EVIDENCE OUTLINE

Why Have Rules of Evidence?: 1. To limit information to the jury to avoid prejudice & confusion. 2. To limit the scope & duration of the trial. 3. To protect social interests outside of the trial (E.g. marital privilege)

RELEVANCE
Introduction to Relevance FRE 402: Relevant evidence is generally admissible & irrelevant evidence is not. -What is relevant is contextual, there is no universally-applicable test FRE 401: Evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence. Direct Evidence: Evidence that, if accepted as true, necessarily establishes the point for which it is offered. Circumstantial Evidence: Evidence that, even if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation seems as probable or more so. -The FRE draws no distinction between direct & circumstantial evidence. *** Old Chief v. US (1997) Facts: D was charged with being a felon in possession of a firearm. D offered to stipulate to the prior conviction so that the jury wouldnt hear the name of his prior violent crime. Prosecution refused, wanting to present the case in its own way. DC & COA sided with the prosecution. Held: A court abuses its discretion by not allowing the stipulation where the evidence is only to prove the element of prior conviction, if this would risk jury prejudice. But, in general, the prosecution must be allowed to present its case in its own way. -Merely stipulating to something does not mean that evidence cannot be introduced. Prosecution must be able to prove not only guilt, but level of guiltiness. This helps the jury to hear the whole story and fairly evaluate it. *** FRE 401 (Advisory Cmte Notes): Even evidence that is essentially background in nature is routinely admitted as an aid to understanding. Shannon v. US (1994): The jurys function is to find the facts & decide guilt or innocence, information regarding the severity of a verdict is irrelevant. This has been applied to prohibit instruction regarding minimum sentences. *** FRE 401: Provides no particular test of relevancy, but sets a general standard requiring a tendency to prove or disprove a consequential fact. There are varying ideas on how strong this tendency must be: 1

1. If it makes the point more probable than not. (The problem with this is that evidence is offered piece by piece. Each piece might not make the point more probable than not, but the collective evidence may.) 2. If the suggested inference is more probable than any other. 3. Must have more than minimal probative worth. 4. The point to be proved is made more probable than it was without the evidence. (This is the FRE 401 view). *** Allen v. US (1896): Evidence of efforts to avoid capture (e.g. flight) is generally admissible in criminal trials. -This has been extended to allow proof that the accused: (1) used aliases or false ID; (2) destroyed/concealed evidence (spoliation); (3) fabricated evidence; (4) impeded witnesses for the prosecution; (5) sought to escape detention; (6) attempted suicide; (7) sought to bribe officials. Hickory v. US (1896): But evidence of flight does not create a presumption of guilt or suffice for conviction. *** Rule 401 Giveth, but Rule 403 Taketh Away: FRE 403: Lets the judge exclude relevant evidence on account of dangers including unfair prejudice, confusion of the issues, misleading the jury, waste of time or needless presentation. But, evidence is to be excluded only if its probative value is substantially outweighed by the various dangers. Michelson v. US (1948): Courts may limit the number of witnesses called to prove a particular point. US v. Crosby: Judges may exclude evidence that is duplicative of that already presented. Note: Judges may also insist that a trial continue once it has begun & deny requests for time to locate new witnesses or evidence. State v. Chapple (Az. 1983): D said that the trial court erred in admitting pictures of the charred body & skull of a shooting victim, claiming that they were inflammatory. Held: If relevant exhibits may be inflammatory, the value of the exhibits must outweigh the danger of prejudice. In this case the photos had little probative value because they helped prove nothing. The victims death, the cause of death, and what happened to the body were not in dispute. Only the Ds ID was. To show the photos could only inflame the minds of the jury and this was an abuse of discretion. Acceptable uses of corpse photos (From State v. Chapple): -to prove to corpus delicti, -to ID the victim, -to show the location or nature of the injury, -to determine the degree of atrociousness of the crime, -to corroborate a state witness, -to illustrate testimony, -to corroborate the states theory why the homicide was committed.

-Photos are less likely to be admitted when there are changed conditions that may be misleading (E.g. People v. Coleman Ill App 1983; decomposing, maggot-infested body) Old Chief v. US (1997): -In doing the Rule 403 balancing test the court should consider not only the probative value of the item in question, but also the availability of substitutes. (Citing ACN to 403) -Here the risk of unfair prejudice substantially outweighs the probative value. The evidence goes to his character rather than proving an element of a crime. -A stipulation alone is not enough to require the exclusion of evidence. But, a stipulation means there is less need for evidence. This may affect the FRE 403 balancing test. FRE 105: Takes a different approach than FRE 403. It says that the judge may admit the evidence in question for the point intended or against a specific party, but give limiting instructions to prevent misuse on other issues or against other parties. This is allowed out of practical necessity, so that relevant evidence is not completely dismissed when not necessary. -This must be requested by a party. -But consider Bruton v. US (1968) where the Court found that a limiting instruction didnt effectively protect the accused against the prejudicial effect of admitting the confession of a co-defendant which implicated him. FRE 801 (d)(2)(A): What a party says is usually admissible against her. FRE 106 (Rule of Completeness): The adverse party may require introduction of any other part of a writing or statement that ought in fairness be considered contemporaneously with the part already offered by the first party. This is so the first party cant choose to pick only a small part of a larger picture and thus distort meaning. This can also protect against the inadequacy of doing repair work later in trial. This can sometimes trump hearsay objections when necessary to provide context. FRE 104(a): It is in the courts discretion to determine the admissibility of evidence. But, see FRE 104(b). FRE 104(b): Conditional Relevancy: 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. (E.g. Must 1st show that the D had a particular purpose when committing an act; Must first show that person was working as the Ds agent, etc). A judge may leave such decisions to a jury since (s)he will not know ahead of time if such condition will be proven. -Use of prior bad acts cant be used to show a propensity toward crime. But it can be used to show knowledge, intent, capacity (E.g. knew how to break into that building; stole car to use it in a robbery).

Probative Weight of Evidence Mathematical Probability People v. Collins (Cal. 1968): Old woman was robbed. The prosecution introduced evidence of the mathematical probability that the people charged were the ones who actually committed the crime. The trial court jury found them guilty. Held: Reversed. Introducing evidence regarding probability was prejudicial in this case because: (1) the testimony was lacking in proper statistical theory, and (2) the manner in which the prosecution used the testimony distracted the jury from its proper role of weighing the evidence on the issue of guilt. -No mathematical formula can establish beyond a reasonable doubt that the prosecutions witnesses were correct in their observations. There might be human error. -The jury was not technically equipped to deal with such evidence. -The prosecution's misuse of mathematical probability statistics was prejudicial where the testimony lacked an adequate foundation in evidence and in statistical theory, where it was used to distract the jury and encourage them to rely on a logically irrelevant expert demonstration, where it foreclosed the possibility of an effective defense by an attorney unschooled in mathematical refinements, and where it placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable theory. Rule: Introduction of evidence related to mathematical probability statistics require an adequate foundation in evidence and adequate proof of statistical independence. *** Product Rule: The probability of the joint occurrence of a number of mutuallyindependent events is equal to the product of the individual probabilities that each of the events will occur. -Unlike in Collins, the product rule is generally accepted for (1) DNA evidence & (2) Paternity cases. This is because such tests are done to show the probability that the characteristics would be found in the population as a whole *** -There is concern with statistical evidence because it is merely circumstantial. Arguments Against Allowing Verdicts Based on Mathematical Analysis Alone: -Each of 100 similar Ps will win, even though the evidence means that the D should be liable to only 80. (E.g. 80% chance in a market that the tires were made by D). -It creates a counter-incentive to finding more particularized proof. -Leaves nothing for the jury to decide. -Makes jury feel it must follow the numbers or be ridiculed. -Less respect of courts because they gamble on verdicts. ***

HEARSAY
1) An out-of-court statement, 2) Intended as an assertion, 3) Offered to prove the truth of the matter asserted. (See FRE 801(c))

FRE 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. Reasons to Exclude Hearsay: 1. Absence of cross-examination. 2. Absence of demeanor evidence. 3. Absence of an oath. Hearsay Risks: There are 4 hearsay risks associated with out-of-court statements: 1. The risk of misperception: Even a well-situated witness with excellent vision can misinterpret or misunderstand what he sees. 2. The risk of faulty memory of the out-of-court witness. Especially if the out-of-court statement comes some time after the event. 3. The risk of misstatement/narrative clarity: Said blue car when he meant green car. 4. Candor: The risk of distortion, conscious or unconscious. *** FRE 801(a): 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. Thus, hearsay embraces assertive conduct when offered to prove the point asserted. (E.g. nodding or shaking of the head, pointing) *** Wright v. Doe d. Tatham (Eng. 1837): One party wished to offer proof in the form of 3 letters, the text of which implied that the letter recipient was mentally competent. The Court held that the letters should not have been received. Letters not under oath. The
purpose of the letters was to show the absent declarants must have believed the testator was able to engage in intelligent discourse on the various topics discussed in the letters This belief, therefore, constituted evidence of the testators competency. The court in Wright utilized the now-famous example of a sea captain, who, after carefully inspecting his ship, embarked on an ocean voyage with his family, an action offered as proof of the seaworthiness of the ship. This illustration was important in the courts analysis because the main problem sought to be avoided by the rule against hearsayan inability to cross-examine the declarantis the same whether or not the assertion is implied from a verbal statement or implied from nonverbal conduct. Thus, assertions that are relevant only as implying a statement or opinion of the absent declarant on the matter at issue constitute hearsay in the same way the actual statement or opinion of the absent declarant would be inadmissible hearsay. ***

This view has been much criticized and is not reflective of the current rules. For example, Professor Falknor said: A man does not lie to himself. If in doing what he does a man has no intention of asserting the existence or non-existence of a factthis conduct is the same whether he is an egregious liar or a paragon of veracitythe lack of opportunity for cross-examination in relation to his veracity (is) of no substantial importance. *** Cain v. George (5th Cir. 1969): Wrongful death action for the death of their son who died of carbon monoxide poisoning while a guest in appellees' motel. Plaintiffs alleged

that the gas heater in the motel room was defective because it had been improperly installed, was improperly vented, and had never been inspected or cleaned since the time of installation. The jury determined it was an unavoidable accident. Issue: Was evidence that many guests stayed in the room without complaining inadmissible hearsay? (I.e. is staying without complaining an assertion that the room was ok?) Held: No. Its value came in its showing the knowledge of the motel owners, it was not dependent upon the veracity or competency of the prior guests. Affirmed. Note: Evidence of non-complaint, sometimes called negative hearsay, is usually admitted. *** FRE 602: Lack of Personal Knowledge: A witness may not testify unless evidence is introduced to support a finding that the witness has personal knowledge of the matter. -There is a general exception for general background information (E.g. Where parents were born.) *** US v. Check (2nd Cir. 1978): The prosecution attempted to avoid hearsay rules by having available witness record his half of a conversation where the other conversation partner was unavailable. They said that this was OK because the person was cross-examinable. This court reversed a lower court decision allowing such inadmissible hearsay. Problems: 1) Missing witness is not cross-examinable. 2) Your own prior statements are also hearsay if used to prove the truth. -Thus, hearsay is hearsay even if it comes in indirectly. Animal Hearsay: (E.g. canine tracking) Is usually admissible. But not always. Machine Hearsay: Is also usually admissible (E.g. time on clock), but may be hearsay (E.g. reading an e-mail). A statement is generally NOT HEARSAY when offered for these purposes (not to prove the truth of the matter asserted): (1) Impeachment E.g. prior inconsistent statements (2) Verbal Acts Where words are an act in & of themselves that affect change in the world (E.g. prostitute says You can have it for $20; Father says I give you this car is an act transferring ownership; Bride says I do) (3) Effect on listener or reader (4) Verbal objects E.g. name on mug; matchbook with name of business on it, label, trademark on product, luggage tag. (5) Circumstantial evidence of state of mind E.g. letter writing someone out of will (6) Circumstantial evidence of memory or belief FRE 803(3) Statement to police officer describing room where victim was held captive OK as prove she knows what that room looks like (Papier-Mache Man p. 130-1) It is showing that she had to be there, not to prove that the room had pink walls. Basically, it is an assertion that cant be fake. Note: 1 thru 4 come up often, the last 2 dont.

