EVIDENCE OUTLINE Burden of Proof - Motion in Limine: presented before trial; concerns a matter on which the judge rules

(limit or permit evidence) How do you prove something? No evidence is 100% conclusive on ever point can be inaccurate, incomplete But some evidence is very persuasive (more than other evidence) ex. Government document Probative value = weight of evidence; how persuasive; how far the evidence moves opinion on the facts (in either direction) Eyewitness or witness testimony = used to show relevance of real evidence; ex. Detective explaining what was found at scene

Burden of Persuasion - preponderance of evidence = more than 50%; more likely than not - clear and convincing evidence = great deal of evidence tending to one conclusion, but there are other possible explanations - beyond a reasonable doubt = there are no other reasonable explanations other than that the defendant is guilty Burden of Production - AKA Burden of going forward - The minimum amount of evidence required to show there is a controversy regarding each element of the claim - Defendant will request a judgment as a matter of law claiming plaintiff did not meet his burden (did not meet all elements in claim) - Is either granted or denied after plaintiff puts on his case in chief - Plaintiff must present enough evidence on each element to allow a reasonable juror to make a decision according to the burden of persuasion required - Grant motion only if a reasonable jury could only find for one person/party After both sides have presented their cases - In criminal cases, defendant can make a motion for a judgment of acquittal There is no equivalent motion for the prosecution because the Constitution guarantees the right to a jury trial Circumstantial Evidence - facts that require inferences to be drawn to be probative - the line between direct and circumstantial evidence is very fuzzy; courts do not generally draw a dividing line between the two

EVIDENCE OUTLINE CASES Burden of Proof Scott v. Hansen (personal injury case adjudicated for plaintiff; defendant appealed denial of directed verdict appellate court reversed) it is not the quantity of evidence presented that matters if a reasonable juror would not believe the testimony, the case should not go to the jury quality of evidence for each element is more important p. 121 it is generally agreed by all courts that the jury will not be permitted to believe testimony that is contradicted by physical facts United States v. Nelson (defendant accused of being getaway driver for bank robbery appeal argued cannot have a guilty verdict on inference from circumstantial evidence unless prosecution can disprove every competing hypothesis about how the evidence came to be) let the jury decide if evidence is sufficient to disprove every reasonable hypothesis key is reasonably hypothesis, not every hypothesis Smith v. Bell Co. (trial court granted motion for judgment as a matter of law for defendant in case where plaintiff tried to show his sewer pipe was crushed due to defendants negligence) in order to withstand a motion for judgment as a matter of law, the evidence must be such that by reasoning from it, a jury can reach the conclusion sought by the plaintiff must not rely on prejudice or guess to reach the conclusion does not have to be the only conclusion the jury can reach CASES Burden of Persuasion Delaware Coach Co. v. Savage both sides presented equally credible evidence to support their arguments motion for judgment as a matter of law granted because plaintiff did not meet the 51% burden of persuasion (preponderance of evidence) Riley Hill v. Tandy sometimes the burden of persuasion in civil cases is clear & convincing evidence only in cases in which the claim is quasi-criminal (i.e. fraud) or where the proceedings threaten defendant with a significant deprivation or stigma sometimes statutory requirement, sometimes common law clear & convincing = the truth of the facts asserted must be highly probable

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In Re Winship (burden of proof in juvenile criminal cases) p. 149 The Due Process Clause protects accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged the constitutional safeguard of proof beyond a reasonable doubt is as applicable to juvenile cases as it is to adult criminal cases no constitutional requirement that an affirmative defense must be disproved beyond a reasonable doubt defendant bears the burden of proving the defense; the prosecution does not bear the burden of disproving that defense

EVIDENCE OUTLINE Presumptions - motion in limine: pre-trial motion to limit evidence - presumption deals with the relationship between two facts basic fact & presumed fact - if the basic fact is true, what does that tell us about the presumed fact? Conclusive presumption if A is true, B is 100% true If evidence is presented on the basic fact, and no evidence is presented to rebut the presumed fact, the presumed fact is deemed to be true If the basic fact is never established, there is no presumption If evidence of the basic fact is presented, but the other side presents evidence to show presumed fact does not exist, the presumed fact disappears Thayer Burst Bubble approach If basic fact is established, and defense brings evidence presumed fact may not be true, burden of proof shifts to defense Moyer Burden Shifting approach o Alternate approach to Thayer o Gives plaintiff the benefit of the presumption FRE 301: bursting bubble approach Imposes burden of production to rebut presumed fact, but defense is not required to fulfill burden of proof If defendant comes up with nothing and plaintiff presents enough to establish basic fact, jury is told to deem the presumed fact established (only in civil cases in criminal cases, jury may deem presumed fact established) FRE 302: presumptions in federal cases Federal question cases apply federal presumption rules Diversity cases apply state presumption rules Reasons for presumptions Procedural speeds things along Fairness Simplicity

EVIDENCE OUTLINE CASES Presumptions McNulty v. Cusack (What is the effect of a presumption if the defendant produces no evidence?) state has presumption the rear driver in a rear-end collision is negligent in the absence of an explanation by the defendant, when the evidence of the basic fact is solid, the jury should be instructed to conclude the presumed fact is true OBrien v. Equitable Life (wife is suing to collect double-indemnity after husband was shot by another man after he was found in bed with 2nd mans wife; allegedly was robbing wife) if defense presents enough evidence to rebut the presumption that is the key to the prima facie case, the plaintiff must be able to prove the case without the presumption if presumption is destroyed, must see if there is enough remaining of plaintiffs case to go forwards if not, then case is automatically found for defendant Maryland v. Baltimore Transit Co. (pedestrian killed by bus; defendant claims contributory negligence) plaintiff wants to use jury instruction regarding presumption that people exercise ordinary care; court denied on bursting bubble theory appellate court reversed, citing burden shifting theory Ulster County v. Allen (defendants convicted of firearms possession based on statutory presumption) 2 ways to use presumptions in criminal cases o Mandatory not allowed in criminal cases due to burden of proof o Permissive allows trier of fact (jury) to presume fact from basic fact, but does not require them to accept the presumption o if there is a rational connection between the basic fact and the permissive presumption in each particular case, the presumption must be more likely than not to flow from the basic fact

