EVIDENCE

Introduction:

I. Sources of Evidence Law

A. The common law -- predates FRE

B. Statutes and Federal Rules of Evidence

C. Interpretive case law

D. The Constitution.

II. Parties and Nature of the Courtroom

A. The judge:

1. Determines the admissibility of evidence -- responsible for the law.

2. Gives Jury instructions

a. Can also give limiting instructions to the evidence.

b. Cautionary instructions (disregard)

3. Evaluates the sufficiency of evidence at the conclusion.

Note: Goldsmith -- always know your judge, there is variety each has own ideas about evidence law and may simply apply some concepts incorrectly.

B. The Jury:

1. They determine/make the factual findings.

a. The verdict must reflect the Courtroom facts.

b. They must apply the law given by the Court.

c. They may not apply knowledge acquired outside the trial process.

Penn decision -- jury can disregard the law given, but connot nullify the law. Court can not speculate on reasoning used by the jury.

C. The Court Reporter:

1. Records every statement made, every action and takes down every item of evidence introduced into the record.

2. Reflects the notion that the verdict must reflect the trial.

3. Statements that are ordered "stricken" from the record are not removed from transcript.

4. They are a source of feedback for the attorney.

5. Yet the record does not reflect the emotions, tone, tempo or actions in the courtroom.

D. The Court Clerk:

1. Another source of feedback, is responsible for all documents admitted into evidence.

III. The Attorney:

1. Presents his clients case to the fact finder (preservation of proof):

a. Know the law and elements of the case. This is your blue print.

b. Know the evidence to support each element of the case.

c. Know the laws of evidence.

d. Prepare in advance for issues

(1) MOTION IN LIMINE -- used to raise issue with the court before trial

A. better stratey -- get the issue resolved before trial, trial courts like to have issue raise in advance -- takes the pressure off the judge.

2. Must also preserve the record for appeal:

a. make objections specific.

b. make sure record gives accurate and correct depiction of trial -- specific language ie.

(1) he punched me "here" and "there" (let the record show that he indicated face and stomach).

IIIA. Court Room Procedure

A. "Voir Dire"-- selection of the jury, ask questions of perspective juror sympathetic to cause.

B. Opening Statements -- party with the burden of proof goes first

1. criminal -- prosecution

2. civil -- plaintiff

--defense may defer opening statement until close of prosecutor's case or may follow directly afterwards.

C. Presentation of evidence -- party with burden of proof goes 1st

--defense may defer presentation of case until after the close of prosecution's case.

D. Presentation of defense

1. Rebuttal by prosecution - (some courts allow additional rebuttal by defense.)

E. Closing statements

--each step of the process is inundated with motions

IV. Definitions of Evidence:

A. Evidence is viewed in 3 ways:

1. Factual Matter -- the facts that tell the story of the case, any fact(s) admitted for the purpose of persuasion. Evidence is a fact used to prove another fact.

2. Materiality -- Only admissable facts are evidence; once the jury has heard the item it is evidence.

3. Rules of Evidence -- determine circumstance under which the facts are admissible.

"Evidence is eligible to be admitted into evidence if it complies with the FRE. Judge determines admissibility of evidence. Once it is admitted as proof of certain facts the jury is left to determine its credibility, it need not be accepted as true.

V. Alternatives to formal proof

JUDICIAL NOTICE: "Accepting as true some fact or set of facts w/o requiring formal proof".

* increase speed or efficiency of trial

* prevents retrial

* protects counsel from malpractice suits

A. Adjudicative facts -- those facts which only pertain to the case at hand (how, what, where, when) -- they have no significance to law outside the particular case.

B. Requirements for Judicial Notice of adjudicative facts under common law is called the Varcoe standard. The fact(s) must be:

1. indisputable

2. common knowledge to those of that area or jurisdiction.

C. Rule 201 -- J.Notice of adjudicative facts -- it must be one not subject to reasonable dispute in that it is either:

1. generally known in the area, or

2. capable of accurate and ready determination by sources whose accuracy cannot be reasonable questioned. Could be:

a. Court records, almanac or other book of historical fact, mathematical or geographic facts.

b. Never applies to subjective facts.

3. The court has discretion to take J.N. whether requested or not. J.N. may be taken at any stage of the proceeding.

4. J.N. is mandatory of laws, procedures, english language and indisputable matters.

5. If the objection is timely (prior to taking J.N.), a party is entitled to object to J.N. being taken

a. If party is w/o prior notification request may occur after J.N. taken.

6. What's the effect of J.N.?

a. civil case -- the jury must accept the fact judicially noticed.

b. criminal case -- the jury may accept that fact.

(1) Crts are reluctant to take J.N. of facts in criminal cases which are elements of the case despite the obvious nature.

Note: The judges personal knowledge is insufficient to take J.N. of a fact.

Varcoe v. Lee (1919) (common law basis of FRE 201(b)(1))

Facts: Child was hit and killed by car travelling beyond 15 mph on Mission St. CA law said that negligence per se if travelling more than 15 mph in business district. Trial ct assumed that Mission St. was in a business district even though P did not establish so, and the judge directed the jury accordingly.

Ap Ct upheld the judge's direction concluding that the judge had taken judicial notice.***

D.VARCOE STANDARD for judicial notice: If an adjudicative fact is indisputable, common knowledge in the area, a ct may take judicial notice

E. A judge may take J.N. of court records, but only the records themselves not the content of them. It hinges on how accurate and ready a determination can be made. Likelihood of J.N. in descending order:

1. Same case; usually

2. Different case, same courthouse.

3. Related case, different courthouse.

4. Unrelated case, different court.

exception -- to show previous frivolous action

May take J.N. of content of records only if it meets the Varcoe standard or FRE 201.

Also -- the record may be independently inadmissible because its hearsay or privileged (watch for these).

F. J.N. of Scientific facts/principles (speed gun case):

1. THE FRYE RULE-- The fact/principle must have general acceptance in the scientific community.

2. The problem is that sometimes science outpaces the law ie. the Friskem Magnetometer (metal detector) in U.S. v. Lopez. The judge must balance the Frye rules overexclusion of new technology vs premature J.N. of a scientific principle which doesn't work.

G. Frye rule: before any scientific evidence is admitted the proponent must establish that the device from which the evidence is made is generally accepted as true by the relevant scientific community. (polygraph test)

1. U.S. v. Lopez (1971) (illustrates an abberation to Frye)

a. Issue: whether magnatometer did what it was suppose to do? (i.e., beeps when a person is carrying metal)

b. Judge took JN that the device worked basing his decision not on Frye's "generally accepted" std, but he also took longform testimony to insure that he would not be reversed on appeal.

2. This case demonstrates the problem that a ct confronts when new scientific evidence is initially introduced.

H. State v. Copalino: a new method to measure amnt of certain poisonous acid in parts of body did not satisfy the Frye test, but the Florida judge allowed it based on his own finding of reliability (because he thought the D was guilty).

1. Today, cts are divded as to whether or not to use the Frye std. Some use it claiming that it insures reliability. Others reject it arguing that the standard takes too long to establish--science often works faster than the law

JUDICIAL NOTICE OF LEGISLATIVE FACTS

VI. Legislative facts are those which have relevance to legal reasoning and the law making process, whether in the formulation of a legal rule, a ruling by a judge or court, or a legislative enactment.

A. J.N. of legislative facts -- FRE 201 is inapplicable it applies to adjudicative facts only. Drafters of FRE decided not to impose a restriction on judicial notice of legislative facts.

No established standard--may fluctuate with the standard of review ie -- rational basis vs compelling state int.

1. Probability standard suggested: the legislative fact (this policy) is more likely than not to be true (desireable).

a. Muller --

(1) Policy Q's what the law ought to be.

(2) Constitutional intent, philosophy etc.

b. Caveat -- these norms change Roe.

B. Judicial Notice of Law

1. Foreign law -- Not subject to J.N. because it is not generally known or readily identifiable. Get legal expert from that country to tell you what law is.

2. State laws -- FRCP provides for J.N. of State laws.

C. Other alternatives to long form proof:

1. MOTION FOR SUMM J -- rule 56 judgement on pleadings

2. EVIDENTIARY PRESUMPTIONS -- given certain facts the jury may/must presume certain findings ie.

a. Possession of stolen property presumes knowledge of theft.

b. mailing presumes delivery.

3. STIPULATION--Parties may stipulate as to facts -- stipulation is an agreement to treat the evidence a certain way. Goldsmith -- careful with these not to stipulate away your case.

VII. Types of FORMAL PROOF/Evidence & Objections

A. REAL EVIDENCE OR AUTOPTIC PROFERENCE -- physical evidence from the scene itself with a direct relation to the case.

a. gun, blood stained knife, document (when its mere existence is sought to be proved).

1. To be admissible as real evidence you must prove that it is WHAT IT PURPORTS TO BE, it must be linked to the event ie. this is the gun which was used in the robbery.

2. Real evidence must be AUTHENTICATED -- marked at the time of collection rendering it unique to the world (ie engraving initials or marking somehow.)

a. Generic evidence (cocaine) -- must account for it thru the chain of custody. Call the handlers of coke/evidence as witnesses to authenticate.

3. GAG RULE-Certain real evidence may be inadmissible because it is grotesque and therefore unfairly prejudicial.

a. relevance must outweigh prejudicial effect on the jury

4. Must be in SUBSTANTIALLY SAME CONDITION as when seized -- changes in the condition of Real evidence may render it inadmissible -- depends on circumstances (again judge has much discretion).

5. Documentary evidence is real evidence -- proving that the document exists, but still must prove it is what it purports to be.

a. Documentary evidence subject to Best Evidence and hearsay rules (may be inadmissible).

**Standard for admissibility

--establish prima facie case

--enough evidence that a reasonable jury would find this so

--very low standard

B. DEMONSTRATIVE EVIDENCE -- (model, diagram, photograph)

***NOT REAL EVIDENCE BUT USED TO DEMONSTRATE WHAT THE REAL THING IS***

SUBSTANTIAL SIMILARITY admissibility standard:

1. Must fairly and accurately depict what it purports to depict (the real thing -- 4th Cir. Gladhill).

2. Must be authenticated.

3. Substantially similar setting, circumstances

a. Stop sign case -- model not accurate, not admissible. Uss v. Oyster Bay

Admissibility of demonstrative evidence subject to judges discretion.

Authentication can be by another individual if initial witness not available.(if psn who took photo died)

C. TESTIMONIAL EVIDENCE -- Oral proof given by witness to a fact finder. Two kinds:

1. DIRECT testimonial evidence -- oral evidence which if believed resolves the issue directly. ie "I saw BYU lose the game"

2. CIRCUMSTANTIAL testimonial evidence -- requires the drawing of an INFERENCE from facts witnessed to. ie. "I saw BYU fans leaving with frowns"

Note: There are no rules distinguishing between the admissibility of circumstantial and direct evidence.

The admissibility standard is the same for both.

VIII. Rulings on Admissibility of Evidence

FRE 103: THE EFFECT OF AN ERRONEOUS RULING -- it has no effect unless it involves a substantial right of party affected AND:

A. If ruling admits evidence -- OBJECTION or motion to strike is TIMELY RAISED and gives SPECIFIC GROUNDS.

1. Failure to object is a waiver, absent plain error.

2. Specificity req't focuses the crt's attention on the issue for the preservation of appeal and prevents preservation of a number of issues on a general objection.

3. Timeliness -- must object as quickly as possible (usually at end of Q), if witness answers motion to strike.

IX. If the ruling excludes the evidence -- for preservation of the record/issue for appeal; make and OFFER OF PROOF which would indicate the substance of the evidence to the court. Explain:

1. The legal basis of admissibility.

2. The probative value of the evidence.

A. offers of proof are done out of hearing of jury -sidebar--to prevent their hearing inadmissible evidence.

Forms--discretion of the court

-statement by counsel

-affidavits

-witness to the stand (jury excused)

B. Plain error -- If judge admits evidence even after offer of proof. A legal principle so plain and obvious that the judge should have known it. Plain errors affecting substantial rights unaffected by failure to raise objection.

C. Goldsmith -- use objections wisely, too many and you look combative and lose jury sympathy. You can't object on general grounds of "irrelevant, immaterial and incompetent" alone -- must be more specific.

X. Relevance and Materiality

Common Law definitions:

A. RELEVANCE -- evidence is relevant if ther is a CONNECTION BETWEEN THE EVIDENCE AND THE PROPOSITION, and it tends to make something more or less probable in some respects.