Remember: Actions are not hearsay, even if in word form (E.g. eviction notice; lying to police is like fleeing) *** -Many scholars suggested that evidence of prior inconsistent statements by people who will testify in court should be allowed, b/c they will be under oath, subject to crossexamination, with demeanor visible to jury. FRE 801(d)(1)(A): Allows this where the prior inconsistent statement was under oath. CA v. Green (1970): The Confrontation Clause does not bar the use against the accused of prior inconsistent statements as proof of what they assert, at least in some circumstances if the declarant is present & testifying at the trial. But, most lawyers & judges said that the safeguarding effects of oath, cross-examination & demeanor evidence do not readily transfer from live testimony to remote statements. 4 Different Approaches to Defining Hearsay: 1. Traditional: Common law. Hearsay is any out-of-court statement offered to prove what it asserts. Broad excludes lots of evidence. It closely matches FRE 801(a)-(c). 2. Hearsay is an uncross-examinable statement: Reformist view. 3. Hearsay as a rule of preference: Also reformist. Live testimony is preferred over outof-court statements, but the latter may supplement live testimony or be substituted for live testimony if it cannot be had. So, hearsay is merely a statement by a person who is absent but available, when offered to prove what it asserts. 4. Hearsay as a Cautionary Principle: Also reformist. Uses the traditional definition, but would admit hearsay shown to be reliable under the circumstances. Judges can scrutinize out-of-court statements and admit them whenever they seem reliable. FRE 801: The traditional approach is augmented by elements borrowed from the 2nd approach. See FRE 801(d)(1). *** ACN to FRE 801: States that nonassertive verbal conduct is not hearsay. (E.g. Saying ouch when struck unexpectedly; The reaction of a teller, pale & shaking, during a robbery; Woman screaming when seeing face of attacker in a mugbook) -Assertive verbal conduct asserted for other than the matter asserted is not hearsay. (E.g. Man says Im in Texas, is OK to prove that by speaking he was alive, not that he was in Texas. *** US v. Singer (8th Cir. 1983): Letter to defendant at a particular address is admissible because it was used not to assert that the D actually lived there, but because the sender believed that the defendant lived there. From there we can infer the Ds residence. -Mailing is important because it is action. Actions are not assertions, but acts. (E.g. admissibility of officers answering phones in drug houses testifying to what callers said.) -Often courts believe that assertion means only simple declarative statements, not questions or commands. (E.g. US v. Lewis 5th Cir. 1990)

-Most courts that consider lying have said it is not hearsay. Not offered to prove the truth of anything asserted, but to show that statements were false. [Anderson v. US (1974)] *** FRE 801 (d)(2)(A): Admission by a Party Opponent: A statement by a party against himself, if offered for the truth of the matter asserted, is admissible. US v. Pacelli (2d Cir. 1974): Family talking as if family member is guilty of murder. Prosecution argued that it is conduct revealing their opinion. Court held that it was hearsay. -Statements used to prove the matter asserted, or things that are implicit in them, are hearsay. (E.g. Your red barn is on fire cant be used to prove that the barn exists.) -Conduct that reveals your opinion, even if verbal, is not hearsay (E.g. eviction letter)

HEARSAY EXCEPTIONS
FRE 801(a-c) = defines hearsay 802 = hearsay is prohibited The Rules set out the hearsay exceptions in 4 main groups: (1) Prior statements of testifying witnesses. (See FRE 801(d)(1)) actually defined as not hearsay (2) The Admissions Doctrine - Prior statements of parties (See FRE 801(d)(2)) actually defined as not hearsay (3) Largest Group Unrestricted exceptions. (See FRE 803) (4) Where declarant is unavailable as a witness. (See FRE 804(a & b)) EXCEPTIONS DECLARANT TESTIFYING FRE 801(d)(1) defines as not hearsay three different kinds of prior statements by testifying witnesses: 1. Prior inconsistencies: FRE 801(d)(1)(A) Usually offered to impeach. 2. Prior consistencies: Sometimes admissible to bolster present testimony of the declarant/witness. 3. Prior statements of identification: Usually applies in criminal cases & expresses the view that identifying statements made out-of-court are more to be trusted than in-court identifications. 1. Prior Inconsistent Statements Rule 801(d)(1)(A): A prior statement by a witness is not hearsay if: 1. The witness is now cross-examinable concerning the prior statement. 2. The statement is inconsistent with his present testimony, AND 3. The prior statement was made under oath in a prior proceeding or deposition. (This is different than allowing the prior statement for impeachment purposes. Here it is offered for its truth. So judge doesnt have to give a warning to the jury. And, this is useful to battle summary judgment when it is your only substantive evidence.)

State v. Smith (Wash. 1982) Assault victim first signed a statement under oath under penalty of perjury that named defendant as her attacker. One month later at trial, she named another person as her attacker. The prosecution introduced the written statement for impeachment purposes, and the defendant was convicted. The court said this was OK because it found that the statement was made under oath subject to perjury charges, was written by the victim herself, and was subject to cross-examination. Further, the jury was in a position to determine which statement was true. -But many jurisdictions would decide this case the opposite way. (Purpose of rule v. Strict interpretation of the rule) In US v. Williams (7th Cir. 1984), the court said that inconsistent doesnt mean diametrically opposed. Inconsistency may also be found in evasive answers, silence, changes in position or memory loss. -But California law says memory loss at trial is inconsistent with a prior statement only if feigned. -Federal courts dont find that memory loss must be feigned to be inconsistent US v. Owens (1988): The requirement of cross-examination can be satisfied even if the witness has forgotten the events. US v. DiCaro (7th Cir. 1985): But the 7th Circuit has found that the cross-examination requirement means that the witness must be able to give some kind of response to questions. 2. Prior Consistent Statements (Often used with kids testimony) -Prior consistent statements are not hearsay under FRE 801(d)(1)(B) if three conditions are met: (1) Witness must be cross-examinable at trial concerning the prior statement. (2) The statement must be consistent with the present testimony. (3) It must be offered to rebut a charge or recent fabrication or improper influence or motive. -There is no requirement that the prior statement be uttered under oath in a proceeding. - FRE 801(d)(1)(B) applies even where the charge of fabrication is implied, not express. (E.g. Youd do anything to help your son, wouldnt you.) -Can be used not only to rehabilitate a witness, but for its substance only Tome v. US (1995) Issue: Are out of-court consistent statements made after the alleged fabrication or improper influence or motive arose, admissible under FRE 801(d)(1)(B)? Held: No. FRE 801(d)(1)(B) embodies the common law rule that a prior consistent statement is inadmissible if made after the alleged fabrication or improper influence or motive arose. 3. Prior Statements of Identification -Pretrial identifications may be more trustworthy because the situation (E.g. police lineup) is less suggestive than ID of defendant in court. And, these identifications are made closer to the time of the event.

-FRE 801(d)(1)(C) creates a hearsay exception for previous statements of ID, made by a witness after perceiving the subject, provided that the witness is subject at trial to cross-examination concerning the statement. State v. Motta (Haw. 1983) Cashier robbed at gunpoint & later picked the Ds photo from a photo line-up. During the meantime a composite sketch had been created. D was convicted. D argued that the trial court erred in admitting the composite sketch, saying it was inadmissible hearsay under Hawaii Rule 802. Held: Sketch is equivalent to a statement. The Hawaii rule (which is the same as FRE 801(d)(1)(C) recognizes a composite sketch as hearsay but nevertheless allows it to be admitted under the hearsay exception for prior identifications. But, the declarant must be cross-examinable at trial and the sketch is made after perception. B. ADMISSIONS BY PARTY OPPONENT (FRE 801(d)(2)) A statement is not hearsay if it is offered against a party and is (A) a partys own statement, or (B) a statement of which the party has manifested an adoption of 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 partys agent within the scope of the agency, during the existence of the relationship, or (E) a statement by a conspirator during the course & in furtherance of the conspiracy. 1. Individual Admissions -What a party says can be offered against him. This is because a party cannot complain about not being able to cross-examine himself. -The doctrine reaches statements made by the party and statements by others that a party makes his own by adoption. (By acting as if they are true) It also reaches statements by a partys authorized agents, employees, and (usually in criminal cases) fellow conspirators. ACN Note to FRE 801: Allows admission of statements even where the declarant lacked personal knowledge. (E.g. Where person admits that his dog bit someone, even where he didnt see it). FRE 804(b)(3): The statement doesnt have to be against interest. So, even denials of wrongdoing can be admitted. -Pleas of guilt to criminal charges can be admitted in later damage suits arising from the same incident. -Be sure to make sure such admissions are voluntary (E.g. not after police beating) Bruton v. US (1968) The court held that the Confrontation Clause of the Constitution prohibited using against the defendant the confession of an accomplice. The Court also held that an instruction telling the jury only to use the confession against the person making the statement was not sufficient to protect the defendant. Court says this is

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especially prejudicial where the alleged accomplice did not take the stand and was thus not tested by cross-examination. Concerns: This limits where defendants can be tried together judicial inefficiency & burden on the prosecution. -But, Bruton endorses the practice of redacting a confession by one defendant to delete any reference to the other. 2. Adoptive Admissions -FRE 801(d)(2)(B): If a person manifests his adoption or belief in the truth of the statement of another, then he becomes the declarant and the statement becomes his own. US v. Hoosier (6th Cir. 1976) Hoosier was convicted of armed robbery. Girlfriend had made a guilt-laden statement to a third party (in his presence). He did not promptly deny the statement as a non-guilty person might have. Statement was admitted. Must consider the totality of the circumstances to see if the statement was adopted. One analysis says that the following should be involved: (1) the party heard the statement (2) the matter asserted was within his knowledge, and (3) the occasion & nature of the statement were such that he would likely have replied if he did not mean to accept what was said. And the statement should be excluded if it appears that: (1) the party didnt understand the statement or its significance. (2) some physical or psychological factor explains the lack of reply (3) the speaker was someone whom the party would likely ignore, or (4) the silence came in response to questioning or comments by police. -Usually the decision to admit such evidence is made by a judge, but not always. Sometimes the jury can decide whether there is an adoption. (But, juries dont get to make such decisions when the statements may be too prejudicial for them to see even if they find there was no adoption. E.g. See Problem 4-E on p. 202) Doyle v. Ohio (1976) Use of a persons silence after receiving Miranda warnings would violate the DPC (14th). Jenkins v. Anderson (1980) This does not apply to pre-arrest silence. 3. Admissions by Speaking Agents (FRE 801(d)(2)(C)) Admissible when a person authorizes an agent to speak for him if: 1. within the scope of the agency, and 2. made during the existence of the relationship (E.g. Corporations public spokesman; lawyer negotiating a contract for a client). -Pleadings from prior lawsuits are often admissible against the party who filed them. 4. Admissions by Employees and Agents FRE 801(d)(2)(D) Statements by employees are admissible against the employer if:

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1. within the scope of the employment, and 2. made during the existence of the relationship -doesnt apply against the government though (policy: cant bind the sovereign & public employees dont have the same personal stake in the outcome) -Note: However, statements made by the employer arent admissible against the employee. It only goes one way. Mahlandt v. Wild Canid Survival & Research Center (8th Cir. 1978) Alleged attack by wolf on a child. Appeal of rulings which excluded conclusionary statements against interest. Employee admitted the attack to another, even though she didnt see it. Held: A partys admission will be competent evidence against the party even though she did not actually have personal knowledge of the fact admitted. This is so even where the statements are made within an organization and not intended for the public to hear. Murrey v. US (7th Cir. 1996): Independent contractors are not agents. (This is a debated view though). And, even though independent contractors may not be covered by FRE 801(d)(2)(D), sometimes the actions of the person who retains their services constitutes adoption such that the statements become admissible against them. -E-mail messages, intended to be seen only within the company, are admissible so long as the author of the e-mail is discussing matters within the scope of her duties. 5. Co-conspirator Statements FRE 801(d)(2)(E): Co-conspirator statements are admissible if: 1. The declarant & defendant conspired (coventurer requirement), and 2. The statement was made during the course of the venture (pendency requirement) (note: usually the conspiracy is over when the police arrest someone. But, there is some allowance for when people are covering up after a conspiracy), and 3. The statement was in furtherance of the conspiracy (furtherance requirement). (This is usually interpreted as something one says to get something done. And, it is OK where the person didnt really further the conspiracy, but thought he did. -Seldom appears outside the context of prosecutions that include counts of conspiracy. Problems of Proof: 1. Evidence is invariably circumstantial & diffuse 2. The coventurer requirement introduces a problem of coincidence. Rationales: Conspiracy is a kind of agency arrangement. Thus, the statement of each is an act of the conspiracy, and is such is relevant evidence against all members. (They are verbal acts) -Also, such statements are considered somewhat truthful less incentive to lie. -Co-conspirators are like each others agents.

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-This exception allows such statements to be offered for their truth, as opposed to verbal acts where they are used only to prove conduct. Here we dont have to sever the conduct from the assertive elements of the statement. *** Bourjaily v. US (1987) 1. When finding a preliminary fact relating to the legal admissibility of evidence (E.g. in this case a co-conspirator statement), this determination is made by the trial judge alone. 2. The party seeking to admit the evidence must meet the preponderance of the evidence standard (See FRE 104(a)) 3. When determining preliminary questions of admissibility, the court isnt bound by the rules of evidence & may consider anything it wants (E.g. may hear the co-conspirator statements to decide whether the standard of proof is met). 4. FRE 801(d)(2): Co-conspirators statements must be considered, but are not enough alone to establish the existence of a conspiracy. So, under Bourjaily: The judge decides pursuant to FRE 104(a) whether the coventurer, pendency & furtherance requirements are satisfied. The preponderance standard applies, and the court may consider the statement itself in determining the predicate facts. This preponderance standard applies more or less to all questions determined by a judge under FRE 104(a) whether they relate to hearsay exceptions, claims of privilege, or anything else. -But, it is unclear when the judge should make such a determination. -And, this leads to a problem that judge & jury may reach conflicting decisions on a fact *** -The co-conspirator exception doesnt reach statements made before or after a conspiracy. But, in Grunewald v. US (1957) the court made an exception for postconspiracy statements that further the main criminal objectives of the conspiracy. (E.g. repainting a stolen car would be in furtherance of a conspiracy to steal; Waiting for ransom would be in furtherance of a conspiracy to kidnap) C. UNRESTRICTED EXCEPTIONS (FRE 803) 1. Present Sense Impressions & Excited Utterances FRE 803(1): Present sense impressions Here, immediacy is the key (E.g. look at that car run the red light.) FRE 803(2): Excited utterances Here, excitement is the key. Declarant must see a startling event that rivets his attention & (while under the events sway) then speak in reaction. Idea: The relationship between the event & the statement was so close that the happening impelled the words out of the declarant, with no time to lie or forget. -Excited utterances allow for a longer time frame after the event: While under the stress of excitement. *** Nuttall v. Reading Co. (3rd Cir. 1956) (Present Sense Impressions)

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Facts: Man required to work even though he tried to call in sick. Wife heard one end of the phone conversation & then he said to her I guess I will have to go. He goes to work, tells co-worker that he is ill but wasnt allowed time off. Man dies. Held: What he said to his wife & to co-worker was admissible to prove that he was being forced to go to work. Idea: Conversation with wife was immediately after conversation with boss. They are free from the possibility of lapse of memory. The contemporaneousness also lessens the likelihood of conscious misrepresentation. *** Notes on Present Sense Impressions -911 calls may satisfy the exception. -Even comments by defendants while committing a crime may fit this exception. -Used for observations of vehicles prior to accidents. -Can also be a written statement if done shortly thereafter (E.g. e-mail recounting phone call) *** th US v. Iron Shell (8 Cir. 1980) (Excited Utterance) Facts: Attempted rape of girl. Girl told Officer Marshall immediately afterwards that the D had assaulted her. The D claimed that it was prejudicial for the trial court to admit Officer Marshalls statement under FRE 803(2). Says that the officer interviewed the victim from 45 minutes to 1 hour 15 minutes after the assault. Says that this was too long to be under the stress of the excitement of the event. Also, the statements werent spontaneous, but under questioning. Held: Lapse of time is relevant, but not dispositive. This is a close call, but we can only reverse where the trial court abused its discretion. This is not so here. A lapse of an hour may be specifically OK where a child is involved. *** Notes on Excited Utterances: -Crawford v. Washington (2004): Out of court testimonial statements (includes descriptions of criminal acts given to police) cannot be admitted unless the victim testifies and is subject to cross-examination. -People v. Smith: 9 hours later Ok with 16-yr old male. -State v. Stafford: Allowed 14 hours later BUT -US v. Marrowbone: Statement not allowed 3 hours later. -In some cases the excitement can be re-kindled long after the event (E.g. US v. Tocco & US v. Napier pg. 237) -This exception is most often invoked to admit statements by victims of criminal assault & people injured in accidents. -Emergency 911 calls often fit the exception, and recorded accounts of crimes are often admitted (E.g. Malloy v. US D.C. Ct. App. 2002) Criticism of Excited Utterance Exception: Excitement is not a guarantee against lying. And, with excitement the likelihood of inaccurate perception is high. 2. State of Mind Exception (FRE 803(3)) Hearsay evidence is admissible if it bears on the state of mind of the declarant and if that state of mind is at issue in this case.

