EVIDENCE OUTLINE Syracuse University College of Law

PART I: INTRODUCTORY MATERIALS/JUDICIAL NOTICE

UNIT 1: INTRODUCTION TO THE STUDY OF EVIDENCE INITIAL QUESTIONS/CONCERNS - What is evidence? o evidence in a trial are items of factual data offered by the parties for the jurys attention  most important and obvious evidence are the oral statements made by witnesses on the stand  can also be written documents and other types of evidence - What is the law of evidence? o some types of evidence that parties want to offer dubs certain evidence admissible guided by the RULES OF INCLUSION o other types of evidence is not allowed and guided by the RULES OF EXCLUSION - Every rule and every part of a rule is a brick and we use those to create a wall entitled the law of evidence o each individual brick is fairly straight forward, w/ hearsay being the exception o other bricks, like rules on character evidence, impeachment and rehabilitation of witnesses come about o placing these rules together can be a difficult task - Three long-term trends in the law of evidence: o 1evidence law is moving away from complexity and towards logical rules that arent as complex o 2from exclusion to inclusion more evidence is being allowed in o 3from CL to codification after the federal rules began promulgation, many states started adopting their own versions  today, over 40 have their own evidence codes - Role of judge and jury in the courtroom o jurydecides questions of fact  some of the things we ask the jury to do appear to go beyond questions of fact to a non-lawyer  jury will decide not only what happened but will apply legal standards as explained by the judge  HYPO: Car accident, driver 1 saying driver 2 was negligent in the way she was driving her car. y jury will decide two kinds of issues o historical facts: facts in the dictionary sense of the word o apply legal standard to those facts o judgeauthority figure in the courtroom

decides all questions of law that come up, including admission or exclusion of evidence (he decides admissibility of evidence).  at times, when deciding questions of law, judge must decide what look like questions of fact y i.e. dying declaration exception to hearsay o proponent of evidence must show that victim was, at time of the statement, conscious of impending death (i.e. must believe theyre about to die) o judge must determine if the evidence shows the person making the statement believed they were about to die, which can be construed as a factual question  non-jury trial situation y two duties: o judge is decider of legal questions o judge is the trier of fact y judges often relax rules of evidence in such a proceeding b/c many rules of evidence assume theres a jury o level of relaxation varies by judge Presentation of evidence (Lilly: p. 6): o Case in Chief - plaintiff o Case in Defense - defendant o Case in Rebuttal - plaintiff o Defendants Case in Rejoinder defendants response to ps rebuttal Witness in a Trial o 1) P has the burden of proof and gets to go first  Ps opportunity to affirmatively prove his or her case  all D can do is cross-examine the witnesses o 2) D then has a chance to put in evidence, i.e. calling witnesses and other tangible evidence o 3) when both stages are over, Ps rebuttal case comes responds to certain parts of Ds case instead of just putting in more evidence o 4) D then has its own rebuttal stage, a rebuttal to Ps rebuttal o Order for witnesses:  1) direct examination  2) cross-examination  3) re-direct response to cross-examination  4) re-cross

UNIT 2: BACKGROUND MATERIAL RELATING TO COURTROOM PROCEDURE (not assigned)

UNIT 3: JUDICIAL NOTICE AS A SUBSTITUTE FOR EVIDENCE (to be made up in make-up class) Sometimes, factual issues come up where a fact is not subject to a reasonable dispute and a judge can take judicial notice of that fact. Judicial notice occurs w/ three types of materials (one of which is on the exam) 1) adjudicative factsa fact that is of consequence in the adjudication of the matter before the court (dealt w/ by Federal Rule of Evidence 201) a. 201(a) Scope of rulegoverns only judicial notice of adjudicative facts b. 201(b): defines the kinds of adjudicative facts that are covered i. a judicially noticeable fact is not subject to reasonable dispute ii. two types of facts are not subject to reasonable dispute: 1. fact that is generally known w/in the territorial jurisdiction of the trial court a. VARCOE v. LEE (CASC 1919) (1935) i. Ds chauffeur ran over Ps daughter, P said it was negligence b/c D was speeding in a business district ii. RULE: Theres no need to offer evidence relating to matters of common knowledge b/c practically everyone knows them in advance and there can be no question about them. iii. fact was judicially noticed b/c it was generally known iv. **FIND OUT IF ONE OF THE TESTS FOR JUDICIAL NOTICE CITED IN THIS CASE ARE PERTINENT 2. fact that is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned c. 201(c): Court may take judicial notice if it wants, whether or not requested d. 201(d): Shall take judicial notice if party requests it and provides the necessary documentation i. courts must consider the matter if a party requests it and provides necessary information ii. its more common for a court to take judicial notice w/o a request e. 201(e): Party can be heard about the court taking judicial notice i. one of the parties may argue that it would be inappropriate for the court to take judicial notice of a certain fact ii. request to be heard may be made after judicial notice has been taken f. (f): judicial notice can take place at any stage of the proceeding g. (g): instruction to the jury

i. STATE v. LAWRENCE (SCUT 1951) (739): guy accused of grand larceny b/c he stole a car, statute says its grand larceny if property was valued beyond $50. Judge gave jury instruction that the value of the property in question was beyond $50, so if D was guilty of anything, it was grand larceny 1. this would have been ok if done in a civil case, but in a criminal case, court cant make the decision for the jury to be bound by its assessment of the cars value 2. in a criminal case, a jury may accept a judicially noticed factso, here, it is not the courts decision for the jury to be bound by the cars value designated by the court 3. this rule exists b/c of the importance of P proving every element of a given crime & a court cannot take away one element of an offense for the jury to decide 2) legislative facts not on the EXAM a. Lilly: these facts relate to the disputed transaction but only in the sense that they constitute the context or background in which the case at hand arose and will be resolved i. i.e. labor dispute may arise in context of depressed prices, high unemployment, widespread labor unrest, and an economy thats in transition from wartime to peacetime b. Lilly: Standard is not beyond-reasonable-dispute standard of adjudicative facts, but of a lighter standard that isnt as restrictive 3) law not on the exam a. court taking judicial notice of certain adjudicated decisions (?)

PART II: RELEVANCE, PROBATIVE VALUE, AND PREJUDICIAL EFFECT

UNIT 4: RELEVANCE, PROBATIVE VALUE This is the basic concept that all evidence admitted at trial must be relevant - the standard is not high, but all evidence offered at trial must meet this standard Relevance connection b/w item of evidence and some material issue of the case. The item is relevant if that evidence would have any tendency at all to move a rational jury closer to yes or no. It means that it has to have some tendency, any tendency at all to move the jury towards a yes or no. (Surrats definition: verbatim) Governed by FRE 401: Definition of Relevance - Rule 401: Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w/o the evidence. - Definition contains 2 concepts: o (1) must have factual relationship w/ something in the casea consequential fact  before FRE enactment, must have related to a material issue 4

o (2) If a party objects to evidence on the ground that its irrelevant, it could mean that it relates to the case, but doesnt relate to a consequential fact or material issue of the case  HYPO: A sues B for breach of K. A wants to offer evidence that B, a married person, has fathered 2 illegitimate kids during his marriage. y has absolutely nothing to do w/ the case at hand or the legal issues at hand not related to consequential fact  Must have a proper understanding of a cases legal issues to know which facts are consequential, know if there are any affirmative defenses raised by D o HYPO: P went to a retail store & bought an electric toaster. P suffers 3rd-degree burns, requires medical treatment. Sues manufacturer of toaster for strict liability in tort; lawyer finding he can prove that this particular toaster was missing one partthere was a defect. At trial, Ds lawyer starts asking quality control guy questions showing they were very careful w/ their system of manufacturing.  Ps attny objects on relevance grounds  Ds lawyer would respond that its trying to show the reasonableness of the manufacturing process and that it wasnt negligent  Ps attny would respond that negligence isnt the issue in the case, that strict liability in tort is the issue; negligent/careful conduct doesnt matter  Judge would find its irrelevant b/c the evidence relates to something thats an inconsequential fact the standard is whether the evidence has any tendency to make a fact more or less probable McCormicks Handbook on the Law of Evidence (78) o problem of relevancy may arise w/ respect to each item of evidence is presented o at times, an item alone may seem irrelevant, but w/ other evidence, it may prove to be relevant o each item must have some tendency to move the trier of fact in either direction

Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible - All relevant evidence is admissible, except as otherwise provided by the Constitution, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. - evidence thats irrelevant isnt admissible Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence o 1considerations of undue delay, waste of time, or needless presentation of cumulative evidence  HYPO: Simple theft occurred. D wants to call 47 character witnesses. Judge says D can do it, but common sense goes against it b/c they will all be testifying to the same thing o 2danger of unfair prejudice, confusion of the issues, or misleading the jury  this concerns the prejudicial effect (negative impact on the other party)  this doesnt mean its just harmful to the other party b/c in a sense, all evidence is prejudicial trial judge has a lot of discretion in applying these considerations 402 & 403 talk about times when relevant evidence can be excluded Evidence which is relevant is assumed to be admissible barring another rule which excludes it

Judgment of Solomon (72) - Two pregnant women lived together - woman #2: woman #1 realized that baby was dead in the night, and switched them - woman #1: thats a bunch of b.s. - Solomon does an experiment, saying well split the baby in two o D didnt have much reaction at all o P: dont kill the baby, Ill give up any claim to it, just let the baby live - King said give baby to P - Two different concepts: o 1concept of relevance, probative value, prejudicial effect, etc. is important, but their application is usually based on common sense o 2shows the concept of probative value (how much it would shift the trier of facts opinion)  sometimes a piece of evidence has a ton of probative value HYPO: Guy on trial for murder. Alleged that he walked up to the guys door and shot him four times says it happened at almost exactly noon. - Evidence Item #1: Witness testimonysays she was at a park across the street from victims house & had binoculars, says she saw D, who shes known for a long time, walk up to victims porch, ring the doorbell, pulled something out of his shirt and heard four loud pops. Then saw him run away. o Relevant? Yes. o This is direct evidencejury doesnt need to make any further inference  Lilly, 3.5 Direct and Circumstantial Evidence (66)

direct evidence, if believed, supports a consequential fact w/o the need for inference drawing o What if Im the judge and I know theres reason not to believe this is believablejudge believes its not credible. Does that make a difference?  No. The judges perception of the evidence doesnt matter. The only question is, assuming it was believed by the jury, if it was relevant. Evidence Item #2: Witness #2 testimonysays at 12:05 PM he was at the bus stop about two blocks away and saw D running down the street (knows it was 12:05 b/c bus was late), and saw D carrying a metallic object resembling a gun. o Relevant? Yes. o This is circumstantial evidencejury is being asked by proponent of evidence to draw some inference from the evidence.  circumstantial evidence, if believed, supports a consequential fact through inference drawing  Two things: y 1) no principle of evidence saying circumstantial evidence is worse than direct evidence y 2) but you must think about it, b/c the jury is being asked to draw one or more inferences from the evidence itself o both direct and circumstantial evidence must meet the test of relevance: each must have probative value and each must point to a consequential fact Evidence Item #3: D bought a handgun 7 days before the murder o Relevant? Yes. o shows that perhaps D was forming an intent to carry out the killing or that he had an opportunity to do the killing b/c he had a gun in his possession Evidence Item #4: victim & D got into a huge, bitter argument a few days before the killing o Relevant? Yes. o Goes to show, at least in part, Ds motiverevenge in response to what the victim said during the argument o may only move the fact-finder a hair in the direction of believing that D committed the crime Evidence Item #5: Search of victims home uncovered letters from D to victims wife o Relevant? Yes. o May contribute to Ps theory of Ds motive for killing vic o Morgan, Basic Problems of Evidence (77)  circumstantial evidence at times requires the jury to draw a series of inferences y i.e. from fact A, jury will infer fact B, from fact B, jury will infer fact C, from C, jury will infer fact D  as applied in this HYPO, letters would require multiple inferences y

b/c D wanted to be w/ vics wife, D didnt want anyone else to be w/ her, and b/c he didnt want anyone else to be w/ her, he had to get rid of anyone else o as a result, Item #5 alone wouldnt come close to establishing the motive Evidence Item #6: Ds lawyer cross-examines Ps witness, asking witness if he was convicted of armed robbery five years prior. P objectsrelevance. o Relevant?  Could be to damage the witnesss credibility  but it is NOT RELEVANT b/c it doesnt go to the truthfulness or untruthfulness of the witnesss testimony o the jurors will decide each witnesss credibility o it is clear that the law of evidence takes the position that regarding a witnesss credibility, those matters are material Evidence Item #7: D was convicted of felony armed robbery five years prior. o Relevant? P would argue yes b/c he wants the jury to know that D committed a serious crime before and would have more of a propensity to commit the crime o However, it is NOT RELEVANTP cannot introduce the evidence for the purpose of showing that D is a bad guy; that D has bad propensities in regard to committing crimes o Trial court wants to focus as much as possible on the question at hand, not on Ds life o general rule of exclusion: evidence wont be admitted to show criminal tendencies, but the law of evidence does not say its completely irrelevantits small probative value is outweighed by counterveiling considerations y

Rule 403 above gets into the discussion of how a piece of evidence may be relevant but still excluded. It talks about how the relevance may be outweighed by the PREJUDICIAL EFFECT of the evidence. UNITS 5 & 6: PROBATIVE VALUE VS. PREJUDICIAL EFFECT Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time - Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence o danger of unfair prejudice, confusion of the issues, or misleading the jury  this concerns the prejudicial effect (negative impact on the other party)  this doesnt mean its just harmful to the other party b/c in a sense, all evidence is prejudicial

o BALLOU v. HENRI STUDIOS, INC. (5th Cir 1981) (91): Ps husband dies in a collision w/ a company car. P sues the company, saying company was negligent in driving.  company wants to offer evidence of contributory negligence (that the driver was substantially intoxicated), P argued that it would result in prejudicial effect  COA revd suppression b/c it wouldnt be unfairly prejudicial against P y the evidence would, in fact, make the jury more likely to find that Ps decedent was driving negligently also  so, when we talk about prejudicial effect, were talking about an effect that involves unfair prejudice  Advisory Committee Notes: unfair prejudice is an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one OLD CHIEF v. UNITED STATES (USSC 1997) (81): - Factual Stuff: o D charged w/ assault w/ dangerous weapon & use of firearm in a violent crime, charged as a felon in possession of a firearm. o P could prove last charge by showing that (1) D was convicted of felonygrade offense that raised a prohibition against future firearm possession and (2) D did possess a firearm.  to prove (1), P introduced record of prior criminal judgmentD was convicted of criminal assault causing serious bodily injury, imprisoned for 5 years y problem was Ds counsel offered jury instructions that D was convicted of a felony grade offense, leaving only (2) for issue (didnt want jury to hear it was crim. assault) - Issue: Whether trial judge abused his discretion by disallowing Ds offer and allowing Ps evidence of the prior offense in? - type of past crime committed by D had probative value bearing on consequential factwould place D w/in a class of persons convicted of crimes that raised a prohibition on later firearm possession - name of prior offense wasnt irrelevant b/c there was alternative evidence (Ds admission) that placed D w/in the statutory ban on future firearm possession o when party concedes a consequential fact that he opponents proffered evidence tends to prove, the concession doesnt make the evidence irrelevant  concession does suggest, however, that judge should often exclude the evidence under 403 on grounds of prejudice or wastefulness - USSC then went on to approve general concept of a prosecutors choice in selecting which evidence to use to prove his or her case o has at least three grounds of support:  1item of evidence very often points in more than one relevant direction

2an evidentiary narration of Ds conduct aids the jury in drawing inferences, in faithfully adhering to the law governing the case, and in appreciating the moral foundations of law  3prosecutors right of evidentiary choice helps ensure that the jury receives the evidence it is likely to expect Held: this cases circumstances require departure from the latitude given a prosecutor to select his evidencelatitude restricted when a 403 counterweight substantially outweighs the probative value of the proffered evidence o USSC was concerned that the evidence was offered to show the nature of Ds prior conviction (which would show D couldnt possess a firearm), but o there was substantial risk that the jury wouldnt confine its use of the evidence to the permissible issue of Ds status o jury might use the evidence to reason that D had a propensity to commit these sorts of crimes

Lilly, 3.2: Exclusionary Counterweights - Rule 403s reference to unfair prejudice refers to prejudice that is likely to result from the triers misuse of the evidencei.e., 403 is only concerned w/ evidence likely to distort triers proper evaluation - evidence must be assessed in the full evidentiary context of the caseprobative force of the evidence and its potential for unfair prejudice must be evaluated in light of o the importance of the evidence, o its place in the narrative cohesion of the evidentiary presentation and o in light of the availability of other evidence Not all items of evidence have prejudicial effect, but all items of evidence do have some probative value. There are some commonly occurring situations where evidence has both probative value and prejudicial effect: (1) Cumulative evidence a. HYPO: Murder case (discussed after Ballou). P wants to offer 50 colored, gruesome photographs of the victims body for the purpose of inciting emotional reactions out of the jurors. i. probative value = helps the jury understand the factual matters of what happened to him or her ii. prejudicial effect = evidence would effect the jurors emotions b/c they would be angry, horrified, and empathetic towards the victim iii. this evidence WOULD NOT BE ADMITTED under FRE b. the first few photographs telling the jury something about the case that the evidence before it did not, so each photograph has some probative value i. however, after awhile, each picture admitted has less probative value than the last, but the prejudicial effect increases (i.e. picture #12 would not have the probative value of pics 1-11) ii. so under 403, the prejudicial effect of pictures 12 and beyond substantially outweighs the probative value

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(2) Evidence of prior crimes a. By the accused: i. HYPO: Virgil gets capped 4 times @ his doorstep. Suppose P wanted to offer evidence that D committed one or more serious crimes at some point before the charged crime for the purpose of showing D has a criminal propensity/disposition/character. 1. FRE 404(b) doesnt allow this for POLICY REASONS a. jury may weigh in on the character beyond other evidencemight become a major determinant b. if it had probative value for a more narrow issue of the case, maybe c. but for the general proposition that D is more likely to commit crime, the evidence is improper to admit ii. evidence cannot be offered to show a general tendency to commit crimes. b. By the witness: i. HYPO: Same facts. Now, in a cross-examination for the witness for the purpose of impeaching the witnesss credibility, D counsel asks about a prior crime by the witness that resulted in a criminal conviction 1. if the purpose was to evaluate the witnesss truthfulness/ credibility; that would be OK. Underlying theory is that you have to help jury decide the witnesss credibility. a. however, even this principle creates prejudicial effect in one instance: accused takes the stand and the P had committed prior bad acts ADKINS v. BRETT (SCCA 1920) (288): P suing for alienation of affection by D of Ps wife (i.e. she was directed towards D, not P). - Cause of action: Alienation of affection A cause of action arising from the willful and malicious interference with a relationship. In most cases it is a husband suing for alienation of wifes affection in marital relationship. - P has to show 2 things to win: o (1) Issue 1: Alienation at the relevant time, wifes feelings of affection had been alienated (deals only w/ wifes state of mind) o (2) Issue 2: Ds Conduct that D wanted her to fall in love w/ him - P wanted to admit evidence of a conversation between P & wife where wife admitted that: eaten w/ D, car driving w/ D, that D gave her flowers, D gave her a good time and P could do what he wanted b/c she didnt want him anymore o evidence relates to both issues, but the entire statement is hearsay. o if the statement was just that D sent the wife some flowers, it wouldnt be admissible b/c it wouldnt show wifes state of mind o if declarant makes statement about feelings, emotion, state of mind exists at that specific time.  so the parts of the statement that relate to issue 2 are inadmissible

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the parts of the statement where shes describing things D allegedly did (took her out to dinner, gave her flowers), if offered for the purpose that D did certain things w/ clear intention to cause Ps wife to fall in love w/ him, its excludable.

Three things a court can do when evidence has both prejudicial effect & probative value: (1) redact something (edit something out) a. HYPO: If wife sent letter to P saying the same things as above literally edit out the parts of the statement dealing with issue 2 b. allows the opponents wish to avoid the unfair prejudice of certain statements is kept away from the jury c. w/ written statements, this is simple procedure, but redaction may not work w/ oral statements (2) let all of it in, but give the jury a limiting instruction a. The evidence you just heard is to be considered solely for the purpose of the wifes state of mind b. can sometimes make the situation worse c. most attorneys wont request a limiting instruction (3) exclude the whole statement under 403 a. can only be done when the court finds the prejudicial effect substantially outweighs probative value b. there is a presumption towards keeping the evidence in i. 403 only excludes when the prejudicial value substantially outweighs the probative value ii. may happen when the probative value of the evidence item is particularly small (could happen when there are many items of evidence) iii. in Adkins, issue 1 was that P must show that she was in love w/ D and not P 1. this issue may be strongly controverted, so P may have had a lot of evidence to show wife had started loving another man iv. HYPO: there were plenty of items of evidence that could show that wife no longer loved P and loved D 1. if this were the case, one additional item (wifes statement that she loves D), in light of evidence, may become cumulative a. i.e. it shows very little and adds almost nothing to the tendency of the evidence as a whole to show that wife loved D and not P 2. so, it may be excluded if it has a significant prejudicial effect and low probative value substantially outweighs 3. but if there were NOT many items, one particular item may have a strong impact on the case

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PART III: THE HEARSAY RULE

UNITS 7-9: THE HEARSAY RULE FRE 801: (a) Statement. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if its intended by the person as an assertion (b) Declarant. A declarant is a person who makes a statement. (c) Hearsay. Evidence of out-of-court statements are hearsay only when the proponent of the evidence offers the evidence to prove the truth of the matter asserted in the out-ofcourt statement. WHEN CONSIDERING EVIDENCE, CONSIDER: 1) IS IT HEARSAY? 2) IF SO, IS IT ADMISSIBLE UNDER ONE OF THE EXCEPTIONS? Witness Testifying in Court: Four Potential Problems with Truthfulness-1) Sincerity a. witness might not be accurate b. sincerity = W telling the truth to the best of his or her ability c. some witnesses are insincere obviouslytheyre not really trying to be truthful 2) Perception a. perhaps witness sincerely testifies to what he remembers seeing, but the perception is incorrect 3) Memory a. witness forgot what was going on in what he is testifying to 4) Communication a. problems w/ transmissionthe way witness was not communicating accurately b/c witness has a problem w/ communicating Procedural Protections Asserting Truthfulness of the Witness: 1) Oath a. youre engaged in a very important public endeavor b. you solemnly promise to tell the truth c. reminder that persons in court 2) Presence of the jury (physical presence) a. jury can see & hear the witness 3) Witness subject to cross-examination: MOST IMPORTANT PROCEDURAL SAFEGUARD a. opposing party will have an opportunity to cross-examine (one of the pinnacles of our adversarial system) b. gives the opposing side a chance to poke holes in the witnesss testimony HYPO: Car accident between 2 vehicles. P is trying to show that D had the red light. W says declarant was standing down the street when the accident happened, saw the cars