B. MATERIALITY -- evidence is material if the fact or proposition that it seeks to prove has a RELATIONSHIP TO AN ELEMENT OF THE C/O/A of the case.

1. The proposition of the case is determined by the legal elements of the cause of action.(from the statute or common law standard)

2. Materiality depends on the creative ability to articulate a legitimate theory through which the evidence is material (has an effect).

a. If you can find one probative theory of materiality it's in (be creative). " 99 immaterial can't stop one material".

b. common law concept of materiality was redefined as "relevant by FRE 401.

C. FRE 401 -- "Relevant Evidence" combines c-law relevance and materiality. "Evidence having any tendency to make the existence of any fact, that is of consequence to the determination of the action (materiality), more or less probable than it would be without the evidence". Note:

1. "any" tendency is enough.

2. does not require strong probative value.

3. FRE 401 -- involves minimal standard of "logical relevance".

US v. Curtis (1978) ("relevancy" is expansivley defined in FRE 401)

a. In this rape case, the state attempted to introduce statement by D that if he asked for sex and did not get it, he would take it. D argued that this should be inadmissable because it was irrelevant.

b. Ct allowed the evidence because this did have some probabtive value; it did have some tendancy to show that D would rape.

c. Admissibility turns on the word ANY in Rule 401. Rule 401 does not place any limits on the probative worth of a factor.

D. FRE 402 --All relevant evidence is admissible except as otherwise provided for by:

1. The Constitution, Congress

2. The Federal Rules of Evidence (FRE 403).

Note: The exceptions under FRE 403 involve competence issues.

XI. COMPETENCY OF EVIDENCE RULE 403

A. Not all relevant evidence is admissible. It must be competent as well. Analysis:

1. Is the evidence excluded by any exception? Is it competent to be received into evidence?

a. ie. hearsay, exclusionary rules, dead man statutes, 4th amm't search and seizure rules, all operate to render evidence incompetent or inadmissible.

B. Competency involves concept of "LEGAL RELEVANCE" -- a higher standard than logical relevance of FRE 401. Evidence is legally relevant when NOT EXCLUDED BY ONE OF THE EXCEPTIONS IN FRE 403.

C. FRE 403 -- competency issue -- Relevant evidence may be excluded if its probative value is outweighed by:

1. UNDULY PREJUDICE (undue tendency to suggest decision on improper basis, usually emotional one)

2. CONFUSION OF THE ISSUES.

3. MISLEADING the jury

4. UNDUE DELAY, WASTE OF TIME, needless presentation of cumulative evidence to the jury.

Color photo analogy -- color photos of gruesome accident or murder etc though relevant incompetent because of emotional impact. Judge will as a compromise allow black & whites in.

Note: unfair surprise not in rule, doesn't render evidence incompetent. Comments say this is handled better by allowing a continuance instead of exclusion.

D. Comments on FRE 403:

1. The weighing of these factors in "tight" cases, both probative and prejudicial value increase yet the closeness of the case is and should be irrelevant.

2. The burden of proof to establish incompetence lies with the party seeking exclusion. Burden is tough.

3. The STANDARD OF REVIEW IS ABUSE OF DISCRETION.

a. The trial crt is given great deference by reviewing court. Admissibility turns on discretion of trial judge. Goldsmith -- better win on these issues at trial level, reversals by appellate crts on these issues rare.

U.S. v. Robinson (1977) (Ct's discretion)i)Trial ct admitted 38 caliber hand gun to show that since the bank robber used a 38 and the D possessed one, D was probably the robber. D counsel appealed arguing that introduction would be prejudicial (jury would think he was a bad man, base decision on emotional grounds).

(1) Appellate ct deferred to judgment of the trial judge under FRE 403's discretionary std, WHICH IS BROAD.

4. In considering to exclude on grounds of unfair prejudice the comments indicate that a limiting instruction be considered as an alternative to exclusion. Instructing jury to consider evidence for a specific purpose only, no speculation outside purpose.

Note: Goldsmith--be very careful with limiting instructions; might actually highlight the prejudical effect.

EVEDENTIARY FOUNDATIONS -- ESTABLISHING RELEVANCY

Series of statements or questions made to a witness. You must establish that the item is relevant, linking it to the case at hand. Establish the foundation?

XII. Go to the elements of the admissibility rule which applies and convert those elements into questions for the witness.

1. The admissibility rule is the blue print. The elements are what you have to prove thru the Q's.

2. For every rule of evidence there is a corresponding evidentiary foundation (built in).

A. One of the foundations is AUTHENTICATION OF EXHIBITS AND/OR TESTIMONY: This speaks to relevancy -- Hence FRE 901.

B. FRE 901 -- Authentication is a condition precedent to admissibility. This condition is met if there is evidence supporting the finding that it is what its proponent claims it to be. Need only provide a prima facie case that evidence is what it purports to be.

1. 901 goes to relevancy. If something cannot be authenticated it is not relevant and therefore not admissable.

Examples -- Photograph: Q1) What is it? Q2) Does it fairly and accurately depict the object in question?

Video Tape: Q1) Were you there? Q2) Did you see what happened? Q3) Have you seen the tape? Q4) Does the tape fairly and accurately depict what you saw?

Jenretti: Video tapes required verification of chain of custody in order to authenticate. Videos not kreal evidence, don't require initials.

A. Jury cannot handle or consider ev until it has been ruled admissable. If it is unduly prejudicial it could be reversible error for the jury to handle it.

I. PRELIMINARY QUESTIONS OF FACT -- Role of Judge and Jury

Rule 104: PRELIMINARY QUESTIONS

A. 104 (a): Judge determines preliminary questions concerning admissabilty, qualification of witnesses, and existence of priviledge that go to competency.

1. Rationale -- purpose of the competency principle is defeated if the jury is allowed to make these determinations.

a. e.g. hearsay and exclusionary rules are designed to prevent jury contamination. Allowing jurors to make the competency decisions exposes it to them anyway.

b. This is more efficient, preserves issues better for appeal and the judge is more qualified to make these determinations.

c. The proponent of the proof must establish its admissibility by a PREPONDERANCE OF THE EVIDENCE. U.S. v Marshall Lee.

B. 104 (b): CONDITIONAL RELEVANCE: CONDITIONAL RELEVANCY the evidence is admitted only if some other condition of fact is fulfilled. These are not solely determined by the judge, if they were the jury function as a trier of fact would be destroyed.

1. eg. Ev(1) is offered into ev, but is not relevant unless ev(2) is offered to support ev(1). In such case, the court will admit it subject to further introduction of ev sufficient to support ev(1) as relevant.

a. D murders V. The fact that D is the beneficiary of V's life ins. is only relevant if D knew that he was.

b. Mechanic's statement to negligent driver that brakes were bad is only relevant if driver heard it.

2. 104(b) pushes towards admissability if there is merely a prima facie case. THIS PREVENTS THE JUDGE FROM TAKING THE CASE AWAY FROM THE JURY BY APPLYING TOO HIGH A STANDARD (PREPONDARENCE OF THE EV) TO EVERY CONDITIONALLY RELEVANT PIECE OF EV.

3. The prima facie standard is much lower than the preponderance of the evidence standard in 104(a).

4. Today most judges will let most evidence in, subject to connection. At the end of the trial, if the elements of the c/o/a have been established prima facie, the judge will let it go to the jury.

5. Only evidence that is very controversial will be treated seperately during trial under 104(a).

C. FRE 104(c) -- Hearings on the admissibility of a confession are conducted out of the hearing of the jury.

D. FRE 104(d) -- When the accused testifies as to preliminary matters only, he is not subject to cross-examination as to other matters.

II. TESTIMONIAL INCOMPETENCE & STATUS BASED LIMITATIONS

Incompetence by Reason of Status -- common law

A. Parties to the lawsuit (perjury presumption).

B. Excluded if you had a pecuniary interest in outcome even if not a party.

C. Atheist or a Lunatic.

D. SPOUSAL INCOMPETENCE -- was an absolute protection at common law to promote family unity recognizing H & W as a single entity.

E. MODERN SPOUSAL INCOMPETENCE -- jurisdictions vary but no jurisdictions have an absolute rule prohibiting spousal testimony whether willing or unwilling.

1. Some jurisdictions & FRE prohibit testimony against the spouse but allow the witness or party to waive the doctrine.

2. Incompetence is coterminous with the marriage -- whether C-LAW marriage applies depends on the jurisdiction.

3. The doctrine does not apply to facts prior to marriage.

4. Defendant attempts to marry the witness, prosecutor may try to enjoin the marriage or take a deposition of witness now before they are married.

Note diff between SI & Marital communications privilege.

5. Marital Communications are privileged and applies even after divorce for communications during marriage. Statements made during marriage are privileged but the spouse may testify as to conduct, but what is said (reliance theory) is forever in confidence and excluded.

a. Is this true? Divorce trials?

Its irrelevant that the outcome hinges on the spouse witness if its incompetent, out of luck. State v. Lee -- crt makes 104(a) determinations, no need to deviate because the evidence is the crux of the case (woman not allowed to identify her spouse). It was error for ct to make factual determination which was the ultimate issue at hand in the presence of the jury, but not prejudicial & appeals upheld.

F. Partial incompetence -- Lopes v Lopes -- Prior to Utah's adoption of the fed rules. Old common law rule that spouse couldn't testify in a way to bastardize child. The fed rules have eliminated this exclusion.

G. DEAD MAN STATUTES -- almost all jurisdictions have them, in varying types. Purpose to protect deceased party. Doctrine: The survivor may not testify as to a transaction with the deceased person when suing that persons estate.

1. Purpose to prevent fraud, no chance to X-examine.

2. They have a narrowing effect but were adopted as part of a liberalizing trend as crts realized the C-LAW party incompetence made no sense.

3. However if the decedent's estate offers up the conversation/transaction as proof then it allowed in. If decedent's deposition was taken then both sides may offer it into evidence (forced waiver).

a. lower risk of perjury, deposition provides opportunity for cross-examination.

4. To apply doctrine must involve:

a. Parties to litigation or interest in outcome.

b. Transaction/conversation with decedent.

c. Decedent's estate in litigation.

d. Applies only to civil litigation.

5. Goldsmith -- doesn't really work however as to circumvent doctrine all you have to do is get a disinterested third party to testify as to phony transaction. Corrupt people won't be stopped by statute.

6. These have been narrowly construed because crts disfavor the rule. FRE 401 & 402 favor admissibility.

H. Problem shows up. Witness is incompetent by state law but competent by federal law. FRE 601 -- "WHERE STATE LAW PROVIDES THE RULES OF DECISION, STATE COMPETENCY LIMITATIONS APPLY." This was a compromise for the states. However its generally disfavored by judges and is construed narrowly. In applying the statute the judge decides what is the predominant claim in the case that the witness will testify to?

1. This would apply in diversity actions, of fed questions cases with pendant state law claims.

I. INFAMOUS CRIME DISQUALIFICATION --

1. Old C-LAW -- felons & prior perjurers not allowed to testify. Problem was that prosecutors couldn't use needed testimony of other criminals.

2. Modern Rule (1967) -- SCT held it violated due process so now a broader permissibility to testify, only perjurers excluded in a few jurisdictions.

a. This rule is not contained in the FRE though states include the perjury condition.

III. Juror Incompetence: FRE 606 -- Juror as a Witness

A. Juror may not testify at trial where sitting as a juror.

B. Generally the verdict must reflect the evidence admitted & presented to the jury. Inquiry into the validity of verdict:

1. Juror's may not testify concerning events or statements intrinsic to the JURY DELIBERATION PROCESS OR ANYTHING ABOUT THE EFFECTS ON THE MINDS OR EMOTIONS INFLUENCING VERDICT.

a. May not testify that a quotient verdict was used to impeach a verdict, or

b. that the law was misunderstood or misapplied, or

c. drug use by jurors.

2. JUROR'S MAY TESTIFY AS TO EXTRANEOUS PREJUDICIAL INFO.

a. Juror own visit to crime scene, because not introduced in ctrm and decision must be based on evidence admitted at trial.

b. Bailiff influence, again not admitted to trial no chance for cross examination.

c. The comments -- newspaper articles, radio broadcasts or health/safety threats to members of jury may be testified to impeach verdict.

