Lindsey Heinz

Evidence
Prater Fall 2007 I. Mode and Order of Presentation of Evidence A. Anatomy of a Trial 1. Preliminary Matters clean-up time to discuss what hasnt been decided in pre-trial conference concerning rulings on evidence, procedures, or substantive law. 2. Voir Dire select/impanel jury 3. s Opening opening statements begin with, the evidence will show Not a time to talk about law or what conclusions youll make. 4. s Opening always happens in civil case. In criminal, can reserve its opening statement until the close of the states case (strictly tactical decision) 5. s Case in Chief - calls its witnesses, witnesses are sworn in, does direct examination. Once has no further questions, can cross examine. Once s cross is complete, can re-direct, re-cross (matter of judicial discretion when ends) 6. Rests 7. s Motion e.g., motion for directed verdict. would say, the has failed to establish a prima facie case because theres no credible evidence on an essential element of the case. NOTE: Only will have a motion here b/c hasnt put any evidence on for to respond with a motion of its own. 8. s Case in Chief 9. Rests 10. Motions here, both and may bring motions. 11. s Rebuttal - can call witnesses to rebut new issues raised by the defense in s case in chief. Same process for case in chief applies (direct, cross, etc) 12. s Rebuttal Limited to new matters raised by in s case in chief. 13. Jury Instructions state court (in fed. court jury instructions follow the closing argument) 14. Closing: - always begins with The evidence has shown This is the time to make arguments and conclusions about what the evidence has shown.

Lindsey Heinz

B. Discretionary Objections 1. Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Federal Rule 403 permits a judge to impose restrictions on the presentation of evidence that go beyond ruling on objections and on particular offers of evidence. Rule 403 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. E.g., in United States v. Reaves [p.1] the prosecution said that it would take 1 month to put on its evidence. The judge used the broad language of Rule 403 (undue delay portion) to shorten this amount of time and expedite the trial. Though there is no rule of evidence saying the judge can set such time limits, it was okay under the judges discretion granted by Rule 403. NOTE: Rule 403 creates an unevenly weighted balancing test, which is loaded in favor of admissibility: Unless substantially outweighed, probative value supports admissibility. [Evidence in a Nutshell] 2. The following are objections not specifically found in the Federal Rules of Evidence, but rather are derived from the broad language of Rule 403, which gives the judge the power to exercise discretionary control over the mode and order of interrogating witnesses and presenting evidence: [see p.7] a. Calls for a Narrative Response Setting: generally posed to a question that is indefinite in scope. Problem: opposing counsel cant anticipate whether the substance of the witness answer will encompass inadmissible matter. [no fair warning] Example: Tell us what happened the witness could testify to what happened when in reality, he only knows what happened through what he was told and not what he actually saw. b. Non-Responsive Setting: although the original question is not objectionable, the response by the witness extends beyond the specific information requested. Problem: response may be prejudicial, in which case attorney should move to strike the objectionable answer and ask the jury/judge to disregard the testimony. If response wasnt necessarily prejudicial however, may not want to object b/c next question would ask about the response. E.g., In the example, next question would be was drunk? Example: Q. Did you see the night of the murder? A. Yes. He had a lot to drink and was very angry and abusive. [all after yes is non-responsive]

Lindsey Heinz

c. Assumes a Fact Not In Evidence Setting: question that asserts facts that have not been established at trial. Problem: question is objectionable b/c brings to jurys attention facts that are not in evidence. We want witnesses to testify and the jury to reach its own conclusion based on the evidence presented, not attorneys. Example: A. I saw in the bar, his eyes were watering, and he was stumbling. Q. So was drunk, and d. Compound Question Setting: when a single question seeks multiple answers. Problem: the witness testimony will usually be ambiguous and confusing or misleading to the jury. Example: Q. Did you see the night of murder and did he seem upset? Tactical Note: In most instances, not worth trouble to object and, in fact, many lawyers think that making this objection has more of a probative value to the other side because it emphasizes the answer and the jury hears the testimony 2x. Exception when one answers are split ( yes/ no). e. Ambiguous Setting: when question is not reasonably clear and/or specific. Problem: question may not be understood by the witness, thereby making the testimony confusing and misleading to the jury. Example: What did or didnt you not say if not anything? Practical Note: If judge doesnt understand the question, objection will likely be sustained. If witness doesnt understand, will ask to rephrase Q. f. Asked and Answered Setting: when this particular examiner repeats a question [applies separately to
each examiner, so a different examiner can ask the same Q, but again, only once.]