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and both were driving. W testifies that Decl says the light was red for a silver Mitsubishi Eclipse. - this would be hearsay jury is being asked to assess the credibility of 2 people (witness + Decl) - originators of the hearsay rule understood that juries arent lawyers & judges; if they were, theyd understand that testimony of out-of-court statements shouldnt bear much credibility at all HYPO: Driver of other car (not the silver Mitsubishi) was injured very badly. They thought he was dead, but was pronounced dead at the hospital. Suppose its important to show he was alive. W = ambulance guy. W testifies that driver whispered that the light was red. Suppose the evidence is being offered not to prove the light was red, but to prove the guy was alive at the timewhether he had the ability to utter those words. - hearsay is evidence of an out-of-court statement offered to prove the truth of the matter asserted - but here, its being offered to prove something other than the truth of the matter asserted (not being offered to show light was red, but that Decl was alive) Credibility in Hearsay (***I HAVE NO IDEA WHERE THIS SHOULD GO) - if jury is being asked to judge the credibility of Decl and the witness, its hearsay - its the jurys duty to evaluate the witnesss credibility, but not Decls - if evidence is offered to prove the truth of the matter asserted, then another way to describe that situation is that the proponent of the evidence is asking the jury to believe two witnesses (Witness himself + Declarant) Out-of-court statements, admissible as non-hearsay, still must satisfy the requirements of relevance: - United States v. Hernandez (COA 5th 1985) (196): DEA special agent Saulnier got referral from US Customs that D was a drug smuggler. Informant (Gholson) & Saulnier (posing as Gholsons wife) met w/ D in a coffee shop about buying a key of coke for $52K, met later @ Ds tire shop back room, where 2 packages of coke sat on TV tray table Gholson accepted coke, D arrested. D testified @ trial it was a set upthat the conversation was about leasing a room in the tire shop to use in a porno, that D showed the 2 the room but didnt enter the room. In closing argument, P attny said Nature of that referral was that this individual was a known cocaine trafficker. o P maintained the evidence was offered to show the effect on the hearer (the DEA agents) o P said it wasnt being offered to prove that D had smuggled drugs, but for the limited purpose of showing part of the reason why the DEA began focusing on D.  COA says the problem w/ this is its not an issue in this trial; Ps trying to show that DEA had probable cause to start investigating D in the 1st place  jury wont have to decide about whether DEA acted properly when investigating, just whether D committed the crime

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the issue P is trying to prove isnt a consequential fact in this trial & thus it fails the test of relevance (proves something thats not an issue in this case) o So, out-of-court statements, offered to prove the state of mind of a party, must be relevant to the case at issue in order to be admissible o COA reverses y Statements that are NOT HEARSAY: (1) Evidence offered to show some effect on the hearer (auditor) of the statement a. SAFEWAY STORES v. COMBS (5th Cir. 1960) (L149): slip & fall case, where she slipped on a puddle of ketchup. She has to show the store was negligent. P offered evidence, including her own testimony. D wanted to show she was contributorily negligent. Before she slipped, D wants to offer testimony of a witness (cashier) testifying that on the day in question, before P walked down aisle 7 (where the ketchup was), manager said loudly, Lady, be careful. Theres a puddle of ketchup on the floor. Trial court held this was hearsay. i. App Ct revd, saying it wasnt hearsay, as it wasnt being offered to show that there was a puddle of ketchup in the aisle (the truth of the matter asserted), but its purpose was to show that P was contributorily negligent (she received the warning) ii. if jury believes this testimony, which would make P aware of the danger, then the jury could infer that she was negligent b/c she was put on notice about the ketchup iii. jury doesnt need to know if the statement was correct, just that it was made b. SUPRAMANIUM v. PUBLIC PROSECUTOR (106): In State of Johore, ANT found wounded by security; searched & 20 rounds of ammo found; Defense said all materials were b/c of duress from terrorists, he intended to surrender to security; D tried to give evidence of his capture & what the terrorists said (that he was under duress); Trial judge said evidence of what terrorists said was inadmissible unless they were called to testify. i. Ct found that evidence was supporting notion that D thought he would be killed if he didnt do what terrorists said ii. D wasnt required to read their mindshe only had to show he had reason to believe they were serious iii. he wasnt offering the evidence to show the statements were made & they were true iv. hes offering it to show the statements had a particular effect on his emotionsfear that hed get killed (2) Evidence offered to show notice or knowledge on part of Decl (L150) a. HYPO: Safeway, but now the stores position is that it had no knowledge that the ketchup was on the floor. P calls a witness saying before P walked to aisle 7, witness heard manager tell eee, Billy, theres a puddle of ketchup on the floor in aisle 7. Evidence offered to show store had knowledge of the ketchup being on the floor.

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i. mere fact that manager could utter statement like that shows he had knowledge ii. Examples: 1. driver stating her car had defective brakes 2. estranged dad against whom a contempt order is sought for visiting his kid, saying he was forbidden by court order from visiting iii. each example shows Decls knowledge or awareness of a fact or condition and when the knowledge or awareness is of a consequential fact, the statements have a nonhearsay use (3) Verbal Acts/Independent Legal Significance a. a substantive rule of law says that the words spoken can be taken literally w/o having to inquire if the words are subjectively true b. most common situation: words in a K c. HYPO: Person A has an autographed football. Person B wants the ball, says hell pay $500 for it. A says OK. Come by office tomorrow @ 2:15, and Ill sell it to you for $500. B confirms offer, and accepts. Next day, B comes w/ the $, A says he changed his mind. B says A breached the contract. B goes to small claims court, sues for breach of K. W says declarant (A) said I promise to sell you football for $500. Hearsay? i. No, objective theory of contractsto prove the nature of the K, just have to show the promisor made the statement in question ii. law says the words can be taken at face value d. HANSON v. JOHNSON (1924) (L146): P sues bank for conversation of Ps corn. P had to prove corn belonged to him and not his tenant. Both owned some corn; issue was who owned what. P testified that after the corn was harvested, he went to his farm to inspect it & when seeing a bunch of it, asked, Which corn is mine? Tenant pointed to certain cribs of corn, told P they belonged to P. Corn in one of Ps cribs was attached & sold by the bank to satisfy tenants debt. i. tenants statement had the effect of making P the sole owner of the corn designated by tenant ii. tenants statement had the legal effect of vesting in P title to that portion of the corn that was stored in the designated cribs 1. independent legal effect of vesting sole ownership in P (4) Evidence of Decls statement is offered as circumstantial evidence of Ds state of mind (L151) a. HYPO (L152): Issue is whether T intended to omit N (Ts nephew) from his will. Witness testifies that several months before Ts death, T said to Ns mom that N was incorrigible spendthrift, cant hold a job, she shouldnt let him spend the family into bankruptcy. i. this isnt being offered to prove Ns traits, but as circumstantial evidence that T disapproved of Ns conduct and probably intended to omit N from his will ii. most courts would treat this statement as nonhearsay

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b. WRIGHT v. DOE d. TATHAM (L153/Class Hypo): Proponents of a will proffered letters to T from X, Y, & Z b/c the tone & content of the letters impliedly manifested the writers belief that the recipient was sane & competent (the central issue). i. on their face, letters communicated business & social matters ii. the letters were offered for the implied assertion that the writers (Declarants) believed T was competent iii. writers use of normal language & discussion of business and social affairs implied they thought T was sane c. HYPO: Woman consistently says shes the pope, used as evidence to prove her insanity. d. HYPO (L153): Police, off of a tip, raid Ds house & one of them picks up the phone when it rings, and the caller places a bet. At trial, cop testified the caller placed a bet. On appeal, Ds counsel argues that the trial judge erred in allowing the hearsay. Was the trial judge wrong in her ruling? i. Trial judge was right; implied assertions (here, that D was a bookie) arent hearsay under FRE 801 ii. Hearsay applies only to words or conduct offered to prove the assertion the declarant intended. (5) Slander/Libel (*** I DONT KNOW IF THIS IS THE RIGHT CATEGORY) a. HYPO: S didnt know Professor, but knew where his room was. S thought that because P stayed in his office after hours, he might be dealing drugs. S starts telling people P sells drugs out of his office. P decides to sue. i. P must prove in his lawsuit that the statements were made and must show the statement was made publicly ii. Evidence not being offered to prove the truth that P distributes drugs from his office iii. P offers it to show the statement was made publicly iv. Statements in a civil action for libel or slander, evidence of statements by D, when offered to show statement was made, is NOT hearsay b. HYPO: Perjury prosecution. P must show that D made the allegedly perjurious statement. To prove perjury, there are several elementsit was made under oath, D knew he was under oath, statement was false, D knew it was false, etc. P is offering evidence of the making of the statement in a deposition or whatever in another court proceeding. Hearsay? i. No. Its being offered for the limited purpose that the statement was made. c. Statements in a civil action for libel or slander: evidence of statements by decl, when offered to show the statement itself was made, is NOT hearsay i. ***FIND OUT IF ITS STATEMENTS BY DECL OR THE DEFENDANT HANDOUT 1 HYPOS

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1) P thought she was engaged and husband didnt follow through. Sues for breach of promise to marry. The evidence in question was his statement I promise to marry on X date. a. NOT HEARSAY b/c she can take the statement at face value, all she would have to show is that someone in her situation would find the statement to be ordinary 2) I am the pope. NOT HEARSAY 3) On issue of Ds adverse possession of Blackacre, Ds assertion, I am the owner of this farm. a. NOT HEARSAY b/c evidence offered partially to support the claim that D is the owner of Blackacre b. what matters is the statement was made publiclythe evidence is being treated to prove one of the elements of the claim (see adverse possession law) c. ESTATE OF MURDOCK (1983) (103): Murdocks were wealthy and had kids from prior marriages. They both die and they need to figure out who died first. Sheriff Linden testified that Mr. said to him, Im still alive. i. issue: did Mr. survive his wife? ii. not offered to prove the truth of the matter asserted, just that the statement was made 4) Issue: Xs provocation for assaulting Y. Decls statement to X, her husband, Y ravished me. a. not being offered to prove the truth of the matter asserted NOT HEARSAY b. jury not being asked to look inside the wifes mind to see if shes telling the truth or not c. its the issue of whether he was in an emotional state of rage 5) Issue: Ds consciousness after the attack, Decls statement, X shot me, as he often threatened to do. a. statement not made to prove truth that X was the shooter, but that Decl was conscious NOT HEARSAY 6) On issue of identity of shooter, decls statement in (5). a. HEARSAY b/c its being offered to prove the matter assertedthat X was the shooter 7) On issue of whether X made threats, Ds statement in (5). a. HEARSAY b/c its being offered to prove the truth of the assertion made (as X had often threatened to do.) 8) On issue of Xs knowledge of speedily impending death, decls statement to X, You have only a few minutes to live. a. evidence offered for the purpose of showing that Decl knew he was going to die b. NOT HEARSAY, b/c were not looking into Decls state of mind i. statement being offered to show statement was made to X and its effect on X 9) In (8), X says, I realize that I am dying. a. HEARSAY

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10) On whether a transfer of a chattel from D to X was a sale or gift, Ds statement accompanying the transfer, I am giving you this chattel as a birthday present. a. If person physically turns over possession & control to a chattel, an item of personal property & contemporaneously w/ that transfer makes a statement, then b/c the statement was made as so, its treated as words that have independent legal significancecan be taken at face value NOT HEARSAY. Rule of personal property. 11) In (10), Ds statement the day following the transfer, I gave you the chattel as a birthday present. a. HEARSAY Statements that are NOT HEARSAY (continued): (6) Non-human instrumentalities: evidence offered by a witness at trial involves information provided by a nonhuman instrumentality (i.e. machine, mechanical/electronic device) a. CITY OF WEBSTER GROVES v. QUICK (1959) (131): cop used radar gun to stop a guy, city filed complaint against D for violating speeding ordinance; D pled not guilty i. cop testified that D was going 40 mph, D objected, saying it was hearsay ii. Court rejected Ds argumenthow the hell can you cross-examine a radar gun (the declarant) b. Rationale(s): i. when a person makes an out-of-court statement, a person could be insincere or deliberately lying not a problem w/ machines ii. may be problems in accuracymaybe person didnt remember it practically in Quick, this wasnt a problem c. HYPO: #60, p. 136to fix time of murder, P offers witness who testifies that minutes after he heard the shot, he heard a clock chime three times. i. NOT HEARSAY non-human instrumentality d. HYPO: #65, p. 136In prosecuting theft of valuable homing pigeons, evidence offered that when Ds pigeon coop was opened, all birds flew to the home of vic. i. NOT HEARSAY pigeons were nonhuman instrumentalities (7) Written Documents/Writings a. HYPO: D writes a letter to someone describing a collision at an intersection, saying traffic light was red in direction of silver sports car. i. Out of court statement? Yes ii. the piece of paper is the witness (jury will be seeing this as an exhibit) iii. author would be the declarant iv. Hearsay? YESoffered to prove the truth of the matter asserted v. What if it was offered for another purpose? 1. to show Decl had knowledge of the incidentNOT hearsay b. HYPO: 2 companies enter into written K, where ABC Corp. promises to ship to XYZ 1,000 widgets/month during 3 yr term of the K. Later, XYZ

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only gets 500, suing for breach of K. Original copy of K offered into evidence to show seller promised to ship 1000. i. NOT HEARSAY words have independent legal significance 1. words that are promissory in nature can be offered promisee can take the words at face value ii. written document is treated just like an oral statement Double Hearsay - HYPO: W testifies that an hour after an accident, X says that Y said the light was red in direction of silver sports car. If offered to prove the light was red, then we have double hearsay o The statement from Y to X is not hearsay, statement from X to W IS hearsay - HYPO: Evidence in question is doctors notes about what a P said to the doctor. So it would be P Dr. document. Link between P & Dr. is hearsay, link between Dr. & document is hearsay as well, b/c the purpose was to prove the truth of the matter asserted o ***NEED MORE - HYPO #44 (edited), p. 135: To show D had a revolver at an affray, W offers to testify that as D passed Ws house, W was told by her husband that D had a revolver sticking out of his pocket. So W = wife, declarant = husband. Offered to show D had a handgun as he walked by the house. o Hearsay? YES.  not enough to draw the initial inference from the fact that the husband made the statement and that the statement was true o offered to prove he had a gun in his possession o Initial inference: D had the gun at 7 PM.  The desired inference in the HYPO: he still had it at 8 PM still had it at 9 PM still had it at 10 PM when the brawl occurred  if offered to show Billy had the handgun 3 hours later, its still hearsay b/c you still have to draw the inference that he had it at the time decl saw it o when trying to decide whether its hearsay, you always have to look at the initial inference the proponent of the evidence wants to make o if you have to think about if the statement was made and that its true, then its hearsay the jury must concern itself w/  (1) whether the statement was made and  (2) whether the statement made was true o initial inference jury hopes to draw: W says that Decl said something (?)  *** - HYPO #61: Husband bringing divorce against wife by reason of adultery (having a sexual relationship w/ a man other than husband). To prove adultery, H offers prove that house guest described birthmark on an intimate part of her anatomy (would tend to prove adultery, but its not the initial inference). The existence of the mark has previously been testified to by the husband while the wife has testified that only her parents & husband knew of the mark.

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o Hearsay? NO o Both parties testified that wife had the birthmark, and wife testified as far as she knows, theres no reason to believe otherwise o HYPO continued: Tom, Phil (husband), Betty (wife) were all friends in high school. Phil wants to offer evidence that when Phil was gone, Tom & Betty spent time at the house, and lots of other evidence about them being together. As ONE item of evidence, is that Mike (another friend) would testify that he saw Tom at the bar, talked for a few hours & drank, Tom says Bettys got a cute birthmark in an intimate part of her anatomy. Mike would testify that Tom asserted the birthmark existed.  Hearsay? Noits not offered to prove the existence of the birthmark b/c its birthmarks existence has been conceded by both sides.  Its offered for a nonhearsay purposeto prove adultery y the initial inference is the knowledge on the part of the Declarant o has probative value in showing tha tdecl was having a sexual relationship w/ wife y A further inference is required of the trier of fact to say decls statement proves he committed adultery  Order of inferences: y 1knowledge of the birthmark (initial inference) y 2he has seen the birthmark y 3he has seen her unclothed y 4the two have been in intimate, secluded conduct y 5they had a sexual, adulterous relationship HYPO #44 (redux): Here, W and the declarant are the same person. o H is on the witness stand saying that he made a statement asserting something o before, it WAS hearsay; if someone else was on the stand, it was hearsay o but here, witness = declarant o Two things:  orthodox rule: When evidence of out-of-court statement is of the same person testifying about his own out-of-court statement, then we treat it like any other testimony of an out-of-court statement i.e. its not hearsay if not offered to prove the truth of the matter asserted y so here, its still hearsay b/c its offered to prove the truth of the matter asserted  most lawyers dont think this is hearsay b/c its not what the witness has said out-of-court y so, it would likely be admissible hearsay, the present-sense impression exception (see later)

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(8) UNIT 11: NON-ASSERTIVE CONDUCT/IMPLIEDLY ASSERTIVE CONDUCT a. At times, words uttered outside of court will NOT be hearsay b/c the words are not an assertion in the hearsay sense b. an assertion = words used to describe a phenomenon in the world i. i.e. words of direction: State trooper directing traffic. Stops one line of traffic, and yells STOP! Witness says he saw trooper hold out his hand and yell. Evidence offered to prove there was a command to stop and the car didnt stop. 1. Hearsay? NO. You cant offer the direction of STOP! to prove the truth of the matter asserted 2. STOP! isnt the truthdoesnt make any sense ii. Lilly: words that are stated will have both an assertion & words of direction c. statement in question is a statement in the ordinary sense of the word d. the person engaged in conduct (verbal/nonverbal), but we can find something implied in the words or nonverbal conduct e. before the adoption of FRE, some courts said that this DOES create a hearsay problem, but the FRE says its not On the EXAM we will see two consecutive hearsay hypos - 1W testifying that he saw defendant outside his house with a gun at 7 and yelled to his wife... - 2W testifying that her husband saw defendant with gun at 7 and yelled this back to her... - Treat both these hypos the same: doesnt matter that the declarant and the witness are the same in situation one. Apply the same test to both so that if they are offered to prove the truth of the matter asserted then they are both hearsay (or not). However, note that situation one although hearsay, could come under an exception to the hearsay rule and thus be admissible hearsay. HYPO 38: Mechanic tells customer Back tire in bad shape. Purpose of offering this statement as evidence is to prove wheel was defective. - this would be hearsay HYPO 39: Same as 38, only now it was being offered to prove that P assumed the risk in driving the car. - NOT hearsay b/c P was put on notice by the mechanics statement WRIGHT v. TATHAM (cited in UNITED STATES v. ZENNI EDKY 1980, p. 114): biggest case on the subjectevidence in question was letters sent to testator of a will in a case finding whether he was competent or not; letters were offered to show the writers believed he was able to make intelligent decisions (i.e. that he was competent) - proponent argued that letters were relevant b/c theyre the types of letters you would write to someone you believed to be of sound mind

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o by implication, the author of the letter believed the reader (testator) was of sound mindletters had a tendency showing the authors had the underlying belief that testator was of a sound mind o there was an implied assertion that he was of sound mind opposing party: its hearsay b/c its being offered to prove the truth of the matter asserted, and the people making the statements should be cross-examined HELD: letters = hearsay b/c they were offered to prove the truth of the implied statements (that testator was competent) o however, the common hearsay problem of insincerity does not apply herea person making an implied assertion is not going to lie about it b/c theyre not thinking about that implied assertion

HYPO: Ship captain is trying to take a new ship on a voyage & theres evidence showing he spent several hours inspecting the ship. Two days later, he brings his family on the voyage. The ship sinks on his voyage later. Issue = whether the ship was seaworthy. - proponent of the ship being seaworthy would say b/c he brought his family aboard (trusted his familys life on the ship) - however, under WRIGHT, it would be hearsay b/c, by going on the ship after the inspection, it delivered the opinion that the ship was seaworthy o while he didnt say it was seaworthy, his conduct implied his belief that it was so; evidence was offered to prove the truth of that belief HYPO: One party trying to show that at 12 PM, there was rain falling. Party is trying to show it was a rainy, gloomy day & brings a W (eee who said she had a lunch appointment at 12:30 and at about 12, she looked out the window & couldnt tell if it was raining but saw a lot of people w/ a lot of umbrellas, so W thought it was raining) - under WRIGHT, the opposing counsel would say that W asserted her conduct to offer the truth that it was raining #15 (135): On issue of Ds ill-feeling towards X, Ds statement, X is a liar and a hypocrite. - NOT hearsay b/c its verbal conduct & an assertion that X has some negative personality traits, but its not offered to prove the existence of those traits o its being offered to show that D didnt like X, which is implied #15A (Surratt): Evidence being offered to show D didnt like X (ll-feeling towards X); D says I dont like X. - Hearsay? YES. - admissible hearsay under state of mind exception; but its being offered to show that D didnt like X, and D asserts that much in his statement #23: As tending to prove Xs honesty, there mere fact that D, Xs eer, promoted him from the position of order clerk to cashier. - NOT HEARSAY

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If at a moment in the testimony W said, I have personal knowledge that X was promoted, it would NOT be hearsay b/c its a general fact that person was promoted to the position it has an implied assertion that X is honest, but theres no actual assertion

#25: To prove Xs insanity, fact that X was confined in an insane asylum. - NOT HEARSAY b/c its just a fact, no oral testimony or writing #27: To prove Ds guilt of a particular criminal act, fact that D fled under suspicious circumstances immediately after the criminal act was committed, solely in order to escape. - NOT HEARSAY b/c while it has probative value to show Ds guilty state of mind - under FRE, this isnt hearsay UNITED STATES v. ZENNI (EDKY 1980) (114): Cops searched Ds house pursuant to warrant, answered phone; callers were placing bets; government introduced evidence to show callers believed Ds house was used in betting operations. - Evidence of concern to us: phone calls, which has probative value that the owners of that home were running an illegal gambling operation - people made these phone calls b/c they had an underlying belief that this place was the appropriate place in which they could place a bet like this - there was no express assertion of this belief, the only way you could get this evidence would be from implication o under FRE, NOT HEARSAY (non-verbal conduct isnt hearsay if its not intended as an assertion) SILVER v. NEW YORK RAILROAD (SJC MA 1952) (123): P suing D for damages, saying low temperatures in Ds train car worsened a preexisting medical ailment. D introduces evidence of absence of complaints (silence). - implied assertion by silence (old judges would think this was hearsay) - in this case, silence would have probative value that b/c it was the same temperature throughout the car where P was seated & no one else complained - someone wouldve mentioned it if it was that cold o their silence implied the temperature in the car was acceptable - and b/c, by implication they were expressing an opinion or belief that the car was fine and it was being offered to prove the temperature was fine #67 (135): Proponent of evidence trying to show P is suffering from a disease, and one of the symptoms is chest pain. P was experiencing chest pain. W (nurse) testifies that P was screaming when he came into the hospital; P didnt express anything in words, just moaning & groaning when arriving. - NOT HEARSAY (FRE) b/c Ps screams ddont contain any particular words under these circumstances - just indicated he was experiencing chest pain (his hands were up to his chest while groaning/moaning) o theres only circumstantial evidence that decl was in pain

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#67 EDITED: Nurse says that D was throwing his arms around and was groaning while pointing to his chest. He was asserting through his hand motion that he was having chest pain. o Hearsay? YES b/c its an assertion that there was pain and it was in his chest

