunity is Enough

Ø  Predecessor in Interest -

§  Can Only be Invoked in Civil Trials

§  One Approach: A Government Agency that Brings an Enforcement Action is a Predecessor in Interest to Those it Seeks to Protect, Which May be the Public in General or Some Recognizable Subgroup

·         Could Extend to Parties who Bring or Defend Similar Claims in Different Suits or Seek to Establish or Refute the Same Factual or Legal Point, which Essentially Reads the Proviso Out the Rule and Lead to an Exclusive Focus on Motive and Interest

§   Another Approach: Privity

§  Another Approach: Connection and Fairness – Should Probably Require Some Formal Relationship Between a Litigant in the Prior Suit and the One Against Whom the Former Testimony is Offered

·         Rationale

¨       Necessity

¨       Trustworthiness

§  Dying Declarations – Reaches Dying Statements by an Unavailable Speaker, Where These Concern the Cause or Circumstances of What he Thought to be His Imminent Death

·         Scope: May ONLY be Used in Civil and Criminal Homicide Prosecutions

·         Elements

¨       Statement MUST Relate to Causes or Circumstances of Impending Death

¨       Speaker MUST Believe Death is Imminent

¨       Personal Knowledge (if D was shot from behind, there is no way he knew who killed him)

·         104(a) Question

§  Statements Against Interest

·         Elements

¨       (1) Statement Against Interest

Ø  Proprietary or Pecuniary Interest – The Exception Reaches Statements that Impair “Pecuniary or Proprietary Interest, Subject the Speaker to Civil Liability, or “Render Invalid” His Claim Against Another

§  Examples

·         Does Not Own Property, Owes $$ to Another, Has Been Paid by Someone Who Owes Him $$, Etc…

Ø  Penal Interest

§  Statements Implicating D

§  Statements Exonerating D - The Exception Reaches Statements Against Penal Interest that Exonerate the D Expressly or by Necessary Effect.  More Challenging are Statements in Which a Third Party Mentioned Both Himself and the D. 

·         Rule: There MUST be Corroborating Circumstances that Clearly Indicate Trustworthiness

§  “Safe Statements” Believed to Have been Made in the Company of Friends are Still Against Interest

Ø  DOES NOT REACH SOCIAL INTERESTS (those that might subject the speaker to ridicule or disgrace)

Ø  Speaker MUST Have Known Statement was Against Interest

¨       (2) That a Reasonable Person in Declarant’s Position Would Not Have Made UNLESS Believing it to be True

§  Personal or Family History – The Exception Reaches Statement by an Unavailable Speaker on

·         Reaches

¨       Personal or Family History

Ø  His Own

Ø  of Relatives or Intimate Family Associates

·         Statements Relating to Death Birth, Adoption, Marriage or Divorce, Legitimacy by Relationship or Blood, Adoption or Marriage, Ancestry or Other Similar Facts

¨       About Oneself Even Though the Speaker Could Not Have Personal Knowledge

¨       About Another if the Speaker was Related to the Person or So Intimately Associated with Her Family that he Likely Had Accurate Information

§  Statement Admissible Because of Waiver by Misconduct – FRE 804(b)(6) Paves the Way to Admit, Against a Party who Has “Engaged or Acquiesced in Wrongdoing that was Intended to and Did” Make the Declarant Unavailable as a W, Statements by Made Such a Declarant.

·         Negligence Does Not Trigger the Exception, D Must Intend

·         Examples of Wrongdoing

¨       Killing W

¨       Threatening W  

v  Summary Exhibits

v  Hearsay Within Hearsay

Ø  Layered or Multiple Hearsay  

v  Impeaching the Hearsay Declarant

Ø  FRE 806

Ø  The Credibility of the Declarant May be Attacked (and if Attacked May be Supported) in Accord with the Principles Governing Attack and Support of Testifying Ws

§  Difference/Exception – A Party May Impeach an Out-of-Court Statement by Evidence of Inconsistent Statements REGARDLESS of Whether the Declarant Gets a Chance to “Deny or Explain” (as Required by 613.)

v  “Catch-all” Exception

Ø  Elements

§  (1) Statement Has “Circumstantial Guarantees of Trustworthiness” “Equivalent” Those of the Categorical Exceptions