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This exception has four distinct uses. To prove: 1. A declarants then-existing physical condition 2. His then-existing mental or emotional condition 3. His later conduct, and 4. Facts about his will -Some cases hold that the exception is not available where circumstances suggest insincerity. -But most of what this rule allows would get in anyway because: (1) they are not assertions of mental state (E.g. I hate him); (2) They are present sense impression (Saying my leg hurts is present the way that car just ran the red light is) a. Then-Existing Physical Condition -For statements describing aches & pains. To describe how he feels when he talks. (E.g. worker complains to friends of pains at various times after injury) *** b. Then-Existing Mental or Emotional Condition -available for the mental state of parties or even non-parties (E.g. business good-will cases) -The exception reaches only statements of present mental state. Cant admit a statement where he says Man, I was stressed out last week. *** c. Subsequent Conduct Intent - What a person says is admitted as proof of what they thereafter did (or didnt do) Mutual Life Insurance Co. v. Hillmon (1892) Letters written by a person stating that he was planning to go to Colorado were admissible as proof that he had in fact gone there. (State of mind is used inferentially to prove other matters at issue.) Hillmon Doctrine: When the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. US v. Pheaster (9th Cir. 1979) Generally, statements made by a declarant as to his state of mind cant be used to implicate the probable conduct of a 3rd person. But, allowed here & under some circumstances (varies by jurisdiction). -This is often used in cases where there are statements indicating an intent to kill. 3. Statements to Physicians FRE 803(4) There seems to be good reason to believe that a patient will be honest with her doctor. The exception embraces both present & past symptoms, provided that they be pertinent to diagnosis or treatment. -Statements by others (E.g. mom speaking for child) may be admitted where they are seeking treatment for others. (There is generally no personal knowledge requirement). -Generally doesnt allow who did it statements: OK to say I was hit by a car, not Joe hit me with his car. (E.g. color of car may not always be admitted)

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-There is an exception for child abuse cases though. Blake v. State (Wyo. 1997) Facts: The victim told the doctor that defendant, her stepfather, had forced her to have sexual relations with him. Defendant sought review of his conviction, arguing that the trial court improperly admitted the hearsay testimony of the doctor. Held: Affirmed, citing the 2-part Renville test: 1. The declarants motive in making the statement is consistent with the purposes of promoting treatment or diagnosis, and 2. The content of the statement is reasonably relied on by a physician in treatment or diagnosis. (Diagnosis is enough even where there will be not treatment E.g. witness diagnosing someone for court purposes) -This is allowed even more with child abusers because treatment may require not putting the child back into an abusive situation. (Not all courts agree) -Also, psychological status of the patient may be important for treatment. -May apply to psychiatrists as well (debated) 4. Past Recollection Recorded FRE 803(5) Sometimes a witness who fails to remember critical points has written down what he knew. Under certain conditions, what he wrote may be admitted as a substitute for his testimony. When this leads nowhere the proponent must try to get the statement itself into evidence. To do so, he must demonstrate that: 1. The witness lacks present recollection of the matter, 2. The statement accurately reflects the knowledge he once had, 3. He made or adopted the statement, AND 4. He did so while the matter was fresh in his mind. -The document will be read to the jury, but not handed to them. It may have undue weight otherwise. -Different than refreshing past recollection. -Courts will often make the lawyer attempt to refresh the witness current recollection first (to ensure the element of a lack of present recollection) -When witnesses wont say that the statement is to the best of their knowledge, it cant come in this way. (But, the statement may be brought in to impeach them.) Ohio v. Scott (Ohio 1972) - In holding that the witness's statement met the requirements of past recollection recorded, the court found that the statement consisted of facts of which the witness had firsthand knowledge; that the statement was made the day after the event when the witness still had a clear memory of it; that the witness lacked present recollection; and that the witness stated that the document was accurate. -When one person writes a statement that another reads & signs, it had been made or adopted under FRE 803(5). -There is no rule of thumb for the freshness of memory requirement. (E.g. in US v. Senak a statement made 3 years after the event was OK)

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5. Business Records FRE 803(6) -Reaches a great variety of material, including airline check-in records, telephone records, credit card receipts, etc. Must Meet Four Elements: (1) Regular Business/Regularly Kept Record: -only records of a business, institution, profession, occupation or calling & -only those records it regularly generates -A record fits the exception only if each person involved in its preparation was acting in the regular course of her business activities. -Reaches the self-employed & illegal businesses (2) Personal knowledge of source: Note that the person who makes the entry need not have personal knowledge. (3) Contemporaneity: Information must be recorded or gathered at the time of the event, or at least close to it. (Not enforced with rigor) (4) Foundation Testimony: Every hearsay exception requires a foundation. A witness with firsthand knowledge of the record-keeping describes the manner in which the records are kept. Allowed where people have mere circumstantial knowledge of the system. Doesnt require the person who made the record to testify. -May be excluded under FRE 803(6) if there is indicia of untrustworthiness. Petrocelli v. Gallison (1st Cir. 1982) RE: Exclusion of sentence in a medical report regarding a severed nerve. There was doubt as to where the doctor got the information about the nerve. It may well have been just from what the patient told him. To be admissible under FRE 803(6) it would have to be either the opinions or diagnoses of the doctors themselves a person with knowledge. Merely repeated what the patient said does not equate with personal knowledge of the source. Lower court was right to exclude this sentence. (Court notes that this could have been admitted under FRE 803(4) Statements to Physicians) Norcon, Inc. v. Kotowski (Alaska 1999) (Mix of business records & party admissions) RE: Alcohol consumption & sexual harassment on oil clean-up ships and the admission of a memo regarding the actions of one supervisor. Even though it contained double hearsay the document was admitted because the people who prepared it were acting in their normal business capacity. Bean v. Montana Bd. Of Labor Appeals (Mont. 1998): Document did not fit the business records exception because it was made in anticipation of litigation & was not trustworthy. Palmer v. Hoffman (1943): Reports about accidents may not fit this exception at times because they are made with an eye toward potential litigation. Reports are prepared primarily for court, not business. (But, contradicted by Lewis v. Baker (2nd Cir. 1975)) 6. Public Records - FRE 803(8) Overlaps with Business Records Exception

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Rationales: (1) It is presumed that public officials go about their official tasks with great care. (2) Necessity: Public officials probably dont long remember much of what they record in the course of their duties. (3) Public officials are the best information source. FRE 803(8)(A): Embraces mundane documents describing activities of the office or agency. (E.g. court transcripts) Uncontroversial items. FRE 803(8)(B): Covers matters observed by public officials. (E.g. reports by building inspectors). Must be observed pursuant to official duties about which they were bound to report (Can just be random stuff they saw on the way to official work. Excludes matters in criminal cases observed by police officers & other law enforcement personnel. FRE 803(8)(C): Embraces factual findings from official investigations. (E.g. findings of employment discrimination) Not to be used against criminal defendants. Most courts allow even if finding was based in part on hearsay. Often the hearsay statements will be redacted from the document. -there is also an escape hatch clause that permits exclusion of such records if circumstances indicate their lack of trustworthiness. -Under 803(8) you can give the document to the jury (unlike 803(5)); And you can introduce it without having the person on the stand. Baker v. Elcona Homes Corp. (6th Cir. 1979) RE: Truck-car accident at intersection & who had right of way. Issue: Admissibility of police accident report which said car was in the wrong. Held: A police report is admissible under 803(8)(B). This is admissible. And, the document was trustworthy. From Baker Factors for Determining a Lack of Untrustworthiness: (1) The timeliness of the investigation (2) The special skill or experience of the official (3) Whether a hearing was held & the level at which conducted (4) Possible motivational problems. [Quoting CAN to FRE 803(8)] -But see Johnson v. Lutz (NY 1930) applying state law which said a police report did not fall within the business records exception to the extent it rested on statements obtained by the officer from onlookers. *** US v. Oates (2nd Cir. 1977) In a criminal case police records (such as lab report here) are not admissible under FRE 803(8). This is because this was not Congress intent because this might violate the defendants Confrontation Clause right. This applies to business records as well. Can be brought in through 803(5) Recorded Recollection because the officer would be crossexaminable. 7. Learned Treatises - FRE 803(18) Permits use of a treatise where: (1) It is shown to be reliable authority

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(2) Either the expert relies on it in direct examination or it is called to his attention in cross-examination. -See Heilman v. Snyder (in malpractice suit defense cited a manual to show that a procedure is considered unnecessary) EXCEPTIONS DECLARANT UNAVAILABLE FRE 804 FRE 804 recognizes hearsay exceptions that may be invoked only if the declarant is unavailable as a witness. -Unavailability alone doesnt put an out-of-court statement into an exception. 1. The Unavailability Requirement FRE 804(a) -FRE 804(a) shows that unavailable doesnt necessarily mean physically unobtainable. The requirement is satisfied if his testimony is unobtainable. Even if in court, his testimony is unavailable (for purposes of Rule 804) if he cant remember, refuses to testify, or properly invokes a privilege. -The trial judge determines whether the declarant is unavailable (under FRE 104(a)) 1. Claim of Privilege: Makes declarant unavailable under FRE 801(a)(1). Generally the witness must take the stand & claim the privilege. But, this isnt necessary in cases where the defendant would be forced to take the stand. 2. Refusal to Testify: FRE 804(a)(2) 3. Lack of Memory: FRE 804(a)(3) Paradox: Under these rule a non-remembering witness can be available for cross-exam regarding a prior statement (FRE 801(d)(1)), and unavailable for cross-exam under FRE 804(a). 4. Death, Illness, Infirmity: FRE 804(a)(4) -Death is clearly OK. Infirmity will lead to an adjournment if possible. But, a long-term illness of uncertain prognosis will satisfy this rule. In some situations a mental illness will make a witness unavailable. Children too. (Dead person is not unavailable where the defendant committed wrongdoing) 5. Unavoidable Absence: FRE 804(a)(5) E.g. beyond subpoena power of the court. This clause puts pressure on the parties to obtain deposition testimony by a declarant who might be unavailable at trial. Parties must show that they were unable to get a deposition. But the level of proof needed is unclear. Forfeiture: A party who procures the absence of a declarant should not be allowed to invoke one of the exceptions that absence normally brings into play. (FRE 804(a)) *** 804(b): Lists where hearsay rules dont apply if the declarant is unavailable. Barber v. Page (1968): A witness is not unavailable (re: confrontation rule) where the parties have not made a good-faith effort to obtain his presence at trial. *** 2. Former Testimony Exception FRE 804(b)(1) Available in civil cases if the party against whom it is offered (or his predecessor in interest) had a chance to cross-examine the declarant in the prior proceedings. This will not apply in criminal cases.

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-Often, the objecting party will argue that differences between the prior & present proceedings show that on the earlier occasion there was less reason to go after the witness. Difference: FRE 804(b)(1) requires a prior chance for cross-exam; The exception for prior inconsistent statements in FRE 801(d)(1)(A) requires a present chance for x-exam. Lloyd v. Amer. Export Lines, Inc. (3rd Cir. 1978) (Clark says this case wrongly decided; Concurrence view is better) -In civil actions some courts (like this one) evade the same party or predecessor in interest requirement by treating parties who had a similar interest as the present party as predecessors in interest. Concur: Predecessor in interest was never intended to have this broad a meaning. It should be defined in terms of a privity relationship. -Predecessor in interest does not mean someone who brought a similar lawsuit. *** 3. Dying Declarations FRE 804(b)(2) This exception is allowed where a person believes that death is imminent & speaks of her circumstance. Only reaches statements concerning the cause & circumstances of impending death. In criminal law: only available in homicide cases. -Most often used in criminal trials to admit the dying words of the victim identifying the defendant as his assailant. And, descriptions of the event. -Federal law makes the exception available in civil cases as well, departing from common law tradition. Justifications: (1) A person is more likely to be honest when about to meet God & has less motive to lie otherwise (fewer consequences). (2) Dying declarations are likely to speak of facts in the forefront of memory. (3) Otherwise vital information may be unavailable. (4) This keeps away a motive to finish people off. Problem: People under extreme stress may be confused. Shepard v. US (1933): There must be a settled hopeless expectation that death is near at hand. What is decisive is the state of mind. -Judge makes the decision whether a statement is a dying declaration. -Courts tend to require personal knowledge, but not focus on it. *** 4. Declarations Against Interest FRE 804(b)(3) -Declarations against pecuniary or proprietary interest are thought to be trustworthy on the ground that a person is unlikely to state facts harming his own interest unless they are true. (E.g. If Sam says I owe Todd $1,000, he concedes a debt. It would likely be admissible to prove that he owed Todd that sum. Also, statements admitting payment.)