3. This balances the individual litigant's injury vs the crts need to control judicial system and protect juror's. Three bases for policy:

a. privacy of jury deliberations

b. increase risk of post decision jury tampering

c. need for finality, efficiency.

C. How do you decide if its an outside influence? Analysis:

1. Is it an extraneous or improper outside influence?

a. Location is not determinative, it may be occur in the jury room and still be outside (radio).

b. Anything involving emotions, internal processes or mental competence may not be examined.

2. What was the effect of external factor:

a. The competence of the external factor does not automatically render the jury result incompetent. THE CRT WILL APPLY THE REASONABLE JUROR TEST.

3. There is a presumption of exclusion -- The crts favor the exclusion of juror testimony due to finality and social balancing concerns, finality and efficiency are preferred to occasional improprieties.

D. FRE 605 -- A JUDGE MAY NOT SERVE AS A WITNESS at trial he is conducting & no objection need be raised to preserve this point for appeal. (plain error)

IV. Modern competency doctrine FRE 601 - 603.

A. FRE 601 -- Presumption of Competence: Every person is competent to be a witness except as provided by these rules. In civil actions state rules apply where state law supplies the rule of decision. FRE require that:

C: Communication O: Oath/affirmation M:Memory P:Perception

1. FRE 602 -- A witness cannot testify as to a matter without personal knowledge of that matter (Subject to 703, expert testimony).

a. Only req's that witness knows from personal PERCEPTION, senses observed the fact. The evidentiary foundation for this may consist of the witness testimony itself.

b. The "however slight standard" is applied, any perception giving some personal knowledge is enough. Why?

(1) The jury as finder of fact can determine its probative value or credibility, it may be cross examined if its shaky.

2. MEMORY Competence

(1) Sodium Pentathol -- not deemed competent testimony (witness not liable for perjury)

(2) Hypnosis -- 1/3 of courts will admit hypnotically enhanced testimony if done in controlled conditions.

(3) Hypnotically enhanced testimony (3 views):

(a) It is admissable if the hypnotist is qualified.

(b) The witness is per se incompetent, becuase hypnosis has not received general acceptance in the scientific community.

(c) Under controlled conditions, such testimony will be permitted. Approx. 1/3 of the courts will accept hypnosis under controlled circumstances.

3. FRE 603 -- The OATH OR AFFIRMATION: The person must understand the nature of obligation and affirm or promise to tell the truth.

a. CIA example, the assertion of higher secrecy oath.

b. A refusal to take the oath results in contempt of crt.

c. The individual who habitually lies & still takes oath is OK because no person is inherently unworthy of belief and the truth/credibility of his statements are weighed by the jury.

d. FRE 604 -- An interpreter must also take the oath or affirmation, subject to expert 703 rule, to make a true translation.

e. In the case with the inaudible witness it was not allowed because unlike interpreter, the wife who was the only person who could understand the husband was not subject to verification. People v. Walker

B. Note: The judge as per rule 104(a) makes competency determinations but usually the standard for probative value (assuming no other rule excludes evidence) is low and it will be admitted as long as there will be some benefit from the testimony. "Even an imbeciles' testimony may benefit jury and is in". The jury is left then to make credibility determinations of that testimony and the weight given it. The standard of review is "abuse of discretion" which is high (App. crt rarely reverse on this standard great deference to trial judge) and must be accompanied by prejudicial error on affected party (error affected outcome).

V. PRESENTATION OF PROOF -- Generally, the Counsel must make questions clear and understandable and they may not be argumentative. Narrative questions are generally not allowed because they cause evidence to be let in w/o an evidentiary foundation properly laid.

A. Rule 611(a) -- COURT CONTROLS ;The court exercises control over the mode and order of interrogation and the presentation of evidence and in its discretion may act to:

1. ensure the ascertainment of the truth

2. avoid wasted time

3. protect witnesses from undue harassment or embarrassment.

B. Rule 611(b) -- CROSS/DIRECT EXAMINTION; limits cross to scope of direct examination and matters affecting credibility of witness.

C. Rule against leading questions (in direct examination):

Defined -- a question leading witness to answer counsel wants. The problem is that counsel begins to act as a witness. How can you tell if its leading?

1. The greater the particularity the more likely its leading ie.

a. How did hatchet differ? Suggests a difference.

b. To avoid objection here use qualifiers like how if at all did it differ. "what if anything" or :"when if ever".

c. "Horseshedding" the witness, you are expected to do it to prepare the witness for trial.

(1) Review every aspect of your case w/the witness. Go over all the questions and brief them on not volunteering answers. Tell them to answer truthfully and prepare them for questions like "did you go over your testimony with opposing counsel?" Its OK to admit that.

d. Horseshedding eliminates the need for leading questions, but the rule still pretends tha the trial is not an orchestrated event.

2. FRE 611(c) -- RULE ON LEADING QUESTIONS; leading questions are not to be used in direct examination except when necessary to develop the witnesses testimony. They are permitted in cross examination or when a witness is identified as hostile, an adverse party or a witness identified with an adverse party.

a. Hostile -- biased or with sympathy for opponent or otherwise unwilling to tell all he knows.

3. Exceptions to application of LQ rule:

a. Preliminary matters like name, occupation etc.

b. Connecting lines of testimony.

c. Matters which are undisputed. (where a bank is located)

d. Certain witnesses may be, with judges permission assisted by leading Q's (to develop their testimony): minor children, elderly, immature, frightened, stupid etc.

e. MOST IMPORTANT: The hostile adverse witness on direct examination (a witness you call who is hostile) may be led by Q's with judges permission [see def'n of hostile above].

(1) Does the witness affirmatively hurt your case to be deemed hostile? In some c/l juris' it still does, but in the fed cts it is not a requirement.

f. Note: Leading Q's are rarely if ever the basis for reversal on appeal.

VI. ASSISTING THE FORGETFUL WITNESS -- Two possible problems: The witness just needs to have memory refreshed of a past recollection or the testimony is based upon memory previously recorded but witness now can't recall anything.

A. SITUATION 1: REFRESHING MEMORY OF A PAST RECOLLECTION. To prevent this problem horseshed the witness and try to rehearse in the same or similar crtroom. But if witness goes blank on the stand what are your options?

1. Ask for a recess let the witness collect himself. or

2. Ask a leading Q (development of testimony OK).

3. Refresh the witnesses recollection using an object, usually a document, almost anything is OK so long as shielded from jury (its not part of evidence).

a. Generally the witness must say "I can't remember".

b. It doesn't have to be accurate or admissible its subject to inspection and cross X by other side.

4. FRE 612 -- A witness may use a WRITING TO REFRESH MEMORY for the purpose of testifying, either before or during testimony. But the other party may inspect the writing or thing and introduce it into evidence, cross X witness on it and object to portions irrelevant.

5. The opposing party gets to see anything used to refresh memory, even pre-trial stuff. In cross-examination it is good to ask if the witness examined any documents prior to trial in preparing for his testimony? Then ask to see them so you can have the opportunity to cross-examine on them.

a. What about Att/client privilege? Almost every witness has been horseshedded and documents are used for that purpose. Rule 612 cuts a huge whole into it if a document is used to refresh memory its fair game. Note however from comments:

6. "Purpose of testifying" is used to limit possibility of "exploration of opposing party's files and limit access to documents which impacted witness testimony.

7. US v. Riccardi -- witness couldn't remember list of stolen items. Once the memory is refreshed the testimony is admitted, but not the document (unless opposing side admits it).

B. Situation two -- Testimony based on PAST RECOLLECTION RECORDED. Witness unable to remember anything. A document, tape, video is admitted as truth and testimony:

1. Req'ts -- Witness must forget completely and all other refresher techniques must have failed.

a. Record of event been shown to witness.

2. FRE 803(5) -- HEARSAY EXCEPTION, to admit the document it must:

a. relate to something the witness once knew firsthand.

b. It must have been made or adopted when the facts were fresh in the witnesses mind.

c. It must accurately reflect the witnesses knowledge when it was adopted.

d. Note: Insufficient recollection is enough to get document in under 803(5). Also the evidentiary foundation for admitting document under this exception is found in reversing the elements as always.

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VII. BEST EVIDENCE RULE -- FRE 1002: (original writing)

Whenever the content of a writing is sought to be proved the "original" must be introduced unless it is unavailable for reasons not attributable to bad faith.

A. The rule applies to writings, photo's, recording or functional equivalents. Note: the rule is only triggered when the content of the writing is sought to be proved. "What did it say?" So payment may be proved without receipt (oral testimony) but trying to prove the content of the receipt [the check said $500] requires original unless unavailable w/o bad faith. An original is determined by the intent of the parties, there could be 2 or 3 originals of a document.

1. The rule does not apply when independent recollection is sought "what do you remember seeing?" People can testify as to their memory of an event that is also recorded.

B. Unavailable means unavailable for any reason excluding bad faith.

C. The name is misleading because it is not a doctrine requiring you to prioritize your evidence, no hierarchy ie. writing over testimony etc.

D. As a practical matter it excludes almost nothing.

Exceptions to BER:

1. FRE 1003 -- A presumption of admissibility. A duplicate may be used as an original unless there is a genuine question raised as to the authenticity of the original or it would be unfair under the circumstances.

2. FRE 1004 -- The original is lost or destroyed (assuming no bad faith), original is not attainable, original is possession of opponent against whom content is to be proved and opponent does not produce or it involves a collateral matter.

3. FRE 1005 -- Public records may be proven by a copy so long as it is certified in accordance with 902 or by a witness who has compared it to the original.

4. FRE 1006 -- Summaries of huge originals are allowed in if it would be inconvenient to require whole thing. Originals or duplicates available at a reasonable time.

5. FRE 1007 -- contents may be proven by admissions of party against whom it is offered.

6. FRE 1008 -- Most preliminary questions of admissibility in connection with applying the BER involving the fulfillment of a condition of fact are questions for the judge but when an issue is raised 1) whether the writing ever existed 2) whether a 2nd writing is the original 3) whether other evidence of contents reflects the contents: these are normally questions for the jury as fact finders. Note: refer to 104(a) & 104(b) discussion same principle.

E. Once the BER exception has been found any item of secondary proof as to the contents is admissible. NOTE: All exclusionary rules work independently so just because an item is in under BER does not meet its admissible. Still may be excluded under hearsay rule, privilege, relevance etc so be careful.

VIII. Rules limiting opinion testimony -- two standards lay & expert: NON-OPINION RULE.

A. The common law opinion rule was based on idea that it was the job of a juryman to draw conclusions not witness. The problem was competency: wanted people to say what they knew not what they opined. Wigmore advocated the total elimination of non-opinion doctrine because of the difficulty of distinguishing between facts and opinions ie. It was a "sunny" day. Fact or opinion?

1. Courts began examining testimony to see if it was sufficiently based in facts. It was so restrictive that courts began to move away from it.

2.

B. FRE 701 -- The lay witness exception: When not testifying as an expert, opinions or inferences must be limited to those:

1. RATIONALLY BASED UPON PERCEPTION (normal competency req't). For example State v. Garver Mother was allowed to testify that her son was "in terrible shape" and was "mentally and physically ill" because even though not a medical expert she would by her normal perceptions be able to make those observations, and could only relay those observations to the court using normal, non-technical language. 701 is pretty flexible so long as opinions based upon perception then usually ok.

2. THOSE HELPFUL TO A CLEAR UNDERSTANDING OF HIS TESTIMONY OR DETERMINATION OF FACTS (also normal competency req't). US V Cox -- witnesses conclusions or opinions of what the def meant when he spoke to her (not merely repeating what he said) should have been excluded under 701, but the error was not enough to reverse. It was error but it must also substantially impair def's rights, here in light of his overwhelming guilt it was harmless.

a. The ev foundation was not sufficient. It could have been laid better and gotten the opinion testimony in. Witness ought to articualte in common language the basis from which the opinion was drawn.

3. Note: the FRules liberalize the Claw opinion exclusion, there not much of a limitation on the testimony of lay witnesses.

C. Do we really need FRE 701? If the witness' testimony is not based on rational perception, the witness is incompetent. If the testimony is not helpful, it is irrelevant. 701 is merely recognition of the c/l departure from the old c/l non-opinion rule.

IX. EXPERT WITNESS EXCEPTIONS TO NON-OPINION RULE: To allow expert opinion you have to establish each of the following [protect jury from persuasive nature of expert testimony]:

A. PERMISSIBILITY (language in 702 below) -- impermissible when an untrained lay person would be able to intelligently and to best possible degree determine the issue w/o assistance of the specialized understanding of the expert.