·         Factors: Things That Bear on Credibility and Accuracy

¨       Simplicity or Complexity of Statement or Matters

¨       Trust, Indifference, Animosity Toward People Being Addressed

¨       Motivational Factors

¨       Corroboration

§  (2) Material Fact – The Statement Must be Offered as Evidence of a Material Fact

§  (3) More Probative Than Other Evidence the Proponent Could Procure Through Reasonable Efforts

·         Diligence of Proponent

¨       More Effort is Expected When the Issue is a Major One

¨       More Effort is Expected of Those with More Resources: The Government, The Rich   

·         Probative Worth

§  (4) Must Serve the General Purposes of These Rules and the Interests of Justice

§  (5) NOTICE – The Catchall Cannot be Used Unless the Proponent Gives Notice of Intent to Offer the Statement “and the Particulars of it, Including the Names and the Address of the Declarant” Far Enough Before Trial of Hearing to Give the Other Side a “Fair Opportunity” to Prepare and to Meet It

Ø  Near Miss Theory – The Fact that a Statement Nearly Fits Some Categorical Exception is Not a Reason to Disqualify it Under the Catchall.    

v  Privileges

Ø  FRE Deleted and Supeseded 501, 503-506

Ø  Rule 501Privileges Recognized Only As Provided

Except as otherwise required by the Constitution of the United States or provided by Act of Congress, and except as provided in these rules or in other rules adopted by the Supreme Court, no person has a privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object in writing.

Ø  Rule 503. Lawyer-Client Privilege

(a) Definitions. As used in this rule:

(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.

(2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(3) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services.

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer’s representative, or (2) between his lawyer and the lawyer’s representative, or (3) by hm or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.

(c) Who may claim privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or

(4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(5) Joint Clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

Ø  Rule 504. Psychotherapist-Patient Privilege

(a) Definitions.

(1) A "patient" is a person who consults or is examined or interviewed by a psychotherapist.

(2) A "psychotherapist" is

(A) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction, or

(B) a person licensed or certified as a psychologist under the laws or any state or nation, while similarly engaged.

(3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family.

(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.

(c) Who may claim the privilege. the privilege may be claimed by the patient, by his guardian or conservator, or by the personal representative of a deceased patient. The person who was the psychotherapist may claim the privilege but only on behalf of the patient. His authority so to do is presumed in the absence of evidence to the contrary.

(d) Exceptions.

(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

(2) Examination by order of judge. If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(3) Condition an element of claim or defense. There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

Ø  Rule 505. Husband-Wife Privilege

(a) General rule of privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him.

(b) Who may claim the privilege. The privilege may be claimed by the accused or by the spouse on his behalf. The authority of the spouse to do so is presumed in the absence of evidence to the contrary.

(c) Exceptions. There is no privilege under this rule

(1) in proceedings in which one spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other, or

(2) as to matters occurring prior to the marriage, or

(3) in proceedings in which a spouse is charged with importing an alien for prostitution or other immoral purpose in violation of 8 U.S.C. § 1328, with transporting a female in interstate commerce for immoral purposes or other offense in violation of 18 U.S.C. §§ 2421-2424.

Ø  Rule 506. Communications to Clergymen

(a) Definitions. As used in this rule:

(1) A "clergyman" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.

(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional characters as a spiritual adviser.

(c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman may claim the privilege on behalf of the person. His authority so to do is presumed in the absence of evidence to the contrary.

Ø  General Polices

§  Introduction

·         Rationale: Not Designed Enhance Reliability of Fact-Finding Process; Meant to Encourage the Free Flow of Information and Protect Privacy in Certain Relationships 

§  Duty of Confidentiality Distinguished – Ethical Obligations to Protect Confidences of a Client or Patient are Enforced Independently of the Law of Evidentiary Privilege  

·         Broader Protection

¨       A Privilege Applies Only While Testimony is Sought in a Legal Proceeding

¨       Complete Confidentiality Can Generally Only be Guaranteed When a Privilege Applies

§  General Principles – Assertion; Waiver; Interception

·         Holder Has the Power to Assert or Waive the Privilege.  However, Others May Expressly or Impliedly Waive it For Him