EVIDENCE OUTLINE Relevance - FRE 611: Mode & Order of Interrogation & Presentation o Judge exercises control over order & presentation o Leading questions for cross, not direct, unless interrogating a hostile witness or with permission o Cross-examination is limited to the scope of direct and credibility of the witness o Judge may permit new inquiries, as if on direct, but it is not a wide open rule that has no limitations on cross FRE 401: Relevant Evidence Has the tendency to make a fact more or less probable FRE 402: Irrelevant evidence is inadmissible FRE 403: Exclusion of Relevant Evidence Balancing test Relevant evidence can be held inadmissible if its probative value is substantially outweighed by the risk of undue prejudice, confusion, etc FRE 407: Subsequent Remedial Measures Not admissible to prove negligence or product defect Is admissible to prove ownership, dispute the feasibility of precautionary measures or to impeach a witness or evidence FRE 408: Compromise or Offer to Compromise Not admissible to prove liability or to impeach statements/claims or to dispute validity o Includes any offers or acceptance of offers o Any claims or statements made during negotiations (except in criminal cases when negotiating with govt) o Is allowed to show witness bias or prejudice, to counter a claim of undue delay, or to prove obstruction of justice FRE 409: Medical or Similar Expenses Payment of or offering to pay medical bills is not admissible to prove liability for injury FRE 410: Pleas, Plea Discussions and Related Statements Jury is not allowed to hear about o Withdrawn guilty plea o Nolo contendre plea o Statements made during preliminary hearings o Statements made to an attorney during plea discussions However, statements made under oath that are false can be admitted 6

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FRE 411: Liability Insurance Cannot introduce evidence of liability insurance to prove ability to pay Can introduce it to show ownership or prejudice of witness

CASES Relevance Boller v. Cofrances question about alleged affair by deceased husband allowed because wife testified on direct they had a happy marriage new line of questioning on cross must still be relevant to be allowed under wide open rule not allowed to bring up anything just to prejudice or smear US v. Lara questions about further activities of defendant were proper because defendant disavowed knowledge on direct permissible to attack credibility direct examine must open the door to the line of questioning on cross Cleveland v. Kiewit Co. (liability insurance) appealed evidence showing Kiewit had additional insurance o prejudiced jury because jury would think company was rich and influence judgment cant introduce evidence of liability insurance if the only purpose is to prove its existence Plumb v. Curtis evidence of wealth or poverty allowed because it disproved an argument brought up by defense State v. Mathis (robbery & murder of insurance salesman) govt wanted to present evidence of defendants financial situation to show motive for robbery ruled inadmissible relevant but put unfair suspicion on defendant p. 229 evidence of poverty generally excluded when used to prove motive for a crime involving financial gain Hall v. Montgomery Ward (company balance sheet) evidence of relative wealth and poverty is proper when plaintiff seeks and evidence supports exemplary damages jury needs to know in order to determine what level of damages would fulfill goal of punitive damages

EVIDENCE OUTLINE wealth evidence is not relevant in cases solely involving compensatory damages

Reed v. GM (liability insurance) cannot use evidence of a joint tortfeasors ability to pay to cure ability to pay for the other defendant who pleads poverty In Re Air Crash Disaster (Northwest v. McDonnell Douglas) remedial repairs by Northwest (plaintiff) excluded o FRE 407 normally applies to repairs by the defendant o However, the rule was established because such evidence is generally unreliable to definitively prove the product was defective FRE 407 does not apply to measures taken by true third parties, but it does apply to plaintiffs Remedial measures after design but before incident o Can be admissible to impeach a claim by a witness o However, must satisfy 403 test that probative value substantially outweighs the prejudicial nature of the evidence Internal memo from McDonnell-Douglas o Evidence of advice to product owners after a prior crash o The recommendations are subsequent remedial measures and therefore prohibited by 407 Remedial measures ordered by superior authority are often not covered by 407 The measures must occur after the accident/incident, not merely after design McInnic v. AMF Inc. Is evidence of settlement with a joint tortfeasor admissible? o Car driver was liable for hitting her (settled) o Motorcycle manufacturer was liable for design defect Defense tried to use settlement to prove plaintiff had complete satisfaction for her injuries and defendant was not liable Bias can be admitted to show the witness was influenced by the settlement to testify for the plaintiff AMI, Inc v. Alcoa Contract payments dispute o At what point do communications become part of a settlement negotiation? Dispute = a clear difference of opinion between parties o Includes both litigation and less formal stages Internal communications which are analyses of whether or not to settle fall under 408 and are not admissible Settlement discussions cannot be used to impeach witnesses

EVIDENCE OUTLINE Character Evidence FRE 404: Forbidden Character Propensity Inference Cannot use someones character to show they committed the current wrong due to a character trait (b) Other crimes or wrong acts o Cannot use to prove character or propensity o Allowed to show motive, intent, absence of mistake or accident, etc. ex modus operandi Exceptions o (a)(1) evidence of a character trait brought up by the defendant o (a)(2) defendant presents evidence of the victims character traits or the prosecution uses victims character traits to rebut evidence of victims aggression FRE 405: Proving Character (a) Reputation or opinion o When admissible, may be allowed generally on direct but cross-examination is allowed to ask for specific instances o (b) Specific instances Allowed when the trait or character is an essential element of the charge, claim or defense FRE 406: Habit, Routine Practice There is a difference between a character trait and a behavioral habit Evidence of habit is allowed when it is relevant to prove the persons conduct conformed with a particular pattern of behavior FRE 412: Victims Past Sexual Behavior (a) evidence of other sexual behaviors or sexual predisposition not allowed any probative value outweighed by inflammatory nature (b)(1) Exceptions for Criminal cases o When proving someone else caused the injury or left the semen o Instances of consensual sex with the accused o Evidence which, if excluded, would violate defendants constitutional rights o (b)(2) Civil Cases Only allowed if probative value substantially outweighs unfairness FRE 413: Evidence of Similar Crimes in Sex Assault Cases Allows character propensity inference Completely different approach from 404(a) No balancing test of probative value v. unfair prejudice 9