1. Helpfulness standard -- if it will assist jury its in. EEN v CFreight -- testimony of cop with 17yrs of accident experience allowed wrt point of impact.

2. Compare Stafford "a need standard" -- The court dismissed action based upon the testimony of an officer about point of impact because determining the point of impact was within the competence of the jury. The appcrt was concerned with the weight given that testimony (trial crt dismissed).

3. The FRE 702 expert testimony rule adopted the helpfulness standard. ie. if the expert opinion will assist the jury then its in. Expert may be qualified by:

a. knowledge, skill, experience, training or education.

b. The rule is broadly phrased and liberally applied "best possible degree" leaves much room for expert assistance and therefore admissibility of his/her opinion.

4. 702 reflects again the push towards admissability. The jury may not absolutley need the expert opinion, but it may be helpful

B. QUALIFICATION -- WITNESS MUST QUALIFY AS AN EXPERT. How do you show it?

1. It is important to qualify him to the jury, because they will be confident in his testimony. Don't always accept the opposition's stipulation to the witness expertise. Two purposes here 1) without qualifications the testimony will be inadmissible 2) jury must be convinced/persuaded of experts credibility in rendering his opinion. Again the evidentiary foundation (found in reversing the elements as Q's does this) must be laid to qualify exp.

2. Knowledge, skill, experience, training or education can make one an expert witness. So the drug dealer with experience is an expert for the purpose of assisting jury in drug cases.

3. Parties may try to stipulate to expert witness capabilities Goldsmith says no go thru qualification process to display expertise and "weight" of opinion for the jury.

C. STANDARD OF CERTAINTY. The opinion usually must have a REASONABLE DEGREE OF SCIENTIFIC OR EXPERT CERTAINTY. Otherwise the testimony is irrelevant as speculative. No magic or terms of art here standard can be met by overall testimony. Simple statement that "I have a reasonable degree of certainty" is enough.

1. The basis of that opinion must be looked at though and usually the Frye standard applies. The method or scientific conclusion must have general acceptance in the field.

2. Always prepare/horseshed the witness to avoid problems in certainty and credibility.

3. Ask the witness how they reached their conclusion.

D. SCOPE OF TESTIMONY -- Old rule was that an expert could not testify as to an ULTIMATE ISSUE ["the injury resulted from malpractice"] because that conclusion overwhelmed and took the issue from the jury. FRE 704(a) -- "specifically abolished that rule". Testimony which is otherwise admissible is not objectionable because it embraces an ultimate issue for the trier of fact. However this does not admit all opinions. Rules 701 & 702 req'ts of "helpfulness" and 403 's exclusion of evidence which wastes time protect the jury from opinions which tell the jury what decision to reach. So for example:

1. Who should win? or Did T have capacity to make a will? would be excluded because they are conclusory and do not assist the jury. They are opinions phrased in "inadequately explored legal criteria", they call for conclusions without going thru legal elements therefore no basis for jury to weigh the credibility of the conclusion and its out.

2. Why abolish "no ultimate issue rule"?

a. Difficult to distinguish ultimate and non-ultimate issues.

b. Rule could be bi-passed by good Q's

c. Cross x-am can discredit expert.

d. Jury may be skeptical and blow off those ultimate issue opinions anyway. We trust juries today much more than in the old days.

e. Difficult for expert witness to testify in language that did not touch the ultimat issue.

3. FRE 704(b) -- designed to limit the insanity defense. The CRIMINAL MENTAL STATE EXCEPTION is that no expert testifying w/r/t the mental state of a def in a criminal case may give an opinion of whether the def did or didn't have a mental condition which constitutes an element of the crime charged with. Left exclusively for jury.

a. For example: "specific intent" in murder case (may testify as to mental condition/insanity but not as to intent req'd for the offense).

(1) Goldsmith: Too broad it reaches ?'s of mental intent not just insanity defenses.

E. PERMISSIBLE FORMS OF TESTIMONY -- Old C/L req'd the expert testimony to be COUCHED IN HYPOTHETICALS, BASED ON FACTS IN EVIDENCE since he lacked personal knowledge of the case. This was concistent with the principle of relevance, since hypotheticals not based on facts in evidence is not relevant to the case at hand. This was cumbersome because to get expert on the stand you had to get the facts on the record thru a witness with personal knowledge then create a hypothetical model to get what expert testimony you needed based upon those facts.

1. Judges didn't like the rule & it confused juries. It took copious amounts of testimony to establish the expert testimony.

2. Modern law: FRE 705 -- adopted Wigmores approach and did away with the hypothetical req't where expert lacked personal knowledge. Facts underlying the basis of the experts opinion available on X-examination. Crts given discretion here they can go either way.

a. This change may make X-examination difficult if you have no knowledge of the basis of the experts opinion.

b. The expert still must testify based upon facts allowed into evidence. Sirico v. Cotto -- X-ray not admitted into evidence because of Best Evidence Rule, so Dr's expert testimony w/r/t it was excluded.

3. MCCLELLAN v MORRISON -- the experts opinion was partially based upon out of court statements posed a problem because of hearsay and that testimony based upon facts not in evidence, therefore not competent. App. Crt. allowed the testimony. FRE 703 -- allows the EXPERT TESTIMONY TO BE BASED UPON EVIDENCE NOT IN THE RECORD if the facts relied upon are REASONABLY RELIED UPON BY EXPERTS IN THE FIELD. The facts relied upon do not have to be independently admissible.

a. This creates a huge exception to the hearsay doctrine because there is no effective way to X-examine the doctor, its much too broad.

b. Whether or not the expert can testify as to the basis for his testimony? Generally yes, but remains undecided in some jurisdictions. The jury will get a limiting instruction to consider basis to evaluate opinion and not the case is that effective?

c. Herrin -- Dr. was allowed to testify on insanity issue based upon facts not admitted into evidence (referred to interviews, reports etc). Note: though the testimony was OK as far as being based upon external evidence FRE 704(b) would have disallowed the DR's conclusions wrt the ultimate issue of the mental capacity req'd to fulfill an element of the crime. Can't make the conclusion but testify as to facts to aid the jury to do so.

X. Note: trend is moving towards admitting all relevant evidence unless excluded by a specific rule -- Thayer principle

XI. IMPEACHMENT AND CROSS EXAMINATION

A. Purpose is to question the ACCURACY and completeness of testimony and to question witnesses HONESTY/CREDIBILITY.

B. Cross examination is an ABSOLUTE RIGHT. If you can't [refusal or death of witness] MOVE TO STRIKE THE DIRECT examination testimony. May also be able to get a mistrial. This is actually a mini-trial w/r/t substantive issues and the witnesses credibility.

Wigmore -- greatest vehicle for discovering truth, Nacenko example. The russian defector who withstood 3yrs of confinement yet succumbed to 6 hrs of common law cross examination and revealed himself as a phony.

C. Impeaching your own witness -- Old common law applied what is called the Voucher Rule. A party who calls a witness vouches for their credibility and therefore cannot cross examine or discredit their own witness. The rule was based upon concerns of blackmail [crappy reason] and failed to deal with the turncoat witness who turns on you while on the stand. To bypass the rule you could:

1. Ask the court to call the witness instead of the party then you don't vouch for credibility.

2. Call a 2nd witness to contradict and discredit your unfavorable one.

3. Tactic of "drawing teeth" -- bring out your witnesses bad reputation or acts which would shock the jury in an attempt to remove the sting of those facts on his credibility.

4. Rule overlooked in case of a hostile witness or persons identified with opposing party. The problem of proving the witness is hostile arises again however and this probably requires that you show surprise and prejudice.

Prosecutor's who relied upon drug dealers etc as witnesses pushed for abolition of rule.

D. FRE 607 -- The modern rule allows the credibility of a witness to be impeached by any party including party calling the witness. Most states have dropped voucher standard. Why? Parties don't choose the witnesses and gov't doesn't vouch for credibility of criminals who are witnesses.

XII. SCOPE OF THE CROSS EXAMINATION -- CLAW rule limited cross exam to substantive issues raised on direct examination though you can still go after credibility. Cannot go into new factual matters. The way around this though is to recall him as a witness later and do your own direct examination.

1. Waiter example, finger in sandwich -- testimony that finger was in it. Can't ask on cross if waiter was drunk not an issue raised on direct.

2. If you want to go into a new area you may request the court to allow you to do so, if its allowed then rules governing direct examination apply and you lose the right to ask leading questions. The rationale for limiting the scope of cross X:

a. reflection of voucher principle

b. Prevent the circumvention of LQ rule

c. Keeps the presentation of proof orderly and avoids the problem of counsel dumping his entire case on the first witness.

3. Note: the rule only limits scope to substantive or fact issues. You can always attack credibility by bringing out prior inconsistent statements, perjury convictions not brought out in direct exam.

4. FRE 611 (b) -- SCOPE OF X-EXAM, limited to:

a. Subject matter of direct exam

b. Matters affecting witness credibility.

c. Crt still has discretion to permit inquiry into new matters as if on direct examination.

d. Advisory committee notes suggested elimination of this rule. Litigators opposed that idea.

XIII. METHODS OF CROSS EXAMINATION -- Modes of IMPEACHMENT

Younger identified 9 categories of impeachment (4-4-1). The first group of 4 pursues competancy factors, the second group of 4 pursues credibility.

A. Category/group 1 -- PURSUING COMPETANCY: again convert the competancy factors into credibility questions.

1. OATH -- suggest to jury that the witness does not understand or appreciate the significance of his oath.

a. FRE 610 -- Religious beliefs & opinions are not admissible for purpose of showing that credibility is impaired or enhanced. (but inquiry into showing interest (church is a party) is OK).

2. PERCEPTION -- could the witness really see what happened? Did witness have a gun in his face. Drugs or alcohol? Attacking ability to perceive events.

3. MEMORY-- question ability to remember details testified to.

4. COMMUNICATION -- Ask to repeat story over and over again to uncover witness coaching.

a. The "HUMAN PARROT" -- Witness will say what counsel told him to say w/o understanding its meaning.

5.

B. Category/group 2 -- PURSUING HONESTY (CREDIBILITY) FACTORS: Concerns issues beyond actual substance of the case. Note -- admissibility of extrinsic evidence to attack a denial/the credibility of a witness on cross examination, depends on its importance to the case at large. Collateral proof doctrine -- non-collateral (relevant) issues -- extrinisic evidence admitted to deal with issues going to the heart of credibility relevance. ie. "is your testimony the result of a bribe?". vs "did you accept a bribe in college?". The first example would allow extrinsic evidence in because it was relevant to testimony in actual case. Second wouldn't.

a. Bias, interest, prejudice, corruption are virtually always seen as non-collateral allowing extrinsic evidence in to prove them.

b. Collateral issues -- no extrinsic proof permitted question 2 above in context of a murder trial is almost inadmissible.

1. Bias, corruption, prejudice & interest impeachment:

a. Bias looks to relationship between parties and witness in the case.

b. Corruption -- bribed for testimony.

c. Prejudice -- Abel case "did you belong to an organization that lies about membership. (oath to lie to protect members).

d. Interest -- does witness have an interest in outcome?

2. Prior conviction impeachment (non-collateral):

a. This rule was so controversial that it threatened the passage of the FRE. The c/l approach, represented by Luck, was not well liked.

b. Luck Doctrine (old CLAW) -- Trial judge has the discretion to exclude prior crime impeachment when prejudicial value far outweighs probative value. (LACK OF PREDICTABILITY here for guidance but know your judge). (similar to applying rule 403).

c. FRE 609(a)(1) -- impeachment by EVIDENCE OF PRIOR CONVICTION. Admissible if established by public record on cross or elicited by witness and their crime is one which is punishable in excess of one year and probative value exceeds prejudicial effect (crt's discretion). In other words, the evidence is admissable, but subject to a FRE 403 balancing approach.

(1) An ordinary witness must take on the burden himself of proving that the prejudicial wieght outweighs the probative value.

(2) For a criminal defendant witness, the burden of proof shifts from Luck. Now the prosecutor must show that the probative value outweighs the prejudicial effect.

d. FRE 609(a)(2) -- automatic admissibility for crimes involving dishonesty or false statement crimes w/o regard to punishment. Application:

(1) must be a crime of deceit ie. bank robbery and murder not honesty crimes.