¨       Professional Services: Generally the Recipient of the Services

¨       People Other Than Holder CANNOT Object to Holder’s Testimony, Holder Must Claim the Privilege

·         Invoking the Privilege – If the Holder or His Attorney is Present, the Privilege MUST be Asserted at ANY Point in the Proceedings Where an Attempt is Made to Inquire into Matters Protected by the Privilege or it Will be Waived

·         Waiver – A Privilege is Waived IF the Holder Voluntarily Discloses or Consents to Disclosure of ANY Significant Part of the Privileged Matter UNLESS the Disclosure Itself is a Privileged Communication

¨       Can be to Only One Person or Only Parts

¨       MUST be Voluntary (not erroneously compelled testimony)

·         InterceptionA Privilege is Not Lost bc a Privileged Communication was Overheard by an Eavesdropper, a Privileged Document was Stolen, or a Communication was Otherwise Intercepted, Provided that Reasonable Precautions Were Taken to Prevent Such Disclosure.

·         Unauthorized Disclosure – A Privilege is Not Lost When an Attorney, Psychotherapist, or Other Professional Person Breaches Professional Ethics and Reveals Secrets of the C or Patients W/out Authorizations in a Setting Where the Holder Lack an Opportunity to Assert the Privilege.

§  Adverse Comment or Inference, 5th Amendment Protections

·         D in a Criminal Case Cannot be Called to the Stand and Compelled to Assert the Privilege Against Self-Incrimination in Front of the Jury 

·         No Adverse Comment May be Made by the Counsel or the Court on the Exercise of the Privilege

·         D is Entitled to a Jury Instruction that No Adverse Inference May be Drawn from his Failure to Testify

§  Constitutional Right to Produce Evidence

·         Potential Conflict Between the Privilege Rights and the Constitutional Right of Criminal Defendants to Produce Evidence

¨       3 Lines of Authority: Constitutional Rules of Compulsory Process, Confrontation, Due Process

¨       Constitutional Right to Produce Evidence Does Not Necessarily Supersede Evidentiary Privileges or Other Evidentiary Rules

¨       Tend to Favor a Balancing Approach

·         More Likely to Allow the D’s Constitutional Right to Present Evidence to Prevail Over an Evidentiary Privilege Held by the Government Entity Prosecuting D

§  Existence of a Privilege is a 104(a) Question

§  Only the Holder of the Privilege Can Appeal from an Erroneous Introduction of Privileged Evidence

Ø  Scope of FRE 501

§  Preserving Federal Common Law of Privileges – “Privilege SHALL be Governed by the Principles of the Common Law.”

·         Federal Courts Apply Federal Privilege Law in

¨       (1) Federal Criminal Cases and

¨       (2) Federal Question Cases

§  Federal Court Apply State Privilege Law – Federal Courts Should Defer to State Privilege Law in All Civil Cases “With Respect to an Element of a Claim or Defense as to Which State Law Supplies the Rule of Decision.”

·         State Privilege Law Applies In

¨       (1) Diversity Cases

¨       (2) Other Claims Founded on State Law

§  When State and Federal Claims are Joined, Most Courts Apply Federal Law to Both Claims 

§  Method of Analysis

·         Look for

¨       (1) Protected Relationship

¨       (2) Confidential Communication

Ø  Observations are Not Communications        

¨       (3) No Exception

¨       (4) No Waiver- If Someone Discloses Later

Ø  Attorney-Client Privilege

§  Rationale:

·         Without the Privilege Cs Would be Deterred from Seeking Legal Assistance in the First Place or at Least Inhibited from Making Full and Candid Disclosures of the Relevant Facts Bearing on the Case

·         To Compel Disclosure of the Cs Secrets Would Force an Act of Betrayal and Violate the A’s Assurance of Loyalty, Undermining the Very Essence of Professionalism

·         Constitutional Underpinnings – The 6th Amendment Right to Counsel Appears to Require Some Degree Confidentiality for Communications Between a D and His Attorney

§  Elements

·         Client or Representative of C - A C is s Person, Organization, or Entity that Received Professional Legal Services from a Lawyer or Consults a L for the Purpose of Obtaining Such Services