EVIDENCE OUTLINE Does not have to be conviction

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EVIDENCE OUTLINE CASES Character Evidence Old Chief v. US if a defendant stipulates to a prior conviction, which is an element of the new crime, can the prosecution tell the jury about the prior conviction, or is that unfair prejudice? Look at the whole context of the case to determine if the evidence meets the 403 balancing test Will the jury gain any additional probative value from hearing about the prior conviction? The constitution trumps the federal rules if the application of a rule conflicts with a constitutional right, the rules are not applied Schafer v. Time, Inc. (libel claim) defense wants to question plaintiff about past acts that contradict plaintiffs testimony about his character since character is an essential element of a libel claim, it is permissible to ask about specific instances (FRE 405(b)) MO-KS-TX RR v. McFerrin defendant seeks to introduce evidence of the decedents character to prove his negligence caused his death widow allowed to testify he always stopped at railroad crossings when she was in the car with him habit or character? Habit testimony is permitted even if there is an eyewitness who contradicts that evidence Reyes v. MO Pac RR (run over by train while drunk) defendant wants to introduce evidence of plaintiffs prior alcoholic convictions to show habit of drunkenness which led to his contributory negligence character evidence not allowed under FRE 404 no bright line test for determining if something is character or habit defendant can introduce character evidence to show he was not capable of committing crime o but cross-examiner is allowed to bring up specific instances to contradict character State v. Renneberg state allowed to cross-examine defendant about her drug use after she testified about her own good character opening the door by the defendant o Defendant must make character an issue o Prosecution cannot bring up good character in order to impeach with bad character 11

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Edgington v. US pertinent good character evidence can be given by someone other than the defendant however, all character evidence must be pertinent to claim or charge at issue the accused cannot show his good character by showing specific instances of good conduct or religious beliefs Broyles v. Commonwealth defendant presented evidence of character for peace and quietude o prosecution asked about drunk driving and public disorder convictions prosecution can only rebut with evidence that is related to the charged crime and the character traits discussed by the witness o must be pertinent o ex. An illegitimate child is not pertinent to defendants peaceful nature Evans v. US is testimony about victims character that tends to show victim was the aggressor allowed? Per FRE 404(a)(2) can show victim has propensity to violence when trying to prove self-defense o Not related to defendants state of mind and reasonable belief o Evidence shows how victim likely behaved at the time of the incident Doe v. US *this decision has been criticized evidence of past sexual behaviors with others is admissible (?) must be evidence known to the defendant that speaks to the defendants state of mind regarding consent US v. Azure allowing evidence of sex with someone else to prove defendant did not cause injuries evidence must be credible to be allowed o must have occurred proximate to the alleged rape o other relationship must be likely to cause the injury Redmond v. Kingston Evidence of prior false rape claims speaks to victims character for truthfulness, not prior sexual conduct Statute protects victims in rape cases o A false charge of rape is not protected Constitutional right to confront accuser is violate if defendant cannot ask about prior false rape charges o Shows motive for making false claims o Must meet requirements for FRE 404 12

EVIDENCE OUTLINE Must be relevant and admissible

US v. LeMay Factors for when to allow evidence of prior sexual crimes o Similarity of prior acts to accused act o Closeness in time of prior acts to instant act o Frequency of prior acts o Presence or lack of intervening circumstances o Necessity of evidence beyond evidence already given in case US v. Robinson (bank robbery) Can you bring in evidence of later act to prove prior act? o Yes, if it shows modus operandi, guilty mind, etc Four prong test o Evidence shows matter at issue, not propensity to commit crime o Evidence shows other act is similar enough and proximate o Evidence is sufficient for jury to find defendant did earlier act o Probative value is not outweighed by unfair prejudice US v. Hernandez (drug dealing) Evidence to show intent is not admissible when the prior bad act is unrelated to the charged crime and is tenuous and remote in time to the charged act Even though most crimes involve some level of intent, evidence of other bad acts does not become admissible merely because of this

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EVIDENCE OUTLINE Judicial Notice FRE 201: Judicial Notice of Adjudicative Facts Notice is used to accept facts that would be time consuming or unnecessary to prove (b) type of facts not subject to reasonable dispute o Generally known within the territory of the trial court o Can be accurately and readily determined by sources whose accuracy is not reasonably questioned

CASES Judicial Notice State v. Mann (child killed by screwdriver; juror made his own calculations to show probability of accident occurring as defendant alleged) What facts need to be proved and what can be relied upon based on life experience/knowledge? A jurors common sense and experiences, including expertise in a particular area, is not extrinsic information warranting relief if used during deliberations Inadmissible to impeach verdict if its about what goes on in the jury room o This concerns legislative facts, not adjudicative facts on trial o General life knowledge is acceptable to use during deliberations State v. Canady (manslaughter & the weather according to the Fayetteville Observer) Source for judicially noticed facts must be one that is generally accepted as reliable in the field Local newspaper = no; National Weather Service = yes State v. Vejvoda Judicial notice works differently in a criminal case o Jury is ultimate fact finder, not judge o It is up to them to decide if a fact is true FRE 201 (g) cannot instruct jury to accept a fact in a criminal case o Can only instruct them they may accept the fact as true To take an adjudicative fact as true violates the 6th amendment by making the judge, not the jury, the fact finder Scientific facts should be proven, even if they fall in general knowledge Prosecutor must prove all elements of charge beyond a reasonable doubt o Cannot prove an element of the crime by judicial notice