(a) crts are divided over theft, shoplifting, prostitution.

(b) Look at the crime elements or facts of commission for a deceit basis crts divided.

(2) Fraud, perjury, imbezzlement are generally seen as crimes of deceit

e. Impact of FRE 403 -- 403 always requires a balancing as to relevancy and prejudice. It may serve to overrule FRE 609 dishonesty crimes provision, but only in criminal cases. In civil cases, FRE 609 does not apply

(1) Note: the burden of proof goes back to the witness under rule 403 to prove prejudicial effect.

(2) If its the same crime that the witness defendant was accused of previously, you may have a special argument for prejudice.

f. Note:FRE 609 is inapplicable to civil cases.

g. Time limit -- evidence is not admissible 10 yrs after conviction or release whichever is later. But again in comments this is subject to the probative/prejudicial balancing test and discretion of the trial judge.

h. Effect of pardon, annulment or Cert. of rehabilitation -- any of these renders the evidence of the conviction inadmissible.

i. Juvenile Adjudications -- generally inadmissible.

j. Pendency of Appeal -- does not render evidence of conviction inadmissible.

Sandoval -- endorses the MOTION IN LIMINE -- motion to EXCLUDE REFERENCE TO ANTICIPATED EVIDENCE claimed to be objectionable until the admissibility of the evidence can be determined. Purpose is to avoid mistrials on evidentiary irregularities. This is the best way to deal with prior conviction evidence. Governing factors:

a. Impact on jury

b. Impact on defendant

c. Nature of crime -- does it suggest person place own self-interest above society's.

d. Similarity of impeachment crime to crime charged.

e. Importance of def's testimony.

f. Availability of other sources of evidence.

k. Note -- refer infra 404 on independent admissibility.

***************************************************************** Luce -- (SCT) In Limine rulings not grounds for appeal:

a. The harm from an adverse in Limine ruling is wholly speculative. This is limited to 609 issues.

Policy here is to prevent free issues on appeal -- disallow def from appealing when he had no intent to testify anyway. Prevents defense from sandbagging defendant as a witness.

b. In federal crts to preserve an adverse ruling letting in a prior conviction for appeal the defendant must testify.

c. Note all states follow Luce even if they have adopted FRE verbatim. Not jurisdictionally bound.

d. Bentrena rule -- the prosecution may bring out facts, date, location and sentance of crime but not the details of the offense. Why? undue prejudice & time consuming.

e. Prior conviction = non-collateral: evidence may be admitted to prove denial, but it must be limited to public record evidence.

f. Good faith basis requirement -- cross exam requires a good faith basis for asking any question ie. cannot insinuate guilt of crime or grotesque act w/o a good faith basis: a lack of good faith basis for Q is grounds for appeal.

3. Bad Act Impeachment (always collateral) -- CLAW before FRE -- witness could be questioned about prior bad acts if relevant to credibility even w/o resultant conviction. Why?

a. don't have to be convicted to be dishonest.

b. absence of conviction makes it less prejudicial.

c. CLAW was too broad and party's were allowed to get underlying facts in (not crying at mom's funeral) without any public record. No limitations to abuse.

d. C/L majority -- bad act impeachment disallowed: Provo v US -- homosexuality not relevant to propensity to disobey oath.

e. FRE 608(b)(1) -- specific instances of conduct by a witness for purposes of attacking credibility may not be proved by extrinsic evidence. BUT two exceptions rule 609 convictions and the crt in its discretion may allow inquiry into specific conduct on cross examination if it is probative and concerns character for truthfulness or untruthfulness of another witness as to which witness being crossed has testified.

(1) giving testimony does not operate as a waiver of privilege against self-incrimination when examined on credibility matters.

(2) witness opens the door with a misleading view on direct examination allows cross examination regarding the testimony.

Note: FRE 608 vs 609 --

(a) 608 balances with certain crimes 609 is a balances rule 403 concerns.

(b) Rule 609 burden of proof is on the prosecution with rule 608 burden lies with defendant.

(c) the underlying facts are not protected under rule 608.

(d) 608 does not protect juveniles.

(3) Compare: if it bias impeachment extrinsic evidence will be admissible.

(4) FRE 608 is limited to bad act impeachment its not stated in the rule but it is so held by majority.

(5) Limitations on questioning -- Mr. W did you sodomize your parrot? Must be a good faith basis for all questions. An arrest record would be sufficient but you may not as the witness if he has been arrested w/o GF basis.

4. Prior inconsistent statements -- suggests that the testimony is false by implication. Two types:

a. Exclusive Inconsistency -- looking at the statements made themselves and they reveal contradictions.

b. Inferential Inconsistency -- looks at the statements made and the surrounding circumstances for contradictions.

(1) Silence may be used as inferential inconsistency if it is followed by a detailed statement.

c. These are admitted for credibility not truth. They are not admitted for truth unless pigeonholed in the hearsay exception.

(1) They don't help on a directed verdict, help defeat credibility but no 1+ to defeat a motion for a directed verdict.

d. CLAW -- Queen Caroline Case -- must show content before the question. Must state or show the prior inconsistent statements before asking details also must ask the witness about the inconsistent statement before extrinsic proof is offered. Why?

(1) Protects an honest witness from surprise.

(2) gives the witness a chance to explain the statement.

e. FRE 613 -- prior inconsistent statements content need not be shown before questions need only be shown to opposing counsel upon request.

(1) Extrinsic evidence of a prior inconsistent statement is not admissible unless witness gets a chance to explain the inconsistency and the other party gets a chance to interrogate witness concerning the evidence.

(2) FRE 613 abrogates eliminates req't of showing inconsistent statements content but partially preserves req't of asking witness about inconsistency prior to production of extrinsic proof.

f. Summary of 2nd group -- prevailing concepts

(1) cross exam impeachment must be in good faith.

(2) Admissibility of extrinsic proof:

(a) bias is always non-collateral

(b) prior convictions -- non collateral and limited to the public record

(c) Bad Act -- collateral

(d) Prior inconsistent statements depend on the statement if it goes to veracity (truth) if so not in only allowed in wrt credibility.

C. Category 3 -- attacking veracity by the character of the witness. There are two uses of character evidence

1. Character impeachment mode -- aimed at the character of the person to ascertain veracity or credibility to tell the truth.

a. This is governed by FRE 608.

2. Substantive character Witness -- this concerns the witnesses tendency to act in a certain way so as to establish an element of the case. ie. a propensity to commit acts or act in a way which is an element of a case.

3. The way to impeach for veracity:

a. find instances of witnesses lying or misconduct.

b. character witness gives opinion of w's veracity.

c. Community gossip -- character witness testifies about the principle witness's reputation for veracity. The reputation must be based on the sum of community opinion (or else character witness credibility is shot).

4. How do you establish an evidentiary foundation for a character witness's testimony?

a. Do you know principle W?

b. Do you both live in the same community?

(1) any specific community sufficient ie. work community etc.

c. have you been in same community for substantial period?

d. Are you at this time familiar with the principle witnesses reputation for veracity?

5. FRE 608(a) -- evidence of character and conduct of witness. Opinion/reputation evidence of character

a. Witness credibility may be attacked or supported by evidence in the form of opinion or reputation but:

(1) the evidence may refer to character for truthfulness or untruthfulness.

(2) evidence of truthful character is admissible only after truthfulness has been attacked by opinion or reputation evidence.

b. Instances of specific conduct:

(1) extrinsic evidence is not admissible for purpose of attacking or supporting credibility (unless crime conviction ala 609). But

(a) specific instances may be inquired into concerning character for truthfulness of witness or

(b) concerning character for truthfulness of another witness as to which character the witness being cross examined has testified.

6. Cross examination of Character witness -- purpose is to test the character witness knowledge of the principal witness. 608(b) questions are useful:

a. Did you know the witness was the winner of the "honesty in business award"? Did you know that the witness was an eagle scout?

b. The questions must relate to veracity, for example asking "did you know witness won the congressional medal of honor?" -- does not related to veracity.

D. Cross examination and impeachment of an expert witness:

1. Use all 9 impeachment modes -- expert may be challenged as to all 9 regular impeachment modes.

2. Unique impeachment modes for experts.

a. If the expert relies on a particular test or treatise anything in that text which contradicts his testimony is admissible to impeach his testimony. Hearsay problem?

(1) No because it is coming in for impeachment not for its truth.

b. If the expert fails to rely on a work which is considered authoritative in the field as the expert to reconcile his testimony with the authority.

c. FRE exception to hearsay -- such evidence comes in not only for impeachment, but may be admitted for its truth. ie counts of substance of the case and may be used to escape a directed verdict.

d. Embarrassing the expert -- impeach his testimony by fabricating authoritative works to see if he will confess familiarity to them, if he does he's a liar.

XIV. Rehabilitation of a Witness after Impeachment

A. Basic concepts to keep in mind

1. Rehab is used to permit a witness his testimony in light of the cross-x.

2. Rebuild the witness's credibility usually by using prior consistent statements or by calling a good character witness.

3. You cannot accredit or bolster a witness' credibility until it has been called into question by the opposing party.--Results in problems when you have a real slimy witness. If you bring up the bad stuff to avoid the appearance that you are hiding something, then the opposing party may object to any bolstering of the witness arguing that they did not put credibility into issue.

B. Methods of Witness Rehab

1. Explanation--allow the witness to explain his testimony in light of his statements on cross-x.

2. Prior Consistent Statements--Point out instances in the past where the witness has made statements consistent with his testimony. Particularly useful when the witness' testimony is challenged as a recent, self-serving fabrication.

3. Use of a Character Witness

C. Limitations at Common Law

1. Limitation at common law--not present under the fed. rules--required a party to accredit a witness in the mode as the witness was impeached, i.e. if a character witness was used to impeach then you had to call a character witness to rehab the witness.

2. Common law limitation--prior consistent statement could be used to rehab a witness only if the prior statement was made before the event giving rise to the motive to falsify occurred.

D. Witness Rehab under the Federal Rules of Evidence

1. Under Rule 801 there is no express limitation on the accrediting of a witness prior to his impeachment--Nevertheless, it is the widespread if not universal practice in the Fed Cts. to apply the limitation anyway.

2. Fed. rule 801d(1)(b) permits prior consistent statements to be admitted into evidence even if they were not made before the occurrence of an event giving rise to a motive to falsify. In addition, under fed. rules prior consistent statements are not only relevant as to the credibility of the witness but are admitted for their content or substantive probative value.

3. Federal Rule 608(a)2--Character evidence is admissible rehab evidence, but it can only be used after character is attacked.

4. Tough questions in the area

(1) When can you say a witness' veracity has been attacked. See e.g., U. S. v. Med therapy Sciences Inc. --Prosecution "drew the sting" to avoid the appearance that they were hiding something. Def. argued that no rehab was appropriate b/c the def had never put credibility or veracity into issue. Ct. says garbage. Ct. says to look at the character of the impeachment attack--What @ bias impeachment in this context.

5. Impeachment modes that are generally regarded as "character attacks" and therefore justifying witness bolstering

a. Communication--W is a human parrot goes to veracity.

b. Bias--If W has been bribed it goes to veracity.

c. Prior crimes--depends upon the type of crime involved--must generally be a "dishonest" crime.

d. Bad acts--again depends upon the kind of act involved.

e. Prior inconsistent statements--if the use of them suggests that the W is lying, they go to veracity and will permit bolstering of the witness.

XV. Refined Relevancy Doctrine

A. Defined by rule 403--Evidence which is relevant and admissible because it has probative value is not legally relevant b/c its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needless presentation of cumulative evidence.

B. Rules 404-412 are specific guidelines to aid in the application of rule 403.

1. Rule 403-presumption in favor of admissibility--probative value must be outweighed by other considerations mentioned above. Burden is on the party trying to keep the evidence out to show that its probative value is outweighed by other considerations.

2. Rule 407-411-Presumption is reversed and the burden of proof shifts to the party seeking to get the evidence in.

C. FRE 407-Evidence of Subsequent Remedial Measures

1. Measures taken after an incident which would have reduced the possibility that the incident would have occurred are not admissible to prove negligence or culpability. (Backman's restaurant example--putting up bannister to prevent people from falling off the stairs after one customer takes the tumble).