Problem: Its waste of time. Thus, Rule 403 allows judge to exclude. Example: Once again, where you were the night of the murder?

g. Cumulative Setting: [2 parts] 1. Cumulative Witnesses: when several witnesses are called to testify on the same issue [most common example experts. General rule of thumb, you get one expert per issue]; 2. Cumulative Exhibits: introducing numerous similar exhibits [judges have broad discretion to limit number of exhibits] Problem: waste of time. Example: Your Honor, the State moves to admit Exhibits 1 through 47, which are all autopsy pictures of the victim.

Lindsey Heinz

h. Misstatement of the Evidence Setting: similar to cumulative [so be certain to distinguish the 2] but here, theres already been some testimony on an issue and the examiner inaccurately describes evidence or draws inferences. Problem: such inferences are for the jury to make and such misstatements confuse the testimony. Here, lawyer is testifying and making conclusions. Example: Assume witness testimony on direct was limited to fact was swaying when he walked and his eyes were red. Now, opposing counsel says On direct you testified that was drunk, didnt you? i. Argumentative Setting: this objection is generally made in response to a rhetorical question that attempts to assert the interrogators meaning or the implication of the testimony. Problem: the attorney should try to get info out of a witness, not argue. Example: Now why would you agree to such a stupid idea? Note: This objection is something that we carried over from England with the barrister system. Barristers were gentlemen and arguing is not polite. j. Badgering the witness Setting: atty gets in witnesses personal space and/or shouts at witness. Problem: the examiner is attempting to unfairly intimidate the witness. Example: Same as above, but attorney is standing one foot away from the witness box and shouts the question. C. Leading Questions 1. Defined: A leading question is one which suggests the answer sought. 2. Examples: 5 ways to ask the same question, some are leading, others are not. a. Leading Questions: i. Anything that begin/end with: Isnt it true [classic leading question] E.g., Isnt it true the light was red? ii. Questions that contain answer sought [an issue w/ examiners intent] E.g., Was the light red? Though Q can be answered yes or no, if witness is on stand to testify light was red, leading b/c its the response examiner whishes to elicit. b. Not Leading: i. Questions that contain all of the possible answers are not leading b/c they dont contain the answer sought. Exception? if the intent of the examiner is manifested in some other way [e.g., shouting answer sought] E.g., Was the light red, green, or yellow? ii. Questions that suggest the topic, but not the answer. E.g., What color was the light? iii. Questions that call for a narrative response. E.g., What happened? 4

Lindsey Heinz

Not leading, but a problem b/c calls for a narrative response.

3. Rule 611(c) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. a. General Rule: Leading Questions Not Permissible on Direct (Rule 611) i. Rationale: its your witness and youve had a chance to talk to them already so we want them to tell the story in their own words. ii. Straub v. Reading Co. [p.9] questions were clearly leading and, though they got away with it at trial, it was appealed and overturned. iii. Exceptions: Leading Questions Are Permissible on Direct When Necessary to Develop Witness Testimony [4 basic interpretations] (1) Uncontested/Preliminary Matters b/c leading Qs here help expedite the
trial and theres little prejudice to opposing party if Qs relate to preliminary matters or matters collateral to the disputed issues.

Witness With Difficulty Communicating: (2) Child Witness (3) Incompetent Adult (4) Forgetful Witness leading Qs allowed to refresh recollection of witness. Party Calls a Hostile Witness Must be demonstrated mere knowledge that witness hates , for example, is not enough. Actually must be hostile in courtroom. A witness can be found hostile by contemptuous conduct, refusal to answer questions, or by consistent hedging on answers. Party Calls an Adverse Party Clearly, and are adverse, but co-s can also be adverse. Examples: s are: Hecker, Hecker Inc., and Billy. If Hecker puts on evidence about Hecker Inc. not adverse, but if Billy puts on evidence about Hecker = adverse. If we have totally independent parties in a comparative fault state, clearly adverse parties because liability will be distributed amongst the s so they will want to place blame on e/o as much as possible.