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EVIDENCE OUTLINE Real and Demonstrative Evidence Real = some object that has a direct part in the incident, incl. injuries Ex. Murder weapon, broken glass Demonstrative = illustrates incident but was not involved in actual event Ex. Chart, map, x-ray Both must be such that a reasonable juror would believe the evidence is what it purports to be Must also meet 401 and 403 tests FRE 901: Authentication and Identification of Evidence (a) satisfied by enough evidence to allow a reasonable juror to believe the object presented is what it is claimed to be (b) ways to prove evidence o Testimony of witness with knowledge (easiest) o Non-expert opinion on handwriting o Comparison by trier or expert witness o Distinctive characteristics o Voice identification o Telephone conversations o Public record or report o Ancient document or data compilation o Process or system o Methods provided by statute or rule o Real evidence is authenticated directly o Demonstrative evidence is authenticated by confirming it is an accurate illustration or reproduction of the subject matter

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EVIDENCE OUTLINE CASES Real & Demonstrative Evidence Smith v. Ohio Oil Co. Plaintiffs witness used plastic skeleton to demonstrate location of injuries Evidence must be explanatory and probative and relevant o Must not be used for dramatic effect or emotional appeal Gallagher v. Pequot Spring Water Co. (slime in the grape soda) Bottle not admissible because it was not stored properly after incident and contents were not examined Mother could not authenticate because she did not see what was in bottle Semet v. Andorra Nurseries, Inc. Admissibility of photographs of ladder taken almost two months after incident with no was of proving the ladder was the one from the incident Does not matter who took the photo o Witness must be able to affirm the photo is an accurate representation of the subject Admission of evidence is at judges discretion based on relevance, probity and prejudicial effect Clark v. St. Thomas Hospital admissibility of video reconstruction of defendants version of events at hospital demonstrative evidence witness must affirm it is an accurate representation of her testimony Commonwealth v. Serge admissibility of computer-generated animation of chain of events at crime scene o theory of events based on real evidence o purely demonstrative, not real, expert evidence p. 417 what makes GCI prejudicial? Fisher v. State admissibility of videotape recording , set up by manager, of defendants committing theft pictorial testimony theory merely illustrative of witnesss testimony and must be authenticated by witness (fair & accurate representation)

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EVIDENCE OUTLINE silent witness theory evidence speaks for itself and is substantive evidence independent of a sponsoring witness saying it is fair and accurate

Evansville School Corp. v. Price photograph of deceased in casket after mortician prepared him for burial is not admissible o neither material nor relevant o unfairly prejudicial o unnecessary to prove death, expenses incurred with burial, or health of deceased in life Ensor v. Wilson in court demonstration of disabled childs mental and physical abilities is allowed o similar to showing injuries o difficult to show cognitive abilities without demonstration o defense did not object to childs presence in court during earlier McDowell v. Scheutte a jury walk-through of a defective house is a real event, but it is still demonstrative evidence Christopher & Son v. Kansas Paint & Color Co. did tests performed by juror on plaintiffs evidence improperly influence jury? Was not evidence or conclusions drawn from outside the jury room Jurors are not allowed to conduct their own investigations outside of the jury room o Jurors can replicate tests of evidence presented, but cannot perform new tests

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EVIDENCE OUTLINE Competency of Witnesses FRE 601: General Rule of Competency Witnesses are generally presumed competent State laws on competency will govern in federal diversity cases FRE 606: Competency of a Juror as a Witness (a) a sitting juror cannot be called as a witness at the trial (b) a juror cannot testify as to what was discussed in the jury room except: o Improper extraneous prejudicial information o Improper outside influence on jury o Mistake on jury form Competence: a person lacks the mental ability to testify Old idea was some people were so biased they could not testify o Ex. Spouse, co-conspirator Now only the very young or mentally ill are deemed incompetent to testify Privilege: a witness is competent to testify but the law recognizes the persons right not to testify Ex. Attorney, priest, some spousal statutes FRE 603: Oath or Affirmation Must be designed to awaken the witnesss conscience and impress on the witness he must tell the truth and there are legal consequences for lying Child witnesses: difficult witnesses; can be intimidated by the court room, have trouble with memory or knowing what is truth and what is a lie

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EVIDENCE OUTLINE CASES Competency Washington v. Texas law stated defense could not call co-conspirator as witness, but prosecution could reviewed as 6th Amendment violation of right to present a defense or compel a witness to testify Supreme Court struck down statute Note Case p. 493 SC also struck down law preventing defense from introducing evidence of third party guilt if prosecution had strong evidence Gordon v. Ohio FRE 603 (oath or affirmation) is flexible Not required to say swear or affirm No special verbal formula Merely must meet intent of rule to impress upon witness their duty is to tell the truth and there are legal consequences if they do not do so Evans v. State 6 year old testifies at murder trial regarding what she witnessed at 4 years old Relevant considerations for Child Testimony o Ability to receive and communicate information o Spontaneity of statements o Indications of coaching or rehearsal of testimony o Ability to remember o Ability to distinguish between truth and falsehood o Likelihood of improbable or incoherent testimony US v. Snyder Should a court order a psychiatric evaluation of a child witness before testimony? Trial courts are given broad discretion to determine when such an evaluation is necessary US v. Rouse Does the use of CCTV for witness testimony violate the defendants right to be present/confront his accuser? The 6th Amendment right to confront is not absolute o Can be balanced against the states interest in protecting witnesses, esp. minor victims of sex crimes Fear of the jury or courtroom not sufficient reason to use CCTV o Must be strong, real fear of defendant or of intimidation by defendant

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EVIDENCE OUTLINE . Byndom v. State a paralyzed victims ability to communicate through yes/no answers is sufficient US v. Heinlein mental competency of witness who is a chronic alcoholic court allows him to testify because he was consistent on key points of testimony o but, also allowed testimony of people that showed his lack of mental capacity o key is to let the jury determine which testimony is more credible