2. Subsequent actions may be admissible to prove (1) Ownership or control or (2) feasibility of precautionary measures--Def. may use the defense that precautionary measures were unfeasible-- and (3) and to impeach the defendant's testimony.

a. Rationale for keeping this stuff out

(1)Little probative value

(2)discourages remedial measures

(3)prejudicial--jury will jump to conclusions

D. FRE 408-Evidence of a Compromise or Settlement Offer

1. Offers of settlement or compromise are inadmissible to prove liability for or the invalidity of a claim.

2. Evidence of conduct or statements made in negotiations are also inadmissible

a. Evidence of this sort may be admissible for other purposes i.e. to show bias or prejudice of a witness--she is an insurance agent--to negative a contention of undue delay, or to prove efforts to obstruct criminal investigation.

b. Rationale for keeping this stuff out

(1) Limited probative value

(2) Public policy to encourage settlement

(3) Poses some threat of prejudice

E. FRE 409-Evidence of Payment of Medical or Similar Expenses.

1. Offers or promises to pay medical expenses brought about by an injury are inadmissible to prove liability for the injury.

2. Rationale: Same as under 407 & 408--little probative value, threat of prejudice, and would discourage such payments.

F. FRE 410-Criminal context principally--admissibility of pleas, plea discussions, and related statements. Evidence of the following kinds of statements are not admissible against the defendant who made the plea or was a participant in the plea discussions:

1. Plea of guilty which is later withdrawn--? Prior inconsistent statement get it in?

2. Plea of nolo contendere

3. Rule provides that statements mentioned above are not admissible if taken in a grand jury type proceeding.

4. Any statement made to the prosecuting attorney during plea discussions which do not result in a guilty plea or which result in a guilty plea which is later withdrawn.

Note--The above mentioned statements will be admissible in a proceeding wherein another statement made in the course of the same plea or plea discussion had been introduced and the statement ought,in fairness to be considered contemporaneously with it. The statement will also be admissible in a criminal proceeding for perjury if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

G. FRE 411-Evidence of liability insurance--Evidence that the Def. has or does not have liability insurance is inadmissible to prove that a person acted negligently or otherwise wrongfully.

1. Admissible to prove things such as (1) agency, (2) ownership, (3) control, or (4) bias or prejudice of a witness.

2. Rationale--again limited probative value--prejudicial--and misused by the jury.

H. Doctrine of Similar Happenings and Events--how are these handled under the federal rules--no specific provision dealing with them. General rule-standing alone other occurrences don't come in--several exceptions to the "rule."

1. Causation--if other individuals experienced similar problems after a related incident similar happening be probative of causation and might come in--must establish a substantial degree of similarity to insure that the stuff is relevant.

2. Notice--Similar happening may also be let in to show that the defendant was on notice that a problem existed.

3. Rationale behind the general prohibition of this stuff is that it may cause delay, be time consuming, and prejudicial with little if any probative value.--Exceptions to the rule are carved out when it is evident that a similar happening is very probative of either causation or notice.

XVI. SUBSTANTIVE CHARACTER EVIDENCE

A. Introduction and Overview--very complex area according to Mr. Goldsmith--fortunately we can draw upon his infinite wisdom to make the law crystal clear.

1. Rule # 1--first and foremost make sure that you distinguish substantive character evidence (SCE) and credibility character evidence (CCE)-not to be confused with CEE the continuing ecclesiastical endorsement req'd at BYU.

a. CCE goes only to the veracity of the witness

b. SCE goes to the meat and potatoes of the case--substantive evidence on which the case may be decided--establishes one of the points in the blueprint or at least helps.

B. Overview--

1. True Substantive Character Evidence

a. Character in issue

(1) no limitations

(2) Rule 405(b)

b. Propensity Character Evidence

(1) Three limitations

(2) Rules 404(a) and 405(b)

2. Other crimes evidence -- not admissible to prove character. Only admissible on independent grounds.

(1) FRE 404 (b) -- (smith doctrine)

(2) handiwork principle.

(3) standard of proof.

C. True substantive character evidence -- this group has two potential uses.

1. Character in Issue -- if the character of the D is at issue by virtue of the blue print elements of the case ie: defamation "Nixon is a crook": the truth defense -- by virtue of the defamation Nixon's character is at issue in the case. Also negligent entrustment of Car -- the person's character is at issue to determine if there was negligence in loaning it to them.

a. Character must be at issue by virtue of the elements of the COA. ie. you must prove the type of person he is.

b. When character is at issue there are no limitations on admission of character evidence.

c. FRE 405(b) -- specific instances of conduct: When character or trait of character is an essential element of a charge, claim, or defense proof may be made of specific instances of conduct.

2. Propensity Character evidence: Circumstantial proof: The character trait is probative of the action -- if D has that character trait he has a propensity to act in that way. You wind up making a chain of inferences. Character type has a propensity to act a certain way, D's conformity to character, therefore D's propensity to action.

a. C/L limitations on Propensity Character Evid:

(1) The def. must open the door first by raising issue of his good character "I'm not that kind of guy". Don't confuse this with "character at issue" where it is an element of case, here def puts his character at issue by statement of his good character on the stand.

b. Even if the door is opened specific instances of conduct, reputation, or gossip may NEVER be used to show PCE. May use specific instances in cross-x going to the credibility of the witness but cannot use specific instances to estblish PCE--use it only as CCE.

c. Note: PCE is never allowed in civil suits because in this context its overly prejudicial, def's are not prepared to litigate character.

3. FRE 404 (a) -- evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity with it on a particular occasion unless:

a. the accused puts his character at issue by introducing evidence of his good character.

b. Accused introduces character of victim (rape) defense & prosecution may rebut.

(1) with (a) & (b) admissibility is limited to the pertinent character trait as opposed to character in general ie. aggressiveness, slut = consent (oops sorry girls).

c. character may be gotten into to deal with his credibility [if def testifies subject to same credibility Q's as all witnesses].

4. FRE 405 (a) -- When character evidence is admissible on direct exam proof may be made by testimony as to opinion or reputation.

a. On cross exam inquiry is allowable into relevant specific instances of conduct.

5. Pertinent trait impeachment after def has opened the door: once the door has been opened by either a character witness or by def's own testimony the X-exam may impeach within the limitations of as exercised in direct exam.

a. ie. if direct limits Q's to reputation so then must x-exam be limited to it.

b. Note -- to test the qualifications of a character witness you may ask "did you know that principal witness was arrested for ..". The arrest is irrelevant substantively but its admissible to test the C.W's knowledge of the principal witness.

6. FRE 608(b) -- specific instances of conduct may not be used to attack the credibility of the W. [except under 609].

a. x-exam exception -- they are permitted on X if probative of truthfulness or untruthfulness of character.

b. Criminal def's dilemma -- if he calls a character witness def's bad past may come out in pertinent trait, X-exam specific instance impeachment [big risk for def's].

c. Note -- all the evidence heard not relating to the specific pertinent trait [aggression etc] at issue will be subject to a limiting instruction.

7. Habit evidence -- distinguishable from character evidence because it reflects a general disposition vs specific action.

a. Habit = Specific, regular conduct like brushing your teeth or some other regular practice of a person or institution.

FRE 406 -- Evidence of habit is admissible whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct on a particular occasion was in conformity with that habit.

D. Note -- if the def takes the stand and he doesn't open the door, and neither does a character witness the he is only susceptible to normal impeachment and not substantive character attack.

E. Other crimes evidence --

1. The smith doctrine [CLAW rule] -- evidence of other crimes are only admissible if probative on some independent grounds. They are never admissible to prove that def acted in accordance with bad character unless that door was opened by def on direct exam. Are the independently probative? Look for:

a. evidence of prior design, handiwork, or to negate a defense of accident, mistake, ignorance.

b. they are always admissible to show "handiwork" or a distinctive modus operandi ie.

(1) evidence of 5 previous rapes inadmissible alone but if all 5 are done with same ski mask or leaving telltale mark then its in.

2. FRE 404(b) -- other crimes wrongs or acts -- evidence of other crimes is not admissible to prove character of person in order to show action in accordance therewith. But they are admissible to show/prove: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

a. The prima facie blue print must be established first to admit these other acts under the exceptions.

b. The list is not exhaustive anytime you can come up with another probative purpose the other crime evidence will be admitted but in all cases [comments pg 70] the determination is made based on balancing the probative value vs the undue prejudice to def and the availability of other means of proof.

c. Relook at (a) -- prima facie case may not be required to bring these in ie a crt allowed them in to negate the defense of accident even though prima facie not established. Also in the hearst case they were admitted to show an absence of duress. So negating a defense may be enough to let in other crimes evidence.

d. A conviction for the other crimes is not necessary. These acts are analyzed under conditional relevancy 104(b). Admitted only if a reasonable jury could have concluded that the other crimes were committed. Us v Huddleston.

e. Other crimes, theoretically are never allowed in to prove bad character, technically another purpose is req'd but when this evidence is admitted it always touches character.

f. Other crimes may be introduced during the prosecutions chief case if mistake or accident is obviously be raised as a defense.

Hearsay Rules--This is an area of the law that you absolutely have to know the rules regardless of your professional aspirations.

XVII. The rule against hearsay: Introduction

A. FRE 802--Hearsay is not aedmissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

B. Introduction to the Beast we call hearsay

1. Hearsay is a rule of conditional competence, i.e., if it is not objected to it comes in regardless of whether or not it is technically hearsay.

2. Analysis Mode

a. First Question--Is there an Out of Court Statement (OCS)?

(1) What is an ocs?

(a) ask who is whom for what?--whether it is an OCS may depend on the nature of the case.

(b) Deposition=OCS

(c) Affidavit=OCS

(d) In court statement cannot be hearsay.

(2) Chain Bubbles

(a) One chain: W: "Mother said....."

(b) Two chain: W: "Mother said that father said.

(c) Three chain: W: "Mother said hat father said that Bill said..."

b. Question # 2--For What purpose is it offered?

(1) OCS offered for its truth=hearsay

(2) E.g. "I spoke w/ Marie Osmond on the phone and she said that she sang in Berlington."

(a) Hearsay if offered to prove that Marie sang in Berlington.

(b)Other possibilities

i) offered to prove Marie is alive

ii) off. to prove she can talk

iii) off. to prove the phone works

c. Question # 3-If it is hearsay does it fit in one of the Exceptions.

(1) Chain hearsay--must have an applicable exception for each step in the chain.

C. Rationale for the rule generally excluding Hearsay.

1. Reasons Hearsay is unacceptable:

a. Assurance of Oath--OCD is not under oath to tell the truth.

2. Accuracy of transmission--second-hand statements raise questions as to acuracy of the reporting or they may be ambiguous of unclear.

3. OCD IS NOT SUBJECT TO CROSS-X--key factor--hence the underline and the Bold.

a. Normal Jury Trial conclusions

(1) W. is himself honest.

(2) W. believes his testimony accurately reflects reality.

b. Compare Required Jury Conclusions wwhen considering the testimony of an OCD. Jury must make the determinations as to the in court witness and the OCD.

(1) ICD subject to cross-x as to honesty and accuracy.

(2) OCD not subject to same attack--see infra various modes of attack--in addition demeanor of the Declarant is not observable.

D. Defining Hearsay--Two Conceptual Approaches

1. PHILOSOPHICAL DECLARANT ORIENTED DEFINITION--

a. OCS which depends for its probative value upon the credibility of someone who cannot be cross-examined.

(1) Is probatibve value dependent upon credibility of declarant? Note some situations will not depend upon the credibility of the OCD.

(2) Credibility of the OCD is in question only when the OCS is offered for its truth.

b. Problems with the declarant definition: Difficult application and cumbersome process of analysis for lawyer to object and judge to rule on.

2. ASSERTION ORIENTED DEFINITION (applied 90% of the time)

a. First ? -- Is there an OCS?

b. Second ?-- What is it being offered to prove?

(1) E.g. mechanic says "Mr. your brakes are bad"--may be offered to prove the owners state of mind or that the owner was on notice that his brakes were bad.--Cannot be offered for its truth, to prove that the brakes were bad.

(2) Creative Test--admissible if any means can be found to show it is not offered for its truth.

c. Is the OCS offered to prove is own content?

3. FRE 801(c): Hearsay defined--(assertion oriented analysis adopted)

a. Hearsay=statement, other than one amade by the declarant, while testifying at trial or hearing, offered in evidence to prove truth of the matter asserted.

b. 801(a)--Statement defined--oral or written assertion or nonverbal conduct of a person if intended as an assertion.