#31 EDITED (219): To show X was ill, W testifies X complained of pain in chest. - Hearsay? YES b/c there was an assertion by the person of the existence of this physical painhe asserted that the physical pain existed and its being offered to prove there was pain o would be admitted under state of mind exception - but here, its an actual assertion and would be hearsay #66 (221): Sale of allegedly pornographic books. Prosecution offers letters as evidence that say, in essence, Send me some of those dirty books. Please send me a copy of Deviant Beachstuds Vol. 4. Send me a copy of Cheerleaders in Chains. People were aware this post office box was a place where you could order such material. - implied by the person placing the actual order - this is WRIGHTit implied that this mailbox is a place where they could order the dirty book you want - under FRE its not hearsay #71 (221): Personal injury litigation. P testifies that there was a stop sign facing the intersection toward the direction that D came; D went through w/o stopping. - NOT HEARSAY b/c stop isnt an assertion of anything; its just a word used to direct or instruct people how to operate their cars #74 (221): Murder prosecution for self defense claim. D introduces witnesses testifying that D was afraid of the victim (Im afraid of Victim.) - Hearsay? YES. - Why is this hearsay when it was NOT hearsay in SUBRAMANIUM? o decl = D here; hes asserting the existence of the feeling of fear #75 (221): Window shade oneto show D husband was home and had the opportunity to kill his wife, evidence that the window shade was open, which usually indicated that husband was home as a message to her lover (paramour). On the night in question, P wants to introduce neighbors testimony that on the night of the murder, the shade was open. - Hearsay? YES, even though it doesnt look like hearsay. - probative value = tends to show that the husband was home that night - Decl = wife; 801(a) says a statement is an assertion thats made as non-verbal conduct if intended to make an assertion o non-verbal conduct was intended as an assertion hearsay  wouldnt be excluded in a normal case - its assertive conduct b/c it was meant to send a signal something

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HYPO edited: Suppose on the date of the murder, the neighbor notices window shades were mostly open. Theres other evidence that people who knew the couple knew they had very different attitudes about privacy. Peter likes the feeling of being openwould keep most shades open. Suppose Pamela was killed during daytime. o would have a tendency to indicate that Peter was home o NOT HEARSAY***

PART IV: EXCEPTIONS TO THE HEARSAY RULE

UNIT 13: HEARSAY EXCEPTIONS INTRODUCTION & OVERVIEW FRE 802: Hearsay RuleHearsay is not admissible except by these rules or by other rules prescribed the Supreme Court pursuant to statutory authority or by Act of Congress. Historical Background: The underlying notion of the hearsay rule is that the out-of-court statements arent subject to any procedural safeguards (most importantly, they arent subject to cross-examination) so they arent credible and thus shouldnt be admitted. But lawyers started arguing that certain statements were made & even though they were out of court, their credibility & trustworthiness shouldnt be questioned. Terminology: - when we say exception to the hearsay rule, we mean a situation where the evidence IS hearsay (i.e. being offered to prove the truth of the matter asserted), but it falls under an exception and thus becomes admissible hearsay - its not technically correct when youre referring to a situation where the evidence is NOT being offered to prove the truth of the matter asserted to say these situations are exceptions to the hearsay rule, same w/ the reverse Rationales: 1) reliability and trustworthiness a. this is the most common rationale for a hearsay exception (except Admissions) b. the general notion here is that the declarant has no reason to lie in the particular situation 2) need for the evidence: applies to a minority of the exceptions FRE: 801(d), 803, & 804 list the exceptions to the hearsay rule and those statements which are not hearsay to being w/ - 803: the 23 exceptions listed here may be used regardless of decls availability - 804: the six exceptions listed here require the proponent to prove to the judge that the decl is unavailable as a W - 807 (catchall exception) gives the trial judge some inherent authority to admit evidence even if it doesnt fall w/in one of the exceptions UNIT 14: HEARSAY EXCEPTIONS CONCEPT OF UNAVAILABILITY (L247)

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means decl cant testify at trial CL approach to defining unavailability differed from FRE approach o CL: unavailable = defined w/in each exception that requires unavailability  so the definition of unavailable varied depending on the exception at hand o FRE: unavailable = gets a blanket definition

FRE 804(a) Definition of Unavailability. Unavailability as a witness includes situations in which declarant (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the decls statement (exemption) (2) persists in refusing to testify concerning the subject matter of the decls statement despite an order of the court to do so (refusal); or (3) testifies to a lack of memory on the subject matter of the decls statement (claim of lack of memory); or (4) is unable to be present or to testify at the hearing b/c of death or then existing physical or illness or infirmity (inability); or (5) is absent from the hearing and the proponent of a statement has been unable to procure the decls attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the decls attendance or testimony) by process or other reasonable means (absence) A declarant is not unavailable as a W if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the W from attending or testifying. - before one can invoke an 804 exception, one must show that decls deposition cant be procured by reasonable means UNIT 15: THE DYING DECLARATION EXCEPTION Rationale: when someone makes a statement believing death to be impending (i.e. is conscious of impending death), that statement has a high degree of reliability and trustworthiness. Most people will not lie with a deathbed statement. CL requirements: (1) case itself must be a criminal prosecution for homicide (2) declarant at time of trial must be dead (must be unavailable for reasons of death) (3) at time of the statement, decl must have been conscious of impending death with no hope of recovery a. a common issue is whether this element is satisfied i. most common evidence is the actual statement by decl ii. at times, evidence will be offered that someone else did something in the presence of decl*** b. SOLES v. STATE (SCFL 1929) (139): D charged w/ murder of Long, appealing trial court decision to admit Longs statements w/o allowing

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jury to determine whether statements were made under the sense of impending death. i. Rule: it is the duty of the judge (not the jury) to determine whether the statement was made under sense of impending death (4) statement must be one concerning cause or circumstance of the impending death a. statement must be about the death (i.e. nature of the physical attack, identity of the assailant) FRE 804(b)(2): Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the decls death was imminent, concerning the cause or circumstances of what decl believed to be impending death. - Elements: o 1criminal prosecution for homicide OR any civil case o 2unavailability by any reason falling w/in 804(a) o 3belief that decls death was imminent o 4statement was concerning the cause/circumstance of what decl believed to be impending death  all thats required is the person thought he/she was dying; death is NOT a req *under the federal rules the first and second requirements are changed significantly. HYPO: Witness testified, regarding what F said out of court. One day, while walking in a suburban area, Witness decided to stop by Fs house. F didnt answer the door when W rang the doorbell. So she went around to the back and sees F lying face down w/ a head wound. F tells W that Bradford had a huge axe and hit me with it, and I wont even live long enough to get to the hospital. W calls 911, got there, and were able to save Fs life. F is unconscious or in a permanent vegetative state. Civil action for damages against Bart Bradfordthat he committed the intentional tort of battery. - P wants to offer Fs statement for the purpose of showing that the attacker was Bart Bradford. Hearsay? YESthe statements being offered to prove the truth of the matter asserted (that Bradford hit decl w/ the axe) - CL: o Elements 1 & 2 dont work  its not a criminal prosecution for homicide  decl isnt dead o Element 3: he was conscious of impending death o Element 4: is about the cause/circumstance surrounding his death - FRE: o Element 1: satisfied b/c its a civil action o Element 2: hes unavailable, but hes not dead o Element 3: decl believed death was imminent o Element 4: satisfied HYPO (L258): Mrs. Shepard feels badly ill all of a sudden, calls her nurse. Tells her to call Doc immediately b/c Im probably dying. Also tells nurse to get the bottle of

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sherry husband bought b/c he gave a glass before dinner, decl thinks he poisoned her. She dies next day & her husband is prosecuted for murder by poisoning. Prosecution offers decedents dying declaration. Admissible? - CL & FRE: INADMISSIBLE b/c decl doesnt have a belief that her death is imminent - shes also speculating about everything; usu., decl statement is inadmissible for lack of personal knowledge unless a reasonable trier could conclude that decl had personal knowledge HYPO (L258): Mae = assaulted & raped. W/ 911 call, she says, Im dying. and says Troy was her assailant. Begins to recover after 2 weeks in intensive care, but dies a month later from brain aneurysm. Troy prosecuted for rape w/ intent to kill. P offers 911 operator who will testify about Maes dying declaration. Admissible? - CL & FRE: INADMISSIBLE b/c its a criminal prosecution, and only one type of criminal prosecution is allowed w/ dying declaration exception: homicide - HYPO (edited): Maes husband sues Troy for civil damages. Admissible? o ADMISSIBLE under FRE b/c it allows civil cases, but not under CL UNIT 16: THE PRESENT SENSE IMPRESSION AND EXCITED UTTERANCE EXCEPTIONS They sound the same, but the rationales for these exceptions are different. EXCITED UTTERANCE EXCEPTION - decl makes a statement while under the influence of an exciting event (i.e. car accidents, train accidents, explosions, etc. Rationale: When someone utters words under these exciting circumstances, theyre likely being sincerethey werent thinking about what they were doing or what they were saying; they were just blurting something out. TRUCK INSURANCE EXCHANGE v. MICHLING (SCTX 1963) (149): P wanted to recover insurance benefits from her husbands death, wanted to prove he died w/in scope of ement. She introduced decls (Hs) statements made to her after the accident (about a month before his death), showing decl hurt his head & had to come home b/c of the pain. D contended that the statements were hearsay & didnt come under excited utterance exception b/c they didnt independently describe the event or occurrence causing decls death. - Rule: An excited utterance must raise the presumption that it is a spontaneous utterance of thought created by or springing out of an occurrence - res gestae: the thing(s) done o statements made under res gestae influence were typically allowed in under that doctrine o slowly, it fell out of favor & isnt found in the FRE or any states modeled after the FRE

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FRE 803(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. - Elements: o 1exciting or startling event (startling event or condition) o 2alleged statement made under stress of excitement, caused by the event or condition o 3statement must be one relating to the event or the condition  need only relate to the event, doesnt need to describe it - EXAM HINT: when he wants to suggest an excited utterance, and the W heard someone say something just moments after the collision, Why did the truck driver go through that red light? - under this exception, someone basically just blurts something outthe event speaks through this person o the person speaks from the gut, not the mind HUTCHINS & SLESINGER, SOME OBSERVATIONS ON THE LAW OF EVIDENCE (146): when people are under intense stress or excitement b/c, say, someones firing a gun off, their perceptions arent necessarily accurate. They may be sincere, but they may not be accurate. Under this exception, theres almost never a problem w/ sincerity. ADVISORY COMMITTEE NOTES (1139-1140): Limitations on Some CL Jurisdictions 1) time element a. some CL jurisdictions said these statements had to have been made very near in time to the event itself b. FRE: theres not a per se limitation on the time the statement was made; in most situations the statement was made very close to the event c. HYPO: Car accident that occurred far away, and W testifies that decl said something about the accident at the hospital about an hour later. Decl seemed to be in shock, glossy eyed, and said something about it. i. Trial judge found this statement to be admissible under excited utterance exception ii. CL: wouldnt allow it b/c one of the requirements is the statement be made very close to the event iii. FRE: may allow the statement d. HYPO: J riding motorcycle, collides w/ truck, injured really badly. Almost immediately loses consciousness, and is unconscious for a long time. Extended family members have a round-the-clock visitor, and in the middle of the night while Uncle Bob was on the shift, J said, Why did the driver go right through the stop sign??!? i. could possibly go under the excited utterance exception 2) Participation: a. may be more likely that a participant will be excited but it depends on the facts of the case

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b. CL: participant statement is admissible but a bystander statement is INADMISSIBLE c. ***Under FRE, can a bystander statement be admissible? i. prevailing view is that an inability to identify the decl isnt alone fatal to the applicability of 803(2) 3) Proof of the startling event (NOT ON THE EXAM) a. some jurisdictions have said there must be some proof other than the statement itself that this event occurred b. almost always there is some other proof 4) Subject matter of the statement (ALSO NOT ON THE EXAM) a. in the vast majority of these cases, the statement is one describing or explaining the event or condition b. prior to the FRE, courts allowed statements to come in even though it didnt describe the event c. now, 803(2) says the statement must only relate to a startling event or condition HYPO (L200): Driver of a car calls 911 and says, Theres been a terrible accident on Route 340 at Jacobs Creek Bridge! Get help right away. A cement truck crossed into the wrong lane and hit a motorcycle. Hes in the waterI meant the motorcyclistmay be dead. The truck just kept going. Hurry! - judge would likely find this admissible b/c it satisfies the elements: o 1there was an exciting event o 2the accident likely caused the decls emotional state b/c he was under stress of excitement from the event o 3statement relates to the details of the event as the observer saw it PRESENT SENSE IMPRESSION EXCEPTIO Rationale: not based on shock or excitement, but on contemporaneousness. If the decl is making a statement describing something happening right now, then theres no problem w/ inaccuracy in memory or perception. Often, there will be an equally percipient witness the witness at trial usually perceived the event to which decl made the statement. FRE 803(1) Present Sense Impression. A statement describing or explaining an event or condition made while the decl was perceiving the event or condition, or immediately thereafter. - Elements: o 1there must be a statement describing or explaining an event or condition o 2must be made while the decl was perceiving the event or condition, or immediately thereafter  FRE drafters meant that the statement be made IMMEDIATELY after

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often takes a few seconds to process events (takes a few seconds to perceive an event & say something

STATE v. JONES (COA MD 1987) (154): female motorist suggested D, a state trooper, sexually assaulted her when he stopped her for a traffic violation. P introduced statements of 2 unknown decls which were heard by another state trooper over the police radio. Decls said cop car was driving fast, no headlights, being followed by another car. Trial court admitted COSpA revd P appealed - Rule: Under present sense impression exception to hearsay, corroboration by an equally percipient W is not invariably reqd as a condition to the admissibility of the statements - there should be no delay beyond an acceptable hiatus between perception & the cerebellums construction of an uncalculated verbal description - EXAM: if the verb is in the present tense, then you can usually count it to be present sense impression LIRA v. ALBERT EINSTEIN MEDICAL CENTER (SCPA 1989) (152): P brings med mal suit against D, saying she was injured when doctors inserted a tube in her throat. She wanted to admit Who butchered you? statement by a doctor not party to the action. Trial court admitted statement, D contended admission was erroneous granted; P appealed, saying its admissible under present sense or excited utterance. - Rule: Hearsay rule doesnt allow admission of a physicians extra-judicial statements of medical opinion under either exception. - theres no exciting event under excited utterance (no car crash, explosion, etc.) - decl was a throat specialist & his reaction wasnt instinctive, it was deliberative o wasnt a product of reflex o it was a statement based on experience & training, not reflex DISTINGUISHING EXCITED UTTERANCE FROM PRESENT SENSE IMPRESSION (L199, E&E104) - Subject matter range: o present sense impression: limits the subject matter range of decls statement (must describe or explain the event or condition) o excited utterance: decls statement only needs to relate to the exciting event - Influences o present sense impression: doesnt require decl to speak while under the influence of stress or excitement; statement can be made during or immediately after decl observes the subject o excited utterance = requires decl to be under the influence of stress or excitement UNIT 17: DECLARATION AGAINST INTEREST EXCEPTION FRE 804(b)(3): Statement against interest. A statement which was at the time of its making is so far contrary to the decls pecuniary or proprietary interest, or so far

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tended to subject the decl to civil or criminal liability, or to render invalid a claim by the decl against another, that a reasonable person in the decls position would not have made the statement unless believing it to be true. A statement tending to expose the decls to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. - FRE Elements: o Decl = unavailable o statement must be made against decls interest  against interest = against any of the following: y pecuniary interest (money interest) y proprietary interest (property interest) y civil liability interest y criminal liability interest - CL requirements (from G.M. McKelvey Co. v. General Casualty Co. of America, p. 200): o 1. decl is unavailable o 2. declaration was against declarants interest o 3. decl had personal knowledge of facts  decl had particular means of knowing the facts which he stated o 4. decl had no probable motive to falsify the facts stated - FRE got rid of (3) & (4) 1 & 2 are the only ones required. o 3 = unnecessary to stateits true of all exceptions o 4 = if theres a motive to falsify the facts, it isnt a statement against interest Rationale: If the statement cuts against the decls own interest, its likely to be truthful. Also, theres a strong need for the evidenceunavailability is a requirement. - the statement at the time it was made was so against decls interest or so likely to make them criminally or civilly liable that it has to be the truth Statement against penal interests/criminal liability interest: - many US jurisdictions didnt recognize this during adoption of FRE in late 60s/early 70s - HYPO: Liquor store robbed, evidence shows adult male wearing a mask did it. Did it on a Friday night w/ gun, demanded $, got it. Later, D arrested, charged, pleads not guilty, case goes to trial. D wants to offer evidence that someone else did it, and that evidence is a witness saying that I heard a declarant say, I robbed the store. o classic example: D in a criminal prosecution offering W testifying that someone else said they did it - corroboration requirement (for EXAM purposes, will need only know if its there and where it applies, do not need to apply it to facts) o first part defines itoffered only when D wants to show lack of guilt o only applies when the accused offers it to exculpate the D under criminal liability o statement tending to expose decl to criminal liability

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HYPO (L264): Harvey & wife employed by small business selling kitchen supplies. H keeps financial records & wife works in sales but sometimes helps w/ accounting & records. H has been embezzling for over a year; revealed scheme to wife & enlisted her aid in advancing & covering it up. Scheme worked fine for months, but outside audit revealed discrepancies in records. Both fall under suspicion. Wife calls investigating detective, revealing her illegal activities & explains in detail (and from personal knowledge) how H schemed, got her help, and made false entries. She agrees to testify but gets killed in car accident. P offers her statements to fraud investigator. - her statements arent against her penal interestsits a mixed statement - her declarations would have be individually examined UNIT 18: THE ADMISSIONS EXCEPTION (ADMISSIONS EXCLUSION) One of the biggies FRE 801(d) Statements Which Are Not Hearsay. FRE 801(d)(2): Admission by Party-Opponent. The statement is offered against a party and is (A) the partys own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the partys agent or servant concerning a matter w/in the scope of the agency or ement, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority under subdivision (C), the agency or ement relationship & scope thereof under (D), or existence of the conspiracy and the participation therein of the decl & party against whom the statement is offered under (E) Rationale: - NOT reliability or trustworthiness - this exception is based on fairness in the adversarial system o all others are based on reliability or trustworthiness o b/c it is NOT based on reliability or trustworthiness, it is defined as an exemption in FRE  not put in 804 b/c unavailability isnt a requirement  but wont work in 803 either b/c they are exceptions based on trustworthiness and reliability  so, it was placed in 801(d)statements that are NOT HEARSAY Uniqueness of the Rule: - based on fairness in the adversary system

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dont need to analyze the circumstances existing at the time the statement was made; all that matters is that at the time of trial an opposing party wants to use the statement fact that decl didnt have personal knowledge of the matter about which decl spoke does not defeat admissibility under this exception statement admitted under this exception is not just admitted; its admitted against somebody (admitted against a party)

REED v. McCORD (COANY 1899) (160): Personal injury action for death of Ps husband. Evidence in question: statement by D to coroner, where D said to coroner stuff about Ps husbands death, including the machine he used and the circumstances. Coroner stenographer testified at trial that D said this, but it wasnt based on Ds personal knowledge. - Rule: Out-of-court statements of a defendant, regarding the cause of injury, are admissible against the defendant even though D didnt have personal knowledge. - This case shows the first FRE categorya statement made by X (statement made by a party) HYPO (L179): Deuce prosecuted for possession of controlled drugs. Alleges drugs are his former roommates. Ds ex-girlfriend will testify that D once said I make a hell of a living moving drugs right under the nose of the cops. D objects to the proffered testimony on relevance grounds and that D has not and likely will not testify. Admissible? - Yes; they are relevant b/c they increase the likelihood that the drugs in question were his SECOND FRE ADMISSIONS CATEGORY a statement (by someone else) adopted by X. - D can repeat the statement as if it were true - HYPO: Robbery @ Sidneys liquor store. Give me $ or Ill blow your head off given $. Months later, someone charged w/ it, pleads not guilty, have trial. Witness said on a Wednesday afternoon on the following week, one of his friends yelled at D Hey! I saw you running out of the liquor store! Youre the guy who robbed Sidneys Liquor Store last week! P asks W if that guy said anything, and W tells him he just looked down and sorta kicked the dirt, didnt say anything failed to deny it. o P would argue this is a tacit admission by silence  Courts have reasoned that sometimes evidence should be admissible in certain factual situations b/c here, an ordinary person accused w/ such a statement would probably say something & being silent about it likely means the statement is true  Courts say the nature of the accusatory statement is such that a person would deny it y silence has probative value only if, in fact, it did mean something

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the nonresponse is an out-of-court, nonverbal assertion b/c the silence, in effect, asserts something UNITED STATES v. HOOSIER (COA 6th 1976) (161): D tried for bank robbery. Girlfriend said, You shouldve seen how much was in the hotel room. We had sacks of money then. Witness went on to testify that D remained silent, did not say anything about it. P was allowed to use such evidence. o COA said this was not harmful error and the circumstances are such that reasonable jurors could come to their conclusion that D was guilty o Gfs statement isnt technically being offered to prove that they had sacks of money in their hotel room, only for the limited purpose of having context o Rule: Statements of a third party may be used against a party if the latter has manifested adoption or belief in the truth of the statements through his actions. STATE v. CARLSON (SCOR 1991) (164): cop searching Ds apt found meth in the master bedroom and skidmarks on his arms. D denied they were skidmarks, when his wife said Those marks are from doing meth in that room w/ your stupid friends. D hung his head & didnt respond. o Court concludes there is too much ambiguity based on Ds behavior o Rule: A partys intent to adopt, agree w/ or approve of anothers person statement (a precondition to admissibility of statements under adoptive admission) is a preliminary question of fact for the judge. y

THIRD FRE ADMISSION CATEGORY: STATEMENT BY A PERSON AUTHORIZED BY X - HYPO: Car accident. P wants to sue the truck driver, alleging truck drive said he went through the stop sign. If P wants to sue the company, unavailability doesnt matter. Question is if the statement is admissible against the eer. o some would say its admissible against the eee but not eer o the only time an eee statement can be used against an eer is when eee was authorized or had speaking authority against eer - Lilly (183-85): a party must have delegated speaking authority to an agent, statements made in the course of exercising that authority are admissible against the party - Common examples: o client authorizing a lawyer to speak for her in connection w/ a case or other legal matters & o her authorization to an accountant w/ respect to financial matters o construction companys manager permitted to negotiate w/ suppliers of materials o corporate CEO given authority to initiate product recalls FOURTH FRE ADMISSIONS CATEGORY: STATEMENT BY AN AGENT OR EEE OF X CONCERNING A MATTER W/IN THE SCOPE OF THE AGENCY OR EMENT

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even if authorized to speak, the statement must be concerning a matter w/in the agents scope of ement CL example: BIG MACK TRUCKING CO,, INC. v. DICKERSON (SCTX 1973) (172): Willie Dickerson & Leday both worked for D; Ledays truck hit vic (Dickerson) & killed him. Ps (vics survivors) wanted to introduce, as evidence, testimony from cop & Ds VP, saying Leday told him about trucks defective brakes; trial ct ruled for Ps, D appeals b/c no evidence supported its negligence, & evidence of Ledays negligence were hearsay as to D o Under TX law, an agents hearsay statements are admitted against the principal as vicarious admissions only when the trial judge finds, as a preliminary fact, that the statements were authorized o Leday was authorized just to drive such authority doesnt grant him authority to speak of the accident o statements by Leday against D would have to be authorized FRE: o does away w/ the CL position by saying despite not having the authority to speak, the truck drivers & electricians that normally couldnt speak on eers behalf b/c they lacked authority under CL could now make a statement constituting an admission by principal: a statement by a partys agent or servant concerning a matter within the scope of the agency or ement  statement must have been made before termination of agency or ement relationship  judge decides whether the statement is a matter w/in the scope of the agency or ement o MAHLANDT v. WILD CANID SURVIVAL & RESEARCH CENTER, INC. (COA 8th 1978) (168): Sophie the wolf bit a kid while chained to a 6-ft chain. Ds director Poos wrote note to D prez informing him of the accident, Poos spoke to him personally, incident was also discussed at a Directors meeting w/o Poos (minutes were kept). Trial judge excluded everything (note, oral statement, 2nd note) based on lack of personal knowledge; P appeals  under admissions exception, evidence is offered against someone  Items 1 & 2 (note, oral statement) y admissible against eee? o Poos repeated what others told him as if he did knowhe adopted the statements (manifested a belief in the truth of them) o admissible against eee under Categories A & B (i.e. statement made by X, statement adopted by X) y admissible against eer? o NOT admissible against eer under C b/c theres no evidence that eee was authorized to make such statements concerning a matter like this o category D: caring for Sophie was w/in scope of Poos ement & when that relationship was in