¨       May Be

Ø  Private – Corporation, Partnership, or Unincorporated Municipality

§  Corporation = Entity is the C - Not Officers, BOD, S/Hs, or Employees

·         Who Holds the Privilege on Behalf of the Company

¨       Minority, Corporate Management, Control Group Test – Some Courts Limit the Privilege to the Members of the Control Group Defined as Those Persons Authorized to Act Upon Advice Received from Corporate Counsel (Only Board can Waive)

¨       Majority, Subject Matter Test – Communications are Privileged Where the Subject Matter Upon Which the Attorney’s Advice is Sought is the Performance of by the Employee of the Duties of His Employment

*Upjohn Factors: (1) Purpose of the Communications Was Legal Advice for the Corporation; (2) Communications Were Made at the Request of the Employee’s Supervisors; (3) Concerned a Matter W/in the Scope of the Employee’s Duties; (4) Remained Confidential

·         S/H Derivative Suit, Privilege is Qualified

§  Partnership - Any Partner is the C

§  Unincorporated Associations

·         Some Courts = Each Member

·         Some  = Entity (especially where large) 

Ø  Public – Federal, State, or Municipal Government, Public Agency, Executive Department, or Other Governmental Unit

¨       Privilege Extends to Representatives of C – A C Rep Can Include Experts like Accountants Only for Communications Intended to Facilitate the Rendition of Professional Legal Services to the C

¨       Attorney Client Relationship Based on C’s Reasonable Belief - The A-C Relationship is Created When a Person Consulting the L Reasonably Believes that the Lawyer is Willing to Undertake, or Consider Undertaking, Professional Legal Services on Behalf of the C

Ø  Privilege Applies to Preliminary Discussions Even Though A Does Not Decide to Represent C

§  No Requirement that Fees Be Paid

¨       Joint Cs Have Privilege to the Outside World – If Two or More Cs Retain or Consult the Same Attorney with Respect to a Matter of Common Interest, the Communications Made Between the A and the Joint Cs are Privileges with Respect to Outsiders

Ø  Communications Not Privileged in a Subsequent Litigation Between the Joint Cs

Ø  Each May Assert Privilege with Respect to Outsiders

Ø  One Cannot Waive the Privilege for the Other

Ø  Each May Disclose His Own Statements

·         L or Representative of the LL is a Person Authorized to Practice Law in Any Jxn, Domestic or Foreign, as Well as Any Person Reasonably Believed by the C to be So Authorized

¨       Privilege Extends to Representatives of Ls – Representatives of Ls Included Those Employed to Assist the L in Providing Legal Services:

Ø  Law Clerks;

Ø  Paralegals;

Ø  Investigators;

Ø  Similar Agents;

Ø  Office Staff Who Transmit Messages

Ø  Consultants – Experts

§  Privilege Does Not Apply Where a C Retains Consultations Independent of the Legal Representation or is Referred to an Expert for Purposes Other Than to Assist in the Rendition of Professional Legal Services to the C

§  Hired to Testify at Trial = No Privilege bc Not Confidential bc Communications Subject to Disclosure at Trial (but work product)

·         Professional Legal Services - The A-C Privilege Applies Only Where the L Provides Legal Services, and Those Services Need Not Involve Litigation

¨       Not Included: Communications as a Family Member or Friend

¨       Must be Primarily Legal

Ø  Burden on Party Claiming Privilege - Party Claiming the Privilege Has the Burden of Proving the Purpose of the Communication was to Facilitate the Delivery of Legal Services

Ø  Business and Legal Advice = Must be Predominately Legal

·         Confidential Communication

¨       Can be Oral or in Writing

¨       C Cannot Have Intended Subsequent Disclosure Even Though Later Changed Mind Later and Never Disclosed

Ø  Other Persons Cannot be in Meeting for Moral Support in most Jxns

Ø  Communications to People Reasonably Necessary to Provide Legal Services is Ok (i.e. Accountants, Employee Who Got in Accident and Knows Facts )

¨       Must Look at Intent with Inadvertent Disclosure

¨       Privileged is Not Lost if Eavesdropper Overhead Conversation if the C Took Reasonable Precautions to Safeguard the Confidentiality of the Communication

¨       Not Confidential if Intended to Disclose to 3rd Parties

§  Holder: The Client.  However, the Attorney Can Claim the Privilege on Behalf of C.