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EVIDENCE OUTLINE Elicitation of Testimony FRE 611: Mode & Order of Interrogation and Presentation (a) the court has reasonable control over witness interrogation o Make it effective o Avoid time-wasting o Protect witnesses from harassment o (b) scope of cross examination is limited to scope of direct and matters dealing with witness credibility o (c) usually leading questions are not allowed on direct Except when dealing with a hostile witness or permitted by the court FRE 612: Present Recollection Refreshed Can use anything to refresh memory of witness on stand Used when witness cannot remember on stand is shown something that brings back the memory testimony is from present memory Adverse party is entitled to examine item and introduce it into evidence or cross-examine witness from it FRE 615: Exclusion of Witnesses Any party can request a witness be excluded from hearing other testimony o Cannot exclude a party to the proceedings, an officer or employee of the party, or a person essential to the presentation (ie. an expert who needs to hear the other experts testimony)

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EVIDENCE OUTLINE CASES Elicitation of Testimony Northern Pac. R.R. v. Charless narrative testimony is permissible o however, it has high potential to be attacked for hearsay or irrelevancy additional issues opposing counsel has difficulty objecting during narrative o still may object during narrative for inadmissible testimony US v. Clinical leading questions = a question that suggests the proper answer trial court has the discretion to stop questioning when the direct examiner will not stop asking leading questions US v. Brown when can you treat a witness as hostile for the purposes of using leading questions on direct? A hostile witness does not have to be surly o Sufficient that the witness is evasive or is merely adverse to the examiner Ward v. Morr use of handwritten or typed notes to refresh memory is allowed o permits witness to have their memory triggered Winters v. Winters private investigator brought notes to stand during testimony and testified from them appellate court ruled the adverse side has a right to examine the notes Borawick v. Shay are recollections refreshed through hypnosis admissible? Doctor did not record any of the hypnosis sessions o Dr reviewed plaintiffs deposition before trial o How does the court know if his recollections are real or concocted from her deposition? Factors to consider when allowing Hypnosis Testimony o Purpose of hypnosis to refresh memory or for therapy o Any suggestions made to the witness prior to or during hypnosis o Presence or absence of records of sessions o Qualifications of hypnotist o Any evidence corroborating hypnotic testimony 22

EVIDENCE OUTLINE o Reliability of procedures o Pretrial evidentiary hearing results

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EVIDENCE OUTLINE Lay and Expert Witness Opinions FRE 602: Personal Knowledge Witness must testify from personal knowledge Must ask questions to determine if the witness has the knowledge o Ex. Were you there? What did you see? FRE 701: Opinion Testimony by Lay Witnesses Lay persons can provide opinions under certain circumstances o An opinion rationally based on perceptions of witness o It is helpful to clarify witness testimony or determine fact at issue o It is not based on scientific or technical knowledge o All factors listed above must be present FRE 702: Expert Testimony Must be qualified as an expert through knowledge, skill, experience, training or education o Opinion is based on specific facts or data o It is the product of reliable principles or methods o Those principles or methods were applied reliably to the facts in this case FRE 703: Bases of Expert Testimony If they are reasonably relied upon by other experts in the field, the bases of the opinion testimony do not have to be admitted into evidence Inadmissible facts should not be disclosed to the jury FRE 704: Opinion on Ultimate Issue Experts can give an opinion, such as negligence of the defendant Cannot give testimony about whether or not the defendant had the requisite mental state to commit the charged crime FRE 705: Facts or Data Underlying Expert Opinion Experts may give their opinion without disclosing the underlying facts Opposing counsel may cross-examine the expert on these facts without them being disclosed on direct Frye Test: expert testimony must be based on well-recognized scientific principles that are sufficiently established to have general acceptance within the scientific community Is the theory generally valid? Is the technique applying the theory valid? Was the technique properly applied to the facts in this case? 24

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Daubert Test: based on reliability, not mere general acceptance Is the methodology capable of being tested? Has the methodology been subject to peer review or publication? What is the scientific validity of the methodology? (know rate of error) Is the methodology generally accepted in the community?

CASES Lay & Expert Opinions Parker v. Hoepfer plaintiff allowed to testify to her opinions based on her observations generally lay witnesses are restricted to facts o unless their opinion is based on their own knowledge, is helpful to the jury and is rationally based Krueger v. State Farm witness testimony must be based on her own personal observation and be a recollection of concrete facts o those facts cannot be described in detail to explain them to the jury without the opinion lay witnesses usually arent allowed to give opinions because they usually dont know what they are talking about o based on personal experience, not facts or data People v. Kelly critique of Frye test general acceptance requirement is a built in conservative bias towards new science 3rd approach to scientific evidence relevance test; let in any evidence if it is relevant & let the jury decide what is believable Daubert v. Merrell Dow new federal rule for expert opinion is based on reliability, not mere general acceptance general opinion is Daubert has tightened restrictions on expert testimony Kumho Tire Co. v. Carmichael Daubert applies to scientific and technical testimony by experts o Not merely for scientific experiments or analysis Supreme Court ruled Daubert should be applied, but is a flexible test o Testimony does not have to meet every factor o Trial court can judge which factors are most important given the facts of the case and type of testimony 25

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US v. Veysey use of statistical evidence allowed when testimony is o based on proper foundation of scientific data o the evidence rebuts a theory advanced by the defense cannot be used to show guilt or innocence o instead shows probability of events being random jury must be instructed they can ignore testimony if data are confusing, judge can keep them out based on FRE 403 Iconco v. Jensen Const. Co. use of hypotheticals to elicit expert testimony (FRE 703 & 705) Standards for Hypotheticals o Should not be misleading or confusing to jury o Only include facts supported by evidence o Only basic facts need to be assumed in hypo, but must include all material facts do not have to use hypothetical o counsel can decide best way to present story to jury