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existence, his statements were about a matter w/in the scope of ement  both statements admissible under D  Item 3: Minutes of Directors Meeting y admissible against eee? o NOT admissible against eee b/c they were just statements about a matter that concerned eee y admissible against eer? o under C, yes  Its significant that the minutes were admissible against only eer and not eee b/c the jury will hear those statements; attny for eee should ask for a limiting instruction  EXAM TIP: DICKERSON teaches that the admissions exception is the ONLY HEARSAY EXCEPTION where you need to put stuff about who the statement is made against. o SABEL v. MEAD JOHNSON & CO. (DCt Mass 1990) (176): meeting between D & some expert doctors about the side effects of Desyrel, which P was taking and claimed caused him to get priapism. P wants to admit, as admissions, the tape of the meeting. D objected.  Out-of-court statements made by outside consultants during an informal brainstorming session do not constitute admissions.  they were not agents of D nor were they authorized to speak about the side effects of Desyrel y D didnt authorize them to prepare a report of their findings statements were inadmissible hearsay w/ exception of statements made by full-time D eees FIFTH CATEGORY: STATEMENTS BY XS COCONSPIRATORS EXAM UNIT 19: THE FORMER TESTIMONY EXCEPTION Covers statements made under oath at another proceedingstatements usu. made in court, but not in this particular trial, courtroom, before this jury. - At times, these statements can be admitted w/o reference to this exception o i.e. if offered for a nonhearsay purposeParty 1 trying to show that somebody had known of something two years ago and at trial, this person testified about matter Xyou dont need an exception to the rule if its not hearsay FRE 804(b)(1) Former Testimony. Testimony given as a W at another hearing of the same or different proceeding, or in a deposition taken in compliance w/ law in the course of the same or another proceeding if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. NOT ON THE

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Elements: - CL o decl is unavailable o past & current proceedings have the same issues o past & current proceedings have the same parties TRAVELERS FIRE INS. CO. v. WRIGHT (SCOK 1958) (188): Wright brothers filed action to recover proceeds from D for a fire that destroyed their prop. D said the fire was caused by arson, wanted to introduce evidence of 2 Ws prior testimony at a criminal trial of J.B. Wright (P) for arson in connection w/ the fire. Trial court refused to admit it; D appeals. o Prior testimony of a W in a crim trial can be used in a subsequent civil trial if  1W who testified at crim trial is unavailable  2theres an opportunity to cross-ex the W by the party against whom the evidence is offered or by a party whose motive to crossex was the same (same parties), &  3issues at the two trials are the same y same issue means the same factual issue (same question of fact) y so, in criminal trial, question was if Mr. Wright procured the burning of the building (as testified by the two Ws) y in the civil case, they would call the same guys to the witness stand to find the same issue o issue of same parties: two Ps in the civil case  the interests of Ps here are exactly the same  Justice Jackson says if it means that all parties must be the same, then this requirement isnt met (crim trial had P as the State of OK). Here, the truth is were looking at just one sidethe party is the same as against whom the evidence is offered y crim case: offered against J.B. by the state y civil case: offered against J.B. by the insurance company o Unavailability: W asserting their 5th A privileges = unavailable. FRE: o (1) unavailability o (2) party against whom evidence was offered had the opportunity to develop Ws testimony o (3) party against whom testimony is now offered had an opportunity and similar motive to cross-ex  opportunity and similar motive most of the time, we will be talking about cross-examination y it means that the predecessor party had the opportunity to cross-examine  Lilly (168): central feature of this rule is if a party has had the opportunity to develop (by direct or cross-ex) a Ws testimony in the first trial (or proceeding), the Ws (trial-one) testimony should be admissible against that party in trial two

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it only has to be an opportunity to develop the Ws testimony y Rule is satisfied when: o it doesnt matter if the opportunity was given on cross- or direct-ex o if co-P conduct a direct ex but other co-P (against whom Ws testimony is later offered) declined to conduct a direct ex o if cross-examiner against whom Ws testimony is subsequently offered) waived cross-ex o UNITED STATES v. SALERNO (USSC 1992) (194): D, along w/ 6 others, charged w/ violation of RICO. D & others allocated Ks among 6 concrete companies for some proceeds. Owners of one of the companies testified before a grand jury to say Ds didnt participate in the club. At trial, P introduced prior testimony of 2 Kors in the company who said the company did belong to the Club. Ws claimed 5th @ Ds trial; D introduced grand jury testimony at his trial Dct refused to admit it on grounds that govt motive in grand jury hearing wasnt same as motive @ trial. D appealed COA revd, admitted evidence.  To allow a crim D to introduce, against the govt, grand jury testimony of a W who asserts the 5th, it must be shown that govt has the same motive at the trial as it did at the grand jury hearing.  usu., grand jury testimony is inadmissible at trial b/c the motives are so different y grand jury = investigative, has no decision y at trial, P wants to be aggressive & reduce believability of Ws testimony + wants to impeach credibility of W by showing bias, prejudice, or interest y Lilly Notes (250): Distinction between criminal & civil cases - in both types of cases, focus is on the party against whom the former testimony is now offered - central question: whether prior testimony of a W should be admissible against that party on the ground that he was adequately protected by an earlier examination of the witness or by an earlier opportunity to develop the testimony o criminal cases: has the same party requirement  party against whom the former testimony is offered in the 2nd proceeding must have also been a party to the first proceeding y this is NOT REQUIRED if the second proceeding is civil y in some civil settings, a different party (from the one against whom the prior testimony is now offered) may have adequately protected the interests of the present party - HYPO (L250): P & Q are injured by a train at a railroad crossing when it hits Ps car. They sue RR company for defective signal. Bystander testifies for Ps at trial 1, saying signal wasnt working, RR cross-examines him. Ps win, but app ct grants new trial b/c judge gave erroneous instruction to jury. When trial 2 comes

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around, bystander is unavailable (army). P offers transcript of his former testimony. Admissible? o Meets requirements of 804(b)(1) o Opportunity to develop: RR had the opportunity to develop Bs testimony at trial 1 and did attempt to do so by cross-examining o Similar Motive: in trial 1 it was to show the signal was defective, and thats the point in trial 2  804(b)(1) doesnt require similar or identical issues in both proceedings; but its still a concern in applying the rule  only issue of importance in application of 804(b)(1) is issue toward which the former testimony is directed UNIT 20: STATE OF MIND EXCEPTION (INCLUDING PHYSICAL CONDITION) Allows admission of out-of-court statements in which decl purported to describe a thenexisting mental condition, emotional condition, or feeling w/ the person of the decl - sometimes a statement of present state of mind - it asserts the existence of a certain state of mind Rationale: - decl will usually perceive & accurately report her own physical mental or physical condition (My back hurts or I am depressed) - many of the statements are somewhat spontaneous & there is a need for them (law of evidence has long recognized this exception) - dangers are minimal o mistaken perception  memory is NOT involveddecl looking into his own mind & describing it; there shouldnt be problems w/ inaccuracy of perception o inaccurate memory when applied to statements disclosing a presently existing state of mind or bodily condition FRE 803(3): Then existing mental, emotional, or physical condition. A statement of the decls then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of decls will. - application to wills: decls statements about execution, revocation, identification, or terms of his will are special o unavailable decl is the person who presumably knows the most about his will: his declaration usu concerns his own conduct & T normally considers the execution & revocation of will very serious o coupled w/ the need to at least consider evidence about Ts relevant statements 803(3) requires admissible declarations must refer to an existing mental state

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HYPO 15 & 15A: Trying to show Decl didnt like X. - 15A: W testifies that decl said, I do not like X. o admissible hearsayasserted the existence of mental or emotional condition (negative feelings towards someone else) HYPO: Party trying to show vic of stabbing & shooting is that vic was conscious of impending death; that the person at the time realized they were about to die. Guy said, I realize Im about to die. That statement is offered; admissible? - IS hearsay, but is admissible b/c decl asserted existence of particular state of mind ADKINS v. BRETT (SCCA 1920) (210): Alienation of affections case. While driving, witness says decl said You dont send me gifts. Freddy did send me flowers, shows me good time, I love Freddy. You are distasteful to me. - portions where she said I dont love you and I love Freddy are expressions of her mental/emotional feeling - an attitude that exists w/in her mind about the subjectis properly admissible b/c the statements fall w/in the state of mind exception - When intention, feelings, or other mental state of a person at a particular time is material to the issues at trial, evidence of such persons declarations, although hearsay, is admissible as an exception to the hearsay rule Intent, plan, motive, design, mental feeling - a lot of times under this exception, its one of these thingsintent, a plan to do something in the future, etc. - a particular context in which the statements are offered is when one party is trying to show that some person did something o evidence that that person stated a plan or intent to do something is admissible o HYPO: Trying to prove A was in Watertown on march 12. A objects to that. A decl says that, In the week prior to the event in question, A told me, Ill be in Watertown on Monday.  shows that A had a present intent and plan to be in Watertown on Monday  party can offer evidence as tending to prove that on March 6, A did have a plan to be in Watertown on Monday  Hearsay? Yes, but its admissible under the state of mind exception  Can jury consider the evidence as not only tending to show decls intent on March 6 but also as tending to show that he acted out that intent y Courts have said the jury can b/c its just a further inference - MUTUAL LIFE INS. CO. v. HILLMON (USSC 1892) (292): P (dead guys wife) had a bunch of insurance policies on husbands life. D refused to pay proceeds, thinking it was all a scam. D claimed the body P said was her husbands was someone elses & to prove that someone else went to Crooked Creek (where the

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body was found), D offered letters he sent to his family showing his intent to go to Crooked Creek w/ Ps husband. o USSC found it to be admissible hearsaya statement of Walters (the other guy) existing state of mind as tending to show his intent & intent was carried out o evidence of decls direct statement of intent is admissible hearsay when used to establish that decl acted in accordance w/ that intent o evidence is relevant about whether he did travel to Crooked Creek o When intention of a party is in itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. o while the letters didnt make his presence at Crooked Creek a definite, it increased the chances that he was there SHEPARD v. UNITED STATES (USSC 1933) (218): D convicted of murdering his wife by poison; @ trial introduced testimony of Ws indicating she killed herself. Govt attempted to introduce the statement made by Ds wife to her nurse after she drank the poison that D poisoned her. At trial, it was admitted under the dying declaration exception D appealed, COA found P didnt show vic knew she was going to die. There were still two theories by which to admit the evidence: to oppose Ds contention that her mind was bent on suicide & by state of mind exception COA allowed it to oppose Ds contention that she was bent on suicide; D appealed. - Cardozo didnt like the tactic of introducing a statement under one exception and trying to sustain its admission using a different exception o first admitted using dying declaration, then P argued to sustain it either as:  evidence to contend Ds theory that she was bent on suicide  evidence of her state of mind to stay alive - could NOT be admitted under state of mind exceptionCardozo spelled out limit on Hillmon doctrine o declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored. o Testimony now questioned faced backward & not forward. This is did, in at least its most obvious implications. What is even more important, it spoke to a past act, and more than that, to the act of someone not the speaker. - so NOW, the Hillmon doctrine only works with forward-looking declarations in which the decl states his intention to undertake a course of conduct in the future o on appeal, it wasnt being offered to prove the truth of what was actually assertedthat D poisoned her o HYPO: Issue is whether light was red at a traffic intersection. W testifies that her coworker said she noticed the silver car had a red light (Ds car). There would be an objection that the out-of-court statement was hearsay,

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but P would argue its admissible by the state of mind exception b/c when decl said the light was redan opinion that the light was red any declaration showing any state of mind is admissible

UNITED STATES v. PHEASTER (COA 9th 1976) (222): D charged w/ kidnapping Adell. P introduced testimony of 2 of Adells friends showing Adells intentions on the night of the kidnappinghe said he was going to meet Angelo (another D) in parking lot of restaurant. D objects b/c they couldnt properly be used to determine if Adell actually did go to the parking lot as he intended. - Hillmon doctrine allows admission of hearsay statements to prove intentions of a decl, even if the intentions involve another partys actions. - this case proposed there are two ways to look at the Hillmon doctrine: o 1narrow = if the statement of the intent/plan predicts the future conduct of decl & another, its admissible only to prove the decls future conduct but not the other person o 2broad = can come in to predict both actors conducts b/c it was a statement of decls plan that predicts future conduct of both - People v. Alcalde (Cal 1944) (225): D lived apart from his wife, worked @ manufacturing job. D asked Bernice for a date, started dating. He forgot to tell Bernice about his wife. So D was ready to get back w/ wife, killed Bernice. Item of evidence in question was Bernices roommates statement that Bernice told her, Im going to state park to meet D. o majority embraced the broad view that the statement predicted the future conduct of two people o Traynor wrote the dissent, advocating the narrow view of Hillmon o vics statement predicted conduct of both her & Dmanifested her belief that D would be there  but it has a strong prejudicial effect against D - so here, Court sponsored the broad rule & allowed the evidence to prove Ds conduct ZIPPO MANUFACTURING CO. v. ROGERS IMPORTS, INC. (Dct S.D.N.Y. 1963) (228): P (Zippo) brought action for unfair competition & trademark infringement against D, alleging Ds lighters made to look exactly like Ps & they confuse the consumers; P conducted 3 surveys to uphold the allegations. Over 37% of those surveyed confused the lighters. Evidence of the surveys allowed. - FRE says this is not admissible to show belief, but part 2 of the rule says but not including statement to prove fact remembered or believed - concept of FRE (not yet drafted) still stands b/c evidence that people said it was a Zippo wasnt being offered to prove it WAS a Zippo, but that they had the belief it was a Zippo - Properly conducted surveys are admissible hearsay under state of mind exception b/c theyre statements of present state of mind, belief, or attitude. - Even if not admissible hearsay, surveys admissible b/c of their necessity & trustworthiness

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UNIT 21: MEDICAL DIAGNOSIS OR TREATMENT EXCEPTION decl asserts the existence of a physical condition on the decls person @ CL & before FRE, most jurisdictions thought state of mind was an exception that only applied to mental conditions o statements of physical condition were separate, but they were really divided into two parts (one dealing w/ statement of then-existing physical condition, other dealing w/ ***???????) FRE expanded on it in 803state of mind exception applies not only to a mental/emotional condition but also statements of physical condition o this is one aspect of the physical condition o physical part of 803(3) applies to make hearsay admissible  this is a statement made to a family member, friend, etc.  ex: A & B work in airline assembly plant together, A says to B one day, Ive got a bad headache today. has nothing to do with getting the diagnosis (that is dealt with in 803(4))

803(4) Statements made for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Rationale: - when a person says something about their physical condition to assist a physician in diagnosing or treating that person as a medical patient, the person has no incentive to be insincere or inaccurate o persons seeking medical treatment have an incentive to be truthful: proper treatment may depend on their accurate description of his condition and symptoms Requirements: - statement doesnt literally need to be made to a physician, just that it has to be used for purposes of medical diagnosis and treatment o can be made to a nurse, ambulance, receptionist, hospital worker, etc. o many American jurisdictions distinguished for purposes of treatment and diagnosis o includes medical history, past as well as present symptoms, and the external cause of the patients condition if relevant to the diagnosis or treatment HYPO: Mom takes her crying & injured 6-yr-old daughter to hospital emergency room. Tells intake nurse: Please examine her right away. She lost control of her bike & went over the curb & into the street. An old man who wasnt looking where he was driving side-swiped the bike & she hit the pavement really hard. She was unconsciousthen came to in a few min. and started crying.

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all of her statements qualify for admission except one o her account makes it reasonably clear that she had firsthand knowledge o statements made to nurse for purposes of diagnosis and treatment  satisfies the rule clearly o part about being hit by a car could alert the doctor to possibility for internal injuries inadmissible portion: hit by an old man who wasnt looking where he was driving o Advisory Committee Notes: patients statement about getting hit by a car is fine, but not his statement that the car was driven through a red light o could be an excited utterance, though could argue mom was still stressed & excited when she spoke to the nurse & her statement about the old mans inattention relates to the exciting event o HYPO: I got my leg hit by a motorcyclist who ran the red light  this would appear to be admissible under this exception,  but the phrase who ran through the red light regarding legal liability is NOT important in assessing diagnosis or treatment

Process by which this stuff is offered: - often, statements w/in 803(4)s range are in the medical record, so proponent offers the record to prove what decls words were, then invokes 803(4) to permit trier to use decls statement for truth o involves linking 2 hearsay exceptions - auditor takes stand & testifies as to what decl (patient) saidpresence of auditor on W stand allows opponent to cross-ex him about whether or not decl actually made the statement proponent says he/she did - so the proponent uses a medical record in lieu of the live W (auditor) and must invoke a hearsay exception that allows trier to find that the statement was made o since the opponent cant cross-ex the medical record in an effort to disprove any statement allegedly made by decl (or to show that the statement actually made was different from the one recorded), record itself must comply w/ terms of a hearsay exception  FRE 805: hearsay w/in hearsay isnt excluded under hearsay rule if each part of the combined statements conforms w/ an exception y exception commonly used: business records (803(6)) - HYPO (L216): Civil proceeding where state agency sues to terminate custody rights of stepdad. Agency attny proffers medical record, where Doc who examined the daughter reported vaginal ruptures, presence of semen in vagina, & psychological trauma. Another entry made by Doc: vic says stepdad came into bedroom around midnight & raped her. o medical findings made in regular course of business (would likely qualify for admissibility under 803(6)) o under 803(4), trier can use Hildas statement for the truth of the its contents, including identity of stepdad  normally, identity of perp or tortfeasor wouldnt be pertinent to diagnosis or treatment

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but here, identity matters for the psychological trauma part proper psychological counseling could be influenced by nature of relationship between stepdad & Hilda

When the patient is getting a diagnosis ONLY and IS NOT BEING TREATED: - greater hearsay risks: stimulus to truth telling that presumably exists when patient is aware that proper treatment depends in part on his candid disclosures to the physician is not operative where patient seeks diagnosis for partisan purposes - this situation caused CL judges to hold these statements to not fall w/in the hearsay exception o judges limited scope of hearsay for statements to physicians and other medical personnel o under CL approach, patients statements of medical history plus past & present conditions were admissible not for their truth but to apprise the trier of the basis upon which expert grounded his opinion  so jury was made aware of patients remarks to an examining physician were to be admitted solely for their effect on the examining physicians expert opinion, not for their truth WILLIAMS v. ALEXANDER (CoANY 1955) (263): P sues D that hit P w/ car b/c it caused Ps injury despite its slow speed. Issue was why the car went through the crosswalk. D claimed his car was hit from behind which caused his car to roll forward; that it wasnt negligence on Ds part. - D wanted to offer a portion of the hospital record related to P, describing the injury o physician at the hospital taking statement from P record in the statement that P said he was crossing the street and a car hit another one, and the first one hit him  double hearsayP Dr. hospital record y Court didnt address the issue about the document b/c of another exception that clearly applies here o Ps statement = admissions, D wants to offer it against him - problem was the statement wasnt reasonably pertinent to medical diagnosis or treatment under 803(4) UNIT 22: PAST RECOLLECTION RECORDED EXCEPTION - first understand present recollection revived distinguished o BAKER v. STATE (COSpA MD 1977) (242): D convicted of murder 1 & robbery, based mostly on vics statements to cop who arrived at the crime scene. While on route to the hospital, cop confronted D, who says vic expressly said D was not one of his assailants. At trial, cop didnt remember this incident, so D tried to introduce cop report from another cop to refresh his memory (the first cops). Trial court didnt allow it D appealed

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A report of another party may be used to refresh Ws memory at trial when a memorandum is used to refresh memory, memo is just a stimulus thats not admitted into evidence Past Recollection Recorded/Present Recollection Revived y former = admitted at trial and as such is subject to more stringent reqs such as personal knowledge y latter = testifying W isnt required to vouch for accuracy of the stimulus to boost his memory o latter just uses an item, whether or not the Ws, to jog the Ws memory

ADAMS v. NEW YORK CENTRAL R.R (OH COComPlea 1961) (248): P wanted to recover from D for quadriplegia; D attempted to prove Ps injuries were from another accident; evidence: testimony of Eugene Raith, who interviewed P when he was in the hospital, but when she couldnt independently recall the interview contents, D trying to introduce the report & evaluation she prepared under Past Recollection Recorded, but he couldnt refresh his memory, so he testified that the memo was accurately written shortly after the interview. Trial court didnt introduce the evidence D appealed. - A written statement prepared by a W may not be admitted as past recollection recorded if Ws memory isnt refreshed by the written statement. - the evidence itself is the memorandum o usually means some sort of writing; o cant be offered into evidence by the party offering the recollectionjury only hears Ws testimony o one of the protections given the opposing party is that it may offer the writing itself into evidence When the document doesnt refresh the Ws recollection: - law of evidence says that if certain conditions are met, writing itself may be offered into evidence and now since the writing itself is in evidence, it will be hearsayits offered to prove the truth of the matter asserted, but its admissible as past recollection recorded There must be an authenticating W to enable the evidence to come inthe W must be someone who made or adopted the writing when it was created - differs from business records exception, where weve written documents, but theres no requirement that person who created the document be a witness 803(5) Recorded recollection. A memo or record concerning a matter about which a W once had knowledge but now has insufficient recollection to enable the W to testify fully & accurately, shown to have been made or adopted by W when matter was fresh in the Ws memory & to reflect that knowledge correctly. If admitted, memo or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. - Requirements:

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1) W doesnt now have a recollection (no present recollection) a. insufficient recollection to testify fully & accurately 2) at some point, W did have a recollection a. W once had knowledge 3) W made or adopted the memo or record (letter, report, e-mail, formal report) at a time when the recollection was fresh in the Ws mind a. means that this is the person who wrote/created it b. adoption is very similar to adoption under admissions exception i. indicate your belief in the truth or accuracy of it 4) W must vouch for the accuracy of the memo or record and show to reflect that knowledge correctly a. correctly reflects knowledge once in the mind of W i. more commonly, W must vouch for the accuracy b. all factual statements are correct c. Two different ways to do it: i. if you have no present recollection of the matter & youve made the memo at the time of the event in question ii. I remember writing it, and I remember the circumstances of writing it - second sentence deals w/ the procedural point o memo may be read into evidence but doc cant be received as an exhibit  purpose: when a lawyer hands the doc to the W and the W says his recollection is refreshed,  intent: reduces chance that the jury will exaggerate the probative force of the recordation Central features: 1) W once had personal knowledge of the event or condition in question, but by the time she takes the stand her memory has faded to the point that she is unable to testify fully & accurately 2) W made or adopted a recordation of the event or condition in question when her memory was fresh; there is no requirement that the record be made or verified immediately or promptly after the Ws observations 3) there must be evidenceand the testifying W usually supplies itsufficient for the trier of fact to conclude that the record correctly reflects the Ws knowledge at the time the record was made or verified HYPO (L219): B sees hooded man run out of a bank & run to a parked car in an alley. As he speeds away, Bystander is able to read his license plate. When B gets to the bank, Security Guard tells B the bank is closed b/c its just been robbed. B then reports what he saw and gives license number & state of registration as VA-YT468. Security Guard records info + Bs name, address, & phone #. At trial, P wants to show Ds car (VAYT468) was at the crime scene & was driven away by robber. B & Security Guard are available to testify. B, who cant recall the license plate #, wishes to testify that he gave the # to Guard when Bs memory was fresh & that the number he gave was accurate. Guard will testify, if allowed, that he accurately recorded the license plate # that B stated