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-Must consider: context, conflicting interests, one-way interests (proof of maximum or minimum e.g. tax return shown to say that person made at least that much), delarants understanding (one must understand his own interests), Effect of later events (not allowed where the statement only becomes damaging in the light of later events) -Courts do not generally embrace statements against social interest. -This is different than party admissions because it an be used against someone other than the declarant. -Unlike the co-conspirator exception this doesnt have a furtherance requirement. Williamson v. US (1994): Statements may be self-serving in one aspect and disserving in another. If so, it must be offered in evidence with respect to its disserving aspect i.e. for a purpose to the prejudice of the declarant. -Courts are split re: admitting statements against interest that exonerate others. -FRE 804(b)(3)(A) requires corroboration of statements offered to exonerate the accused, but not for statements against interest implicating the accused. -Courts are wary of statements exonerating the accused coming from already-incarcerated people. -For corroboration courts may look at the circumstances of the statement (E.g. were they family members, other evidence corroborating the content of the statement, evidence of declarants credibility) *** 5. Statements of Personal or Family History FRE 804(b)(4) -are admissible under FRE 804(b)(4) when the declarant is unavailable. -Includes info re: birth, adoption, divorce, legitimacy, ancestry, etc. -Assumes that pronouncements of this sort likely rest on adequate information. -Also, such statements are usually necessary & not in controversy. -But, courts may require more where the statement is offered to prove facts about people other than the speaker (E.g. must prove you are part of the family or is an intimate. *** 6. Statements Admissible Because of Forfeiture by Misconduct FRE 804(b)(6) -Intended to deal with the problem of witness intimidation. -May apply where others do the intimidation for you & you do nothing to stop them (E.g. US v. Cherry) -Judge makes this decision based upon the preponderance of the evidence (FRE 104) ***

THE CATCHALL EXCEPTION - FRE 807

-Authorizes the court to admit hearsay that (1) doesnt fit into any of the other (categorical) exceptions if (2) it is nevertheless trustworthy & necessary, and (3) is more probative than any other available evidence. -Includes requirements of: (1) material fact, (2) probativity & diligence; (3) interest of justice, and (4) notification to the adversary. Dallas County v. Commercial Union Assurance Co.: Judge admitted an old newspaper clipping to prove an earlier fire.

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State v. Weaver (Iowa 1996) (Catchall exception applied) Admission of affidavits that mother of deceased child admitted that child hit head the day she died. Court balance the propensity to tell the truth, personal knowledge, time lapse, corroboration, re-affirmation of statement, availability for cross-examination, and found the statements admissible. The Catchall & Child Abuse Prosecutions: Courts often use FRE 807 to admit statements by child victims describing abuse. They balance the childs knowledge level & use of age-appropriate language, behavioral changes, demeanor, spontaneity, absence/presence of bias, and techniques of those who spoke to the child. (Problems: Do we understand what children say? Do children understand oaths? Are children repeating what others said?, etc.)

THE MINOR EXCEPTIONS - FRE 803

Ancient Documents - FRE 803(16) Creates an exception for statements in documents that have been around for 20 years or more. (Justifications: The forces generating the litigation are unlikely to have affected what was said long ago; Better evidence may be hard to come by; Such events are unlikely to be pivotal in litigation) Market Lists FRE 803(17) Widespread circulation in newspapers & periodicals creates pressures ensuring reliability. Felony Convictions FRE 803(22) Not available for no contest pleas. Absence of Record FRE 803(7) & 803(10) The nonexistence of a matter where one would expect to find it. Birth, Marriage, Death FRE 803(9) Can use public & religious records to prove. Real Property FRE 803(14) Admits documents of conveyance *** CONSTITUTION AS A BAR AGAINST HEARSAY -Sixth Amdt Confrontation Clause says, in part: In all criminal prosecutions, the accused shall enjoy the rightto be confronted with the witnesses against him Coy v. Iowa (1988): The CC entitles the defendant to not only to be present, and to see and hear the witnesses against him, but also to be in view of them This is largely because of the importance of demeanor to a jury. But Maryland v. Craig (1990): Court may let youthful assault victims testify from another room with closed circuit TV. Said that the states interest in the psychological well-being of victims is enough to outweigh the right to face accusers in court. (Case specific determinations) Illinois v. Allen (1970): Defendant may lose the right to be present by misbehaving. Origins: Sir Walter Raleighs Case: 1603 treason trial. Convicted using a statement by an alleged co-conspirator who did not appear in court, but was examined out of court by a govt officer. This caused controversy b/c the witness could have easily been brought in. -Courts in the 19th Century & into the 20th Century held that the CC preserved certain standard hearsay exceptions. (E.g. dying declarations) Beginning of the Modern Era

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Pointer v. TX (1965): The 14th Amdt makes the CC binding on the states. This case suggests that prior cross-examination (or just an opportunity) would satisfy the CC. Barber v. Page (1968): Witness must be shown to be unavailable Douglas v. AL (1965): There is no opportunity for cross-examination where the witness refuses to testify. California v. Green (1970): Suggests that 2 types of statements pass muster: 1. Those subject to prior cross-exam b/c they were made in proceedings where the defendant had a lawyer who tested them. 2. Those subject to deferred cross-exam at trial because the defendant can then question the witness about what he said before. Dutton v. Evans (1970): The CC is satisfied where there is indicia of reliability. Modern Era Arrives Four Theories of the Confrontation Clause: 1. Minimalist Theory: Witness against merely means those who testify in court, not someone who makes an out-of-court statement. (Wigmore took this view) 2. Production Theory: Requires the prosecutor to produce an available declarant in preference to an out-of-court statement, but has nothing to say about statements by people who are unavailable. (Partially adopted in Roberts) 3. Reliability Theory: The CC sets a constitutional standard of reliability, and reliability is unimportant if the accused can cross-examine. (Roberts) 4. Testimonial Theory: The CC applies to testimonial statements, and testimonial refers at least to statements to law enforcement officers describing crimes, where the purpose is to aid the prosecution. (Crawford, Scalia view in White v. Illinois & Breyer in Lilly v. Virginia) Ohio v. Roberts (1980) When a hearsay declarant is unavailable for cross-examination at trial, the CC normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred without more where the evidence falls within a firmly-rooted hearsay exception. Otherwise, the statement must be excluded, absent a showing of a particularized guarantee of trustworthiness. -Fn. 7: The prosecutor need not show unavailability where the utility of trial confrontation is small. White v. Illinois (1992): Suggests that the idea that statements are reliable if they fit a firmly-rooted hearsay exception trumps the unavailability requirement. Firmly-Rooted Hearsay Exceptions: Co-conspirator statements, excited utterances, statements for medical diagnosis or treatment, business records, dying declarations, agents admissions & public records. Problems with Roberts Analysis -But this reliability analysis let in things that were what the CC was intended to exclude E.g. testimonial statements E.g. statements to police.

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-The CC was to prevent magistrates for collecting statements & using them against criminal defendants -There was no definition for what is reliable. Different courts had different views. Crawford v. Washington (2004) Facts: Husband stabbed a man who was allegedly attempting to rape his wife. Wife made a tape-recorded statement to the police that conflicted with this theory. Wife was unavailable due to marital privilege. Held: Where a declarant is unavailable fro cross-examination, and a statement is testimonial, it may not be admitted unless the defendant forfeits his CC right through misconduct. -Reliability is something that is tested through the crucible of cross-examination. -Testimonial refers at least to statements to law enforcement officers describing crimes, where the purpose is to aid the prosecution, or (arguably) where the party knows that it will be used in prosecution. -Prof. Richard Friedman: A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made to the authorities or not. -Crawford: The CC does not bar the use of testimonial statements for purposes other than proving the matter asserted. Profs. Richard Friedman & Bridget McCormack, Dial-In Testimony: If a statement is made in circumstances in which a reasonable person would realize that it likely would be used in investigation or prosecution of a crime, then the statement should be deemed testimonial. Why the Crawford standard may be good -It is simpler in its application -It focuses on witnesses being present to back up what they say -Helps us to constrain the government (e.g. corruption) -Agrees with the text of the amendment Possible responses to Crawford: -Courts may define testimonial in ways to allow most things in -Expand forfeiture to include the substantive crime itself. -Make a Confrontation Clause exception for statements that fit firmly-rooted hearsay exceptions. -Modify law to introduce statements where the witness is unavailable thru no fault of their own & the prejudice to the defendant may be limited. Prior Cross-Examination: May suffice to satisfy the CC in some circumstances. (Possibly a mere prior opportunity to cross-examine). This is especially true where the declarant is unavailable at trial (California v. Green 1970). But the question remains open.

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Deferred Cross-Examination: Does satisfy the CC because there will be an opportunity to cross-examine. So, the fact that the witness could not be cross-examined at the time of the statement is acceptable where they will be available at trial. Nelson v. ONeil (1971): Even a witness who denies making a statement can be adequately cross-examined. US v. Owens (1988): Even an un-remembering witness is adequately cross-examinable. Delaware v. Fensterer (1985): Expert testimony could be admitted even where the expert could not (in cross-examination) remember what his conclusion rested on. -But, there is a lingering question of whether a witness is available if he stonewalls or answers no questions. Idaho v. Wright (1990) Facts: Child did not testify at trial. But, the judge let the physician who examined the child testify under the catchall exception (FRE 807). The Idaho Supreme Court concluded that this violated the CC. -This case is pre-Crawford. Issue of whether childrens statements should always be considered non-testimonial or whether the Confrontation Clause should apply at all.

RELEVANCE REVISITED
FRE 404: Character evidence not admissible to prove conduct; exceptions. A. CHARACTER EVIDENCE (AKA Propensity Evidence) FRE 404 & 405 -Limits evidence of a persons character for proving action in conformity on a particular occasion. Limits it because it might be prejudicial & it might slow down the trial. FRE 404(a)(1): Accused can bring up own character/ FRE 404(a)(2): Accused can bring up victims character (at times) FRE 404(a)(3): Admits evidence of the character of a witness, as seen by rules 607-09. FRE 404(a&b): Proecution cant bring in character evidence until the defense does so first, then it can be done to rebut. -So, generally the defense controls when character evidence can be admitted. FRE 405: Methods of proving character. 1. Relevancy and Form Character describes specific inclinations of a person & suggesting their innateness in him. Character as evidence of conduct: Suggesting probable patterns of behavior & thus telling us something about the likelihood that a person would or would not do certain acts. Propensity argument. Form of the Evidence: There are three ways to intro testimony of a character witness: 1. Witness might describe acts by the person that indicate the existence of the trait 2. She might give her opinion that the person has the trait in question. 3. She might describe his reputation.

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-The Rules (see FRE 405(a)) authorize both reputation and opinion evidence; but sharply restricts evidence of specific instances (only on cross-exam). Prosecution may not introduce own evidence of specific instances. 2. Character to Prove Conduct on a Particular Occasion -Must be a pertinent character trait. (FRE 404(a)(1-2)) This is determined by the nature of the charges (E.g. In a battery prosecution, a court would exclude evidence that the defendant is honest, but admit evidence that he is nonviolent US v. Jackson) -US v. Diaz: Can almost always admit evidence that he defendant is law abiding. -Character evidence from after the crime is irrelevant. (US v. Curtis) -Some argue that reputation evidence is the least trustworthy & should not be allowed. -Delicate Balance: When the accused calls a character witness to testify to his good character, the prosecutor may cross-examine about incidents from the defendats past that could not be proved otherwise. -In Civil Cases: As in criminal cases, evidence of the partys character is generally held not admissible to reflect on whether a party acted (or did not act) in a certain way on any particular occasion. (FRE 404(a)) (E.g. cant prove negligence by evidence that the defendant is accident prone) Character evidence is inadmissible to show action in conformity with character on a particular occasion. (E.g. Cant say once a thief, always a thief. FRE 404(b)) This applies to all 3 types of character evidence. -This is because the value of such evidence is outweighed by the risk of prejudice. -But, FRE 404(a) allows exceptions: -The accused may resort to such proof to show he didnt commit the crime. -If he does, the prosecution may offer evidence to rebut the same. -FRE 404 doe not bar evidence of character when it is offered for other reasons than to prove conduct on a particular occasion. 3. Character as an Element of a Charge, Claim or Defense -Character is never an element in a criminal case. In Civil Cases: There are certain situations where character is the ultimate issue. Here the evidence is allowed not as a predicate fact supporting an inference of behavior on a particular occasion, but as an end in itself. (E.g. Defamation E.g. A defendant in a libel suit might allege that what was said did not damage the defendant because he already had a bad reputation; E.g. Negligent Entrustment Defendant was by disposition careless & carelessly let another use his equipment; E.g. Child Custody The relative parental fitness is the ultimate issue; E.g. Wrongful Death Damages may turn on the worth of the decedent to the plaintiff.) 4. Prior Acts as Proof of Motive, Intent, Plan, etc. FRE 404(b) -Prosecutors can often get in character evidence by using 404(b) which lists a long list of specific points on which it may be admitted, including intent.

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Intent: E.g. The government will offer evidence that the defendant has sold drugs in the past as proof that on this occasion he intended to sell the drugs found in his possession. -The court must balance the probative worth of such evidence with the risk of prejudice to the defendant (FRE 403). For this there is a 4-part test. The judge: 1. Decides whether the evidence is offered for a proper purpose 2. Decides whether it is relevant for that purpose 3. Decides whether its probative worth is outweighed by risk of unfair prejudice 4. Gives a limiting instruction on request. (from Huddleston v. US 1988) -Usually the prosecution evidence is admitted. *** -404(b) requires the prosecution to give notice of such evidence before trial if the defense requests. -The prosecution will often offer evidence of past crimes to rebut an entrapment offense. *** Plan: The accused formulates a singular grand design that includes both the charges offense(s) and prior uncharged offense(s). Each amounts to a step or stage in the grand design. If the prosecutor can show a common objective, the evidence of plan will be allowed. If the prosecutor only shows that the prior acts are similar and temporally proximate, then the evidence will not be allowed. (E.g. There is a plan where a judge took bribes over several years; There is a plan where evidence of sexual assault of others is admitted as character evidence against the defendant in assault of this victim) *** -Other uses include: 1. Motive (E.g. killed someone to cover embezzlement. Prosecution can provide evidence of the embezzlement) 2. Opportunity (E.g. often in the sense of skill or capacity to do criminal acts. E.g. Did carjacking to get to scene of crime) 3. Preparation E.g., Stole car last week for this weeks heist. 4. Knowledge E.g. Show that you stole from safe before to show that you knew combination during this crime. *** -Can introduce past crimes to show that you have a distinguishable modus operandi (identity, signature). E.g. always singing opera when robbing banks. US. V. Huddleston (1988): 1. The Rules dont require a preliminary finding by the court that the govt proved a prior act by a preponderance standard. Instead the judge makes a threshold decision whether the evidence is probative of a material issue other than character. (See 4-part test above) 2. Admitting evidence of prior acts raises a question of relevance conditioned on a fact (under FRE 104(b)), which is for the jury to decide under the preponderance standard. -Some courts follow Huddleston, some dont. *** Dowling v. US (1990): Approved admission of testimony describing a crime that led to acquittal. (Because criminal conviction comes at a higher standard beyond a reasonable doubt- than admission of prior acts does preponderance of the evidence.