Lindsey Heinz

Party Calls a Witness Identified with an Adverse Party As if this party steps into the shoes of the opposing party. Examples: Nurse employed by hospital was identified with an adverse party thus s use of leading questions to examine her was OK. Criminal s girlfriend called by State was a witness identified with an adverse party and could be examined with leading questions. But leading questions should not have been permitted on direct where the only indication of identification with an adverse party was that the witness was named on the adversarys witness list.

b. General Rule: Leading Questions Ordinarily Permissible on Cross (Rule 611) i. Exception Witness Friendly With Cross Examiner: leading questions permissible on cross, unless witness is friendly to cross examiner. ii. United States v. McKenna [p.14] Witness was the s personal accountant as well as his close, personal friend. State put witness on first for direct and then defense cross-examined. Because of the witness relationship to , court said that the cross-examination was more like a direct examination and leveled the playing field by prohibiting the defense from using leading questions. Upheld on appeal. D. Scope of Cross Examination 1. Rule 611(b) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. Provides 3 rules as to what can cross examine about: a. Subject matter of direct examination Issue raised on direct, not specific testimony. HYPO 1: Prater v. Hecker (car accident) Prater must prove: (1) Injury; (2) Fault calls doc who saw accident in his case in chief and asks what he saw On cross, asks doc if he wore his glasses that day this is clearly w/in scope b/c relates to the issue of what the doctor saw. Then, asks Did you approach him? Did you render medical assistance? this is outside the scope of subject matter raised on direct. Rationale? Issue raised on direct was fault only, whereas this testimony goes towards proving damages. HYPO 2: see p.23 (* in book). The rationale behind such an objection is b/c it relates to what was said on direct. However, it really deals with an issue

Lindsey Heinz

and thus the objection would be overruled. The question about the condition of the boat deals w/ the counterclaim of fraud. Practical Note: In the hypo above, if wants to ask doctor about injury, merely has to call him in s case in chief (very simple solution).

b. Credibility of witness E.g., Were you convicted of perjury in October of 2005? c. Judge discretion i. The court may allow the question even though it is outside the scope of direct if it is quick because its more convenient for the witness. II. Objections and Offers of Proof A. Rule 103(a) Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and Objection. in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific grounds of objection, if the specific ground was not apparent from the context. Offer of proof. in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. 1. To perfect non issue for appeal if evidence is admitted, you mustRule 103(a)(1) a. Object [an objection is to the question] i. Procedure for Objecting [in this order] 1. Stand 2. Say Objection. 3. State grounds for objecting -orb. Motion to Strike [a motion to strike is to the answer] i. If motion is granted, will not be removed from the record, but jury/judge will be instructed to disregard the bad portion of the answer. c. Timely i. If Objecting to Question: Must object before answer is given. ii. If moving to Strike Answer to Question: Before next question is asked. iii. United States v. Spriggs [p.28] Though testimony was important to states case in chief, it was clearly objectionable testimony. However, s atty failed to object and so, testimony was allowed. Didnt win on appeal b/c objection wasnt timely = malpractice.

Lindsey Heinz

d. Specific i. Must be specific and the correct objection ii. E.g., Objection! Everything after yes was non-responsive. I request that your honor instruct jury to disregard the non-responsive evidence. iii. United States v. Wilson [p.35] At trial, the govt introduced evidence on officer who arrested in an unrelated case, who testified that he found a gun on at that time. s atty objected on basis that the testimony was not relevant which was overruled. On appeal, argued that the gun should have been excluded b/c its prejudicial effect outweighed its probative value. Lost b/c though the evidence is prejudicial, it was relevant and that is what atty objected to, not its prejudicial effect. iv. NOTE: The following objection: I object, incompetent and irrelevant material is not specific! [see e.g. on p. 47] Owen v. Patton [p.38] [rationale for requiring specific and timely objections] Bar bouncer() and patron() got in fight. looked like a saint, but then evidence about his friends being in jail was introduced. wouldve won w/o this evidence but it was allowed (s counsel didnt object) and he lost. Clearly, this was inadmissible evidence, however, on appeal no way to cure this = malpractice. 2. To perfect issue for appeal if evidence is excluded, you mustRule 103(a)(2) a. Offer of Proof [what you do if you are the proponent of evidence want it allowed in] i. Offer of proof must include: The legal justification; and Specifically, what the evidence was going to be. ii. 4 general methods used to make an offer of proof: Attty speaks for record concerning anticipated content of excluded testimony [This is my legal justification, and this is what facts will show.] Attorney introduces statement, written by attorney making the offer of proof, which contains what the attorney believes the witness would have said had the witness been allowed to answer the question. [brief] Attorney provides a written statement, signed by the witness, that contains what the witness would have testified to had the witness been allowed to answer the question. Court excuses jury and allows attorney to examine witness in Q & A form gets the evidence on the record. *Note: This is the best way to do this, however, most courts will do sidebar instead. iii. United States v. Winkle [p.43] Evidence was excluded at trial as hearsay and on appeal, argued it was error to exclude the evidence. However, at the trial, gave no indication concerning what he would have testified to or why 8