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was on the getaway car. Is the testimony admissible, and Guards memo admissible under past recollection recorded? - both parties would need to take the stand to testify o even though the recordation is made by the observer, the observing & recording can conceivably be done by two people o If both testified:  one W would have reliable knowledge about the event observed (but who cannot now remember) and  another W who once had reliable knowledge about what he recorded (but cant now remember) y each can testify what was said or recorded was accurate y this is the essence of 803(5) - HYPO edited: If B, after observing the license plate number, promptly recorded the # on his appointments calendar and he took the stand and testifies: o his memory was fresh when he made the entry o the entry accurately records what he saw, o he cannot now remember the license number,  then the recordation should be admitted as recollection recorded Memorandum or record are not words of limitation - HYPO: Woman sees 3 people getting away w/ what looks like a bag full of cash. She observes the license plate number as ABC 123. Writes it down in part of a magazine o this WOULD qualify as a memorandum or writing - in BAKER, trial court judge was incorrect in not allowing use of a police report that was prepared by one cop and used by another to refresh the latter cops memory - in ADAMS, judge rejected the petitioners arg, emphasizing that a memorandum or record neednt be formalized UNIT 23 BUSINESS RECORDS AND PUBLIC RECORDS EXCEPTIONS A. BUSINESS RECORDS Rationale: - entities records usually have a high degree of reliability and trustworthiness o because these exceptions require decls hearsay statements to be in writing or other recordation that can be accessed by persons in addition to those who created, theyre reliable o indeed, theyre relied upon by others o a business has every incentive for its own records to be correct  its part of the duties of eees of the entity to be accurate in their record keeping - virtually all records that come w/in this exception have a high degree of trustworthiness and reliability o used in routine business records

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o a lack of trustworthiness may mean that it doesnt rise to the high level of trustworthiness expected from this exceptionthe record may be trustworthy, but not enough to meet this exceptions expectations 803(6): Records of Regularly Conducted Activity. A memo, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person w/ knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the [record], all as shown by the testimony of the custodian or other qualified person, or by certification that complies w/ Rule 902(11), 902(12), or a statute permitting certification, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term business = business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (1) requires record be made in the course of regular business activity and that it was the regular practice of the business to make the entry - designed to ensure the entry is routine and not one that is made for some special, nonrecurring purposeperhaps motivated by a desire to create evidence (2) entry must be made at or near the time of the event, act or observed condition that it records - minimizes hearsay danger of lapsed or faulty memory (3) judge can exclude the entry if it appears untrustworthy or suspicious JOHNSON v. LUTZ (NYCOA 1930): wrongful death stemming car accident. P wanted to introduce evidence to show when Ds truck killed deceased when truck hit the motorcycle. Report prepared by a cop at the station house, based on statements of 3rd parties (state statute on business records allowed admission of business records whether maker had personal knowledge or not) - if this was a criminal case, there may be more reluctance to admit this into evidence, but this is a civil case - Statements of third parties, contained w/in a written report prepared during the regular course of business, cannot be admitted into evidence under Business Records exception. o a memo or other written report of an act or event is admissible into evidence if it has been prepared w/in the regular course of business and w/in a reasonable time after the occurrence of the act or event o memo must also be prepared by a party w/ a duty or obligation to prepare such reports - Bystander Cop Police Report o Courts have recognized a situation like this, that if we can find an exception for the outside link, then the whole thing can come in - main point: when we have something that appears to be business records but has someone outside the business entity saying something to someone w/in the entity, its inadmissible b/c that person doesnt have a business duty to report as accurately as possible

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o so, theres a definite possibility of it being the absolute trustworthiness HYPOS (260): Each stems from a suit A brings against B arising out of car accident. Cop report contains the following statement P seeks to introduce: a) I was standing at my beat & saw the red Chevy go through the red light & hit the green Ford [Ps car]. a. admissible under business records exception b. only out-of-court statement is from the record c. police officer report b) I came about twenty minutes later & noticed a skid mark 93 feet away leading directly to the rear wheels of the Chevy. a. admissible under business records b/c it was based on personal knowledge of the cop c) I arrived w/in five seconds and heard a bystander scream, Did you see the red car go through the red light? a. a lot like LUTZ (bystanders give statements to cop) b. admissible b/c link between the cop & bystander is covered by the excited utterance exception c. bystander screaming cop report d) I arrived a few minutes after the accident and asked the Red Chevy driver what happened. He said he didnt know b/c he fell asleep at the wheel. a. Chevy driver Cop Report b. link between cop & report covered by business records exception c. link between driver & cop is covered by admissions exception - (a) & (b): single hearsay, w/ the cop on duty as a cop & engaged in activities police officers normally engage in (report prepared in regular course of business) o so easily covered under the business records exception - (c) & (d) involve double hearsay o (c): excited utterance exception covered the link between the bystander and the cop o (d): admissions exception applied between that link e) I arrived a few minutes after the exception. Officer Jones approached me & said that he had seen the accident & that the red Chevy had gone through the red light & hit the Ford. a. cop cop report b. Admissible, b/c both cops are part of the business entityboth had the business duty to report in connection w/ this event c. both links covered by business records exception f) I arrived a few minutes after the accident. Officer Jones told me she had arrived just before I did & asked Chevy driver what happened, who replied that he fell asleep at the wheel and didnt know. a. triple hearsay: Defendant cop cop report b. two of the three links are covered by the business records exception c. final link covered by admissions again NOT covered by business records b/c D isnt a part of the business entity

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g) I arrived 25 minutes after the accident & asked bystander what happened. He said he saw it allred Chevy was going too fast & couldnt stop for the red light, went through it, and hit green Ford. a. bystander cop report b. link between bystander & cop not covered by business records i. not covered by excited utterance ii. not covered by admissions iii. doesnt appear to be covered by any exception c. so the statement by the bystander to the officer isnt admissiblelike LUTZ WILLIAMS v. ALEXANDER (COANY 1955) (263): P sues D that hit P w/ car b/c it caused Ps injury despite its slow speed. Issue was why the car went through the crosswalk. D claimed his car was hit from behind which caused his car to roll forward; that it wasnt negligence on Ds part. - It is not w/in the regular course of business for a hospital to make a detailed record of the manner in which the patient was injured. - statement must be reasonably pertinent to diagnose or treat to know why the car rolled through the crosswalk (803(6)) - P arg: even when something appears to be in a document/file/pags that make up a record of a patient (which IS a business record), we must look at the portion in question to see if it complies w/ the requirements for the business records exception this portion is NOT b/c it doesnt relate to the business of the hospital (diagnosing & treating patients) o other ways to say it:  doctor has no business duty to be sure that this sentence is accurate/to record it  it doesnt relate to the diagnosis & treatment, lots of doctors wouldnt care if they got it rightthis isnt something where a doctor would be concerned about the patients privacy - the detailed manner in which he was hot isnt relevant to the hospitals duties - D couldve gotten it in by calling the doctor as a witness, in two other ways: o past recollection recorded o statement against interests (pecuniary) ****I DONT KNOW IF THATS TRUEIM GUESSING HYPO (263): Should newspaper reporters be admissible as a business record. A newspaper itself? A clipping from the newspapers back-issue library/ - generally, they are INADMISSIBLE under any hearsay exception - HYPO contd: Small town was county seat of a thinly populated county. Event occurred in this small town years prior where new courthouse was under construction which was a wooden structure. A fire swept through the partially completed structure and destroyed it. In litigation, party wanted to show the fire occurred, and found in local newspaper an article that reported there was a fire at the cite of the construction site that pretty much destroyed the partially constructed building.

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o Court found it was proper to report the evidence, but NOT under business records o arg that it is admissible under business records: it is in the regularity of businessarticles come out everyday in the news cycle o problems:  LUTZ: articles report that somebody said something to the author  ambiguous facts  newspapers operate under very stringent deadlines, and things dont get corrected until days later  stories in newspaper not regarded as having high degree of reliability and trustworthiness PALMER v. HOFFMAN (USSC 1943) (270): P brought suit for injuries suffered at his work at the railroad. After the accident that injured him, railroad engineer made a report to his eers about the accident. At the time of the trial, engineer was dead, and D (Hoffman) sought to intrdocue engineers statements into evidence, both trial court & circuit court excluded it, D appeals - at times, something may look like a business record at first blush but it really isnt trustworthy enough to be considered as such - D tries to get engineers perception of the events admitted through business records exception, says this is part of the regular course of business & accidents occur and so after each accident, we conduct these reports like this and take statements from the crew - USSC affirms it was inadmissibleDouglas said that this isnt a business record b/c the circumstances about this particular report and others like it indicate a lack of trustworthiness o COA said the engineer had an incentive to falsify his statements b/c he was involved in the accident o Douglas said this isnt an ordinary kind of business record (not made in the regular course of business)it was made by a person that almost certainly considered the possibility of a lawsuit  if its prepared with an eye towards litigation, its immediately suspect y means its about a subject people find difficult to be truthful about o the record must be made for the systemic conduct of the business as a businesshere, report was just prepared for litigation purposes - most courts want to interpret this case very narrowly o some think it stands for the notion that business records shouldnt be used to allow a party to cook up its story in advance and allow it to come in as a written record  the main question is who prepared the evidence, a party to the suit or another business entity? YATES v. BAIR TRANSPORT, INC. (S.D.N.Y. 1965) (274): P brought action against Bair (D) for work-related injuries, previously made a claim against a life ins co for the

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same injures. P wanted to introduce the medical reports prepared for the workmens comp action. Doctors 1 & 2 examined him on behalf of the ins co. 3, 4, & 5 treated P on his own behalf. P claims all records are admissible under business records even if prepared in anticipation of litigation. - generally, theres nothing wrong w/ admitting diagnoses under the business records exception - problem was each doctor was a non-treating physician; they were just doing the records w/ an eye towards litigation o judge says this indicates a lack of trustworthiness  1 & 2: trustworthy b/c they werent introduced on behalf of the party trying to introduce it into evidence  3, 4, & 5: classic PALMERthey could cook up reports favorable to P, so P will have to call them to the stand and they will be subject to cross-ex - Reports made in the regular course of business for the purpose of litigation are admissible under business records exception when theyre offered by the party against whom the reports were prepared. o 1&2  added trustworthiness to the reports even if they were made while litigation was pending b/c these reports were prepared by Ds y no incentive or motive to fabricate in favor of P o 3&4  made on behalf of P for purposes of litigation, should be excluded o 5  he treated P & it seems the trustworthiness element is lacking w/ respect to his report LEWIS v. BAKER (COA 7th 1975) (272): P injured on the job at Penn Central RR while riding down a hill on a train box car; claimed he was injured b/c the brakes on the car were defective and he had to jump out. RR & D sought to rebut his allegations by offering into evidence a personal injury report & inspection report by an eee of the RR who wasnt involved in the accident. - A memorandum or report of an accident, kept in regular course of business, is admissible when prepared by a party not involved in the accident. - judge distinguishes PALMER by saying in that case, the engineer making the report was part of the event in question (i.e. he couldve been found partially responsible) - theres no lack of trustworthinessinvestigation of accidents made in the regular course of business HANDOUT #3: BUSINESS RECORDS EXCEPTION - definition of business generally interpreted very broadly by US jurisdictions (not a term of limitation) - (a) memorandum, report, record, or data compilation, in any form o can include handwriting, printing, computers o again, very broad

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(b) of acts, events, conditions, opinions, or diagnoses o medical records o NOT limited to just the acts/events, can be the conclusion of the person engaged in the business activity (c), (d), (e) and (f) can be thought of as the basic elements that must be shown o (c) made at or near the time o (d) by, or from information transmitted by, a person w/ knowledge  NOT intended to overturn LUTZ (cop report of motorcycle accident containing bystander statements) o (e) & (f) are the heart and soul  (e): if kept in the course of a regularly conducted business activity y more specific; must show this particular record was kept in the regular course of business  (f): and if it was the regular practice of that business activity to make the memo, report, record or data compilation y more general y must be part of the regular course of business activity to make and keep such records (g) all as shown by testimony of custodian or other qualified witnesscertification o procedural stuff (h) unless the source of information or method of circumstances of preparation indicate a lack of trustworthiness o limitation from cases like PALMER

This exception can also be used to prove that a condition/element existed, but can also be used to prove a negativethat there was no event/condition - 803(7) Absence of Entry in Records Kept in Accordance With the Provisions of (6). Evidence that a matter isnt included in the memo reports, records, or data compilations, in any form, kept in accordance w/ provisions of (6) to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memo, report, record, or data compilation was regularly made & preserved, unless the sources of info or other circumstances indicate a lack of trustworthiness. - HYPO: In crim case, opposing party (prosecution) takes the position that D was driving a car from a rental company that he had no right to have (no right to be in possession of the car). D maintains he rented it. Almost surely, P would go through the records of the rental company or the W. o W would say a diligent search was made that examined all parts of the record o so, the record not indicating that D rented a carand the rental company keeps records of everyone renting carscould be used to show the event of him renting the car legally did not occur - most courts have taken the concept of 803(7) as saying something can be used to prove the nonoccurrence of an event or nonexistence of a condition

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PSYCHO LILLY HYPO (L224): At noon on any given day, theres a collision at a railway crossing between a train & delivery truck. Truck Driver, Engineer, & Bystander all witness the event. W/in 10 min of the accident, cops Blue & Shield arrive at the scene. They conduct interviews & examine the physical evidence. Truck Driver = only one injured, taken to hospital. He and Trucking Co. (his eer) file suit against RR Company, saying Engineer was speeding & failed to blow the train whistle, which may have been in disrepair (Engineer is unavailablemoved away, not named a D). RR denies negligence, claims whistle blew several times, claims Driver was contributorily negligent b/c he was speeding and didnt stop & look at the RR crossing. At trial, judge admits, over hearsay objections, each proffered items of evidence: (1) RR offers accident report it routinely prepares after any accident involving personal injury, death, or property damage. Sentence in report declares RRs Chief Investigator (RR eee) says whistle was working three hours after accident. Report also says Investigator interviewed Engineer day after the accident, who said he blew the whistle twice before the train reached the intersection where collision occurreddutifully recorded by Investigator. a. Is it a business record? i. HOFFMAN may say no, but its generally accepted that such reports are for business reasons b/c accidents are costly events that businesses try to prevent, even w/o litigation ii. Advisory Committee said routine accident reports are business records b. Might still indicate lack of trustworthiness i. Engineer had motives to lie like the guy in HOFFMAN: might get fired if he was negligent, he knows hes a potential D (i.e. had an eye to litigation) ii. Investigator may be more trustworthy (not a party to the action), but judge is the ultimate determinant under 803(6) (2) D (RR) offers portion of cop report prepared by Blue, saying that when Blue arrived, he interviewed Bystander, who said he heard the train whistle twice then saw truck speeding; tried to slam his brakes but couldnt, so Driver tried to speed through but the train still hit the back of the truck. a. bystander didnt have a business duty to speakjust like in LUTZ b. so the question is if it falls under another exception i. Present sense impression? No, b/c it was ten minutes later (803(1)) requires statement be made while decl was perceiving the event or condition or immediately thereafter ii. Excited utterance? Maybe, b/c his statement does relate to the event in question (reqd by 803(2) 1. would have to prove he was speaking while still under the stress of excitement caused by the collision 2. his level of sincerity is helped by the fact that he isnt a party to the action, but that also means he likely wouldnt be under stress of the event at that point

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(3) D (RR) offers another portion of the cop report, where Blue reports that Shield stated he measured the skidmarks of the truck tire, and they were 45 ft long & formed an undulant pattern, showing the cop was swinging back & forth when trying to stop. a. double hearsay, but both cops had a business duty, entry was made at or near the time of Shields observation & measurement of the marks b. would be admitted after laying proper foundation (must be testimony or other admissible evidence showing the report was prepared by someone w/ first-hand knowledge, had business duty to speak & record was prepared in regular course of business (4) During Drivers cross-ex of RRs Investigator, Investigator admits that after his investigation, Engineer was fired. Investigator also admits that before Engineer was dismissed, Engineer said train was going 75-80 mph but it wasnt in the report. Investigator states that interviews w/ other members says this was too high of an estimate. a. Engineers declaration about the speed of the train, made before he was fired, is admissible against RR as a party admission b. applicable FRE is 801(d)(2)(D)whats critical about Engineers statement is that it preceded the termination of his ement b/c, had it been made after his discharge, it wouldnt have been exempted from hearsay under that subsection c. would probably fall under admissions b/c it concerned a matter w/in the scope of his agency & he made the statement during existence of ement relationship B. PUBLIC RECORDS EXCEPTION Created b/c the business records exception is very broad & should include govt entities also. Drafters of FRE, starting w/ Advisory Committee, thought we should have separate provision(s) w/ regard to records of govt entities (803(8), 803(9), 803(10)). Rationale: - assumption that govt eees will generally discharge their duties faithfully & honestly - the volume of public records makes it unlikely that a public official will have any recollection of the contents of most of the public documents w/in her responsibility - public documents are relied upon by others (members of the general public, other people w/in the govt agency, or members of other govt agency) 803(8) Public Records and Reports. Records, reports, statements, or data compilations, of any form, of public offices or agencies, setting forth: (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in crim cases matters observed by police officers and other law enforcement personnel or

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(C) in civil actions and proceedings and against the govt in crim cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of info or other circumstances indicate lack of trustworthiness 803(9): deals specifically w/ vital statistics 803(10): absence of a public record or entity can be used to prove nonoccurrence of fact or event BEECH AIRCRAFT v. RAINEY (USSC 1988) (277): P, surviving spouse of pilot who died in plane crash, brings action against D, saying his death was b/c of defect in fuel system; D said it was b/c of pilot error, introduced investigative report by govt. P said didnt qualify under 803(8)(C), included statements of opinion. - Factually based conclusions and opinions are w/in the scope of the public records exception of the hearsay rule under FRE 803(8)(C). - factual findings resulting from an investigation made pursuant to legal authority are admissible as hearsay exception as long as theyre trustworthy o language of FRE 803(8) (factual findings) doesnt necessarily restrict the rules o legislative history doesnt provide any guidance either - the main safeguard of public records exception is in its trustworthiness, not in drawing an arbitrary line between fact & opinion UNITED STATES v. OATES (2nd Cir 1977) (282): D charged w/ possession of heroin w/ intent to distribute. P introduced reports & worksheets of a US Customs chemist to prove the substance was heroin. Chemist was unavailable, so P called another W to testify that the reports in question were prepared in the regular course of business. D claimed on appeal these reports are inadmissible under 803(8) b/c theyre introduced against him in a criminal proceeding. P claims evidence admissible under 803(6) (business records, remember?) - 803(8)(C) explicitly excludes these reports b/c the rule only applies in civil proceedings & crim cases where such evidence is introduced against the govt here, its being offered against D in a criminal case o however, may fall under 803(8)(B) b/c the Customs guy may count as law enforcement personnel - Law enforcement & govt reports, prepared in regular course of business, are inadmissible against D in crim proceeding - Court found there would be harm if it were admitted under 803(6) o legislators made sure that under FRE, P may not use written records in this form to prove important parts of its case o Judge Waterman says we must go beyond the literal language to effectuate congressional intent clearly intended for it not to be used this way UNITED STATES v. GRADY (2nd Cir 1976) (290): D charged w/ conspiracy to violate Fed. Firearms Law; trial court admitted reports of serial # & receipts of weapons that were prepared by Irish cops. D appeals trial court decision on ground that admission of

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the reports was in violation of FRE 803(8)(B) which excludes from the exception reports of matters observed by cops or other law enforcement personnel. - Reports of cops or other law enforcement personnel is admissible against a criminal D when they arent used to prove govts case - purpose of 803(8)(B) was to prevent govt from proving its case by introducing cop reports of cops contemporaneous observation of a crime o in this case, reports didnt prove the commission of the crime charged, and therefore didnt prove govt case in chief HYPO (L235): In prosecution for possession & use of dangerous weapon during commission of felony, P offers cop report that states, When D was arrested, about 20 min. after the robbery, he had in a holster under his jacket, a Beretta, 9mm, semiautomatic pistol, serial number BER400817. - inadmissible under 803(8)(B) b/c a cop prepared it pursuant to his duty imposed by law - it is a business record, but wouldnt be admissible under OATES b/c o if a public report is inadmissible against a criminal D b/c its w/in the protective provisions of 803(8)(B) or (C), report cannot be admitted under any other rule of evidence UNIT 24: OTHER EXCEPTIONS SKIPPED UNIT 25: THE RESIDUAL EXCEPTION OR OMNIBUS CLAUSE Before the adoption of the FRE, there were some cases in fed ct (mostly) that took the position that even though most of the time when hearsay evidence is admitted at trial, its admitted b/c the proponent convinces court that it falls under one of the other exceptions. But there were some cases where courts held that the trial court has an inherent power to let evidence in even if the evidence doesnt fall under other exceptions. This was originally at the end of 803 & 804. FRE 807: A statement not specifically covered by 803 or 804, but having equivalent guarantees of trustworthiness, isnt excluded by hearsay rule, if the court determines that (A) statement is offered as evidence of a material fact, (B) statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) general purpose of these rules & interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party w/ a fair opportunity to prepare to meet it, the proponents intention to offer the statement & the particulars of it, including name & address of declarant. HANDOUT #4: HEARSAY OMNIBUS CLAUSE OR RESIDUAL EXCEPTION

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Requirements for residual exception: (1) reliability & trustworthiness (2) evidence of material fact a. court must determine that the statement is offered as evidence of a material fact b. basically need to show that its not materially irrelevant c. nothing in the legislative history shows that they meant it to be a staggeringly important fact d. 401: relevant evidence is of consequential facts, any tendency to make a consequential fact more or less probable than it wouldve been w/o the evidence (3) need for the evidence (4) interests of justice (5) notice to the opposing party - procedural - the first four are the substantive ones; the last one is procedural o (1) & (3) are significantly more important than (2) & (4) DALLAS COUNTY (Burned Down Courthouse): county officials say the insurance company owes them $ b/c lightning struck, caused parts of the building to be charred building collapse. - ins co found a newspaper article about the incident - Judge Wisdom: while it didnt qualify under any other exception to hearsay, it was properly admitted by the trial court o strong need for the evidence to come in as hearsay:  neither party found evidence in the form of written documents to show there was a fire o no W available that can give meaningful testimony o there was a strong need for this evidence to come in o there were circumstantial guarantees of trustworthinessits unlikely that the newspaper would report an event that didnt take place o other arguments:  ins co not trying to prove subtle details like the cause of the fire, but just that there was a fire in the first place ZIPPO: when the judge said that even if the state of mind exception didnt cover that situation, he still wouldve admitted it b/c there was a strong need for the evidence and it has a high degree of reliability & trustworthiness TURBYFILL v. INTL HARVESTER CO. (DCt E.D.Mich 1980) (305): P, while shopping at Ds place, got his face burned after he put gas in a car pursuant to advice from a mechanic. Mechanic wrote an account of the accident pursuant to advice from his boss, but died before trial. D introduced his account of the accident. P appealed trial cts decision to admit the evidence b/c it constituted hearsay. - A hearsay statement may be admitted into evidence under FRE if it bears adequate circumstantial guarantees of trustworthiness. - Other exceptions:

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o business records: eee doing it while on duty and on the job, but doesnt qualify o past recollection recorded: now deceased decl, at the time, had a recollection, made the memo when the recollection was fresh in his mind, assured the supervisor it was accurate, but the boss is the one to testify, not the person who made or adopted it  supervisor didnt have personal knowledge of what happened, so this cannot come in under this exception UNITED STATES v. DENT (7th Cir 1993) (307): Cop stopped Ds car, found a gun, trench coats, nylon stockings, masks. P introduced into evidence grand jury testimony of W, who was unavailable, to prove car driven by Tucker & D belonged to Tucker. D challenged admission b/c it doesnt satisfy circumstantial guarantees of trustworthiness & violates Confrontation Clause of 6th A. - generally, such testimony isnt admissible at trial - But, in order to be admitted into evidence, an unavailable Ws grand jury testimony that doesnt fall w/in another exception, it must satisfy the Confrontation Clause in addition to the residual hearsay exception. - more important is Easterbrooks concurring opinion about how courts should be careful about admitting grand jury testimony - be aware of the fact that this is an issue that mostly its not allowed, but it still bubbles in the background under Rule 807

PART V: DIRECT AND CROSS EXAMINATION OF WITNESSES

UNIT 27: COMPETENCY OF WITNESSES Four requirements for a person to be a competent W: - 1oath: ability of a person to understand the meanings/obligations of the oath - 2perception - 3memory - 4communication HILL v. SKINNER (COAOH 1947) (700): P attacked & bitten by Ds dog. No direct evidence of the dog bite other than kids statements; D claims that w/o testimony of the kid, theres only evidence of injury coming from other sources. Trial court admitted testimony of the kid; D appeals, claiming kid was incompetent to testify. - Trial judge has the discretion to judge the competency of a child as a W. - court can make the determination as to whether this W is mentally capable of telling the truth and testifying effectively FRE 601 General Rule of Competency. Every person is competent to be a W except as otherwise provided in these rules. However, in civil actions and proceedings, w/ respect

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to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a W shall be determined in accordance w/ State law. - general rule is that every person is competent W unless prohibited from testifying by another Federal Rule o only a few Federal Rules prohibit testimony  605: residing judge  606: member of the jury o generally, only incompetent if W is incapable of perceiving, remembering, or describing the event in question - FRE 601 follows the Erie Doctrinewhen fed ct applies state substantive law, it should also apply those state procedural rules that potentially could have a significant impact on the outcome of the trial FRE 602 Lack of Personal Knowledge. A W may not testify to a matter unless evidence is introduced sufficient to support a finding that the W has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of Ws own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert Ws. - if W claims to have personal knowledge, that is all that is required for the personal knowledge o not a high standard at all, although the first sentence of the rule makes it seem like there is a high standard FRE 603 Oath of Affirmation. Before testifying, every W shall be reqd to declare that the W will testify truthfully, by oath or affirmation administered in a form calculated to awaken Ws conscience and impress Ws mind w/ the duty to do so. FRE 604 Interpreters. These guys also have to take an oath or affirmation. FRE 605 Competency of Judge as W. Judge presiding at trial may not testify in that trial as W. FRE 606 Competency of Juror as W. (a) At the Trial. A member of the jury may not testify as a W at trial when he or she is a juror. If so called, opposing party shall be afforded an opportunity to object out of the presence of the jury. (b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jurys deliberations or to the effect of anything upon that or any other jurors mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the jurors mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurys attention or juror. Nor may a jurors affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

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possibility of a juror giving evidence after the trial is over and a verdict is returned. Are the jurors competent of giving evidence for the purpose of impeaching their verdict? in many trials, the jury probably does something that is not completely proper traditionally, theres a rule that things that happen during jury deliberation cannot come in as evidence. Jurors are not competent to give this evidence. o Rationales:  keep the stability of jury verdicts; trial is expensive, etc.  we want to protect individual jurors from being subjected to pressure after the trial o if its an external matter, evidence IS allowed o if its an internal matter, evidence is NOT allowed

TANNER v. UNITED STATES (USSC 1987) (728): Ds convicted of conspiring to defraud the US & mail fraud. Before Tanner (D) was scheduled for sentencing, he filed motion for new sentencing date, interview jurors, new trial, etc. Affidavit said juror came up to D counsel & said people were drinking during lunch. DCt denied, saying evidence of them being hammered was inadmissible. D filed another one, saying juror came to counsels house & told him people were getting drunk & high throughout the trial (sworn & transcribed). DCt denied it again, 11th cir affd. - Substance abuse doesnt constitute extraneous or outside influence about which jurors can testify. - when we talk about internal/external matters, were talking about the nature of the matters, not the place where they occurred. - For some of the allegations in this case, things that happened at the restaurant, not court, were still internal matters. They had to do w/ the jurors conduct. - D arg: under 606(b), getting wasted counts as extraneous information o language & legislative history dont say so o alcohol is not an extraneous factor UNIT 28: EXAMINATION OF WITNESSESDIRECT AND CROSS Direct Examination Party who called the W conducts the direct ex - purpose: provide factual data to jury to help Ps case The direct examiner cannot ask leading questions (cant ask questions that suggest the desired answer) - rests on two assumptions: o 1factual assumption  cooperative relationship exists between direct ex & his W  W prepared to give testimony favorable to examiners client, precluding any need for leading questions  they probably rehearsed it anyway o 2psychological assumption

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if direct ex phrases his questions in language that implies or suggests the desired answer, W will respond by providing that answer Rationale: promotes principle of neutrality in adversarial system: trier of fact should hear a Ws unadulterated testimony, not testimony that has been influenced by partisan counsel when leading questions are allowed: o when other party does not object (judge ordinarily will not intervene) o to establish preliminary, uncontested facts (Ws identity, address, other incidental matters increases trial efficiency) o when W is forgetful  leading question or two may spark Ws memory o for interrogation of a very young W o to interrogate a hostile W o W is a member of the opposing party

Opposing party then has the opportunity to cross-ex. FRE 611 Mode and Order of Interrogation and Presentation. (a) Control by Court. The court shall exercise reasonable control over the mode & order of interrogating Ws & presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect Ws from harassment or undue embarrassment (c) Leading Questions. Leading question should not be used on the direct examination of a W except as may be necessary to develop the Ws testimony. Ordinarily leading questions should be permitted on cross-ex. When a party calls a hostile W, an adverse party, or a W identified w/ an adverse party, interrogation may be by leading questions. - so, leading questions only allowed on direct if necessary to develop the Ws testimony Cross Examination FRE 611(b) Scope of Cross-Examination. Cross-ex should be limited to the subject matter of the direct ex and matters affecting the credibility of the W. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct ex. - Minority rule (English rule)wide open rule o you can ask about things outside the subject matter of the direct ex o they have to be relevant to the case, but dont have to be inside the scope of the direct ex o anything can be asked - Majority rule (American rule) (FRE) o questions on cross are limited to the subject matter of the direct

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o subject matter of the direct ex is significant to the subject matter of the cross o ANY W is subject to impeachment, no matter what the subject matter of their testimony is o under US rule, you can also ask questions that would help to impeach the W, even if they arent inside the scope of the direct  including past criminal activity y w/ regard to factual issues in the case, cross-ex is limited to whats asked on direct y however, were talking about impeachment, not the factual issues of the case, so its ok to ask about it y under FRE, cross-ex is limited to subject matter of direct + issues relating to Ws credibility judge has discretion to allow cross-examining attny to ask about what questions outside the scope of the direct exjudge may permit inquiry into additional matters, as if on direct ex

UNIT 29: REFRESHING THE RECOLLECTION OF WITNESSES Law has long recognized that parties should be able to use some method to refresh the recollection of a W who seems to have some memory of the event, but they may need help b/c theyre hazy to a particular detail. - Lawyer can use some tangible thing (usu. a writing or memo) to try to refresh the memory of the W o writing is a tool for refreshing the recollection of the W, but the writing is not offered into evidence itself  it only serves the purpose to refresh Ws memory o evidence that is offered is the testimony of the W, NOT the writing  theres no rule about what the writing or tangible thing has to be y W doesnt have to have been involved in creating the writing or in approving of the writing y there doesnt need to be any connection to the W y ham sandwich rule: thing being used to refresh recollection can be anything, including a ham sandwich - FRE 612 writing used to refresh memory: o most of 612 is about criminal cases o we want to focus on the writing being used WHILE the W is testifying o to protect opposing party:  adverse party can have the writing produced at the hearing  can inspect the writing y this is the main thing  can cross-examine W thereon and  can introduce into evidence those portions which relate to W testimony y can be introduced as an exhibit

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y y

reason for this is that W could just be reciting the doc word-for-word and it actually isnt refreshing their memory procedure is the same as when evidence is admitted by an opposing party w/ Past Recollection Recorded

PART VI: IMPEACHMENT

UNIT 30: IMPEACHMENT OF WITNESSES INTRODUCTION AND OVERVIEW Attacking a Ws credibility to affect the impact that the W - all evidence intended to negate or raise doubts about the reliability of a Ws testimony, incl. evidence that calls into question the accuracy of his observation, his recollection, or fidelity of his account - impeachment can be given a broad meaning o describing anything the opposing attny does to affect the credibility of the W (i.e. asking a question that will show the W did not have a good chance to perceive an event correctly) o or it can take a narrow meaning (i.e. the particular techniques and methods that the law recognizes as attacking the credibility of the W Five recognized ways of impeachment: (1) Bias (2) Prior inconsistent statement (3) Prior bad act (4) Prior criminal conviction (5) Bad reputation or character for truthfulness - w/ regard to the first four, one thing thats always included is the party who wants to impeach the W during cross-ex (once in awhile, itll be the calling party, but thats rare)you will ask questions about the impeaching fact during cross-ex - HYPO: Personal injury case. P calls a W giving testimony helpful to Ps case. On cross-ex o Bias  suppose D is aware that this W & P were business partners for 15 years. May ask, Mr. W, isnt it true that you and P have done a lot of business deals together? o Prior inconsistent statement  You testified that you saw the light as red, right? But isnt it true that after the accident, you told someone else that you saw the light as green? o Prior Bad Act  Isnt it true that in 2004, when filing federal tax returns, that you underreported your income by $75,000? o Prior criminal conviction  Your testimony favors P in this case, and youre testifying under oath. You want people to believe that testimony. But isnt it true

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that seven years ago, at a state court in MN, you were convicted of aggravated assault? At times, the W may admit to these. However, that rarely happensmay deny it or say he or she doesnt remember. Question then becomes if the impeaching party has the right to admit evidence to the impeaching facti.e. whether impeaching party may bring in extrinsic evidence - generally, law of evidence says extrinsic evidence takes up time, causes delays - however, in some aspects, its so important that its allowed in; in others, its not - Bias: YES - Prior inconsistent statement: YES/NO - Prior bad act: NO - Prior criminal conviction: YES - Bad reputation/character for truthfulness: ***FIGURE IT OUT UNIT 31: IMPEACHMENT BY EVIDENCE OF BIAS, PREJUDICE OR INTEREST BIAScalled bias, prejudice or interest - Definitions: o bias means, in some contexts, can mean unfavorable; but in evidence, it means the favorable attitude towards someone o prejudice means the opposite o interest = W has some interest in the case - when either of these three is used for impeachment, its not an attack on general character - types of relationships: o business or personal o sexual/romantic - Restrictions: o FRE 403: prejudicial effect substantially outweighs probative value o must be relevant - Rationale: o theres something that exists to all the facts that would probably lead all of us to think that this W is capable of being objective in this case General method: - cross-examiner probing for possible bias of W doesnt have to settle for or take the Ws answer on cross, but CAN produce extrinsic evidence through other Ws or documents o cross-exer doesnt have to take Ws answer on cross UNITED STATES v. ABEL (USSC 1984) (566): D & 2 cohorts charged w/ bank robbery. 2 inds pled guilty & D went on trial. One of the inds, Ehle, agreed to testify against D @ trial & identify him as bank robber. D informed the prosecution that he had a W of his own, Mills, who was going to testify that Ehle told him he was going to falsely implicate D in hopes of getting favorable treatment from govt. P was then going to

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impeach Mills testimony by showing he & Ehle were in a secret prison gang that reqd perjury, theft & murder on each others behalf. P introduced this evidence to prove Ehle hadnt made the statement regarding false testimony to Mills. Over Ds objections, saying info was prejudicial to him, trial court admitted evidence of Mills membership in secret prison gang. COA revd. - Evidence of bias, w/o more, offered for impeachment of a W, is admissible if it makes a fact to which W has testified more or less probable. - even though theres no specific provision about evidence of bias in FRE, its admissible by general rules of evidence (FRE 607) as long as its relevant to Ws testimony - Bias = relationship between 2 parties which might lead one party to slant his testimony in favor or against the other party HYPO: Athletic event, fight breaks out. Someones jaw breaks. Its likely a person from Team A saw the event differently than the person from Team B. - Lawyer for Team B guy could indicate that the guy from Team A saw it a certain way, and on cross-ex, Team A guy lawyer could show the opposite HYPO (271): D says he couldnt have committed the crime in question b/c he was w/ girlfriend the whole time. - shes the only W; testifies that D was w/ her the whole time UNIT 32: IMPEACHMENT BY EVIDENCE OF PRIOR INCONSISTENT STATEMENT This is the most commonly used form of impeachment. - NOT considered a general attack on Ws general character for truthfulness b/c law of evidence knows a person can be untruthful in a number of ways - arent necessarily lying b/c of your inconsistent statements - Rationale: o unless W has a convincing explanation for why her prior statement is inconsistent w/ the one shes giving in trial, shes not a very forceful W - Restrictions: o these statements are considered hearsay, but theyre exempted from the rule o HYPO: Car accident. W1 tells someone he saw the light and it was green. Hearsay?  No, b/c as far as the law of evidence goes, statement technically isnt being offered to prove its truth (that the light was green), but is being offered for the limited purpose that W1s first statement is inconsistent w/ the testimony - non-collateral: significant/important; collateral: insignificant/unimportant - HYPO: P alleges D improperly acted at a company picnic; sexual harassment. W testifies that nothing improper happened. W testified that he remembered there were two types of food: hamburgers & hot dogs.

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o If lawyer brought up that another W previously said it was steak & chicken, that would be a collateral matter o if W previously said to a co-worker that D tried to kiss P at the picnic, that would be a non-collateral matter  some courts say that non-collateral matters are important for purposes other than impeaching the W  if its non-collateral, then the impeaching party CAN give extrinsic evidence  if its collateral (unimportant), then the impeaching party CANNOT y on cross-ex, you can ask about both collateral & noncollateral matters, but the distinction comes where you try to offer extrinsic evidence (non-collateral = yes, collateral = no) o reason behind cross-exing about collateral matters is that if someone doesnt remember the unimportant details, they likely couldnt remember the important ones Extrinsic Evidence - no extrinsic evidence for collateral matters o takes too much time, plus its distracting from main issues - Before you impeach the W, its not enough to ask the question during cross-ex in a general way: Isnt it true that you said in the past that the light was green? o its allowed, but you must ask in a specific way to lay the foundation to get the extrinsic evidence in o most courts say you have to ask the specific questionthe time, place, and circumstances of the accident (circumstances = to whom the statement was made)  so put the alleged statement in a very specific context  Isnt it true that on the day of the accident, when you were having lunch at McDonalds, you told Joe the Bartender serving your food that you saw the traffic light as green? y b/c you asked the question w/ such specificity, you have laid the foundation to get the extrinsic evidence in FRE 613(b) Extrinsic Evidence of Prior Inconsistent Statement of W. Extrinsic evidence of a prior inconsistent statement by a W isnt admissible unless W is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the W thereon, or the interests of justice otherwise require. The provision doesnt apply to the admissions of a party opponent HYPO (L308): P suing Corp for breach of K (Corp mining gravel under lease from P recently renegotiated). Under new lease, Corp claims Ps royalties based only on first quality gravel (mined on a tract of Ps next to a river), P says he should also get 2nd quality gravel (mined on hillsides further from rivers edge).

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While renegotiating K, P deal w/ many Corp reps, including Wilford who first approached P about possibility of increased mining near river & extension of mining to nearby foothills. Corp calls Wil to the stand, who describes himself as a corp officer, who says he explained the terms of the proposed K to P that were inserted into the K by Corps lawyers. On cross, Ps lawyer reminds Wil he said he was a corp officer, then asks isnt it true hes just foreman of mining ops. Wil insists hes considered a corp officer. Then, counsel proffers a letter from Wil to P, thanking P for his courtesy during their initial consultation and saying that Corps lawyers would follow up and complete the arrangements. Signature of letter contains title, Foreman, Mining ops. Letterhead doesnt list him as a corp officer. Should the trial judge admit it? - ***DONT KNOW IF WE NEED TO KNOW THE COMMON LAW TEST In some jurisdictions (not under FRE), theres a procedural rule regarding a statement made in writing - Queens Case Rule: o a cross-exer must show a written inconsistent statement to W before she could be questioned about it o LARKIN v. RR: before you ask the W about the writing, you have to have the writing marked as an exhibit, give W a chance to read it over, then ask the question - FRE doesnt follow thistheres no separate rule for written & oral statements o 613: written in very general language o doesnt distinguish between collateral & non-collateral matters  most fed judges havent thought that the distinction no longer exists, still follow that distinction in part b/c its been part of the law for so long  Park, Leonard, & Goldberg, Evidence Law (552): it makes perfect sense for a fed judge to apply the distinction - 801(d)(1) also deals w/ prior inconsistent statements o theyve said statements like this arent hearsay o cannot be offered for the purpose that the light is green in the past HYPO; drafters of FRE said when the prior statement is made under oath, it ought to have more weight than that  so, a provision in FRE included can be offered for the truth of the matter assertedits no longer hearsay  a statement is not hearsay if the W testifies at the hearing & the statement is inconsistent w/ the declarants testimony & was given under oath HYPO #115 (303): Action P v. D. W1 testifies for P that Ds car was going over 50 mph. To impeach W1, D offers testimony of W2 that W1 said a day after the accident that D was going slow. - NOT hearsay b/c its being offered to impeach the W - 801(d)(1) is the exception that applies

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UNITS 33 & 34: IMPEACHMENT BY EVIDENCE OF PRIOR BAD ACTS OR PRIOR CRIMINAL CONVICTION HANDOUT #5: IMPEACHMENT OF WITNESSES PRIOR CRIMINAL CONVICTIONS AND PRIOR BAD ACTS - rationale: o a prior act by the W indicates that the W is, generally, less likely than the average person to be truthful under oath o i.e. each of these methods is an attack on Ws general character for truthfulness - Procedures o prior criminal convictions  party using this method of impeachment may ask W about prior crim convictions and prove the existence of the conviction (by using record of the conviction) y true under NY & FRE o prior bad act  can only cross-ex about it, cant use extrinsic evidence y true under NY & FRE y can still rigorously cross-ex y questions asked must be asked in good faith o can certainly object if its your W up there and you had no idea about it - What prior bad acts, and what prior criminal convictions? o prior criminal convictions  NY y all crimes (felonies & misdemeanors) may be used for impeachment purposes  FRE 609(a): two categories of crimes y 1) felony-level any crime that was punishable by death or imprisonment in excess of one year under law under which the W was convicted (609(a)(1)) y 2) any crime that involved dishonesty or false statement, regardless of the punishment (609(a)(2)) o must include active intent to deceive o crimes such as perjury or subordination of perjury, false statement, crim fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accuseds propensity to testify truthfully (Congressional Committee Report)  also consider remoteness in time y NY doesnt set a specific time limit y FRE sets 10-year time limit (Ten Year Rule)

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o starts from date of the conviction or of the release of the W from confinement imposed for that conviction, whichever is the later date o 609(b): conviction over 10 years old cant be used unless impeaching party gives advance notice to other party & prob val substantially outweighs prejudicial effect  so, convictions more than 10 years old are rarely used for impeachment purposes o prior bad acts  FRE: 608(b) y only prior bad acts that are probative of truthfulness or untruthfulness may be used to impeach (i.e. may be asked about on cross-ex) y HYPO: Married couple, 2 kids. Wife & 2 kids go away for a week or something, and when H wasnt working, he locked stray cats in his garage and tortured them in his spare time. o would NOT be admissible b/c its not probative of truthfulness or untruthfulness  NY (wide open approach) y any immoral, vicious, or criminal acts of Ws life that have a bearing on his credibility as a W (the morays of society) o theyll have a bearing on Ws credibility if they reveal a disposition or willingness on Ws part to place self-interest ahead of principle and society y HYPO: H torturing cats. o this is a severe departure from the morays of society o would be admissible in NY o so D would have to ask for balancing under SANDOVAL  entitled to pretrial hearing  would first look at probative value: y ultimately very low, even though NY says any conduct on the part of W has some tendency to show bad character  prejudicial effect y its a particularly horrifying act; likely to have a strong effect on the jurors y similarity to kidnapping? o he physically enclosed the cats and made them

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experience things they did not want to  ultimately would be a strong argument for the evidence to be excluded Additional considerations for criminal Ds (prejudicial effect vs. probative value) - law of evidence recognizes the prejudicial effect problem coming when prior criminal convictions or prior bad acts are used to impeach credibility of criminal D on the witness stand. Problem comes b/c jury must make 2 different determinations concerning crim D who testifies as a W o jury must judge Ds credibility as a W o jury must decide whether to find the D guilty or not guilty of the charged crime - evidence of prior bad acts or criminal convictions are used only to assist jury on issue of credibility, but it also convinces them on the question of guilt o impeaching evidences tendency to assist jury on issue of credibility = probative value o impeaching evidences tendency to persuade jury on question of guilt = prejudicial effect - NY o PEOPLE v. SANDOVAL (NYCOA): first announced NY balancing approach  crim D gets a hearing at which D may contend that certain crim convictions and/or certain prior bad acts shouldnt be used to impeach the Ds credibility as a W b/c of their prejudicial effect  court should rule w/ regard to each prior conviction and each prior bad act  court will allow use of prior conviction or prior bad act unless it concludes that prejudicial effect subst. outweighs probative val y burden is on D to prove prejudicial effect subst. outweighs prob val - FRE o prior bad acts  FRE approach = NY approach (allow it unless prejudicial effect substantially outweighs probative val, burden on D)  federal courts have generally held that 403 generally applies here, w/ burden of persuasion on D  UNITED STATES v. OWENS (COMilA 1985) (506): D arrested for wifes murder. P claims he was pissed about a fight w/ her. D said it was by accident. After Ds direct, P cross-exed him about 3 prior convictions (weed possession, pistol poss, assault & batter on his 2nd wife) & his intentional omission of them from his application when he was applying for a position as warrant officer. Trial ct admitted it for the purpose of showing an intentional act of falsehood based on omission of prior convictions from app. y A party may impeach a W by eliciting on cross-ex an admission of prior act of intentional falsehood.