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5. Character in Sex Offense Cases Rape Shield Statutes: FRE 412. This qualifies FRE 404(a)(2) by restricting the use of evidence relating to the sexual history or sexual pre-disposition of a sex crime victim. But can still use to impeach, to rebut a specific claim. (E.g., woman says Id never sleep with someone I just met. Defense might be able to introduce evidence that she had.) -FRE 412(b)(1)(A-B): Can introduce evidence of victims sexual behavior to prove that another person was responsible for the injury, semen, etc., or to prove consent. -FRE 412(b)(1)(C): Allows such evidence if its exclusion would violate the defendants constitutional rights. -FRE 412(b)(2) establishes a balancing test for use in civil cases. Rationales: Past sexual behavior isnt really relevant; public policy in having victims testify (this benefits both the victim & the state); past behavior may prejudice the jury. FRE 413: Where a defendant is accused of sexual assault, evidence of other sexual assault offenses is admissible on any matter to which it is relevant. (Subject to 403 unfair prejudice). Congressional comments indicate that offense is not limited to convictions. FRE 414: Where a defendant is accused of child molestation, evidence of other child molestation offenses is admissible on any matter to which it is relevant. This can be used to show capacity. FRE 415: Extends 413 & 414 to civil cases raising issues of sexual assault & child molestation. -FRE 413 & 414 reflect a public view that we dont care about people who have committed certain crimes. B. HABIT & ROUTINE PRACTICE FRE 406 -In contrast to character evidence, proof of personal habit is freely admitted. -FRE 406: Habit is relevant to prove conduct (therefore generally admissible under 402) Rationale: Habit is more probative of conduct than character evidence, it is less vague & more reliable, & it is less likely to carry moral overtones or present dangers of unfair prejudice or confusion. Habit is reflexive action. It is generally not admitted unless the testimony deals with action that occurs over & over. -Most often offered in civil negligence cases. (E.g. Always wearing a seatbelt.) -E.g. organizational routine can prove the presence of terms in an agreement (They always include such terms.) C. REMEDIAL MEASURES FRE 407 FRE 407: Evidence of remedial measures taken after the act in question is usually not admissible to prove that the person in question was somehow at fault before. -This doctrine applies in products liability cases as well. -Policy: 1)We dont want to dissuade people from making needed remedial changes. 2) Such evidence has little probative value anyway. Tuer v. McDonald (COA Md. 1997)

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-Medical malpractice suit. -Court refused to allow evidence of how hospital changed their procedures in response to patients death. Policy: Said that we want to encourage changes that make the world better. -This case dealt with the feasibility of making changes in procedures. The court said that there was not a controversion of feasibility. Feasibility should not be taken out of the hands of the doctors. -Feasibility should mean it can or cant be done, not just that one policy is better. D. SETTLEMENT NEGOTIATIONS FRE 408 FRE 408: Bars proof of civil settlements, offers to settle, and conduct or statements made during settlement negotiations when offered to prove liability for or invalidity of a claim. Rationales: 1. Payment of a small sum tends not to prove liability (E.g. like parking ticket) 2. Public policy: The system would grind to a halt & lawyers would be averse to negotiating if what they said was admissible later. -This does not block admission of evidence that would be otherwise discoverable. But new evidence created for the settlement negotiations is not admissible (E.g. new chart) -Evidence may be admitted when offered for purposes other than to prove liability. -Plea bargain statements in criminal cases are excludable for the same reasons. (See FRE 410(4)). This is limited to plea bargain statements made in the course of plea discussions with an attorney for the prosecuting authority. This does not generally apply to statements by police. FRE 410(2): Makes nolo contendere pleas inadmissible. E. PROOF OF PAYMENT OF MEDICAL EXPENSES FRE 409 FRE 409: Proof of payment for anothers injuries is excludable if offered to prove liability. Rationale: Responsible behavior after the fact doesnt prove legal fault; Allows insurance companies to give out money w/o admitting anything. F. PROOF OF INSURANCE COVERAGE FRE 411 FRE 411: Bars evidence of coverage offered in support of arguments that it proves the person is either cautious or reckless. (i.e. Only a reckless or, alternately, a cautious person would have insurance). This also serves to prevent the jury from deciding damages with the thought that an insurance company will pay.

WITNESS COMPETENCY
-At common law there was a belief that only those who believed in a higher deity were competent to testify. But now FRE 610: Religious beliefs may not be used to impeach credibility. FRE 609: Convictions may be used to impeach credibility.

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B. COMPETENCY: THE MODERN VIEW US v. Lightly (4th Cir. 1982) Every witness is presumed competent to testify (FRE 601) unless it can be shown that he has no personal knowledge of the matters in question, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully. FRE 601: Every witness is presumed competent to testify ACN to FRE 601: [a] witness wholly without [mental] capacity is difficult to imagine. C. THE OATH REQUIREMENT US v. Fowler (5th Cir. 1979) No witness has the right to testify except on penalty of perjury and subject to cross-examination. FRE 603: Before testifying every witness is required to declare that he will testify truthfully, by oath or affirmation. -But, courts are liberal in the wording of oaths or affirmations. D. THE CHILD WITNESS Ricketts v. Delaware (Del. 1985): FRE 601 presumes that competent to testify. This applies to children where they understand the need to tell the truth. E. PREVIOUSLY HYPNOTIZED WITNESSES Rock v. Arkansas (1987): A per se rule excluding all post-hypnosis therapy infringes impermissibly on a criminal defendants right to testify on his own behalf. -But, there are concerns about improper suggestions. F. DEAD MANS STATUTES -These limit testimony about transactions with deceased people. -These have been criticized as unduly casting suspicion on all those who pursue claims against estates of decedents. G. LAWYERS AS WITNESSES -Attorneys are competent witnesses, even in the trial in which she is involved. -But the ABA Model Rules of Professional Conduct (Rule 3.7) tells lawyers to excuse themselves in situations where hey might be called, with exceptions for: 1. Where the testimony relates to an uncontested issue; 2. Where the testimony relates to the value of her legal services; or 3. Where disqualification of the lawyer would cause substantial hardship to the client. H. JURORS AS WITNESSES 1. Pre-Verdict Testimony oby Jurors FRE 606: Prohibits testimony by a juror before the jury panel on which he serves. (Unless neither party objects)

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2. Post-Verdict Testimony By Jurors Tanner v. US (1987): Juror testimony concerning drug & alcohol abuse during deliberations is inadmissible in federal courts. FRE 606(b): Juror testimony (or affidavits) is admissible only to show any outside influences improperly brought to bear on any member of the jury (E.g. threats) or extraneous personal information improperly brought to the jurys intention. (E.g. news releases) I. JUDGES AS WITNESSES FRE 605 FRE 605: A judge is incompetent to testify in a trial over which he is presiding. (One of the few federal grounds of incompetency) FRE 614: Authorizes the court to question witnesses. But a judge cannot testify in the form of questions. J. THE PERSONAL KNOWLEDGE REQUIREMENT FRE 602 FRE 602: Provides that a witness may not testifyunless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. -This is usually satisfied by preliminary questions showing that the witness personally perceived certain facts.

DIRECT & CROSS-EXAMINATION

A. DIRECT EXAMINATION FRE 611(c): Direct examination means (for the most part) non-leading questions. But leading questions may be used under the judges discretion. Leading Questions are permitted in four situations: 1. When necessary to develop testimony: When the witness is: (a) very young; (b) timid, reticent, reluctant, or frightened; (c) ignorant, uncomprehending, or unresponsive; or (d) infirm. 2. When the witness is uncooperative: hostile or identified with an adverse party. 3. When the Rule is more trouble than it is worth: E.g. uncontested issues. (E.g.residence) 4. When memory seems exhausted: To refresh recollection. (FRE 612) Baker v. State (Md. App. 1977) (Re: Refreshing recollection) A testifying witness may be permitted to refresh or revive her memory by referring to a writing or anything else if the witness will thereafter be able to testify from present recollection. (This is ifferent than FRE 803(5) Recorded recollection) FRE 612: An adverse party must be given documents used to refresh witness recollection if used (1) while testifying (612(1)) or (2) before testifying (612(2)). Maybe even if the document is privileged. See James Julian case below. B. CROSS-EXAMINATION -Leading questions are usually permitted in cross-examination (FRE 611(c))

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-The aim of cross-exam is to: (1) develop the substance of the story as the adverse party hopes the jury will see it; (2) Limit the impact of the testimony of the witness; (3) Impeach the credibility of the witness. -Witnesses will be prepped before trial. The cross-examiner tries to show that this pretrial process affected the testimony of the witness. James Julian, Inc. v. Raytheon (D. Del. 1982): Generally, the use of privileged documents to refresh a witness memory prior to testifying constitutes a waiver of the protection. But, each case must be evaluated on its own facts, to determine if the privileged documents will reveal the attorneys mental impressions. (Reading Rule 612) -Disclosure of materials protected by the work-product doctrine or attorney-client privilege ordinarily results in loss of further protection. -Where cross-examination is cut short by death or illness of the witness, this curtailment of the opponents right is viewed as so serious that the direct testimony must often be stricken, and sometimes a mistrial is required.

IMPEACHMENT OF WITNESSES
There are Five Ways to Impeach a Witness: The 1st three focus on bringing out reasons to doubt his word in general. The other two target particular misstatements or lies. Non-Specific Impeachment 1. Showing that the witness has some bias that might lead him to fabricate. 2. Showing a defect in his sensory or mental capacity (perception or memory) 3. Showing that he is by disposition untruthful: a. Cross-examining the target witness about non-conviction misconduct casting doubt on his honesty. (FRE 608(b)) b. Cross-examining him about convictions for certain kinds of criminal acts (Rule 609) c. Testimony by a character witness that the target witness is untruthful (FRE 608(a)) Specific Impeachment 4. Showing that the witness has made a prior inconsistent statement 5. Contradicting the witness showing that he is wrong. Repairing Credibility: Witness ma be examined in an effort to refute points suggested during the attack or explain away any aspersions cast upon his veracity. A. NON-SPECIFIC IMPEACHMENT 1. Bias & Motivation: Some subjects (like plea bargains affecting prosecution witnesses, or fees paid to experts) are so clearly proper that at least some questions are always allowed. -Denying cross-examination on the question of bias can violate the Confrontation Clause (see Olden v. Kentucky 1988)

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-Still the court may impose reasonable limits on efforts to show bias and cut off questioning when the point has been made. US v. Abel (1984) It was permissible to admit evidence of a witness membership in a secret organization that advocated lying to support its members, where this evidence is used to show bias. -Prosecutors must disclose information about deals and promises of leniency affecting their witnesses (see Giglio v. US -1972), and defendants may always follow up at trial by asking them about these points. -Can always cross-examine any expert on the fees paid by the calling party, because this bears directly on bias. -This applies to paid informants as well. 2. Sensory & Mental Capacity: -The attacking party may seek to show that a witness only had a brief chance to see or hear what he described in his testimony; or that he labors under defects in sensory capacity that may affect his observation. -E.g. influence of drugs/alcohol at the time of the events. -Cross-examination on mental afflictions is also proper. (But no witness is incompetent because of mental illness). -These may not be allowed where they are not probatively related to the issue at hand & may confuse the jury. 3. Character for Truth & Veracity The Rules recognize three means of proving untruthfulness: 1. Cross-examination on non-conviction misconduct 2. Cross-examination on convictions, and 3. Use of character witnesses. -An impeaching attack must focus on traits related to veracity. If the defendant in a murder trial testifies, for example, FRE 608 & 609 entitle the prosecutor to try to suggest that he is by disposition dishonest, but FRE 404 continues to bar evidence that he is by disposition violent. -608 allows such evidence only if the witness character has been attacked (608 (a)(2)) a. Cross-examination on non-conviction misconduct -FRE 608(b) endorses this where conduct bears on veracity. (E.g. lying on employment applications, false info on a loan application, use of aliases, accepted bribes, etc.) -But lawyers cant ask such questions without an adequate basis (see Michelson v. US) -Judges have discretion to block even well-founded question (FRE 608(b)) for prejudice. -And lawyers cannot challenge witness responses with extrinsic evidence (FRE 608(b)) this contrasts with where you can introduce extrinsic evidence to show bias.