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EVIDENCE OUTLINE Credibility and Impeachment FRE 607: anyone may impeach a witnesss credibility, including the party who called the witness FRE 608: Character/Conduct of Witness Can only bring up character or conduct as it applies to a witnesss credibility or character for truthfulness Can only give the testimony after it has been attacked o No pre-emptive bolstering o Specific instances must come from witness who is being attacked, not outside source Specific conduct need not be directly related to testimony However, can use specific examples to impeach a character witnesss testimony FRE 609: Impeachment with Criminal Convictions Three different standards for when you can admit evidence (a)(1) for anyone other than the accused, must be felony conviction and must pass 403 test (a)(2) for accused, probative value must outweigh prejudicial nature (not required to substantially outweigh) (b) evidence of any criminal conviction is allowed if the charged crime requires proof of dishonesty FRE 613: Prior Statements of Witnesses Statements made on the stand or under oath are more trusted than out of court (hearsay) statements Prior statements are an exception under hearsay rule for impeachment only o Jury cannot consider substance of statement, only that it is inconsistent (a) prior statements can be brought up as surprise; need not give notice of intent to use them (b) extrinsic evidence is not admissible unless witness has a chance to explain it o At some point during trial o Does not have to be brought up while witness is on stand

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EVIDENCE OUTLINE CASES Credibility US v. Thornton government can never personally vouch for a witnesss truthfulness proffer letters are allowed in, but govt should be careful how often honesty/truthfulness is mentioned in the letters due to danger of impermissible blostering p. 652 blostering in rape cases; p. 653 admissibility of pretrial identification State v. Green impeaching your own witness through surprise is only allowed when you are genuinely surprised by their testimony if you know they are going to lie and plan to impeach them, there is a problem with trying to get around the hearsay rule by using prior inconsistent statements, which are generally inadmissible US v. Webster if prior inconsistent statements are used to impeach, judge must give jury instructions saying it can only be considered for purposes of witness credibility o cannot be considered as substantive evidence on the facts of the case you cannot put on a witness solely for the purpose of introducing impeaching testimony o it is very difficult for jurors to parse testimony like this Alford v. US cross-examiner wanted to show bias in witness testimony based on alleged pressures due to being in police custody & in prison bias is relevant to credibility o always allowed to ask questions to show that in this case the witness has a reason to be untruthful extrinsic evidence is permitted when trying to show bias Ede v. Atrium South showing bias from expert witness o wanted to use evidence of shared liability allowed because expert had reason to want to make sure defendant does not have to pay a huge payout o personal financial interest in case = bias not bias if insurance is not shared US v. Heinlein mental or sensory capacity it is permissible to use mental or sensory capacity deficit evidence to impeach credibility of testimony o ex. Perceptual problems, physical disability 28

EVIDENCE OUTLINE o however, psychiatric evidence must be relevant to truthfulness State v. Baker untruthful character shown through prior conduct (608a) can use opinion and reputation testimony to impeach for character for truthfulness testimony must be relevant to truthfulness US v. Alexander if a defendant testifies on his own behalf, it opens him up to impeachment through prior criminal convictions o possible undue jury influence 609(a) allows evidence in for the opposite reason of 403 o The probative value of the convictions outweighs the prejudicial effect 5 Considerations o Impeachment value of conviction o Time between prior conviction and current charge o Similarity in crimes similar crimes are more prejudicial o Defendants testimony o Centrality of defendants credibility to case 10 year test older cases must substantially outweigh prejudice to be allowed Altobello v. Borden evidence of other crimes by a non accused = 403 balancing test evidence relating to the accused = probative value outweighs prejudicial effect 609(a)(2) crimes involving dishonesty are automatically admissible o But dishonesty must be element of charged crime State v. Morgan use of specific instances of misconduct to show untruthfulness on crossexamination o conduct must be probative to untruthfulness o cannot be impermissible character inference US v. Opager impeachment through specific contradiction if someone testifies to one set of facts, the other side can put on witnesses to testify to another set of facts o effectively impeaches through contradiction extrinsic evidence does not go to untruthfulness o proves witness wrong, not that he lied o not violations of extrinsic evidence ban questions about bias criminal convictions specific contradictions to testimony 29

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Central Mut. Ins. Co. v. Newman defense wants to introduce prior inconsistent statements in order to show fraud o show plaintiff was lying, making up the story prior statements were not hearsay because they were written statements by witness o can come in to show inconsistency does not have to be completely opposite testimony o just have to show inconsistency US v. Hudson want to call witness to rebut testimony given by prosecution witness o relate conversations overheard to show inconsistency from trial testimony witness was not confronted on stand with prior statement o Ok, only have to give witness opportunity to explain statement at some point o However, must raise inconsistency while witness is still able to be recalled to the stand there is a limit to how far you can go when using extrinsic evidence to show inconsistency o must be related to issues in case at hand o FRE 608 allows unrelated evidence to show character for untruthfulness o Collateral issues are usually not allowed for showing inconsistency Constitutional Issues with prior statements o Statements made prior to arrest = allowed o Statements made after Miranda = allowed o Illegal searches or interrogations = if witness lies under oath, results of illegal searches/interrogations are allowed o Involuntary coerced confessions = never allowed Freshwater v. Scheidt (impeachment through learned treatise) using accepted learned treatises to impeach o is an out of court statement (hearsay) o is not the same as putting on own expert to testify (no cross-examination) can be used if it is an authority accepted in field o opponents witness doe not have to actually say the treaties is authority o is sufficient that the authority is implied o witness also does not have to say he relied on the treatise to form his opinion

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CASES - Rehabilitation Rodriguez v. State FRE 608(a) allows evidence for character for truthfulness only when attacked in general sense o Not when testimony is about specific instance of lying can bring witness back to explain away testimony o cannot put on new witness to testify about truthfulness of another witness US v. Plante it is ok to bring in a prior conviction under 609 o there are limits to how much about the prior crime can be described o stick to the facts of the conviction only, not the crime itself if prior conviction is brought up under 609, can offer good character evidence to rehabilitate Bradford v. State a party always has the right to ask a witness to explain his testimony on redirect but redirect is limited to the scope of cross-examination