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o prior crim convictions for crimes involving dishonesty or false statement (609(a)(2))  no balancingcan always be used to impeach (UNITED STATES v. WONG)  UNITED STATES v. BRACKEEN (9th Cir 1992) (533): D charged = one count of aiding & abetting an armed robbery w/ Moore, 2 counts of unarmed robbery. P entered evidence of Ds other guilty pleas to impeach him under 609(a)(2). Trial court admitted it; D appeals, saying it didnt deal w/ crime of honesty y 609(a)(2) doesnt per se qualify as a crime of dishonesty y Congress wanted to enact the narrow meaning of crime of dishonestydisposition to defraud & deceive o general felony-level crimes (any crime punishable by death or imprisonment for more than one year)  609(a)(1): disallow use unless court concludes probative val outweighs prejudicial effect AND y take note the burden is NOT that probative value substantially outweighs prejudicial effect  burden is on prosecution  UNITED STATES v. SANDERS (4th Cir 1992) (524): D & Alston charged w/ assault of fellow inmate w/ dangerous weapon. D claimed he stabbed fellow inmate in self defense. Had trial 1, P introduced evidence of prior convictions over Ds objections, Alston acquitted & D charged w/ possession of shank (jury didnt reach assault charge in its verdict). Upon trial 2, P introduced evidence of Ds prior convictions on charges of assault & possession of deadly weapon to impeach Ds credibility. D objects to admission of evidence of prior convictions on the ground that admission of the evidence was prejudicial & abuse of discretion under 404(b) & 609(a). y FRE 609(a)(1) doesnt allow admission of evidence of a prior conviction for impeaching a Ws credibility, when the probative value of the evidence doesnt outweigh its prejudice. y admission of his prior convictions (assault, poss of contraband) would inflame the jury b/c they were so similar o evidence of these convictions has nothing to do w/ proving Ds intent to commit the assault on this vic o it would likely just go to his propensity to commit a crime like this  factors to consider (529): y 1Impeachment value of the prior crime o most important o attempt to weigh probative value

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o look at the nature of the other crimehow much does the prior crime relate to truthfulness or untruthfulness o ex: prior convictions = armed robbery, narcotics, assault  armed robbery = highest probative value  assault would probably have lowest y 2point in time of conviction & Ws subsequent history y 3Similarity between past crime & charged crime o most important o goes towards prejudicial effect o every prior crime will have some prejudicial effect but if its a similar or the same crime, the prejudicial effect is higher o HYPO: D charged w/ narcotics offense. Prior crimes = armed robbery, narcotics, assault.  armed robbery: high probative value, prejudicial effect low y P would likely be able to use evidence of this in impeaching D as aW  narcotics: mid-range probative value, high prejudicial effect y P likely wouldnt be able to use it for impeachment purposes  assault: could argue both wayslow prejudicial effect but would still have low probative value y 4Importance of Ds testimony y 5Centrality of the credibility issue LUCE v. UNITED STATES (USSC 1984) (537): D indicted for conspiracy & poss of coke w/ intent to distribute; D moved to exclude evidence of his 1974 conviction (possession of controlled substance). D made no commitment that he would testify if his motion was granted, so it was denied, showing Ds testimony could affect the courts evidentiary ruling on this matter. D didnt testify; appeals decision denying his motion, saying trial court erred in not weighing probative val of prior conviction against its prejudice. y A D must testify at his trial in order to be entitled to raise and preserve for review the claim of improper impeachment w/ a prior conviction. y if D had testified, lower court wouldve had a complete record and wouldve known the possible impact of the impeachment on the jurys verdict

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lower court cant really weigh probative value of prior convictions against their prejudicial effect y in order to determine whether evidence of a prior conviction may be used to impeach a criminal D, crim D must testify  OHLER v. UNITED STATES (USSC 2000) (540): D charged w/ importation of weed + poss of weed w/ intent to sell. P made motion in limine asking trial judge to allow admission of poss of meth conviction in 1993. Trial judge ruled that if D testified, evidence of her prior conviction would be admissible to impeach her under 609. D testified, admitted to the prior conviction. y USSC held her direct ex testimony forfeited the right to appeal the trial judges prior decision that the conviction was admissible to impeach b/c she admitted to it BAD REPUTATION FOR TRUTH AND VERACITY Also considered an attack on Ws general character for truthfulness (or truthfulness under oath), but differs from impeachment via prior criminal conviction & prior bad act: (1) evidence put before jury isnt evidence of any alleged act; jury instead bears a general conclusion about W (2) doesnt involve any cross ex of W whose credibility is an issue; instead involves use of particular kind of extrinsic evidence (testimony of another W impeaching W or W2 below) - party calls an impeaching W at certain point in the trial (usu. not right after first W testifies) o ex: P in civil case calls W1 as one of its Ws. If D wants to use this method of impeachment to attack W1s credibility, D will call W2 at some point during Ds case o impeaching W (W2) is a character W (testifying about witness character of W1)  W2 NOT allowed on direct ex to testify about any specific conduct or acts on the part of W1  so what IS allowed? Two approaches y 1traditional approach: on direct ex, W2 may only testify w/ regard to W1s reputation in the community for truth & veracity o NYs approach = modified traditional approach:  W2 must give testimony w/ regard to W1s reputation in the community for truth & veracity, then  W2 must answer if W2 would believe W1 under oath y 2modern approach: followed in many jurisdictions, W2, on direct ex, may either testify o w/ regard to W1s reputation in the community for truth & veracity OR y

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o express W2s personal opinion regarding W1s character for truthfulness o adopted by FRE608(a): impeaching W may give evidence in the form of opinion or reputation CRIMINAL CONVICTION - HYPO: Civil case alleging negligent driving. W called by D. W had a prior criminal conviction. On cross-ex, at some point, Ps lawyer asks, Isnt it true that in Wisconsin, you were convicted of the felony of aggravated assault? o there is no real downside to use this evidence: its not time-consuming, there isnt much danger for prejudicial effect o w/ Ws other than the accused, theres normally no prejudicial effect - if its the accused thats testifying to the same, theres a problem of prejudice. Jury must do two things: o 1jury has to judge the credibility of this person (like they have to judge the credibility of every other W) o 2more important, b/c this W is the accused, the jury must ultimately make a decision about this persons guilt or innocence - evidence CANNOT be offered for the purpose of telling the jury that this person has a propensity to commit crimes or has a bad character to commit crime o must show that the jurors will consider it for that purpose, thus that it will have prejudicial effect against D AND that it has probative value against D  probative value = tells jury something about Ws credibility  prejudicial effect = will tell jury theres a tendency towards guilt or innocence o when its offered to impeach accused as a W, the only purpose for the jury to consider to tell something about Ws credibility  only protection afforded a D against the prejudicial effect is if D does testify, then D attny could ask for a limiting instruction y CANNOT be used by the jurors on the ultimate question of guilt or innocence y this causes a dilemma for Ds counsel: either o dont have D testify, which usually draws a negative inference for the jury or o risk having evidence of the prior criminal convictions admitted REVIEW: (A) Prior Bad Act (no extrinsic evidence) a. FRE (608(b)) i. bad act must pertain to truthfulness or untruthfulness ii. when criminal D = W 1. court will use the evidence unless prejudicial >> probative 2. burden on D b. NY

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i. wide open approach any bad act that goes against the morays of society; any immoral, vicious or criminal acts of Ws life that have a bearing on his credibility as a W showing disposition to put themselves ahead of principle and society ii. when crim D = W 1. court will use the evidence unless prejudicial >> probative 2. burden on D (B) Prior Criminal Conviction (allows extrinsic evidence) a. FRE i. 609(a)(1): felony-level crimes (punishable w/ more than one year in prison) 1. accused is the Witness a. gets its own balancing test: probative value > prejudicial effect b. burden on P 2. accused is NOT the Witness a. subject to 403: prejudicial effect >> probative value ii. 609(a)(2): crimes involving dishonesty or false statement showing predisposition to defraud & deceive 1. crimen falsicommission of these crimes involves some element of deceit, untruthfulness, or falsification bearing on the accused propensity to testify truthfully iii. 609(b): 10 year time limit 1. if wanting to use a crime more than ten years old, P must show probative value supported by specific facts & circumstances substantially outweighs prejudicial effect 2. dates from date of the conviction or release of W from confinement, whichevers later b. NY i. all crimes admissible ii. accused is the witness 1. Sandoval balancing: D gets a hearing to contend use of prior criminal convictions 2. burden on D 3. to persuade court that prejudicial effect substantially outweighs probative value iii. no specified time limit UNIT 37: IMPEACHMENT OF A PARTYS OWN WITNESS Most of the time, when a party wants to impeach a W, it is usually involved in cross-ex its to impeach the opposing party. - but sometimes youll want to use a technique on a W that you call - CL rule: o in general, the party that calls a W may not impeach the W (NY still follows this)

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o there are exceptions to this general rule:  you can impeach by prior inconsistent statement y this limitation also has restrictions o can do it only if you are surprised by the Ws testimony o some say that the W must have affirmatively damaged the case with their testimony FRE o under FRE 607, any party can try to impeach any W, including the party that called the W o HYPO (UNITED STATES v. HOGAN (5th Cir 1985) (494)): D & his bro taken on drug charges. P sought to introduce pilot testimony, saying he flew a plane to Mexico. When W (Carpenter) was arrested, he confessed that Ds were linked to drugs. W then denied his prior confession at a later deposition b/c he was being tortured. P sought to introduce W as a hostile witness who changed his testimony. Trial ct admitted this testimony for purposes of impeachment. D appeals, saying the testimony was admitted to prove Ds guilt even though it was admitted to impeach.  A party may not introduce a W it knows to be hostile for the primary purpose of eliciting otherwise inadmissible hearsay testimony under guise of impeachment.  Govt usually can bring in a hostile W & impeach the Ws testimony, but cant do so for the primary purpose of introducing otherwise inadmissible hearsay statements y jury would hear inadmissible evidence thats not substantive proof of ugilt but would be treated as such o so, while under 607 any party can try to impeach any W, when a party is trying to use impeachment by prior inconsistent statement to get certain testimony before the jury that would be otherwise inadmissible, it is not allowed

UNIT 38: REHABILITATION OF WITNESSES AFTER IMPEACHMENT This occurs after impeachment. Parties cannot use it to accredit a W unless the other party has already discredited the W. - ex: Youre prepping the W and you tell him to dress in a suit b/c it will make him look credible, or tell W not to show anger during testimony, etc. o any informal method of making a W look credible can be used at any time - 2 Formal Methods: o 1calling a rehabilitating W for the purpose of giving testimony that the first W has a good reputation and is truthful  this is considered supportive of the general character of the W for truthfulness  any form of impeachment that is an attack on the general character of the W opens the door for this form of rehabilitation

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prior bad act, prior criminal conviction, and bad rep/character: when the opposing party uses one of these, you can use this form of rehabilitation y those go to the Ws general character for truthfulness o 2offering evidence of a prior consistent statement  W made at least 1 previous statement out of court that is consistent w/ the statement that he is now making at trial  this can only be used in limited circumstances  this doesnt match up w/ any specific impeachment methods  this door to open this form of rehabilitation is a certain set of facts: y 1) Need to show that there was an express or implied charge or either: o recent fabrication, or  recent meaning = meaningless.  fabrication = W at some point consciously made a decision to fabricate o improper influence or motive  can be something as simple as bias y 2) need to show that the statement was made before the motive to fabricate arose o FRE 801(d)(1)(B) Statements Which Are Not Hearsay Prior Statement by W. A statement isnt hearsay if the decl testifies at the trial or hearing and is subject to cross-ex concerning the statement, and the statement is consistent w/ the decls testimony and is offered to rebut an express or implied charge against the decl of recent fabrication or improper influence or motive.  TOME v. UNITED STATES (USSC 1995) (555): D charged w/ felony sexual abuse of his own daughter. A.T. (daughter) made statements to other people, including medical examiner, mom, babysitter. Trial court admitted all statements, pursuant to 801(d)(1)(B), D convicted. Appealed, saying the statements were made after the alleged motive (A.T. wanted to live w/ her mom) arose. y Rule 801(d)(1)(B) allows introduction of decls consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication, improper influence, or motive. y the statements wouldve been admissible had the motive to fabricate them arisen after the statements were made y if all you know about the facts is that the W was impeached by a showing of a prior inconsistent statement that alone is NOT ENOUGH to constitute enough to use this method of rehabilitation y

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PART VII: CHARACTER EVIDENCE

UNIT 39: CHARACTER EVIDENCE INTRODUCTION AND OVERVIEW Generally, if we know something about the general character or personality trait of a person, should we be allowed to use it to show the person acted in accordance w/ it? - most of the time, you cannot use it - but it has a list of exceptions - once expectation is evidence of the Ds character MICHELSON v. UNITED STATES (USSC 1948) (387): D charged w/ bribery of federal revenue agent. At trial, called 5 Ws to show he had a reputation of being honest. On cross-ex, P asked four of the Ws if they knew D was arrested for stolen goods more than 20 years priornone of them had. Trial court admitted the cross-ex of Ds character Ws (P had a good faith belief in the occurrence of the arrest). D appeals. - In order to demonstrate that a Ds character W is not familiar w/ Ds reputation, P may cross-ex the W regarding prior acts of D o P may not introduce prior criminal acts or ill name to prove his propensity to commit crimesreally prejudicial to D o D may, however, introduce evidence of his good character, from which jury may infer that hes not likely to commit offense charged  once D introduced reputation evidence, P may challenge the evidence through cross-ex or through its own character Ws  such cross-ex allows P to examine Ws knowledge of Ds reputation by asking him if they know about specific acts or offenses of the D - 404(b) allows admission of prior acts, wrongs or crimes to establish factors like motive, identity, knowledge, or intent to commit the offense charged o P, seeking admission of Ds prior acts, must establish purpose for which the evidence is being used prior to intro of the evidence o trial court may still exclude it if its highly prejudicial to D  despite the purpose, the jury may still punish D for it  limiting instructions to jury, as to use such evidence, may also be helpful in guarding against prejudice UNIT 40: CHARACTER EVIDENCE IN CRIMINAL CASES DEFENDANT, VICTIM FRE 404(a)(1) Character Evidence Not Admissible to Prove Conduct Character of Accused. Evidence of a persons character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under 404(a)(2), evidence of the same trait or character of the accused offered by the prosecution

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character evidence is not usually admissible to prove Ds conduct on a particular occasion it means that P cannot introduce evidence of Ds character for the prupose of helping to prove that D committed the crime w/ which he is charged

If D wants to offer evidence of his good character to prove he did not commit the crime - D IS allowed to do thisit is his option to make his character an issue o if Ds attny decides to offer evidence of Ds good character, evidence must be of a relevant character trait - 3 character traits commonly utilized: o honesty (versus dishonesty): if the charged crime involved being honest, then this is relevant o peacefulness (versus violence): this is relevant in violent crimes like assault and murder o sobriety (versus drunkenness): could be relevant in a DWI case - trait HAS to be relevant to the case o if D calls a character W, it opens the door for the P to call a character W to disprove the Ds W and show his bad character (FRE 404(a)(1)) - the character W called by D testifies in one of three ways: o 1specific conduct: W might testify about specific conduct that the W knows D has done (i.e. conduct that will show D is an honest person)  will give jury best data to consider of the three  generally not allowed o 2personal opinion: Ws general conclusion or summary about the Ds character in the form of Ws personal opinion o 3reputation in the community: W will testify about the Ds reputation in the community  reputation probably is easiest info to acquire and take the least amount of time in court  used to be the only form of character evidence allowed o majority rule  today, character W can only testify about Ds reputation OR opinion  on direct ex, W may NOT testify about specific conduct and acts of D y its probative value is substantially outweighed by the introduction of collateral issues, consumption of time, and risk of prejudice  FRE 405(a) Methods of Proving CharacterReputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-ex, inquiry is allowable into relevant specific instances of conduct.

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If D calls a character W, it opens the door for P to call a character W to disprove Ds W and show his bad characteri.e. Bad Character Ws o D opens the door also by cross-exing the character W (***WHAT)

Lilly Notes on Character Evidence. First off, the key to admissibility is the purpose for which it is offered. 404(a)(1) and 404(a)(2) apply to criminal trials. Those sections say that character evidence isnt admissible, generally speaking, unless accused makes the first move. - so this means that aside from character evidence used to impeach a W, theres a general reluctance to admit character evidence o in crim cases, reluctance gives way to accuseds right to present character evidence o in civil cases, this reluctance stays unless Ds character is an essential element of the claim - the preferred types of character evidence are opinion evidence & reputation evidence 3.62 Character Evidence: Circumstantial use of Character in Criminal Cases - character evidence usually has probative value, and the stronger the relationship between character trait & crime charged, greater probative value of the character evidence - Prejudicial Dangers: o might distract away from considering Ds actual conduct o may de-emphasize consequences of false determination that accused committed charged crime b/c evidence of his unfavorable character has sparked notion that trier believes he deserves to lose Accuseds Right to Introduce Character Evidence - first 404(a) exception comes in 404(a)(1)that accused can introduce evidence of a pertinent trait of character o should be inconsistent w/ the charged crime, or else it has no probative value o the reasons why D can do it first is to protect accused at trial Evidence of Victims Character - 404(a)(2) can introduce evidence about vics character when its relevant to accuseds defense but it MUST be relevant - FRE 404(a)(2): Character of Alleged Victim. Evidence of a pertinent trait of character of the alleged vic of the crime offered by an accused, or by the P to rebut the same, or evidence of a character trait of peacefulness of the alleged vic offered by P in a homicide case to rebut evidence that the alleged vic was the first aggressor Prosecutions Rebuttal

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404(a)(1) & (a)(2) give D the exclusive right to introduce character evidence to prove conduct after that, P is free to show that the accused (or victim) do not have the character trait portrayed by Ds evidence P has two available attacks: o 1rigorously cross-ex Ds character Ws o 2offer one or more character Ws who will portray Ds character as consistent w/ the offense charged Question comes when accused makes an indirect attack on vics character in a homicide casedoesnt directly attack it but presents evidence that portays vic as first aggressor o 404(a)(2) shows when D introduces evidence in a homicide prosecution that shows vic was the first aggressor, door is partially open and P can now introduce evidence of a character trait of peacefulness of the vic o evidence of Vs peaceful character allowed b/c of evidentiary balance and wouldnt cause trier to use it irrationally When D DOES present character Ws who testify to some feature of Vs character that is related to Ds defense o triggers Ps right of rebuttalto challenge Ds presentation of Vs character o HYPO: Prosecution for criminal assault. D pleads self-defense & presents character Ws that say V has a violent, aggressive character.  P can present character Ws saying V is peaceful & nonviolent  this also means that Ds use of character evidence to establish a relevant trait of the alleged vic triggers Ps right to use character evidence to prove that D has the same character trait

Presentation and Cross-Ex of Character W - reputation W = must be familiar w/ subjects community or work environment o testifies to the subjects reputation for a trait in question (i.e. honesty) - opinion W = W must be sufficiently acquainted w/ the subject to be able to form a reliable opinion concerning latters character o testifies in her opinion the subjects possession of the trait in question (i.e. nonviolence) - attny presenting the character W must first get foundation testimony that establishes required familiarity - Specific Instances o evidence showing specific instances of subjects conduct to infer that she has the character trait in question is NOT allowed o introduction = time consuming & distracts the jury o ONLY allowed, under 405(b), when character is a principal issue, only cases in which character is an essential element of a charge, claim, or defense  highly unlikely to be crim cases  so here, character can be proven by specific conduct, reputation, or opinion

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Attacking credibility of character W o can weaken or negate character Ws assertion that shes familiar w/ subjects reputation or well-acquainted w/ him (in opinion case)  can make the obvious inquiries: how long theyve known the subject, etc. o cross-exer can also ask reputation W questions about events  involving subject that would likely affect subjects reputation for the traits in question  cross-exer can ask opinion W about events that would likely affect her opinion about the subjects character for the traits in question y Have you heard that? y Did you know that? y ex: opinion W testifies that in her estimation the accused, Churchill, is very brave & never wouldve deserted the Army. Cross-exer might ask W if she knew that during a training exercise in which live ammo was used, Churchill left his squad and hid in a storage building. If W answers, no the cross-exer has weakened her assertion that she is knowledgeable about Churchills character for bravery. If yes may have raised doubts that W is a good judge of character.  HYPO (L81): D charged w/ spying for foreign country & planting false evidence that was designed to incriminate a CIA agent, Iago, for Arnolds deceitful acts. D defends that Iago framed him, in scheming to advance his own character. In addition to his own testimony, D calls a reputation W (R) and opinion W (O) who will provide that D is law-abiding and honest. Accused also calls exCIA agent who served as a subordinate to Iago for 10 years, saying Iago is deceitful, treacherous, and obsessively ambitious. What evidentiary opportunities are available to P as a result of the testimony presented by the defense? y Every W is subject to traditional impeachment techniques (prior crim conviction, bad act, bias, prior inconsistent statement) y P can weaken testimony of R and O by exposing their lack of familiarity w/ Ds rep or D himself. o have you heard or did you know y by introducing character evidence that Iago is treacherous or whatever, D triggers Ps right to present character Ws who will testify that either: o Iago is fair, truthful, honest and o P shares those traits (deceitful, treacherous, and obsessively ambitious)

Evaluation of Rules Governing the Cross-Ex of Character Ws

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The have you heard and did-you-know questions present opportunity for abuse b/c they ask about subjects unfavorable conduct. Judicial safeguard: - question must be in good faith o P must be satisfied, after a reasonable investigation, that the event that is the basis for the cross-question actually occurred o for reputation character W, P must also be satisfied that the actual event would have been widely enough known to have affected the subjects reputation - this still may inflame the jury, so D can get a limiting instruction o sole purpose of asking about alleged conduct of accused is to test Ws familiarity w/ the accused or his rep, and to reveal Ws standard of evaluation Evidentiary options available to P if rules of evidence disallowed have-you-heard or didyou-know inquiries - P could still use standard impeachment techniques - P could ask straight-forward questions that probe how familiar W really is w/ accused - P could call her own character Ws to testify that accused has character traits consistent w/ charged crime UNIT 41: CHARACTER EVIDENCE IN CIVIL CASES IN GENERAL (NOT ON EXAM) UNIT 42: CHARACTER EVIDENCE WHEN CHARACTER IS IN ISSUE For this section, the principles relating to civil cases are the same as those relating to criminal cases. FRE 405(a) Methods of Proving Character. Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On crossex, inquiry is allowable into specific relevant instances of conduct. FRE 405(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct. HYPO: Civil case. W1, called by P, testified about some things relevant to the case. D wants to call an impeaching W to challenge W1s credibility. Does anything have to be done to open the door for D to do that? - all thats necessary is for W1 to be a witnessall they have to do is answer a single question - TESTIMONY MUST BE ABOUT WS CHARACTER FOR TRUTHFULNESS (for truth and veracity), so the impeaching W (W2) would be called later on

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405(a) says that on direct ex, proof may be made in the form of (1) reputation or (2) opinion o so, W2 can testify on direct ex indicating that W2 is familiar w/ W1s reputation and that its bad OR o W2 knows W1 and has an opinion about W1s character for truthfulness NY law o says it has to be reputation ONLY; excludes opinion o but for an impeaching W, after W2 testifies as to Ws reputation in the community for truth & veracity, you can ask whether on the basis of that reputation:  if he would believe W1 under oath Honesty, Peacefulness, Sobriety, Truthfulness o honesty & truthfulness are very similar concepts, but honesty is a little broader character evidence of Rehabilitation W (see Unit 38) o rehab W called for dealing w/ the character of W1  this occurs when W1 testified AND  if D, in some way, attacked that Ws general character o if the impeaching party used one of the impeaching forms (bias, prior inconsistent statement, prior bad act, prior criminal conviction), rehab W can be used to resurrect W1s character for truthfulness  rehab W would have to say some positive things about W1s character for truthfulness

There also come times when character W is an actual issue in the case. - governed by 405(b): where character or a trait of character is an essential element of a charge, claim, or defense, specific instances of that persons conduct can be called - CLEGHORN v. NY CENTRAL & H. RIVER RAILWAY CO. (COANY 1874) (384): P injured in train accident caused when trains switchman failed to make proper signals. P claimed switchman failed to close proper switch after train passed & gave false signal to approaching train. P also attempted to get exemplary damages from RR. D challenges admission of evidence of switchmans intemperate habits & intoxication, introduced to show Ds negligence in hiring & keeping switchman employed. o In a negligence action against an eer, a party may introduce evidence of an eees intoxication & intemperate habits to prove his claim for exemplary damages. o P claimed switchman had a bad character for sobriety (other two are honesty, peacefulness) o evidence of switchmans character (based on his prior acts) isnt used to prove his negligence, but instead used to support claim for punitive damages UNIT 43: EVIDENCE OF OTHER CRIMES IN CRIMINAL CASES