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In Sum: A witness may be cross-examined on a prior bad act that has not resulted in a criminal conviction only where: (1) The examiner has a factual predicate for the question, and (2) The bad act bears directly on the veracity of the witness in respect to the issues involved at trial. -The court may limit/restrict the questioning to prevent harassment/prejudice, etc. What is Probative of Truthfulness? US v. Manske (7th Cir. 1999) Under Rule 608(b), "a witness's specific instances of conduct may only be raised on cross-examination if they are probative of truthfulness or untruthfulness." Court allowed evidence that the witness intimidated witnesses in another case. Manske describes 3 views of allowable questioning under FRE 608(b): 1. Broad View: Allows questioning on almost any misconduct. (View generally rejected) 2. Narrow View: Confines the cross-examiner to acts that are themselves false or misleading. (Courts generally allow these questions). 3. Middle View: Reaches conduct seeking personal advantage by taking from others in violation of their rights. (Courts come out either way) -Perhaps we should consider how similar the prior bad acts were to testifying. The more similar, the more probative. b. Proving Prior Convictions - FRE 609(a) -This form of attack is done on cross-examination. FRE 609(a): Lets the cross-examiner ask about: (1) convictions for felonies, only for witnesses other than a criminal defendant. The admissibility of such convictions is subject to FRE 403 (where probative value outweighs prejudicial effect), and (2) For all witnesses: convictions for felonies or misdemeanors involving dishonesty or false statement. -So, defendants in many criminal cases avoid taking the witness stand if they have a prior record that may come out during cross-examination. -This says that it is OK to infer that a prior criminal may lie on the stand. But we may not infer that he actually committed the crime. FRE 609(b): Recognizes a 10-year time limit. FRE 609(c): Disallows the use of convictions to impeach in some circumstances when formal procedures indicate that the witness has been rehabilitated (E.g. pardon, annulment) if there have been no later felony convictions. FRE 609(d): Youthful brushes with the law are generally inadmissible. FRE 609(e): Permits cross-examination on convictions despite pendency of appeal (justification: convictions are usually affirmed). US v. Lipscomb (D.C. Cir. 1983) District courts may inquire into the background facts and circumstances underlying a prior felony conviction. They need not always do so, however. Courts should consider (from Gordon v. US, 383 F.3d 936 (DC Cir. 1967):

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1. The nature of the conviction. 2. Its remoteness in time 3. Whether it is similar to the charged offense (the closer, the less likely the court will admit it) 4. Whether the defendants record is otherwise clean. 5. The importance of credibility issues, and 6. The importance of getting the defendants own testimony. -This list is not considered exhaustive. 609(a)(1) vs. 609(a)(2): -609(a)(1) (re: all felonies) allows the judge to disallow the impeaching attack where there might be undue prejudice. (Balancing Test) -609(a)(2) (re: dishonesty crimes) does not have such language. Most courts say trial judges lack discretion to disallow impeachment on these convictions. Most courts also exclude theft from this. -If there is a conviction you must use 609. Cant use 608 & give all the gory details that led to a conviction. (But states may act differently.) c. Character Witnesses FRE 608(a) -Allows opinion & reputation testimony -A foundation is necessary (usually a period of personal acquaintance) -Can talk about reputation or opinion only. -Cannot speak of specific instances; but this can be asked on x-exam. But this allows the original party to then introduce specific instances. B. SPECIFIC IMPEACHMENT 1. Impeachment by Prior Inconsistent Statements -If a witness statement differs on some point from her prior statements, the attacking party may cross-examine on these statements and (subject to some conditions) prove them by extrinsic evidence (testimony by other witnesses). -E.g. story changed because of bias, been bought, threat, poor memory. Etc. -Idea: If she has contradicted herself on this one point, how can we rely on anything she says. -In civil cases: The prior testimony often comes from depositions, insurance investigator. -In criminal cases: The prior testimony often comes from grand jury testimony, preliminary hearings -Can also be written letters or business documents. FRE 613(a): Only requirement is that opposing counsel must be able to see the statement or its contents upon request. FRE 613(b): If a prior inconsistency is proved by extrinsic evidence, the witness must have an opportunity to explain or deny it, and the adverse party must have a chance to interrogate her. (Courts may not allow entry of impeaching statements when party wishing introduction did not ask declarant about it & now the declarant is gone.) -These statements may only be used to impeach, not for the truth of the statements.

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Concern: That a prior inconsistent statement will be taken as proof of what it asserts. A court may thus exclude it. FRE 607: Either party may impeach any witness, including your own. US v. Webster (7th Cir. 1984) (Good-faith standard) -It would be an abuse of FRE 607, in a criminal case, for the prosecution to call a witness that it knew would not give useful evidence, just so it could introduce hearsay evidence for impeachment. The purpose would then become not to impeach the witness but to put in hearsay as substantive evidence against the defendant. But here the prosecution acted in good faith because they didnt know what the witness was going to say. -A party may not call a witness where his testimony is known to be adverse for the purpose of impeaching him. (US v. Morlang 4ht Cir. 1975) Agnello v. US (1925): Cant get evidence out of defendant on cross-exam using illegallygotten evidence. (E.g. Isnt it true you had a gun? No Aha! In 1995 you did. Walder v. US (1954): But its OK if defendant brought it up himself. (E.g. I never had a gun. In 1995 didnt you Harris v. New York (1971) (Where prior inconsistent statements contain constitutional issues) Court allowed post-arrest, but pre-Miranda statements to be used for impeachment. Such a statement could not be used as substantive proof of guilt (this would violate the Ds constitutional rights), but it can be used to impeach. Rationale: Just because the accuseds constitutional rights were violated in not a shield for him to commit perjury at the time of trial. Also, the defendant effectively waived his constitutional right thru perjury/hiding behind the exclusion rule. Policy Assumption: Courts trust pre-Miranda statements, even if not admissible as substance. What they dont trust is statements given under coercion, which cant be introduced even to impeach. Jenkins v. Anderson (1980) It is OK to use pre-arrest silence to impeach a defendants credibility. Facts: D waited two weeks w/o surrendering himself to the police. But, he later claimed self-defense. (Stabbing incident) 2. Impeachment by Contradiction Impeaching a witness by contradiction entails a showing that something he said in his testimony is not so. Can be done by cross-examination (forcing him to admit that he is wrong). But it is often done thru extrinsic evidence (testimony or a writing/recording). This is called counterproof. -This allows you to bring in evidence you might otherwise not be able to use. (Because the other side opened the door & you must be able to respond.) Three Kinds of Counterproof: 1. Not only contradicts, but tends to prove a substantive point. (Usually gets in)

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2. Not only contradicts but tends to prove some other impeaching point. (E.g. bias. Usually gets in) 3. Counterproof that only contradicts. (Usually not let into evidence) -So, in sum, such proof must show not only that the witness is wrong, but also that it proves some other point that could make a difference in the case. -No Rule governs impeachment by contradiction & application of it is scatter-shot. US v. Havens (1980) (T-Shirt Case) Unconstitutionally-gotten evidence may be used to impeach a defendants false trial testimony (given in response to proper cross-examination), even where the evidence does not squarely contradict the defendants testimony on direct examination. -Cross-examination and contradiction are proper when testimony elicited on cross is reasonably related to the direct. (Even with unconstitutional evidence) Dissent: This hurts the defendants ability to take the stand and may encourage bad police behavior. -But courts are not concerned because where they have physical evidence (E.g. t-shirt) they know the witness is lying. C. REPAIRING CREDIBILITY In response to attack on bias, motive, criminal background, prior inconsistent statement or contradiction. -Generally courts disallow any attempt to repair credibility before the attack has come. (In the context of character witnesses FRE 608(a) states this directly). -Secondly, the repair should be made at the point of attack. -Can cross-examine the character witness, can recall own witness (or do re-direct) -Can introduce a positive character witness if character has been attacked. -Your rehabilitation must deal with the point of attack. 1. Rebutting Impeaching Attacks It is OK to bring up potential attack points on direct exam that you think the crossexaminer might raise. Thus, it is OK on direct: 1. For any party to adduce testimony by his expert that she is being paid for her services. 2. For the prosecution or defense to bring out that its witness has been convicted before. 3. For the prosecution to bring out that its own witness has entered a plea bargain; and 4. For the calling party to bring out any connection that she has with the witness (bias). 2. Evidence of Good Character US v. Medical Therapy Sciences (2nd Cir. 1978) Merely revealing the witness background did not put his veracity into issue. Thus, the prosecution did not improperly do so just to bring in character evidence. The defense did so by attacking the witness on cross-examination. 3. Prior Consistent Statements May be used when an attacking party suggests that testimony was tainted by recent fabrication or undue influence or motive. (The statement offered to refute must have been made before the motive to fabricate arose Tome v. US)

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D. FORBIDDEN ATTACKS FRE 610 disallows impeaching attempts that attack credibility on the basis of religion. Rationales: Religious attitudes may evoke strong feelings in jurors, our society tolerates religious diversity, great risk of prejudice.

CHAPTER 9: OPINION & EXPERT TESTIMONY; SCIENTIFIC EVIDENCE

A. LAY OPINION TESTIMONY FRE 701 -FRE 701 does not preserve the old fact-opinion dichotomy, but recognizes that these form a continuum. -FRE 701 covers witnesses who are not testifying as an expert. (Experts are covered by FRE 702 & 703.) FRE 701: Opinions & inferences are limited to inferences: (1) rationally based on their perception akin to FRE 602: Personal Knowledge (2) helpful to the trier of fact, and (3) Not based on scientific, technical or other specialized knowledge (where we use FRE 702) -FRE 602 requires lay witnesses to have personal knowledge. -Lay opinions are admissible upon most unscientific questions. Common objections to lay witness conclusions: (1) Too conclusory (2) Witness is claiming specialized expertise. (3) It is just speculation. Form of Objection: no foundation. See Q&A on pg 599-600 to see how this is applied. B. EXPERT WITNESSES FRE 702 & 703 1. Who is an expert? -Under FRE 702 an expert is someone with specialized knowledge. -One can be an expert without a degree or certification. This includes people with experience only. (E.g. property owners can testify about the price of their home.) 2. When can experts testify? -When what he says will assist the trier of fact to understand the evidence or to determine a fact in issue. (FRE 702) -Where expertise is only marginally helpful because the subject if familiar to all, the expert testimony may not add much. As such, a decision excluding such testimony is subject to FRE 403 balancing. 3. Bases for Expert Testimony FRE 703 lets an expert witness base his testimony on facts or data of 3 sorts, provided they are of a type reasonably relied upon by experts in the particular field: 1. Data he learns by firsthand observation (E.g., doctor- diagnosis/prognosis) 38

2. Facts learned at trial (Testimony heard by the expert while sitting in the courtroom before taking the stand; info conveyed in hypothetical questions summing up evidence previously admitted) 3. Outside data (Data reasonably relied upon by other experts in the field. -Note: FRE 703 was amended to block the proponent from disclosing to the jury otherwise inadmissible facts underlying expert testimony. (Unless FRE 403 balancing test sees more probative value.) -Generally, FRE 703 does not allow a witness to report the opinion of others whom she considers reliable. (Because we cant cross-examine the other person). Expert must be giving THEIR opinion. They cant merely be a conduit for others ideas. -Where evidence is unconstitutionally had (E.g blood test) not only should it not be admitted, but expert should not even be able to testify on the basis of it. 4. Formal Problems -At common law witnesses could not testify to ultimate issues in the case, lest they invade the province of the jury. FRE 704 abolishes the ultimate issue rule. -But modern courts continue to reject expert testimony concerning the proper application of legal standards. -In 1984 Congress amended rule 704(b) to prevent an expert in a criminal prosecution from stating an opinion that the defendant had or lacked a mental state or condition constituting an element of the crime charged or of a defense. (This is for the jury; also there is some mistrust of experts) 5. Presentation of Expert Testimony Foundation: The calling party brings out (1) educational background, (2) experience, and (3) familiarity with the subject in the suit. Then the calling party asks the court to qualify the witness as an expert. Voir dire is allowed and then the court rules. If the expert qualifies, the calling party proceeds to substance. -Qualification as a expert allows the witness to state his opinion on technical points. FRE 705: Allows a party to call a witness, qualify him as an expert, then go straight to the substance. (E.g. do you have an opinion about what caused Mr. Smiths condition?) It is not necessary to lay out the facts supporting the opinion first. -Allowing the calling party to ask the expert directly for his opinion has increased the importance of cross-examination to test that opinion. -Discovery has expanded as well: (1) FRCP 26(a)(2) says each party must supply names of experts who may testify. (2) FRCP 24(b)(4) each party may depose any person identified as an expert. (3) FRCP 35 Parties exchange medical reports. (4) FRCP 26(b)(4)(B) Allows discovery of reports of experts not expected to testify. 6. Court-Appointed Experts FRE 706: Authorizes the court to appoint independent experts. The expert will advise the parties of his findings and submit to a deposition taken by any party. -This is rare because of (1) the adversary system, and (2) the problem of compensation.

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C. RELIABILITY STANDARD FOR SCIENTIFIC & OTHER TECHNICAL EVIDENCE -For many years courts required that scientific evidence be generally accepted in the pertinent scientific community. (The Frye Standard) -But this often kept progressive, but not yet generally accepted science methods out of court. -In the light of the enactment of the FRE, Daubert discarded Frye for flexible rules based on the reliability of evidence. -this conflicts with Abel where the court said that if the drafters wanted to change a longstanding rule they would have done so explicitly. -Kumho Tire expanded the Daubert standard to all expert testimony presenting technical or specialized material. -FRE 702 requires expert testimony to (1) rest upon sufficient facts or data, (2) to reflect reliable principles and methods, and (3) to embody a reliable application of these principles and methods. (1/2 of states have followed suit) Daubert v. Merrell Dow Pharmaceuticals (1993) The Court determined that the standard for admitting expert scientific testimony does not require general acceptance in the field. (Frye test) But, the judge should ensure that an experts testimony: (1) rests on a reliable foundation is specialized knowledge, and (2) is relevant will assist the trier of fact to understand or determine a fact in issue. Dissent: (1) This makes it unclear how a judge can determine reliability (distinguishing science from pseudo-science). (2) What about technical expertise? (Note: This was addressed in Kumho Tire) GE v. Joiner (1997) Whether there should be a special high level of scrutiny for DC exclusions of evidence? Held: No. Like always we should use the abuse of discretion standard. Even when exclusions decide the case. Kumho Tire Co. v. Carmichael (1998) Kumho Tire expanded the judge-made determinations of the Daubert standard to all expert testimony presenting technical or specialized material. -It is too difficult for judges to distinguish between scientific knowledge and technical knowledge. -Focus is on reliability & relevance Concern: Daubert & Kumho Tire may lead to courts being flooded with junk science. -But, judges can decide what to allow in connection with FRE 403 (weighing probative value against unfair prejudice) and FRE 611 (controlling the mode & order of presentation to make it efficient & to protect witnesses. -Judges now determine issues of validity in pre-trial hearings. -After Daubert, courts will reverse only for abuses of discretion.