Lindsey Heinz

his testimony would have been admissible. Now, he argues that it was admissible b/c could have been used for impeachment purposes, but argument doesnt work b/c appellate judge has nothing to go off of. Cant make a ruling b/c doesnt know what the evidence was. b. Unless Clear From Context 3. Harmless Error allows an appellate court to disregard technical errors in the proceedings that do not affect substantial rights of the parties. [Rule 103(a) effectively
recognizes the doctrine that there are harmless errors.]

a. A constitutional error cannot be deemed harmless unless a reviewing court is satisfied beyond a reasonable doubt that the error did not affect the verdict. b. Harmless Error Factors [p.41] Some factors that are relevant to the harmless error inquiry include whether: erroneously admitted or excluded evidence was cumulative on a point or, conversely, whether it was the most powerful or only evidence in support of the point; the trial court gave timely and effective curative instructions; erroneously admitted evidence was relied upon by counsel in argument; the error was discrete or pervasive evidence though improperly admitted for one purpose, was properly admitted for another; and the error was made in a lengthy or short trial. B. Rule 103(d) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. 1. Plain Error - Allows an appellate court to consider errors affecting substantial rights of a party even if that party failed to make a timely and/or specific objection b/c it was a plain error of the court. a. Sup. Ct. has noted that [t]he plain-error exception to the contemporaneousobjection requirement is to be used only in those circumstances in which a miscarriage of justice would otherwise result. Especially when addressing plain b. error, a reviewing court cannot properly evaluate a case except by viewing such a claimed error against the entire record. c. When drafting appeal, never put words plain-error in it admits malpractice III.Competency the ability to testify A. Common Law 3 definitions of competency at common law 1. Inadmissible not specific enough 2. Status the following parties were deemed incompetent to testify a. Party to the Action thought being that party to the action was more likely to lie b/c of his interest in the action.

Lindsey Heinz

b. Spouse of Party to Action same reason c. Children thought being that they didnt have a sufficient awareness of God to be able to swear. d. Convicts thought being that because theyd committed a crime before, obviously had no morals and couldnt swear. 3. Foundation 4 foundational requirements to deem witness competent to testify: a. Swear I swear to tell the truth, so help me god. b. Evidence witness perceived something c. Evidence witness could recall what he/she perceived d. Ability to communicate in English B. Federal Rules [changed most of common law rules] 1. Status = All Persons the common law status rules are gone and now all persons are deemed competent to testify [with 2 exceptions see below] a. Competency vs. Credibility United States v. Bedonie [p.51] Prosecution witness testified he was there and saw , but as trial progressed he changed his story over and over again. Defense essentially argued that the witness status as a liar made him incompetent to testify but court didnt buy this argument b/c issues of credibility are jury issues. General rule we see from Bedonie: judge may not decide that a particular witness is not believable because jury decides matters of fact. b. Exceptions though we now say that all persons are competent to testify, there are two exceptions. i. Jurors Federal Rule of Evidence 606. Competency of Juror as Witness (a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the jury is called so to testify, the 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

10

Lindsey Heinz

connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurys attention or whether any outside influence was improperly brought to bear upon any 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 e received for these purposes. Juror Status concerns jurors ability to testify to impeach verdict. Tanner v. United States [p.58] On a post-verdict hearing, the argued that the court erred in refusing to admit juror testimony of juror intoxication during trial. Court refused to allow the testimony in accordance w/ Rule 606. General Rule: Jurors are incompetent to testify in the trial of a case in which the juror was sitting. [Cant go back and allow juror to testify about
the mental impressions of the jury. If the rule were otherwise, wed never have a complete trial. The rule allows for judicial economy]

Exceptions: o Extraneous prejudicial information brought into courtroom o Improper outside influence Opposing party must object if juror improperly testifies. Examples: on s motion for new trial, presents an affidavit to the judge, signed by one of the jurors, in which the juror states: o One juror was drunk during the entire trial
Incompetent. The juror is incompetent to testify another juror was drunk. Remember though that if, for example, the court reporter testified that the jurors were sitting in the juror box, drinking totally ok.