§  Exceptions

·         Crime-Fraud Exception – Although the A-C Privilege Shields a C’s Confidential Statements to an Attorney Relating to Past Misconduct, Statements Seeking the Services of the Attorney with Respect to Ongoing or Future Crimes or Frauds are not Privileged

¨       Rationale: Cs are Not Entitled to Use Ls Help Them in Pursuing Unlawful or Fraudulent Objectives

¨       Elements

Ø  C Must Know or Reasonably be Expected to Know that the Conduct Would be Criminal or Fraudulent

Ø  Attorney’s Assistance Must Have Been Sought in Furtherance of the Crime  

¨       Past Crimes are Protected

¨       Extends to Even Minor Crimes

·         Breach of Duty by Attorney or Client – Disclosure is Permitted Only to the Extent Reasonably Necessary to Defend Against or Otherwise Litigate the Charge

¨       Examples

Ø  Malpractice

Ø  Incompetence

Ø  Ethical Violations

Ø  C Has Not Paid Fee

§  Scope

·         Only Applies to Communications Made During the Existence of the Professional Relationship

·         Privilege is Not Terminated by the Death of the C

§  Claiming the Privilege – Not Self-Enforcing

·         Must be Asserted at Each Stage of the Proceeding Where Privileged Evidence is Sought or it is Waived

·         Burden is on Person Claiming to Establish

¨        A-C Relationship

¨       Communication Made for the Purposes of Obtaining Legal Advice AND

¨       Communication Kept in Confidence

§  Waiver by Voluntary Disclosure – The A-C Privilege is Waived by the C’s Voluntary Disclosure of Any Significant Part of the Privileged Communication

·         Can Occur at Any Stage of the Proceeding Including Discovery

·         C is the Holder of the Privilege

·         Voluntary = Even if H Did Not Intend to Relinquish the Privilege

¨       Economic Pressure

¨       Subpeona if Given W/out Objection

¨       Found During Gov Search if Not Later Reclaimed by a Suppression Motion or Other Steps

·         Involuntary = Theft, Fraud, Deception, Compelled by Court Order

·         Revealing that A and C Discussed a Certain Subject Does Not Amount to a Waiver

Ø  Marital Privilege

§  Spousal Testimonial Privilege

·         The Spousal Testimonial Privilege Gives

¨       (1) Ws the Right to Refuse to Testify Against Their Spouse in a Criminal Proceeding AND

¨       (2) in Some (Majority of State) Jxns Gives Criminal Defendants the Power to Prevent Their Spouses from Testifying Against Them

·         Who Holds the Privilege

¨       Federal Jxns Only the W Spouse Holds the Privilege

¨       State Jxns

Ø  Majority, Criminal D is the Holder of the Privilege and Can BLOCK Spouse From Testifying Against Him 

Ø  Trammel – ONLY the Witness Spouse Holds the Privilege

§  The Witness Spouse May Testify Against the D Spouse Voluntarily But Cannot be Compelled to Do So 

·         Rationale: The Marriage is Probably Already Dead if One Spouse Will Testify Against the Other

·         Scope of the Privilege

¨       Applies Only in Criminal Cases

¨       Applies Only to Couples Who are Lawfully Married

Ø  Does Not Apply to Sham Marriages

Ø  May Apply to Common Law Marriages Depending on the Jxn

Ø  Court Often Wont Hold a Marriage Has Ended Until Legal Separation or Divorce

¨       W Cannot Refuse to Offer Exculpatory Testimony Only Adverse Testimony

·         Extrajudicial Statements

¨       Some Court Say Out of Court Statement are Allowed as Hearsay - Some Courts have Held that the Privilege Applies ONLY to Testimony by the Spouse and Does Not Block Admission of Extrajudicial Statements of One Spouse Offered Against the Other, Where such Statements are Admissible under the Hearsay Doctrine.

¨       Some Courts Do Not Allow Out of Court Statements to Come in - Other Courts Say the Opposite.