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EVIDENCE OUTLINE Hearsay FRE 801: Definitions (a) statement = an oral or written assertion or non-verbal conduct intended as an assertion (c) hearsay = a statement made out of court that is introduced to prove the matter asserted in the statement (the actual substance of the statement) FRE 801(d)(1): Not Hearsay A statement made under oath and subject to punishment for perjury, if it contradicts witnesss testimony on stand in current proceeding A statement that is consistent with witness testimony and is used to rebut an accusation of lying A statement made in the pretrial identification of persons involved FRE 801(d)(2): Admission by party-opponent Offered by opponent at trial Is the partys own statement or a statement made by the partys agent in the scope of employment Is the statement of a co-conspirator made during the commission of and in furtherance of a conspiracy Analysis of Statement: Was there an out of court statement? What is the statement being offered to show? What did the declarant intend to communicate with the statement? o If declarant was intending to assert what you are offering to show = hearsay Process of Hearsay: Witness makes an out of court declaration o Was it subject to cross-examination? o Was it made under oath? Analyze statement o What assertion did the declarant intend to make? o Unintentional statements that are not made to prove the fact in question are not hearsay Does the statement fall under the non-hearsay rules? o 801(d)(1) or 801(d)(2) FRE 802: Hearsay is not admissible unless it falls under one of the exceptions

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FRE 803: Hearsay Exceptions Availability of Declarant Immaterial 1 Present Sense Impression: o statement describing or explaining an event made while perceiving the event or immediately after 2 Excited Utterance: o statement made after a startling event while still under the effects of the shock of the event 3 Mental, Emotional or Physical Condition: o Statement of declarants then state o Ex. Intent, plan, motive, design, mental feeling, pain or health o Not statement from memory of the event 4 Medical Diagnosis or Treatment: o Statements made for purposes of treatment or diagnosis o Incl. medical history, past or present symptoms & pains, and inception or cause of injuries o Not admitted to show fault or guilt of who caused injuries 5 Past Recollections Recorded: o Recorded when witness had knowledge of events o Witness verified the accuracy of the recorded statement o Witness now has no or very little memory of matter recorded 6 Records of Regularly Conducted Activities: o Regular practice of business to make the record o Person making the record had requisite knowledge of matter o Testified to by custodian of record or other qualified witness 7 Absence of Entry in 803(6) Record o Evidence something is not in a record that qualifies under 803(6) is sufficient to prove the non-existence of the thing at issue 8 Public Records: o Show activity of office or agency o Show matters in which there is a duty to report (except law enforcement records in criminal cases) o Are factual findings made during a legal investigation

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FRE 804: Hearsay Exceptions Declarant Unavailable a) Hearsay testimony is permitted when the declarant is unavailable due to o exemption by privilege o refusal to testify o lack of memory o death or physical/mental illness o truly unavailable to attend trial Declarant is not considered unavailable for hearsay purposes if the absence is caused by something deliberately designed to prevent testimony (b)(1) Former Testimony o Testimony made at another hearing or deposition on the same matter & in which the opposite party had the opportunity to examine the witness (b)(2) Dying Declaration o Only permitted in a homicide or civil action o Must believe death is imminent o Statement concerns the causes or circumstances of the death (b)(3) Statement Against Interest o Statement is so far against declarants interest that no reasonable person would have made it unless it was true o If it exposes the declarant to and clears the accused of criminal liability, it is not admitted without corroborating evidence FRE 805: Hearsay within Hearsay Only admissible if each part of the statement meets one of the hearsay exceptions

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EVIDENCE OUTLINE CASES Hearsay US v. Zenni Prosecution wants to admit statements heard by detectives when they answered the phone at a bookmaking site they were searching Statements were non-assertive verbal conduct that lead to an implied assertion o Since callers did not intend to prove the fact of the matter, i.e. that the place was a bookmaking site, the statements were admissible Unconscious assertions are seen as more reliable because the person is not thinking about lying Headly v. Tilghman Callers questions were innocuous and not intended to assert that drugs had arrived, therefore admissible US v. Summers A question can be considered a declaration or assertion under the hearsay rule Must examine what the declarant intended by the question o How did you guys find us so fast? Commonwealth v. Daye Witnesses refused to identify the shooter in court after previously identifying them before the grand jury Typically can only come in to show the witness is lying (impeach his credibility before the jury) & jury cannot consider it substantively 801(d)(1)(A) a prior inconsistent statement made under oath is not hearsay o Presence of the witness at trial allows witness to be cross-examined on current and former testimony Toime v. US When can you admit a prior consistent statement? o What if witness now has motive to lie? Consistent statements made after a motive to lie developed are not allowed o Prior consistent statement must be made before the motive to lie arose US v. Lewis 801(d)(1)(C) evidence of pretrial identification is not hearsay Mahlandt v. Wild Canid Use of partys statements by the opposing party Plaintiff wants to introduce verbal statement, memo and meeting notes made by agent of defendant 801(d)(2) statements are allowed because they were made by the defendant and are being offered by the plaintiff o Let statement in and give defendant a chance to explain it 35