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Syndrome Testimony: (E.g. Experts re: battered women, rape, child abuse) Is on the border of what is allowable. Allows juries to accept testimony of victims where they may be less plausible. This is like someone saying You should believe the victim. This is allowed anyway because it: 1. Helps explain illogical behavior 2. Keeps abusers from going free 3. May be a case of forfeiture on the part of the abuser

Chapter 10: Burdens of Proof and Presumptions

A. BURDENS AND PRESUMPTIONS IN CIVIL CASES 1. Pretrial Burdens (Pleading, Pretrial Statement) Unproblematic. Refers to what you have to plead to raise an issue. 2. Trial Burden (Production & Persuasion 2 parts of the burden of proof) -If the party bearing the burden of production carries it well, the burden shifts to the opponent who loses automatically if he does not offer rebuttal evidence. (Technically it doesnt shift because the defendant can still stand pat. -Burden of persuasion is held by he who loses a tie. Burdens are allocated to serve substantive policy: (1) making it easier or harder for plaintiffs to recover or defendants to avoid liability. (2) We allocate burdens in ways that save time. (3) To place them on the party most likely to have access to the necessary proof. (4) To help resolve cases where definitive proof is unavailable (E.g. absence for 7 years raises a presumption of death.) 3. A Special Device for Shifting & Allocating Burdens: The Presumption Presumption: A device that requires the trier to draw a particular conclusion when the basic facts are established, in the absence of counterproof. (E.g. mailed letter presumption if a letter was properly posted we presume that it was delivered in due course; Presumption that bailee is responsible when goods are damaged. Presumption that a violent death is an accident.) They can be conclusive/irrebutable (which really arent presumptions, but conclusions of law), permissive (jury permitted but not required to find). -In intermediate (contingent) cases (where the presumption neither controls nor disappears because of counter-proof) the judge may give a conditional instruction to the jury that if the jury finds the basic facts, then it must find the presumed fact. FRE 301: Adopts Bursting Bubble idea. If the defendant doesnt present evidence to rebut a presumption, he runs the risk of summary judgment. -But when the defendant presents evidence there may be a permissive inference. B. BURDENS, PRESUMPTIONS & INFERENCES IN CRIMINAL CASES 1. Burdens of Persuasion

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In re Winship (1970): The DPC (5 & 14) requires the prosecution to prove beyond a reasonable doubt every element. Mullaney v. Wilbur (1975): Statute required malice aforethought. Heat of passion could drop murder charge to manslaughter. Defendant had the burden on the heat of passion defense. Jury instructions said that finding heat of passion would negate malice aforethought. (Intertwined) The Court reversed the conviction saying this instruction could be thought to place the burden on the defendant to disprove malice aforethought. Patterson v. New York (1977) Facts: Shooting allegedly done under extreme emotional disturbance. Jury instructions said that the charge and the defense are not intertwined. Held: The prosecution is not required to prove the facts that disprove a defendants affirmative defense (in this case, sanity). The prosecutions production of proof of the non-existence of an affirmative defense has never been constitutionally required. Unlike Mullaney, jury instructions did not appear to make the defendant disprove an element. Dissent (Powell): This drains Winship of much of its vitality. This invites states to rewrite their codes to put burden on defendants. 2. Presumptions & Inferences -A jury in a criminal case has the power to acquit the defendant no matter what. -The Court has focused on jury instructions to make sure a jury wasnt misled on its prerogative to determine the facts. -The Court will also consider whether criminal presumptions violated the right to a trial, trial by jury, the right against self-incrimination (a presumption that would make the D take the stand), or the right to be presumed innocent. Sandstrom v. Montana (1979) It violated the 14th amendment for a jury to be told that the law presumes that a person intends the ordinary consequences of his voluntary acts, without being told that this presumption is rebuttable. A reasonable juror could have thought that this presumption was conclusive. Montana Supreme Court had said that this was OK because it only shifted the burden of production. US Supreme Court: This unconstitutionally relieved the prosecution of its burden on the petitioners state of mind. -Even shifting the burden of production is not OK because the defendant in criminal cases must be allowed to do nothing. (Right against self-incrimination) An example of a permissive inference: You may find that the D acted purposefully if you conclude that the evidence proves that point beyond a reasonable doubt. County of Ulster v. Allen (1979) Facts: Gun in the car. NY says that the presence of a firearm in a car is presumptive evidence of its illegal possession by all in the car. (Presumption was not mandatory) Held: Unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is based, the presumption violates the 14th Amdt. The Court says this is a permissive inference. The dissent disagrees.

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Mandatory presumptions may violate the requirement that the prosecution prove its case beyond a reasonable doubt.

CHAPTER 11: JUDICIAL NOTICE

A. Introduction Judicial Notice: The process by which a court determines certain matters without need of formal proof. This includes adjudicative facts (FRE 201), evaluative facts, legislative facts and law. These decisions are made by a judge without following rules of evidence (E.g. hearsay) -Judicial notice will not be taken on important issues (like elements of the charged offense) 1. Adjudicative Facts: (FRE 201) ACN: Facts that normally go to a jury in a jury case. Those that would have to be proved by evidence if notice were not taken. JN is a doctrine that relieves a party of producing evidence on indisputable issues (efficiency). Requires an instruction to the jury that notice has been taken & an explanation (FRE 201(g)). -Deals with: a. Facts that can be described with precision (specific) b. Info that is not central to the case. 2. Evaluative Facts: Matters of common knowledge that judges & jurors bring to deliberation. (a.k.a. non-evidence facts) E.g. slang expressions; E.g. no need to explain physics to prove that when plane engines fail, they will fall to the ground. No need to instruct the jury on such matters. But extraneous info is not OK (See Thomas below) E.g. Juror interviews witness on own. 3. Legislative Facts: Those facts that are considered by a trial or appellate court in ruling on a question of law. Interpretation of a statute; repeal of a common law rule. Also includes non-legal matters (E.g. scientific, sociological) considered by a court in making a ruling. No jury instructions are given. Courts are considering these matters in their lawmaking role. These facts may not be certain at all. -Courts can find such questions of law (like Houser) without finding a firm basis, like they would have to for facts. 4. Judicial Notice of Law: The process by which the court determines the controlling law. No jury instructions. *** B. Judicial Notice of Adjudicative Facts Govt of the Virgin Islands v. Gereau (1975) Judge based his fact-finding on personal knowledge of a witness (He didnt believe one juror that the other wanted to go home because the other juror liked getting the extra jury money). The judge was, in effect, taking judicial notice of off-the-record adjudicative facts. This was unacceptable because adjudicative facts must be: 1. Beyond reasonable controversy (ACN notes to FRE 201(b)) 2. Matters of common knowledge easily ascertained. -The Judges personal knowledge does not qualify for judicial notice. -But, affirmed due to lack of prejudice.

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Gereau Rule: Judges may not base judicial notice on personal knowledge. C. Judicial Notice in Criminal Cases US v. Jones (1978) RE: Judicial notice being taken of South Central Bells status as a common carrier. FRE 201(g): The court (in a criminal case) cannot mandate that a jury accept judicial notice. -To do so would be like a partial directed verdict. Unacceptable. Criticism: This allows jury nullification. Note: Judges instructions on the law may be mandatory in criminal cases (Unlike judicial notice on adjudicative facts which must be permissive.) FRE 201(f): Judicial notice may be taken at any stage of the proceeding. D. Evaluative Facts Thomas v. Kansas Power & Light (Kan. 1959): Jury misconduct where juror borrowed a book on electricity & discussed it with other jurors. E. Judicial Notice of Legislative Facts Muller v. Oregon (1907): Limiting hours women can work in laundries. Court considered womens weaker physical structure from medical data. Houser v. State (Wash. 1975) Found the drinking age of 21 to be constitutional by taking judicial notice of studies supporting the age discrimination. F. Judicial Notice of Law -The determination of the controlling law is made by the judge, not the jury. The jury is instructed to apply the law at the end of the case. G. The Problem of Classification US v. Gould (8th Cir. 1976) DC took judicial notice that a particular form of cocaine was a controlled substance under the law. If this is OK, shouldnt a criminal jury just have been told they can accept this as true? Held: No. FRE 201 applies only to adjudicative facts. This was an instruction of what the law is. Therefore, the jury was not allowed to reach a conflicting conclusion on what constitutes a controlled substance.

CHAPTER 12: PRIVILEGES

A. Introduction -Privileges are intended to protect certain societal relationships and values, even though such protection may impose significant costs upon the litigation process. -A primary goal of most privileges is the free flow of communication in various relationships. (E.g. marriage) -Others further effective govt by limiting access to state secrets & confidential communications by state officials.

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-Privilege is not codified by the FRE, but by common law. (See FRE 501) -Distinguish between privileges, professional codes or responsibility & ethical obligations. B. Attorney-Client Privilege Definition: Protects the right of a client to communicate confidentially with a lawyer about a legal problem. -The privilege belongs to the client even though the lawyer often asserts it. -The privilege can attach even without a formal legal agreement (E.g. Lawyer hears about, then rejects a case) -The privilege survives the legal relationship & even the client himself. 1. Reasons for the Privilege Jeremy Bentham, Rationale of Judicial Evidence: If such confidence is permitted to be violated, no such confidence will be reposed. A guilty person will not be able to get help with his falsifications. (Bentham views this as protecting the guilty.) Another Idea: Using your words against you may violate the right against selfincrimination. 2. Professional Services The privilege applies only to confidential communications made for the purpose of rendering professional legal services to the client. -Most courts hold that tax planning advice, as distinguished from the mechanical preparation of tax returns, is privileged. -Most courts require that a lawyers work be primarily legal before the privilege will attach. (But where the line is is unclear E.g. sports agents) -Some dispute re: whether words from lawyer to client are privileged. Generally considered OK to further free communications between attorneys & clients. 3. Only Communications are Protected -Attorney can be compelled to testify re: observations of the client (E.g. he was drunk). -But courts will usually protect statements given in a legal context even if not legal (E.g. at a legal meeting the client says Im drunk, then gets into a car crash.) -Cant immunize material simply by giving it to your lawyer. -Showing bloody shirt to lawyer may be considered a communication. People v. Meredith (Cal. 1981) Defendant told his lawyer about the location of crucial evidence (a wallet). Lawyer hired an investigator to get it & it was then turned over to the police without disclosure of the location. The investigator (at first) refused to speak, stating that such information was privileged. Held: Attorney-client privilege is not strictly limited to communications, but extends to protect observations made as a consequence of protected communications. But, this should not be extended to allow defense removal of evidence where the police might find it. This would encourage counsel to race the police to the scene to seize evidence.

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-In sum, an attorney who removes or alters physical evidence may be required to disclose its original location or condition. (See ABA Rules of Professional Conduct, Rule 3.4) 4. Required Confidentiality -The privilege only protects communications intended by the client to be confidential. -Disclosure to people other than the attorney may be OK w/o losing confidentiality. -Speaker must take reasonable steps to insure confidentiality. a. Involving or Disclosing to Communicative Intermediaries US v. Kovel (2nd Cir. 1961) Information transmitted to an attorney by the clients accountant or tax advisor (In a sense acting as interpreters of the clients records or business problems) is confidential. The purpose must be to obtain legal advice, rather than the accountants advice. b. Joint Clients and Pooled Defenses -If 2 or more clients consult with the same attorney re: matters of common interest, this is privileged. A joint client can communicate with an attorney in the presence of another joint client without destroying confidentiality. -If the 2 clients sue each other. The cant assert the privilege against each other. -Most courts extend this privilege to cases where each client hires their own attorney. c. Leaks & Eavesdroppers Suburban Sew N Sweep v. Swiss-Bernia (N.D. Ill. 1981) Papers left in the dumpster are no longer privileged, unless the parties take significant efforts to safeguard their confidentiality. (E.g. shredding them). -The trend in the law is the opposite of this case however. -Confidentiality imposes an obligation on parties to ensure privacy at the time of communication as well as ensuring the continuing privacy of the communication. -Disclosure of privileged information to an outsider usually constitutes a waiver of the privilege. Eavesdroppers: (Proposed FRE 503(b)) Extends privilege to keep eavesdroppers from disclosing privileged information. This is the trend in the common law too. 5. The Corporate Client -Before the Rules and Upjohn it was unclear how many people in the corporate organization the attorney-client privilege extended to. (E.g. control group test) -It is still unclear. The Advisory Cmte left it up to the courts. This reached the court in Upjohn. Idea: Corporations need to go to lawyers more & therefore need the privilege more. Upjohn Co. v. US (1981): Privilege protects the statements of any corporate officials or employees made to counseling attorneys as long as the officials or employees are authorized or directed by the corporation to make such communications. (Idea: Certain

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information necessary for adequate legal advice may be possessed by employees outside the control group.) Three-Prong Test: Was the person: 1. Seeking legal advice 2. Within their corporate duties, and 3. Talking confidentially. -Remember the work-product doctrine as well (core work product that reveals mental impressions requires a very high showing for it to be disclosed. Requires that documents sought to be protected were made in anticipation of litigation.) 6. Exceptions to Coverage -The attorney-client privilege may give way in suits between attorney & client (E.g. malpractice suit, attorney sues for fees) -Usually the ID of a client & fee arrangement are not privileged. -Privilege does not apply to communications in furtherance of fraud. a. Client Identity In Re Grand Jury Investigation 83-2-35 (Durant) (6th Cir. 1983) -The ID of a client is usually not protected by the attorney-client privilege. -But, this may be so where disclosure would implicate the client in the very matter for which legal advice was sought. (Legal Advice Exception) E.g. Man asks lawyer to talk to prosecutor re:crime. Idea: If revealing the ID is akin to revealing the confidential communication then it is protected. -To establish this the attorney must move for an in camera ex parte hearing. Durant failed to do this. Durant did not tell the court that disclosure would amount to to disclosure of confidential communications. -If a 3rd party pays fro the lawyer, the prosecution generally cant compel information re: who paid the fee. b. Future Crime or Fraud State v. Phelps (Or. App. 1976): Man wants to have friends give perjured testimony. The future crime or fraud exception illustrated. -But the privilege applies where the person is asking a lawyer if a possible future act is legal. 7. Assertion & Waiver -client must claim the privilege at the appropriate time or it is waived. -Attorneys may assert the privilege on behalf of their clients, but cant do so if the client doesnt want it. -Burden is on the holder of the privilege to show it applies. -The question whether the privilege claim should be sustained is for the court under FRE 104(a).