·         Exceptions

¨       Spouse Charged With a Crime Against the Other – The Privilege Does Not Apply In a Proceeding Where One Spouse is Charged with a Crime or Tort Against the Person or Property of the Other or a Minor or Child of Either.

Ø  504 Applies to Someone Residing in the Household of Either - Also Where the V is a 3rd Person “if the crime or tort is committed in the course of committing a crime or tort” against the spouse, minor child or either, or an individual residing in the household of either.

¨       Joint Participants in a Crime About Which Testimony is Sought

§  Marital Confidences Privilege

·         Confidences Privilege Allows Ws to Refuse to Reveal Their Confidential Marital Communications AND to Prevent their Spouse from Doing So

¨       Only Applies to Confidential Communications Made During the Marriage

¨       Applies in Both Civil and Criminal Cases

¨       Spouse Does Not Need to be D or a Party

¨       Provides Ongoing Protection for Confidential Communications Uttered During the Marriage

·         Rationale: Protects the Privacy and Trust of the Martial Relationship + Enables Spouses to Freely Communicate and Confide in One Another

·         Holder:

¨       Traditional ViewBoth Spouses Hold the Confidences Privilege AND Either Spouse Can Refuse to Disclose and Prevent the Other Spouse from Disclosing Confidential Marital Communications

¨       Narrower View – Only the Spouse Who Made the Statement Holds the Privilege

¨       Note: If One Spouse Discloses A Communication, The Other Can Still Block its Use

¨       Certain Jxns Different Treatment of Criminal D - Some Jnxs Provide by Statute that in a Criminal Case the Privilege Belongs to the D Spouse (So that He Can Introduce Confidential Communications That are Exculpatory)

·         Scope

¨       Applies Only to Communications Made During the Marriage

¨       Privilege Can Still Be Asserted After Marriage Has Ended

¨       Protects Only Communications

Ø  Assertive Conduct Intended to Convey Meaning = Communication

Ø  Observation of Noncommunicative Behavior, Appearance, Physical or Emotional Condition ≠ Communication

Ø  Verbal Acts = Questionable

·         Confidentiality Required

¨       Communications Made in the Presence of 3rd Parties, Intended to be Disclosed to Others, 3rd Person Assists in Preparation of, Relayed through a 3rd Person to Spouse, No Reasonable Precautions to Prevent Overhearing or Disclosure ≠ Confidential

¨       Presence of Children = Ok

¨       Generally, There is a Presumption of Confidentiality

¨       If Spouse Took Reasonable Precautions to Prevent Overhearing  = Confidential

Ø  One Spouse Cannot Trick the Other by Letting Someone Eavesdrop and Destroy the Privilege

·         Exceptions  

¨       One Spouse Charged with Crime or Tort Against Another

¨       Confidences Relating to Ongoing or Future Crimes Where Spouses Were Joint Participants 

Ø  Still Applies if Only One is Prosecuted

Ø  Does Not Apply until Both Ss are Participants in the Crime or After Conspiracy has been Terminated

·         Comparison of Testimonial and Confidences

¨       Testimonial = Broader

Ø  Precludes ALL Adverse Testimony

Ø  Typically Extends Even to Matters Occurring Before the Marriage

¨       Testimonial = Narrower

Ø  Applies Only in Criminal Proceedings Where One Spouse is the D

Ø  Lasts Only as Long as the Martial Relationship           

¨       Confidences = Narrower

Ø  Applies Only to Confidential Communications v. All Testimony

¨       Confidences = Broader

Ø  Applies in Civil as Well as Criminal Proceedings and Can be Asserted After the Termination of the Marriage

Ø  Psychotherapists Patient Privilege

§  Psychotherapist-Patient Privilege – The SC Held in Jaffe That Confidential Communications Between a Licensed Psychotherapist and her Patients in the Course of Diagnosis or Treatments are Protected from Compelled Disclosure Under 501.