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P wants to offer evidence of Ds other crimes as their case in chief or as rebuttal - primarily only applies to criminal cases, but the rule is written in general terms and can be used by anybody - issue in 404(b) is almost always coming up in criminal case where P is trying to offer prior crimes/acts by D FRE 404(b) Character Evidence Not Admissible to Prove Conduct; Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. - first part of the rule: not admissible to proveconformity therewith. o i.e. if its propensity evidence o if you know a particular person engaged in criminal conduct in the past, then that makes it at least a little bit more probable o evidence is INADMISSIBLE for this purpose b/c:  1explanation grounded in logic in thinking about probative and prejudicial effect  2POLICY: we dont want the trial to be about Ds entire life, but the focus to be on the precise factual question on whether D committed the charged crime y if we allow P to offer evidence for the general purpose of showing Ds propensity to commit crimes, that will be a form of character evidence y we would be using specific instances of conduct to show this is a person of criminal character - second part: if evidence of prior crime/act actually has probative value on a more narrow issue in the case then it may well be admissible o first rule of exclusion works only if its offered as general propensity evidence o if its for a more specific issue in the case, it IS admissible - 404(b) embodies parts of the CL rule o part 1 (see above) o part 2: such evidence IS admissible to show other issues  listing is just a series of examples for which it can be admitted HYPO: Knowingly trying to use counterfeit currency. D was buying $700 worth of consumer goods at an electronics store. Gets charged, enters a not guilty plea. At trial, D takes the stand and testifies that he did have a lot of $20s in his possession, but that he didnt know it was counterfeit. W takes the stand, testifies that D knew about the counterfeited currency beforehand. - judge would likely find the testimony admissible o hes controverted the issue of knowledge, and its offered for that purpose

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HYPO: D = mailman. This particular letter carrier, for some reason, things of value addressed to people on his route never got to the recipient, i.e. credit cards. Suspicion developed, and USAO put something of high monetary value was put in his route. He took the coin, was prosecuted. Statute said: Possession of prop that does not belong w/ intent to continue to possess; D pled not guilty, at trial, said he had no intent to keep it. - D: The envelope broke and I put the coin in my pocket and I was going to give it to the supervisor tomorrow morning. - P, in response to Ds controversion of intent, wanted to offer evidence w/ regard to two other items found in his possession: 2 credit cards of people on his mail delivery route. - Appeals Court affd admission of evidence and said there was nothing improper about the rulingtrial court basically held what P is trying to show that this is a general purpose of propensity to commit crime, P is trying to do so on a specific issue: INTENT to retain possession of the item REMEMBER: - the purpose of the evidence should be specifically identified o no matter what the purpose is, every time the jury hears evidence that D has previously committed a crime, we know there will be prejudicial effect o b/c of this, trial judges should very carefully analyze & balance probative value and prejudicial effect - what the issue is should be controverted HUDDLESTON v. UNITED STATES (USSC 1988) (422): D, charged w/ sale of Memorex tapes, claimed he received the items from another party and didnt know they were stolen (no dispute that they were stolen). P introduced evidence of his prior similar acts: one time, he sold stolen TVs, 2nd time he offered an undercover agent appliances (arrested for it, not convicted). Trial court admitted this evidence for limited purpose of establishing his knowledge that Memorex tapes were stolen. Appeals on the ground that evidence of prior acts admissible only if P proves by preponderance of evidence that similar crimes were in fact committed. - The district court need not make a preliminary finding that the P has proven Ds similar crim acts by a preponderance of evidence before submitting the evidence to the jury. - the text of rules 404-412 dont require a preliminary finding by a preponderance of evidence before admission of such evidence - Admissibility of prior acts must be resolved based on Rule 104(b) (relevancy conditioned on fact) - jurisdictional: o majority of jurisdictions say evidence of prior crimes should be by clear and convincing evidence o minority says it should be by higher degree of proof o still others say substantial evidence

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UNITED STATES v. CARRILLO (5th Cir 1993) (406): undercover agent said D was the drug dealer who sold him heroin. As his alibi, D argues he wasnt the drug distributor w/ whom the cop dealt. To establish identity of D based on MO, govt introduced evidence of D selling heroin in balloons on prior occasions. Trial ct admitted evidence & D appealed, claiming FRE 404(b) excludes from evidence specific prior acts, or crimes of an accused. - Evidence of prior crimes, used to prove identity of an accused, must bear such a high degree of similarity to the present offense as to make it the handiwork of the accused. When theres a criminal trial and criminal D has a criminal record, there are three principle ways that the evidence could come in: 1) for impeachment purposes a. if D takes the stand to testify, this evidence can impeach his credibility as aW b. this presents a danger to putting D on the stand 2) if D calls one or more character Ws, on cross ex of each W a. in 404(b), if D pleads not guilty and goes to trial, cant always against it in the case 3) Unit 43 evidence of other crimes offered by P for some substantive issue in the case a. this evidence cant be offered for the general purpose of showing crim Ds propensity to commit crime b. if evidence is offered by P to impeach Ds credibility on the stand c. HYPO: Suppose D has a prior conviction/bad act and P offers that this evidence should be allowed on some issue in the case, and court allows it. i. if thats the case and D takes the stand, it ought to be taken into account by D counsel that he can object to that just to preserve the record for appealjury has already found out about it UNIT 44: SPECIFIC HAPPENINGS IN CIVIL CASES SIMILAR ACCIDENTS In personal injury cases, there are often times where P wants to offer evidence of other injurious events. So P is suing about the event that causes his or her injury, but there may be times where its obvious that P would be allowed to offer evidence of other similar occurrences. SIMON v. KENNEBUNKPORT (SJCTME 1980) (463): municipality where P alleged she slipped & fell on part of the sidewalk. Alleges muni was negligent in the way it maintained the sidewalk. - evidence in question: testimony of 2 shopkeepers; each testified that theyre in their shop everyday and numerous people have tripped, fallen at that very same spot where P tripped & fell, on average of once a day - Ct: ME Rules of Evidence say that an accurate form of reading the FRE say this type of evidence is admissible

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o its necessary to have a special rule about it; general principles of admitting this into evidence are the same as those from 401, 402, 403 when P wants to offer evidence of other accidents to either (1) show there was a dangerous condition or (2) D knew or shouldve known the condition, evidence is admissible if theres sufficient similarity between this event being litigated and the other incident o ex of it not being similar enough: if the other people tripped on a screwed up sidewalk, not a smooth one where P tripped that caused this litigation just as Ps want to offer the occurrence of similar events, Ds sometime want to offer the nonoccurrence of similar incidents o if the evidence shows that the circumstances are roughly the same, it should be admitted o now, suppose P proves that the nonoccurrence is b/c of some other event and offers evidence showing that the branch is a little lower than it was before the event or something, the court can find the circumstances are not similar and the evidence should NOT be admitted

UNIT 45: SPECIFIC HAPPENINGS EVIDENCE OF SUBSEQUENT PRECAUTIONS HYPO: P is in a business establishment of some sort and was walking in a stairway, slipped, fell and was injured. P saying its b/c the steps of the stairway were very slick. Saying D was negligent in not having a non-skid surface. A week later, owner of the business decides to have a non-skid surface installed. - subsequent remedial measure = taking some measure which, if taken before the event in question, wouldve prevented it - P says evidence of this subsequent measure should be admitted - Ds argue that it shouldnt be admissible for the general purpose of showing D was negligent - Courts generally agree w/ Ds positiongeneral rule of exclusion applies, where evidence of the measure is inadmissible for the purpose of tending to show that D was negligent or acted culpably o Rationales: 1) if the evidence does have probative value, it probably has relevance 2) after its actually happened and D takes the subsequent measure, it shows this particular D, after being put on notice, was exercising a high degree of care  the law should encourage remedial measures, not deter them  if P could present this evidence, then why would D want to fix the problem? EXAM: FRE 407 issues will be offered for that general issuenot on feasibility or impeachment of Ws (assume it wont be offered for improper purpose). FRE 407. Subsequent Remedial Measures. When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the

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injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a products design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. TUER v. McDONALD (COAMD 1997) (467): A surviving spouse of a man who suffered cardiac arrest after his meds were stopped, sued the hospital & doctors for malpractice, attempting to admit evidence that the hospital changed its policy regarding cessation of the medicine (including Heparin, which is what the decedent was on). - the feasibility exception should be read narrowly to disallow evidence of subsequent remedial measures unless D has contended that the measures were not possible under the circumstances o feasibility exception doesnt apply when D contends that the practice complained of was chosen b/c of its perceived comparative advantage over the alternative practice o it was feasible for them to put him back on the meds, but not advisable - impeachment exception shouldnt be read expansively to allow evidence of subsequent remedial measures if a D testified that the prior approach was safe o this would trap D into admitting he was negligent in following the former approach or denying negligence and facing the negative implications of the subsequent remedial measure UNIT 46: SPECIFIC HAPPENINGS EVIDENCE OF SETTLEMENT OFFERS, ETC. (NOT ON EXAM) UNIT 47: EVIDENCE OF HABIT OR CUSTOM IN CIVIL AND CRIMINAL CASES Habit = customary conduct of a person Custom = habit or customary conduct of a business or organized entity - they conceptually mean the same thing - FRE said this is about the habit of a person or routine practice of an entity o what were looking for is how a person or entity acts in a particular fact situation o this is ultimately grounded in the relevance, probative value or prejudicial effect contexts - both, in a sense, are about repeated ends, but the evidence is offered to show that a repeated response (custom) is happening enough where we can say its not an isolated occurrence - Evidence scholars will say: o sometimes its difficult to draw the line (Park, Leonard & Goldberg, Evidence Law 432) o i.e. cannot be offered to show the person is generally not careful w/ respect to driving, but can be offered for specificitya particular response

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to a particular set of facts (person acted a certain way in this certain situation) FRE 406. Habit; Routine Practice. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity w/ the habit or routine practice. - usually, when its offered, its offered to show routine - conduct on the particular occasion was in conformity w/ the habit or custom - offered to show on a particular occasion, person/entity acted in a certain way offered to show that on other occasions, person uniformly acted a certain way o when its offered, its to show ROUTINE things o HYPO: Company w/ a lot of eees & depts (XYZ corp.manufacturing, whatever). C is behind in payments to XYZ and XYZ sues. They need to show that a notice of some sort was received by C. XYZ would rely on the rebuttable presumption that an item sent through the mail, if sealed and properly addressed & postmarked and properly deposited in USPSs custody, it was received by addressee.  first XYZ would have to prove that it was sealed, properly postmarked  if eee of XYZ said that the last mailbag had the letter, it would be difficult to prove  so, XYZ would have to rely on evidence of habit or custom y Ws will say: o that a copy of the letter was in the location it shouldve been so it wouldve been mailed out o when a letter is in that place & prepared in such a way, once it is signed, four times a day, someone from the mail room picks up the outgoing mail and it goes into a mailbag, and three times a day, someone takes all the mail in the bag down to the nearest post office o and that this is the customary practiceit happens all the time o so this evidence is offered as a CUSTOMas tending to show that XYZ followed that custom w/ regard to this particular letter Sometimes, someone wants to offer evidence to show an absence of due care, or maybe negligence or non-negligence - older cases frown upon this - HALLORAN v. VIRGINIA CHEMICALS, INC. (COANY 1977) (435): mechanic mixes refrigerant w/ hot water to make the air conditioning system of a car smoother. Can exploded & injured him (P). D sought to establish that it was the mechanics negligence that caused his injury. Trial ct excluded Ds evidence that P had worked w/ hundreds of refrigerants as habit for his negligence.

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o Where the issue in a case involves proof of a deliberate and repetitive practice which is negligent, a party may introduce evidence of such habit or regular usage to show negligence on a particular occasion. o NY courts resist admission of habit evidence to show carelessness or carefulness on a particular occasion. o CL restrictions:  one jurisdiction says the evidence can only be offered if there are no eyewitnesses  others say you must have corroboration o FRE has no such restrictions; under FRE 406,  evidence of habit or custom is admissible/relevant to prove conduct to show habit or routine practice UNIT 48: EVIDENCE OF PRIOR SEXUAL CONDUCT RAPE VICTIM SHIELD LAWS Exists in nearly all US jurisdictions, comes in FRE 412 - the law of evidence basically says that D is allowed to offer evidence of the vics previous sexual conducther character for chastity o so if shes a whore, thats admissible to show shes more likely to consent on the occasion in question o Womens Movement and Law Enforcement opposed it  law enforcement: made prosecuting rape cases more difficult  Womens groups: unfair to women - all statutes have something in common: evidence of prior sexual conduct is not admissible to show generally that she may have consented in this particular occasion FRE 412. Sex Offense Cases; Relevance of Alleged Vics Past Sexual Behavior or Alleged Sexual Predisposition. (a) Evidence Generally Inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) & (c): (1) Evidence offered to prove that any alleged vic engaged in other sexual behavior. o so, general bad character evidence for chastity is inadmissible (2) Evidence offered to prove any alleged vics sexual predisposition o in either form, evidence of the vics bad character for chastity or prior sexual conduct is inadmissible in a criminal or civil proceeding except as provided by B & C (b) (1): In a crim case, the following evidence is admissible, if otherwise admissible under these rules: (A): evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence

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(B): same as A, just for accused instead of someone else (C): evidence the exclusion of which would violate the constitutional rights of D UNIT 49: EVIDENCE OF PREVIOUS SEXUAL CRIMES RECENT DEVELOPMENTS Under FRE, evidence of similar sexual offenses is admissible in both civil & crim caess when specified sexual misconduct is alleged. FRE 413(a): Evidence of Similar Crimes in Sexual Assault Cases. In a crim case in which the D is accused of an offense of sexual assault, evidence of the Ds commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. - after, 413(b) requires govt give notice to accused of its intention to offer such evidence, including disclosure of what evidence will be used - this rule limits sexual offenses to the same type as the charged offense (so it only lets in evidence of other sexual assault crimes) - can use evidence to establish character or propensity of the D to commit the offenseall the evidence has to be is relevant - FRE 414 does the same thing for child molestation cases o only allows evidence of other incidents of child molestation o 414(b) still requires notice from govt to D for notice & disclosure of evidence of other child molestation offenses - FRE 415 basically takes 413 and 414 over to civil case o 415(b) requires notice & disclosure o can also use evidence to show character or propensity of D to commit the offense in question UNIT 50: DOCUMENTARY EVIDENCE THE BEST EVIDENCE RULE In general, there is no requirement that litigants have to produce the best evidence available. - w/ regard to some types of evidence in some situations, the law does say that one form of evidence is considered to be the best evidence and it is required that this evidence be produced - historically, this applied to written documents but now involves writings - EXAM: if a best evidence question comes up on the exam, it will involve writings - Rule requiring production of the original writing o rationale: prevent fraud & mistake o when a litigant is seeking to prove the content of a writing, the litigant must produce the writing itself and must produce an original of the writing, unless there is a satisfactory excuse for production of a nonoriginal o FRE 1002 Requirement of Original. To prove the content of a writing, recording, or photograph, the original writing, recording, or photo is reqd, except as otherwise provided by these rules or Act of Congress.

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What does it mean when a litigant is trying to prove the content of a writing? - this really means we are in a situation where it is important for the judge & jury to be able to determine the exact words of the writing (not just an approximation) o must know, word-for-word, what the writing says - dont think about the literal words, content of the writing - concept is that there are some situations in which the court will say that the writing must be offered - PEOPLE v. ENSKAT (LA Cty App. Dpt. 1971) (692): D charged w/ exhibiting obscene motion pictures. Jury must decide whether the movie was obscene, but P did not offer the entire film as evidence. o Court says that for the jury to apply the proper standard, the entire film must be offered into evidence o best evidence rule applies hereP has to produce an original of the film o its important for the jury to examine the entire film to determine the exact content of the film - HERZIG v. SWIFT & CO. (2nd Cir 1945) (689): to prove earnings of her deceased husband, P (decedents partner) offered testimony of one of the partners as the amount of the partnerships earnings. Firms accounting books no offered into evidence. Trial ct rejected testimony on the ground that it violated best evidence rule b/c books werent offered into evidence. P appeals. o Best evidence rule doesnt require introduction of a writing when the contents of the writing are not being proven. o all the rule requires is the contents of a writing e proven by the introduction of the writing itself, unless its absence can be justicied, and here, contents of the books were not being proven  partnerships earnings were the issue; for the sake of convenience they were recorded into books and transformed into writing o EXAM: most important situation when courts say the best evidence rule is important is under written contracts. When there is a K between the parties and it is reduced to writing, then the best evidence will virtually always apply if on the exam, tangible thing involved will be a writing and it will be a writing that is contractual in nature What is an original of a writing? - the original, in terms of a K, is the one that was actually signed - sometimes w/ written Ks there can be multiple originals; originals are signed by all parties of the agreement - Duplicate = not literally the original but it is treated by the law of evidence as having the same weight as an original o a duplicate is just as good as an original under this rule o today, most courts and statutes say that a copy which was produced by a process that creates accurate copies of an original, such a copy qualifies as a duplicate and duplicates are admissible as originals o ex: one party wants to prove the content of the writing but neither has the true original. One party produces a photocopy of the K and the other

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gives evidence that the parties changed the K after this copy was made (so that the final K was not exactly the same) Satisfactory excuse for not producing original: - FRE 1004 (1-3) Admissibility of Other Evidence of Contents. Original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if o (1) Originals Lost or Destroyed o (2) Original Not Obtainable o (3) Original in Possession of Opponent o (4) Collateral Matters. Writing, recording, or photograph is not closely related to a controlling issue. When no original or duplicate is available, the law may recognize certain degrees of secondary evidence depending on the jurisdiction. - HYPO: there are two available types of secondary evidence. Two people have a small business and enter agreement. P keeps the agreement. Five years later they get into a dispute, P says he cant find original copy of the K. o P can take the stand as to the terms of the K  D may object b/c he can show that P, five years ago, just after the K day, wrote a letter to associate of a detailed written summary of the terms of the K y that written summary is secondary evidence and it would be better secondary than Ps testimony  if this is a jurisdiction that recognized degrees of secondary evidence, the written summary would be better secondary evidence (a better degree of secondary evidence) - American rule = recognizes degrees of secondary evidence; the better secondary evidence must be offered; Ds objection should be sustained - other jurisdictions (majority rule, FRE, English Rules): law of evidence does NOT recognize degrees of secondary evidence. Ds objection would be overruled in a jurisdiction like this FRE 1008: Functions of Court and Jury. When an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photo produced at the trial is the original or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. UNIT 51: DOCUMENTARY EVIDENCE AUTHENTICATION OF WRITINGS Law of evidence requires something more than just the writing itself to authenticate it. - HYPO: A can was offered into evidence to show that the peas were produced by the Green Giant company. D objected, saying that the label on the can is a writing and writings do not authenticate themselves. P has not offered anything other than the label itself to authenticate.

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o Court agrees; seems unrealistic and creates a huge pain in the ass o FRE: this would be self-authenticating under the commercial label rule Three ways to authenticate: 1) substitute for authentication an admission from the other party that the writing is what it purports to be 2) direct evidence evidence offered by a W who was there to perceive the creation of the writing 3) circumstantial evidence there is no direct evidence related to the creation of the document. There are frequently recurring fact patterns that have led to some of the federal rules FRE 901(a): General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. - you need to make a showing that it is what you claim it is FRE 901(b) Illustrations. - (2) & (3) hand writing analyses o (2) Nonexpert Opinion on Writing. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. o (3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert Ws w/ specimens which have been authenticated.  they have some ability to determine whether the questioned handwriting is the same as some genuine specimens Other doctrines that have developed with writings: - there cant be too much of a possibility that a letter was written by someone else - testimony from a W that the letter in question is a reply to an earlier communication that was sent to the letter writer o Reply Doctrine  this eliminates much of the possibility that the letter was written by someone else  previous letter sent is circumstantial evidence - letter discusses certain facts that most other people wouldnt know o courts say in this situation, knowledge of certain facts written by the letter writer shows that it was written by the person in question  Doctrine of Particular Knowledge of Facts - these two doctrines are recognized in the legislative history of 901(b)(4) UNIT 52: REAL AND DEMONSTRATIVE EVIDENCE (NOT ON EXAM) UNIT 53: THE OPINION RULE AS APPLIED TO LAY WITNESSES

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FRE 701: Opinion Testimony by Lay Witnesses. If W is not testifying as an expert, Ws testimony in form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the W and (b) helpful to a clear understanding of the Ws testimony or the determination of a fact in issue and (c) not baesd on scientific, technical, or other specialized knowledge w/in scope of Rule 702. this rule forbids a lay W from giving opinion testimony o a lay W cannot draw inferences or own opinions, must give exclusively facts that should be descriptively neutral and relatively concrete o rests on the assumption that once the jury hears bear facts, they are in as good a position to draw inferences from those facts to draw reasonable inferences the more inference-laden and conclusive a Ws statement is, more likely it is to be his opinion o i.e. Fog was so thick that cyclist ran off the pavement and lost control  probably not allowed b/c it draws an opinion to causation Consider:

(1) When the party ended, Puck appeared to be drunk. (2) After several hours of searching for the kid, Portia looked exhausted and worried. (3) I would say that he was old, probably 75 or more. (4) When Henry heard that Paulina had one w/ Duncan, he looked really angry. (5) The white Porsche then pulled into the left lane and passed all three cars at a high rate of speedprobably 80 or more mph. (6) Yes, I do recognize that handwriting. It is my sister, Lillians. Assuming W actually observed, in each event, the condition to which he testified, its difficult to recite the constituent facts that underlie his testimony. - these opinions may be helpful - these are allowable lay opinion under FRE 701 based on perception of W and helpful to a clear understanding of the Ws testimony or the determination of a fact in issue. - FRE 701 = judicially administered by asking the simple question whether the proffered form of testimony is helpful These Ws testify b/c of their knowledge of the issue. Lay Ws provide factual support for the case. FRE: were not concerned if lay persons testify in a form that technically looks like a conclusion or opinion. - FRE 701(a): rationally based on the perception of the W

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FRE 701(b): helpful to a clear understanding of the Ws testimony or the determination of a fact in issue FRE 701(c): not based on scientific technical or other specialized knowledge w/in the scope of 702

UNIT 54: TESTIMONY BY EXPERT WITNESSES FRE has two provisions where Congress intended to overturn CL rules: - provision 1: - provision 2: FRE 704 o traditional CL rule: expert Ws cannot embrace an ultimate issue for the trier of fact  if opinion embraces an ultimate issue, its not allowable y ex: in negligence case, W cant say this constituted negligence or malpractice  Rationale: y it is the jurors have the duty and responsibility to decide the ultimate issues in the casewhether Ds conduct is negligent enough, was the product defective enough o so how far can the W go? o if the opposing party doesnt like the opinion, they can object o 704(a): testimony of an opinion isnt objectionable b/c it embraces a particular consequential issue to be decided by the jury  EXAM: civil case will come up, will be governed by 704(a)  if one of the parties objects to an expert Ws testimony b/c it raised an ultimate issue, y FRE would not overrule it y CL would overrule it  trial judge has power to call court appointed experts o 704(b): expert testimony relating to mental state of D in a crim casesuch matters are issues for the trier of fact alone - FRE 706: Court may appoint an expert agreed upon by the parties & may appoint expert Ws of its own selection - Waltz, Introduction to Criminal Evidence (810-12): Impeachment of Expert Ws o cross-exing attny can do whatever it wants o 2 particular forms of cross-exing an expert W in a way that would be inappropriate for normal Ws  to confront W w/ contradictory material in published materials or something  to alter the facts of a hypothetical question

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