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Wilson v. Pine Bluff Does silence or failure to object to a statement about you constitute an admission? o Defendant does not refute witness statement made at time of incident in his presence o Does the silence imply the adoption of the truth of those statements? 801(d)(2)(B) would a reasonable person under the same circumstances by expected to deny the truth of the statements? o If yes & defendant stayed silent, he is deemed to have adopted the statement and it can be introduce by party opponent for use against him ** dont miss the easy stuff --- if defendant actually confirms the truth of the statement** US v. Cornett When can a statement by a co-conspirator be admitted? 801(d)(2)(E) it must be made during the conspiracy and in furtherance of the conspiracy o Mere idle chatter does not count! o Statements made after the conspiracy ends (whether naturally or through arrest) do not count o Descriptions of past conduct do not count Must advance the ultimate object of the conspiracy Crawford v. Washington Confrontation Clause issue how do you treat out of court statements when defendant cannot confront witness at trial? o Ex. Recorded statement of wife who will not testify against husband o Was admitted over hearsay objection due to perceived indicia of reliability NEW RULE when testimonial statements are at issue, the only way it is allowed in & satisfy the 6th Amendment is if the witness can be cross-examined o Cannot use testimonial evidence if there is no opportunity to confront Davis v. Washington and Hammon v. Indiana Two cases concerning when statements made to law enforcement personnel can be admitted under hearsay exceptions o DAVIS statements made during 911 call during incident = ALLOWED o HAMMON statements made to responding officers after incident occurred = NOT ALLOWED o (in both instances witnesses refused to testify under spousal immunity) Non-testimonial = made in order to assist police in an ongoing emergency Testimonial = primary purpose is to establish facts potentially relevant to future prosecution; not made during ongoing emergency Forfeiture of Confrontation Clause protection if witness is unavailable due to intimidation, etc, by defendant, statement is always allowed in 36

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US v. Cain 803(1) declaration by witness over CB radio is not present sense impression because there was no way the defendants could be at their reported location if the witness was reporting in real time Miller v. Keating 803(2) declaration by unknown, unidentified witness o Difficulty with excited utterance exception because witness is unknown To qualify, statement must be o From a startling occasion o Related to the startling circumstances o From a declarant who had the opportunity to view event o Made before time to reflect or develop a fabrication Special considerations are given for children in these instances Mutual Life Ins. Co. v. Hillmon 803(3) state of mind or intention In certain circumstances it is relevant to show people acted on their current intent o Only used to show declarant had intentions to do something o Does not show other person mentioned in statement did something Threats courts generally dont worry about hearsay with threats o Are usually admissions by party-opponent covered by 801(d)(2) o Even if not, are still examples of present state of mind (803(3)) US v. Day Prosecution wants to present victims words and note to show he was afraid of defendant Note not allowed because his state of mind is not at issue in the case o To be an exception to hearsay, the evidence must be relevant to proving the charged crime State v. Terrovona In what sense are statements made admissible and relevant when they are offered to prove someone elses intent? o Ex. Using declarations of intent to implicate a 3rd partys conduct Are admissible to show declarant acted as he intended and with whom he intended (expands the Hillmon doctrine)

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US v. Iron Shell 803(4) appellant argues doctors testimony about what victim said during examination was inadmissible because it was not pertinent to diagnosis or treatment Three types of statements allowed o Medical history o Past or present sensations o Cause of disease or injury When statements meet the above criteria, must determine if o The motive behind the statements was consistent with the rule o Did the physician rely on the statements for diagnosis and treatments Statements cannot be used to show fault or identity of offender Statements pertinent to diagnosis and treatment made to non-medical personnel are also admissible o Ex. Statements by child to grandmother; statement to social workers US v. Booz 803(5) Admission of FBI report that recorded license plate number see by witness o Not witnesss own note Would be allowed if witness had reviewed report and affirmed its accuracy o Both witness and agent must testify to records accuracy US v. Feliz-Jerez Written transcript of interview not admissible o Defendant did not have opportunity to view it or confirm its accuracy at the time it was made Not adoptive admission for same reasons Also in order to use, witness must testify he has no present recollection of the information in the transcript Potamkin v. BRI 803(6) BRI wants to use computer compilation of data to prove its claims o No testimony of how claims were compiled Report not admissible because it was made for litigation o Not a regular business practice o Not reliable; probably biased toward BRI Yates v. Bair Transport 803(6) admission of police blotter that listed who was involved in accident and of medical reports Medical reports always admitted under 803(6) Blotter does person making entry have requisite knowledge

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EVIDENCE OUTLINE o No, merely recording of someone elses knowledge of the event

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EVIDENCE OUTLINE Bridgeway Corp. v. Citibank Plaintiff wants enforcement of Liberian court judgment instead of contract terms 803(8) Citibank permitted to use State Dept reports on Liberia as evidence Rule is based on assumption public officers will perform their duties honestly and fairly Consider o Timeliness of investigation o Special skills or knowledge of official making report o Whether a hearing on the report was held o Whether there are any motivation problems that may bias the report Not all factors must be met; some will have more importance depending on the report and the circumstances of the litigation Campbell v. Coleman Product defect case defense wants to introduce statements made to others against declarants interest made by lantern user Statements made by declarant to others not allowed because declarant was deposed by defense o Deposition becomes next best evidence, not statements made to 3rd parties o Defense had opportunity to cross-examine declarant, therefore deposition is better than statements made to others US v. Feldman Is a deposition from a civil case admissible as former testimony is a criminal case? 804(b)(1) prior examiner must have same or similar motive to develop testimony as the current examiner o Look at type of proceeding o Trial strategy (which things to develop & which to let pass) o Number of issues and parties in prior and current case o Purpose for which testimony was given Mere notice of deposition is not sufficient o Must have a real need or incentive to thoroughly cross-examine at time of deposition for prior testimony to satisfy the Confrontation Clause Shepard v. US What constitutes a dying declaration? 804(b)(2) must be spoken with consciousness of swift and certain death o Fear or belief illness will cause death is not sufficient Declarant must be aware death is imminent o Direct proof of awareness is not necessary (i.e. Im dying!) o May be shown through circumstantial evidence (extent of injuries, etc) Death not required, only belief death is imminent Dying declarations are only admissible in civil cases or criminal homicide cases

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Williamson v. US Statements against interest made during interrogations by drug officers When are these statements trustworthy? o What about when the statement is only partially against interest? MAJORITY if aggregate of statement is against interest, allow only the parts of the statement that are against interest o Idea is people tend to be honest when they incriminate themselves DISSENT (Kennedy) the narrow rule makes the statements essentially useless for criminal proceedings because there is no context to the statements

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