4. Different results may stem from different definitions.

a. W. availabel on Re-direct-may be violative of assertion oriented approach but OK under the the declarant approach.

b. Statement use to assert falsehood of content--May be H. under declarant approach bu OK under the assertion approach.

5. Compare the Personal Knowledge Rule

a. Personal Knowledge Rule (PKR)-- W. must have personal knowledge to assure he has perceieved what he is describing.---PKR objection may be raised if the W. has no personal knowledge of the content of his testimony.

b. Even if the PKR is satisfied then you analyze the statement to see if it is Hearsay.

6. Implicit Hearsay

a. Testimony that implicitly relies upon the truth of an OCS violates the rule against Hearsay. If the underlying basis of testimony is an OCS, and it is offered to prove its contents--no go--

Exception Rule 703--Expert W. not required to rely on admissible data for the formulatin of their opinions.

E. APPLICATION OF BASIC HEARSAY CONCEPTS

Categories where an OCS is not hearsay

1. Verbal Acts (legal magic words)--Words which by their mere utterance create a legal fact or obligation. Question isn't the truth of the statement--only issue is whether or not the words were uttered.

Examples:

(1) "Dick is a Crook" --mere utterance of the words regardless of their truth is the basis of an action for defamation.

(2) " I accept" or "I offer" in a contract action--These words create a contract by their utterance--CF. "I entered into a contract "--not a verbal act because the mere utterance of these words creates no legal obligation.

(3) "I cancel the policy" insurance def. case.

(4) "I'm going to kill you" assault case

a. Credibility of the W. not the OCD is at issue

b. Subcomponent--Verbal part of an act--physical action which is ambiguous standing alone may be supplemented w/ verbal expressions. (this is the rule at C/Law not dealt explicitly by the Fed rules.

(1) Act must clarify the conduct--e.g., words uttered while handing someone $$ mayindicate whether the $$ is intended as a bribe, a gift, or payment.

(2) Conduct be Ambiguous --applies only when the meaning of the conduct is unclear. Goldsmith thinks this stuff should be hearsay--OCD's credibility is really in question.

2. Statements circumstantially indicating State of mind of Notice--applies where state of mind or notice is important part of the claim or defense.

a. Statement overheard--"lady your brakes are bad"--may be offered to show the lady's state of mind or the fact that she was on notice but may be offered to prove that her brakes are bad.

b. Statement of the OCD may be probative of his or her state of mind regardless of its truth if the state of mind of the OCD is relevant and important to the case then the OCS will be admitted to help prove the state of mind of the OCD.

Note that in both situations the issue is whether the statements were made which points only to the credibility of the W. and not the OCD.

3. U.S. v. McClennan--D. was charged with 8 counts of misconduct. The statement of his lawyer "I told you that was illegal" was introduced into evidence to negate one of the D' defenses--statement was not made by the lawyer until after the D. had committed the 6th of the 8 acts.

W.= D's lawyer

OCD= D's lawyer

OCS="I told you that was illegal."

a. Hearsay analysis

(1) OCS is not hearsay as applied to D's conduct after the 6th count. In this circumstance it not offered for its truth --that the D was told preiously that the conduct was illegal--it was probative of D's state of mind and indicated that he was on notice of the illegality of his conduct in the 7th and 8th counts--negated his defense that he was relying on the advice of counsel.

b. OCS is Hearsay as applied to the D's conduct prior to count 6. In this circumstance the OCS is offered to prove its truth--that the statement was made some time in the past thereby negating D's defense that he was acting upon the advice of counsel.

(1) offered to prove its content--that Ds were told that it was illegal.

(2) Statement must be taken for its truth to establish prior notice as to earlier misconduct.--to sow prior notice the statement must be offered for its truth--i.e. that they were told.

XVIII. Evasive analysis

A. Recognizing Bogus Claims that H. is not offered for its truth: Frequently counsel will argue that a statement is not offered for its truth but only to show that it was made attempting to get irrelevant/prejudicial stuff in.

B. The non-hearsay purpose must be relevant to the case: "this guy is going to take your money". The prosecution wants it introduced to show the victim's state of mind but victims state of mind is not part of the C.O.A. so its irrelevant and inadmissible.

1. Two levels of analysis with these:

a. Is it relevant?

b. Is it hearsay [does its relevance depend on its truth?]

C. The intermediate inference -- if the ultimate proposition is established only by the truth of the statement then an inference is drawn that the statement is true. You can't assume OCS is not offered for its truth merely because proponent asserts it isn't. To determine if its offered for its truth ask:

1. Is the ultimate proposition only established by the truth of the statement? If so an inference is drawn as to its truth and its hearsay.

2. If it were untrue would counsel still offer the evidence? If no, then its probably being offered for its truth. Some examples:

3. OCS = "The traffic light was red" -- counsel argues that its offered not to show the light was red but to show that def caused the accident.

a. Hearsay -- its only relevant if its true therefore offered for its truth.

4. OCS = name tag on a brief case. Is it H or a OCS stating ownership? The crt said no [applying the circumstantial evidence rule] tag had independent significance making it more likely to belong to def. Goldsmith disagrees its circumstantial evidentiary value is only relevant if its true.

XIX. Conduct and Implied (non-assertive) Statements

A. Non-verbal conduct if assertive in nature can be hearsay. If the conduct makes an assertion then its a statement and carries same hearsay dangers as verbal hearsay.

FRE 801(a)(2) -- A statement is oral or written assertion or non-verbal conduct of a person if it is intended to be an assertion. OK but what conduct is assertive?

1. To be assertive the conduct/oral/written communication must be capable of truth or falsity.

a. Fainting, running from the scene of a crime = non-assertive. Could be anything.

b. In response to a Q, "what was she wearing last night?" handing over the fredricks of hollywood gear is assertive = this is what she wore. Ask what is the conduct asserting?

c. Then is the evidence offered to prove the truth of what the conduct is asserting? If so its hearsay.

B. Non assertive conduct is not capable of being hearsay but may an ICS of what and out of crt person did be the same as an ICS of what the out of crt person said? [ie. ICS, "they opened their umbrella" vs. ICS "they said it was raining"]

1. The CLAW rule -- if the out of crt conduct is used to establish the truth of an implied [by conduct] assertion it is hearsay.

2. FRE -- Non assertive conduct is not hearsay.

a. The rule doesn't define an assertion but the dictionary definition has been adopted -- only declarative conduct & statements can be assertions [I think this means you have to be trying to make some point or communicate an idea, running from the scene of a crime, or acting normally is not asserting anything and its not in]. Why allow all this conduct in?

b. When conduct is non-assertive sincerity of conduct is likely because the person in not intending to assert anything. Its also a good indication of accurate perception and memory -- requires acting on perception.

C. Non assertive statements cannot be hearsay unless a "statement" is made and a "statement" requires an assertion as per FRE 801.

1. FRE 801 (a) A statement is oral or written assertion or (2) non-verbal conduct of a person if intended as an assertion. Examples of non assertive statements:

a. Imperatives [commands] -- "Put 2$ on my horse to win" (non hearsay) vs "I put 2$ on my horse" (hearsay).

b. Questions -- "Do you think you killed him" (non hearsay) vs "you killed him" (hearsay).

XX. Defining the Hearsay Declarant

A. OCD must a person--see statement defined supra requires non-verbal conduct intended as an assertion by a person.

Dogs--etc. are treated like a scientific device, e.g. radar.

B. When the OCD is an IN Court Witness--an OCS would be non-hearsay under declarant approach but Assertion approach has no broad general rule

1. Rule at C/L--Ocs by an in court W. no exception to H.

a. Permitted only to impeach-OCS by witness may be used only to impeach the witness.

b. Turncoat witness--

(1) Gov't W. OCS--"He brought to be a prostitute."

(2) W's ICS--"HE brought me to sight see--OCS may be used as a prior inconsistent statement to impeach the W.

c. C/L Policy considerations

(1) OCS not made under oath

(2) Lacking immediacy of Cross-x

(3) If allowed, encouraes litigation bsed on OCS written by attorney's.

(4) Danger that OCS was never really made.

(5) OCS could be the result of pressure or leading questions.

2. DeSisto Approach--(W. identified D. repeatedly at earlier trials, depostions, and at attroney's office, and then indicates that he can't make the identification while on the stand.

When the OCD is an in court W. there is no H. if the OCS was made (1) under oath, (2) subject to cross-x, and (3) involved identification.

3. FRE 801d(1)--Makes two categories of statements not hearsay. Prior statement by W. = Not H. may come for its truth if the OCS was made by the OCD at trial or a hearing under oath and the OCD is subject to cross-x and the OCS is

a. Inconsistent Statement--admissible if given

(1) under oath

(2) W. is subject to penalty of perjury, or

b. Consistent Statement not H. if offered to rebut the charge of (express or implied) of recent fabrication, improper influence or motive.--note however that the OCS doesn's come in merely to rehab the W. it is considered for its probative value of the truth contained in the statement, or

c. Identification of person made after perceiving her.--Note that initially Senator Irwin kept this out--later added as the first major amendment to the FRE--NO limitation that statement must have been given before motive to falsify arose--Ct. split should this limit apply? No need for oath in this context.

EXCEPTIONS TO THE HEARSAY RULE--GENERALLY AT C/L JUDGES RECOGNIZED THAT THE HEARSAY RULE SHOLD NOT BE RIGIDLY APPLIED--LED TO EXCEPTIONS THAT ARE CODIFIED IN THE FRE.

XXI. Admissions--only category not based on reliability or necessity. FRE rule 801d(2)--admissions are treated as non-hearsay---WHY?--Rationale is an estoppel principle--if your said it you should be stuck with it.

A. Scope of the Admission exception

1. Definition

a. Statement inconsistent w/ posture at trial

b. Statement by a party opponent offered v. the party that is or amounts to a prior acknowledgement that some fact is not as he now claims it to be.

2. Persons covered by the rule

a. Immediate parties

b. Agents

c. those in privity w/ the parties

3. Operates only AGAINST a party--may not be used in behalf of a party--i.e.--may not introduce own exculpatory statements if guilty posture is assumed at trial. Rationale--if allowed it would encourage CYH (cover your hynie) memos and statements to be introduced.

4. FRE 801 (d) (2)

(d) A statemenmt is not hearsay if:

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

(a) His own Statement or that of his agent.

(b) Adoption-a statement of which the party has manifested an adoption or belief in its truth, or

(c) Vicarous adoption--a statement by a person autorized by a party to make a statement concerning the matter, or

(d) Statement by An Agent--concerning a matter w/i the scope of the agency made during the relationship, or

(e) Co-conspirator--statement made by a co-conspirator or a party during the course and in furtherance of the conspiracy.

*801 (d) (2) (a)--Super Admissibility SEE Bill case pg. 496

(1) Personal Knowledge is not required-may give admission based on opinion.

(2) Transcends Competenmcy--Admission doctrine is broader than competnecy rules.

Note also the Admissions are discrete from DAI (declarations against interest rules).

Admissions DAI

1. Non-H. 1. Hearsay but an exception 2. Ocs amde by a party 2. OCS by a non-party

3. Need not have been v. interest 3. Must have been against when made. interest when made.

4. OCD need not be available 4. OCD must be unavailable

5. Pers. Knowledge of OCD not req. 5. P.K. of OCD req.

6. Whole Statement comes in 6. May limit to part v. int.

B. Adoptive Admissions - 801 (d) (2) (b)

1. Silence or failure to Contest--Evidentiary foundation required.

a. Reqirements

(1) OCS made

(2) Party OCS

(3) Party understood OCS

(4) Denial would have been made if untrue--look at the circumstances to determine if a denial was more likely than silence.

b. Silence = 104(a) determination-silence may indicate disdain or contempt for the ocs or some other factors may expalin the party's silence. Circumstances must require a response--must be more probable that a response would be made than that the party would be silent.

2. Misconceptions about Adoptive Admissions

a. Any Statement made in the presence of a party is admissible--this misconception disregards the need for the foundation and the limits placed upon the admissibility--i.e. circumstances require a response. See Flecha silence most likely in that situation

b. Brookly N.Y. adoptive admissions approach--statement in the presence of a party req. only applies to adoptive admissions.

C. Vicarious Admissions--Rule 801 (d) (2) (c) & (d)

1. OCS made by an agent of a party to litigation. Relatively new concept rising out of the proliferation of agency relationship in the increasing complex economy.