·         Rationale: Communications Between a Psychotherapist and her Patient that are often Personal and Likely to Cause Embarrassment.  Also Society Has an Interest in Treating Thos Who Might Pose a Threat to the Community Because of Their Illness

·         Scope

¨       Only Communications Made for the Purposes of Diagnosis or Treatment

Ø  Includes Marriage Counseling

Ø  Does Not Include Vocational and Education Counseling

¨       Applies to Communications Made for the Purposes of Establishing the Relationship Even if None Was Formed

¨       Applies to Those who are Present to Assist Communications (Family Members)

¨       Sometimes Applies to Social Workers and Psychiatrists and Psychologists

¨       Includes Those People Reasonably Believed to be Psychotherapists 

·         Exceptions: Psychotherapist Can Disclose

¨       Court Ordered Examinations or Proceedings for Hospitalization

¨       Mental or Emotional Condition as an Element of a Claim or Defense

Ø  Privilege is Only Lost with Regard to Communications Bearing on the Mental Condition at Issue

Ø  Split Whether Parties Place Their Mental or Emotional Condition at Issue in Child Custody Disputes  

Ø  Insanity Plea or Mental Status Defense = Waiver

¨       When There is Risk of Serious Harm to Patient of Other Can Only be Averted by Disclosure by Therapist

Ø  Communications to Clergymen

§  Elements

·         Clergymen – Minister, Priest, Rabbi or Other Similar Functionary of a Religious Organization, or an Individual Reasonably Believed to be so by the Person Consulting Him

¨       May be Grey Areas with Lay Priests

·         Confidential Communication Must be Made Privately and Not Intended for Further Disclosure Except to Other Persons in Furtherance of the Purpose of the Communication

·         Communication – Communications by a Person to a Clergyman in His Professional Character as a Spiritual Advisor

§  Holder 

·         Parishioner – However, the Clergyman Can Claim the Privilege on Behalf of the Parishioner

·         Parishioner Can Refuse to Testify and Prevent the Clergyman from Testifying Against Him  

v  Witnesses Generally

Ø  FRE 601-606(a)

§  Rule 601. General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

§  Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

§  Rule 603. Oath or Affirmation

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.

§  Rule 604. Interpreters
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.

§  Rule 605. Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

§  Rule 606. Competency of Juror as Witness
(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

Ø  FRE 602, Personal Knowledge – Before a W Can Testify Evidence MUST be Introduced Sufficient to Support a Finding that She Has Personal Knowledge of the Subject Matter of the Testimony

§  Personal Knowledge Means Firsthand Knowledge that Has Come to the W Through her Own Senses and Included (1) Perception and (2) Memory

§  Commentary

·         Mixed 104(a) and 104(b) Question

·         May Overlap with Hearsay Objections

·         Categorical Certainty Not Required   

·         Don’t Need Personal Knowledge About Facts Underlying Statements: Can Have Personal Knowledge About a Statement Made Out of Court Even Though You Don’t Know About the Facts  

¨       Can’t Testify About the Fact If You Don’t Have Personal Knowledge

·         Evidence to Prove Personal Knowledge Can Come From W’s Own Testimony

·         Expert Ws Don’t Have to Testify From Personal Knowledge

v  Lay Opinion Witnesses

Ø  FRE 701

§  Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are

·         (a) rationally based on the perception of the witness,

·         (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, AND

·         (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Ø  FRE 701 Brakedown

§  Elements – Opinions by Ws Must

·         (1) Be “Rationally Based on the Perceptions of the W”

·         (2) Helpful to a Clear Understanding of the W’s Testimony or the Determination of a Fact in Issue; AND

·         (3) Not Based on Scientific, Technical, or Other Specialized Knowledge Within the Scope of Rule 702

Ø  Examples of Proper Testimony

§  Emotions, Physical Condition, Speed, Shape, Color, Size

§  Sanity or Insanity

§  Persons in Photos or Videos are Actually Those Persons

Ø  W Should Not be Allowed to Interpret Mental State, Speculate, Reconstruct the Past, or Act as Living Lie Detectors

Ø  Ws Can Testify to Others Opinions/Word if Not Asserting They Were True  

Ø  Method of Analysis

§  Identify All Opinions

§  Determine Whether Each is

·         Rationally Based on the Perceptions of AND

·         Helpful  

¨       Is the Testimony Specific?  Does it Paint a Picture of What Was Going On?  Add Anything?  Not Conclusory?

v  Expert Witness Testimony

Ø  FRE 702-705

Ø  Rule 702. Testimony by Experts - If scientific, technica