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-Generally courts try to do so without requiring the disclosure of the underlying communication itself, but they may require disclosure or partial disclosure. -When the info seeker claims that an exception applies, he then bears the burden of proving that point. -The trend is to allow interlocutory appeals for denials of the privilege. Because once the document is out, the harm cant realistically be undone. Waiver: A privilege is waived if its holder voluntarily discloses (see proposed FRE 511). -This is not so where that disclosure is privileged (E.g. man talks to wife about conversation with attorney) -Disclosure in court is a waiver. -Privilege is not waived by an attorneys disclosure without the clients consent. Yet, sometimes negligent disclosure by an attorney does constitute waiver. (E.g. accidentally send over a privileged document in discovery.) This is because in such a case the lawyer is still acting on your behalf. Lawyer is not doing so when he deliberately acts without your consent. C. PSYCHOTHERAPIST-PATIENT PRIVILEGE -FRE does not recognize a physician-patient privilege. Jaffee v. Redmond (1996): The Federal Courts recognize the psychotherapist-patient privilege. (codifying common law - see FRE 501) Protection is also extended to licensed clinical social workers. -This applies to any litigation civil or criminal. -The privilege belongs to the patient (not the psychotherapist). But, if the patient is absent, the psychotherapist can assert it on the patients behalf. Rationales: Full disclosure between therapist and patient is necessary for the treatment of mental & emotional illnesses; Right of privacy; one is deterred from getting help otherwise. -The privilege gives way where there is a serious threat to the patient or others that can only be averted thru disclosure. D. SPOUSAL PRIVILEGES -Based on the legal fiction that man and wife are one. -There are 2 related but distinct spousal privileges: 1. Spousal Testimonial Privilege Can be used only in criminal cases. Blocks all testimony by one spouse against another, including accounts of premarital acts or events. It only applies when the testimony is sought while the spouses are married. The privilege belongs to the witness spouse. In some states the defendant spouse holds the privilege. 2. Spousal Confidences Can be used in civil or criminal cases. Excludes only testimony concerning private communications between spouses while they were married. Protects the interval of marriage forever, blocking post-dissolution testimony. Only applies to statements made during marriage. Doesnt generally apply in family disputes (E.g.

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divorce, child custody). Except for what a criminal defendant needs to introduce, both spouses must agree to let such statements in. A criminal defendant may introduce a statement without spouses consent. (To exculpate self) -Applies to communications, not acts. Doesnt apply to confidences planning crimes/fraud. 1. Testimonial Privilege -A marriage must be valid when the privilege is invoked. Applies even to events before the marriage, but not to situations where husband and wife are co-conspirators. Has 2 purposes: (1) To preserve ongoing marriages (2) Unseemliness of pitting wife against husband. Rarely used in civil litigation. -Doesnt apply top child abuse cases involving spouses children. Trammel v. US (1980): In a criminal case, a spouse may testify against the other spouse (except as to confidential communications) with or without the consent of the other spouse. The privilege belongs to the witness-spouse, not the party-spouse. Criticism: Govt is pitting spouse v. spouse & ruining marriages. 2. Spousal Confidences Privilege Idea: Marriage without the privacy of communication would be an imperfect union. US v. Estes (2d Cir. 1986): Man robbed bank truck & told wife. Partnership in crime nullifies the confidential communication privilege. So, the original statement to his wife, reporting the crime, is privileged because it was a communication. She was not a partner in crime then. But, later statements, when she was actively participating in laundering the money, etc., may be admitted. -So what is the difference between action and communication? Focus on whether the conduct is intended as a revelation (E.g. husband in Estes showed wife money as proof he robbed bank.) -Also, conduct may be precluded where it is intended to convey a confidential message. -The privilege doesnt apply in spousal suits, such as divorce or child custody litigation. E. THE PRIVILEGE AGAINST SELF-INCRIMINATION 1. An Overview -Guaranteed by the 5th Amendment. no person shall becompelled in any criminal case to be a witness against himself. (States by the 14th Amendment) -Applies in civil as well as criminal cases, during pre-trial as well as trial, and may be asserted not only by the defendant, but by any party or witness. Policy: Fear that self-incriminating statements will be elicited by inhumane treatment. We dont want to give the govt an incentive to coerce. Also, a coerced statement is unreliable. (Focus is on coercion.) 2. Persons Protected -Belongs only to an individual, not a corporation. 3. Scope of Privilege

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- Applies only to evidence that is testimonial. - It is not offended by requiring the defendant to be fingerprinted/photographed, lineup, handwriting sample, hair sample, etc. 4. Incrimination -Protects only disclosures that could lead to criminal liability, not disclosures that provide the basis for a civil damage claim or social embarrassment. -The privilege does not apply where the danger of criminal liability no longer exists (E.g. SOL has run, the witness has received a pardon, double jeopardy, immunity etc.) -The privilege is applicable even where the threat of criminal liability comes from another jurisdiction (questionable with international liability). 5. Drawing of Adverse Inferences -Applies to police interrogation as well. (Miranda v. AZ) Griffin v. California (1965): An accuseds failure to take the witness stand in his own defense is tantamount to a claim of the privilege. No adverse inference of guilt may be drawn from the accuseds assertion of the privilege. (5th Amdt) A prosecutor may not make any direct comment or argument to the jury suggesting the defendants guilt on the basis of her refusal to testify. -Defendant has a right to have the judge instruct the jury that no inference may be drawn from the defendants refusal to testify. The judge may also make such an instruction over the defendants objection. 6. Writings -The 5th Amendment protects against compelled writing as much as compelled testimony. US v. Doe (1984): Where the accuseds records are seized pursuant to a proper search warrant, any incriminating statement contained therein may be used against the accused. Since these writings were made voluntarily, and the accused was not required to produce them, there is no testimonial compulsion in violation of the privilege. -Compelled production of documents may violate the 5th Amdt, because it is akin to an admission that you have the documents. US v. Hubbell (2002): If the witness produces a document under a grant of immunity, he performs a testimonial act. The contents of the document, and its connection with the witness, may not be used as evidence against him. -So the state should get a warrant & not compel production.

FOUNDATIONAL EVIDENCE, AUTHENTICATION

A. Introduction -Before exhibits & other non-testimonial evidence may be received it must be properly authenticated. (Showing conditions precedent to admit evidence.) (E.g. Witness =Personal Knowledge; Expert = Qualifications)

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FRE 901(a): The authentication requirement is satisfied by the offering of evidence sufficient to support a finding that the matter in question is what its proponent claims. (E.g. Before a gun offered as the murder weapon may be received, a preliminary showing FRE 104 - must be made that it really is the murder weapon. A photo must be shown to accurately depict what it shows.) -An item that is authenticated may nevertheless be inadmissible (E.g. hearsay objection) -FRE 104(b) contemplates that the judge will play only a screening function. -The required preliminary showing is often called laying the foundation. Rule 901(b): Sets out a list of 10 methods of authentication that satisfy Rule 901(a). Usual Steps to Authenticate: (1) Have exhibit marked for ID by the court reporter. (2) Authenticate the exhibit by testimony of a witness (unless self-authenticating) (3) Offer the exhibit into evidence (4) Permit adverse counsel to examine it (5) Allow adverse counsel an opportunity to object (6) Submit the exhibit to the court for examination if they wish (7) Obtain the ruling of the court (8) Request permission to have exhibit presented to the jury. -Authentication can be accomplished by stipulation. B. Tangible Objects US v. Johnson (1980): Defendant argued that ax was improperly authenticated because the victim identified the ax with some hesitancy (pretty sure). The court said that this was OK because a reasonable juror could have found that the ax was the weapon although the jury was free to reject the govts assertion. US v. Howard-Arias (4th Cir. 1982): Details the concept of chain of custody, which is a part of authentication. But, it says that complete precision in chain of custody is not an iron requirement. The fact of a missing link does not preclude the admission of evidence, so far as there is sufficient proof that the evidence is what it purports to be & has not been altered in any material aspect. C. Writings US v. Bagaric (2d Cir. 1983): Defendant claimed that letter (allegedly from coconspirator) found at his home was not properly authenticated (FRE 901(a)). Court disagrees. Authentication may be based on circumstantial evidence which was present here (Letter from hometown of co-conspirator signed with co-conspirators name, etc.) US v. Larson (8th Cir. 1979): Stylistic patterns, such as spelling errors may be used to authenticate writings. -Being on letterhead is usually enough to authenticate.

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Reply Doctrine (ACN to FRE 901(b)(4)): A letter may be authenticated as coming from a person by showing that it replies to an earlier communication to that person, provided that he earlier communication has been authenticated. D. Tape Recordings US v. Biggins (5th Cir. 1977): Govt introduced an original tape recording of a conversation & a re-recording filtered for noise. Notes (but does not adopt) the test for admitting sound recordings from US v. McMillan (8th Cir. 1974). This requires that the recording is an accurate representation of relevant sounds previously heard & considers factors such as: -Competency of the operator (or the recording device) -Absence of material deletions, additions or alterations. -ID of the speakers. In this case, there was sufficient evidence to warrant admission of the recordings. -Courts can receive 2 separate transcripts of a tape if the parties have reasonable conflicting interpretations (US v. Onori 5th Cir. 1976) F. Telephone Conversations US v. Pool (5th Cir. 1981): Defendant claimed that a phone call was not sufficiently authenticated. The Court agreed where the call was out of the blue from someone with the defendants name (Chip). The person who received the call had never spoken to the defendant before & had nothing to compare the voice to, to confirm that it was him. Note: In US v. Axselle (10th Cir. 1979) the court held that hearing a voice only 1 other time was created sufficient familiarity. -To authenticate your own call: You can say you called their # & there must be something more (E.g. They say, Hello, this is Chip.) (See FRE 901(b)(6)) G. Self-Authenticating Exhibits (FRE 902) -FRE 902 provides for the admissibility of self-authenticating exhibits. -FRE 902(10), for example, incorporates federal statutes making certain documents presumptively authentic. This includes 28 U.S.C. 753(b) which allows admission of transcripts in any case that have been certified by the court reporter. -Most courts allow self-authenticated documents to be rejected by the jury (Even without counter-proof) H. Demonstrative Evidence Definition: Evidence that does not have a probative value in itself, but serves as a visual aid to the jury in understanding the testimony of a witness. (a.k.a. illustrative evidence) -The courts focus will be on not misleading the jury. -It is often faster & more reliable than oral testimony. (E.g. photo of injuries) -Juries can take it to the jury room. -Courts wont be concerned with exhibits that are created in the courtroom (E.g. chalk drawing of an intersection). Courts are concerned with things brought in, which must be

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substantially similar to what they are purported to be. (E.g. Computer simulation brought in). -Must be clear that such evidence is only to aid testimony. Three Major Purposes: 1. To establish the liability of the defendant. 2. To illustrate the full extent & severity of the plaintiffs injuries. 3. To complement the written transcript for use on appeal. -Often the plaintiff will look OK by the time the trial arrives. This allows the jury to see the truth as it was then. -Often this takes the form of photos or a wound itself. -Motion pictures may be utilized too. (E.g. Day in the life films showing how the plaintiff has been affected by the injury.)

THE BEST EVIDENCE DOCTRINE (FRE 1001-08)

Definition: When the contents of a writing are being proven, the original writing must be offered or its absence satisfactorily explained. (Through no serious fault of the party seeking to prove its contents.) Justifications: 1. The written word is held in special sanctity, justifying stricter proof. 2. Evidence other than the writing itself is inferior for analysis. 3. Historically, photocopies were viewed with suspicion. (Not so much now) 4. Production of the original assures completeness & prevents any segment from being presented out of context. (Accuracy) 5. Examination of the original may help resolve disputes about authenticity & alteration. 6. Precision in presenting to the court the exact words. FRE 1002: Codifies the CL Best Evidence Rule & extends it to recordings & photos. FRE 1003: Admits duplicates unless: (1) Question of authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. FRE 1004(1): Would allow resort to such secondary evidence if the loss of the original was without bad faith. FRE 1004(2): Excuses a party from the Best Evidence Rule when the original is unobtainable. FRE 1004(3): Allows admission of secondary evidence when the original is in the possession of the opponent & the opponent has been put on notice. FRE 1004(4): Dont have to produce the original when the writing, recording or photo in not closely related to a controlling issue. -Best evidence mistakes usually dont require reversal. B. Defining a Writing, Recording, or Photograph US v. Duffy (5th Cir. 1972): RE: Shirt with laundry mark reading D-U-F. Such a shirt is not a writing, which the judge has discretion to determine. This is OK because there is

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little danger that the witness would inaccurately remember the terms of the writing, and this writing is not central to the case. There is much other evidence. (See FRE 1004(4)) Factors to Consider with Such Inscribed Chattels: (1) The relative importance of the communicative content of the described object, (2) Simplicity of the content, (3) The strength of the evidence, (4) The presence/absence of a dispute re: content, (5) The difficulty of producing the object, (6) Why the proponent does not offer the object itself. -What is the original depends on context (E.g. a photocopy may be an original if it is what is disputed.) D. The Use of Duplicates -FRE 1003 allows without need to make excuses for non-production of the original. But, it must meet the definition of duplicate from FRE 1001(4). Also, must consider the escape clauses from FRE 1003 (see above) that permit exclusion. E. Best Evidence Doctrine in Operation -Only applies when a party seeks to prove the content of a writing. Myers v. US (D.C. Cir. 1948): RE: Dispute over whether to allow a witnesses recollection of defendants Senate testimony, or to require the written notes (incomplete) of that session. The court held that the best evidence rule does not apply because there is no attempt to prove the contents of the writing. The issue was what the man said, not what the stenographer wrote. Therefore it was OK to admit the witness own recollection. Dissent: The stenographers transcript is better & should be required. F. Production of Original Excused Sylvania Electric Products v. Flanagan (1st Cir. 1965): RE: Oral agreement with trucker. The Court required that the trucker produce tally sheets because there was inadequate proof that these were not available. Plaintiff has not shown that he has made a reasonable search for these documents. -Proof of absence of a record doesnt violate the best evidence rule (E.g. Dont have to bring all records in to show that the one in question isnt there. FRE 1007: On cross-examination you may ask your adversary re: content of documents. A written admission from your adversary may be introduced to show contents of a document. (E.g. We may admit a letter where a tenant admits that her lease doesnt allow pets.)

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