2. Common Law

a. Must identify agency relationship

b. Agent must have authority to speak.--Cts. applied agency principles --statements had to be w/i the scope of the employment--agency was narrowly defined.

c. in house statements inadmissible at c/l

3. Modern Rule FRE 801 (d) (2) (d)

a. Employer responsible for Employee--for all acts and statements made w/i the scope of her employment.--CTS. are shying away form the application of agency in this context now days broadening the responsibility of employers for the acts of their employees. E.g., Martin

b. 801 (d) (2) (c)--restates c/l rule --statement must be authorized by the party. E.g., Big Mack case pg. 507. Statements don't have to be made to third parties in house statements are admissible under the federal rules but they are still subject to the 403 limitations. You do not have to have personal knowledge for a vicarious admission. Its not hearsay and the OCD does not have to be competent.

D. Co-conspirator admissions -- this is a unique vicarious admission context. At common law the doctrine was that statements made by a CC in furtherance of the conspiracy was admissible as an admission against all members of the conspiracy. You don't have to charge with conspiracy but you do have to prove one both in the civil and criminal context.

1. The rationale -- this was necessitated by the complexity of conspiracies, crime is a business and the criminals has responsibilities like business men so their relationships/conversations shouldn't be protected merely because they are illegal.

2. In furtherance req't -- had to be in furtherance so that it was "authorized" by the group and therefore it wouldn't be reliable.

3. Narrative reviews -- people talking about what they have done in the past, not done in furtherance of conspiracy therefore not an admission. The Halderman exception -- said narrative reviews were admissible as admissions then because of the complexity of the conspiracy they had to continually go back and review what they had said to keep there story straight.

4. Personal knowledge is not required under admission doctrine.

E. FRE 801 (d)(2)(e) -- requirements -- Foundation [had to show first that the conspiracy existed] statement must have been made:

1. during the course and

2. in furtherance of the conspiracy. Statements made before a particular conspirator joins are admissible against that conspirator.

3. Notes -- the FRE exclude statements made prior to the existence of a conspiracy or after arrest.

F. Proving a conspiracy and agency relationship -- using the OCS to prove conspiracy & agency. Independent proof is required to satisfy 104(a) but statement itself may be considered as part of proof of conspiracy.

G. ADMISSIONS ARE NOT EXCEPTIONS TO HEARSAY THEY ARE SIMPLY NON-HEARSAY.

XXII. EXCEPTIONS TO HEARSAY THAT REQUIRE DECLARANT UNAVAILABILITY: FRE 804 -- less reliable b/c OCD unavailability than 803.

A. FRE 804 (a) -- Unavailability of witness includes:

1. exempt by ruling or privilege

2. contempt

3. testifies as to a lack of memory

4. dead or physically unavailable

5. Unable to procure attendance by process or other reasonable means.

B. FRE 804 (b)(1) -- Former testimony by a currently unavailable witness. In order for this to qualify as a hearsay exception and admissibility the prior testimony must be:

1. Given as a witness at another hearing of the same or different proceeding or

2. in a civil or criminal deposition of same case or another proceeding where:

a. Party or predecessor in interest had the opportunity to cross-exam.

(1) Note no opportunity to cross exam at a grand jury.

(2) Party or predecessor had similar motive to develop testimony by direct exam or redirect.

C. 804(b)(2) -- the dying declaration. There are some problems with this one like the likelihood that perceptions are not so clear at the moment of imminent death, and that the exception will apply regardless of character. The reliability prong however is met by the assumption that people don't want to die with a lie on their lips and need is obvious because the guy is dead. Note if you can't get it in under dying declaration then try other exceptions like state of mind, excited utterance etc. For this exception to apply:

1. Can either be a criminal prosecution or a civil action.

2. Rule req'ts:

a. Must have been made while OCD believed that death was imminent and any expectation that they were going to live renders it invalid.

(1) ie. "is the ambulance coming"?

b. Statement made concerns the cause or circumstances of what he believed to be his impending death. Must be based on his personal knowledge of the circumstances or events.

c. To get the evidentiary foundation the victim must acknowledge death.

D. FRE 804(b)(3) -- Declaration (statement) against interest

1. Requirements for the exception:

a. OCD unavailable.

b. personal knowledge.

c. Against interest at the time it was made (declarant not required to be aware it is against interest at time made). Can be against

(1) pecuniary interest.

(2) Proprietary interest.

(3) subject to criminal or civil liability.

(4) renders a claim by declarant against another invalid.

d. Sufficiently against interest so no reasonable person would make it unless true.

2. Statements offered which exposes declarant to criminal liability & offered to exculpate accused are not admissible unless they are corroborating circumstances clearly indicate the trustworthiness of the statement.

3. Where only part of the statement is against interest the crts are split. Some limit admissibility to portion against interest others admit the whole statement. Usually it will depend on how much of the statement is against interest.

XXIII. EXCEPTIONS APPLICABLE REGARDLESS OF OCD'S AVAILABILITY FRE 803

A. FRE 803(6) -- The business record exception -- this rule codifies Johnson v Lutz which grew out of old common law rule that parties could not testify so their business records had to. The rationale is one of need. You can't get the people who need it. Its reliable because business records made in the ordinary course of business lack any motive for falsity, the businesses rely on them.

1. Requirements [these can be memo's, reports, records, data, opinions, & diagnosis] They must:

a. be made at or near the time of the event.

b. from information transmitted by person with knowledge.

c. must be kept in the regular course of business.

d. regular practice and business activity to make a memorandum. The exception here is germainess:

(1) where they are prepared for specific reasons like litigation -- Palmer v Hoffman railway prepares its own report which stinks of self-service. These are excluded because they lack trustworthiness.

2. Businesses include -- Businesses, institutions, associations, professions, occupations, and callings of every kind whether or not conducted for profit. [police dept one of these].

3. Business Record=Double Hearsay--The problem of the statement within a statement -- police example where cop records the statement of a witness to an event. The written record offered to prove those events are double hearsay why? Written record is hearsay itself and its saying what other party said out of crt. How do you proceed?

a. Is declarant under a duty to the business [voluntary witness in police example no therefore out but if cop witnessing to another cop then its OK].

b. Look to see if double hearsay -- statement in a statement. The second hearsay statement [the actual witness] must be admissible on an independent hearsay exception. Remember each hearsay bubble has to get in independently.

(1) So business record gets in but then you have to find hearsay exception to get content of second bubble in.

4. Other Business Record Exception Req's

a. Record must be made in pursuit of a business duty--Some cts--must have been the duty of the recorder to make the record, see Wasserman--others have held that it must have been the duty of the declarant to make the statement, see Johnson. Goldsmith the correct approach is to look at the duty of the declarant.

(1) The declarant must have personal knowledge.

b. Germaneness Requirement--The information in the business record must be germane to the business and not to litigation only--must be a business record and not coincidental doodling. --Record must have a business purpose, if it was prepared for litigation then it does not come in.

--Example--If a patient comes into a hospital b/c of an accident and the nurse happens to put in the report of the cause of the injuries that the patient was hit by a blue car, the fact that the car was blue was not germane to the business being conducted by the hospital.

5. Application of 803(6) to Various Businesses

a. Hospital Records--Hospital does qualify as a business.

(1) Diagnosis--diagnostic notes qualify as BR

(2) Patient Narratives--notations describing outside event that "caused" patient's injuries

(a) Double hearsay problem--need an exception for each bubble of H.

(b) Info in the BR must also be germane to Hospital records--otherwise it is not admissible--see Melton.--relevance and germaneness req'd even if there is a 2nd step H> exception.

Note--Opinions in Business Records can be admitted in evidence if they are the kinds of opinions that the business usually relies on in making its decisions

b. Illegal Businesses--count as businesses

c. Telex and inconsistencies-Judge may dismiss a whole record even if technically qualifies as admissible under the BR exception if the record is untrustworthy.

B. FRE 803 (1)--Present Sense Impressions (PSI)--E.g., Houston Oxygen Co. v. Harris.

1. Rationale--spontaneous reactions are likely to be made before any motive to falsify arises and should be very reliable. Spontaneity guarantees reliability.

2. Requirements

a. Statement or assertion

b. describing or explaining an event or condition

c. made while perceiving the event or condition or immediately thereafter.

3. Analysis

a. Must describe the event (common law limitation) or explain it.

b. Nedd not be a startling event--statement must only be made contemporaneously w/ the event.

C. FRE 803 (2)--Excited Utterances (EU)--with the exception of the startling event req a much broader exception to H. rule than its first cousin PSI.

1. Requirements

a. Statement or assertion

b. relating to a startling event or condition

c. made while under stress of excitement caused by the condition or event

2. Analysis

a. Need only relate to the event--broader than describe of explain req of PSI.

b. Need not be simultaneous w/ the event or condition--only under the stress of excitement caused by the event or condition

c. CLUE for exams--both Goldsmith's and the Bar look for !!!!!!!!!!!!!!!!!!!!!!!!!!!s.

Note-Res Gestae--"things done"--PSI and EU are not Res Gestae--RG is never a basis of admissibility--statement of a party must satisfy one the H. exceptions recogneized under the FRE to get in.

D. FRE 803 (3)--Then existing Mental, Emotional, or Physical Condition.

1. Requirements

a. Statement or assertion regarding

b. OCD's then existing

(1) state of mind

(2) emotion

(3) sensation

(4) physical condition

--E.g.intent, plan, motive,design, mental state, feeling, pain, or bodily health.

Note stateent does not have to made contemporaneously w/ the cause of the condition just w/ the existence of the condition.

c. Excludes statements of memory of belief

2. Analysis

a. Then existing--must be in present tense

E.g. "I am Napoleon"--not H.--not offered for its truth "I think I am Napoleon" H., but comes in b/c of the exception for mental impressions, "I thought I was Napoleon" H. does not come in, not a PSI or an EU.

b. Statement must speak to the OCD's state of mind--OCS by John was "Frank intends to go to Heaven." --inadmissible doesn't speak to OCD's state of mind

c. Admissible only to show the subsequent actions of the OCD and not anyone else. See Hillman E.g.--"Bill and I intend to go to Heaven--inadmissible to show Bill's subsequent conduct. Ct. will usually give a limiting instruction that the statement should only be consider as it relates to the subsequent of the OCD and not to Bill.

d. May only be used Prospectivley not Retroactively--See e.g., Shepard"I believe I intended to go to Heaven inadmissible as is "I intended to go" must be in the present tense.

Note--Two instances when this kind of H. usually arises (1) the nature of the case makes state of mind an issue--it is directly in issue or (2) state of mind is relevant--I intend to go statement as evidence that he did go.

E. FRE 803 (4)--Statement for Medical Diagnosis or Treatment

1. Requirements

a. Statement or assertion

b. made for the purpose of medical diagnosis or treatment.

E.g.-describing medical history, past or present symptoms, pain, general character fo cause or external source.

c. must be reasonably pertinent to the diagnosis

2. Analysis

a. Compare 803 (3)--which excludes naratives of previous condition.

b. 803 (4) allows narrative of previous condition.

c. Statement need not be made by person being treated --OCD may describe someonelse's condition.

d. Statement need not be made to a Doctor--only for purpose of diagnosis and treatment.

F. FRE 803 (24)--The Super Dooper Residual Exception--see also FRE 804 (b) (5). If a statement doesn't fit the traditional exceptions but meets the following req's it may still come in.

1. Circumstances guarntee the trustworthiness of the OCS--at least as much the other H. exceptions

2. OCS offered as evidence of a material fact

3. Statement is more probative of the point it is offered to prove than any other evidence which can be produced--must show great need.

4. General purpose of rule and interest of justice are satisfied.

5. Notice needs to be given to the opposing party,

Note--Goldsmith--this exception rarely saves the day b/c the court requires the party seeking to introduce evidence under the exception to bear a very heavy burden. E.g. The city clock tower case--clock fell down claimant said it was b/c of lightning. Ins. Co. said no a fire 60 yrs. ago weakened the tower and caused it to fall. Ins. Co introduced a newspaper article about the fire to prove that it had occurred--Judge Wisdom let it in.

G. Sixth Amendment Confrontation Clause--criminal defendants have a constitutional right to confront their accusers.

1. To be admitted and pass 6th amendment musterH. must meet the following reqs

a. OCD unavailable--Prosecution must also establish sufficient need.

b. OCD reliable