o Another juror said he had read the newspaper account of the trial
Competent because this constitutes outside influence.

o Reading the newspaper article affected the jurors decision

Incompetent. Deals with mental impressions, which are off limits. So the juror can testify that the other juror read the article b/c it falls within the exception, but thats as far as his testimony on that matter can go.

o The jury agreed to a quotient verdict

Incompetent. Though clearly a violation of the rules, the juror is incompetent to testify b/c this deals with the mental impressions of the jury. Even if jury doesnt do it right, we trust theyll come up with right decision.

o The bailiff told the jury that the was a liar, that not even the judge believed the .
Competent. This is an example of improper outside information.

o One juror told another he would kill him if he didnt vote for
No Answer. No rule but if a mere threat (even if serious) then it isnt enough, but if there was actual, physical violence, then would be competent.

o One juror said the attorney for offered a juror trip to Tahiti.
Competent. Improper outside influence.

11

Lindsey Heinz

o One juror was suffering from delusions.

Incompetent.

ii. Judges Federal Rule of Evidence 605. Competency of Judge as Witness The judge presiding at the trial may not testify in the trial as a witness. No objection need be made in order to preserve the point. No Need to Object: If judge testifies in a case in which he is sitting without objection, the opposing attorney can still perfect the issue. Example: After a witness completed testifying in a case regarding a land dispute, the judge said to the witness as he stepped down, you know, I have land up there and that land isnt worth more than rocks and rattlesnakes. This is forbidden. Though it may not seem like testimony in the traditional sense, its the judge telling a witness his own opinion on the matter and the jury could easily have heard it, which might influence how they find.

2. Foundation - 4 ways to establish foundational competency a. Oath i. Federal Rule of Evidence 603. Oath or Affirmation Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness conscience and impress the witness mind with the duty to do so. ii. 3 Methods to Establish a Witness Competence to Testify:
2 levels of oath Substitution for oath

1. Swear I swear to tell the truth, so help me God. 2. Affirm I affirm to tell the truth. [usually has the word affirm in it] 3. Louisiana Rule [Ferguson] Ill tell the truth, and I agree that I am subject to penalty of perjury. Ferguson v. Commissioner of Internal Revenue [p.67] Before this case, swear and affirm were only options. in this case was the only witness in her own case and, as such, would lose if she didnt testify. However, due to her religious beliefs, she felt that affirmation was the same thing as an oath/swear. suggested alternative to judge, which was basically an affirmation w/o the word affirm in it. Judge denied this option, basically deciding for her that her religious beliefs didnt prevent her from affirming. On appeal, prosecutor tried to support trial judges conclusion, but based on the ground that s suggested oath didnt 12

Lindsey Heinz

establish that understood she was subject to penalty of perjury. then added to her suggested alternative that she understood this. Appellate judge agreed that her option was acceptable and reversed. So long as the declaration meets the statutory requirements of 603 AOK. NOTE: If witness refuses all 3 methods, theres nothing else you can do and the witness can not testify because he is incompetent to do so. iii. If Witness Not Sworn In, Must Object: Remember that this still must be done in a timely fashion [always adhere to rules for proper objection]. The failure to object effectively gives the witness the ability to lie on the stand without being subject to penalty of perjury. Example: Defense calls witness to the stand. Witness sits, w/o being sworn in and defense counsel says state your name. If prosecuting attorney objects after this, its too late. Instead, must object before the state your name question, and would do so as follows: Objection! Witness is incompetent to testify for failure to take the oath. iv. Children General Standard: Does the child have a sufficient understanding of his or her moral obligation to tell the truth? Minimal Standard: Our system has a very minimal standard in determining the competency of a child to testify. If the judge is reasonably satisfied that the child understands truth from lies, the child can testify and then its up to the trier of fact to determine the credibility of the child. Capps v. Commonwealth: [illustrates this minimal standard] The girl said (1) that she was going to kill the opposing attorney and that hed turn into an angel when his blood ran out; (2) that Buggs Bunny was real and was the easter bunny. Even with this knowledge, the judge allowed her to testify, but again, on cross the attorney can bring these 2 statements to the jurys attention to undermine childs credibility.

v. Competent Incompetent Prior Determinations Irrelevant: judge determines competency on the day of trial, so a past showing of incompetence is irrelevant. United States v. Phibbs: 2 witnesses in question Parks: incompetent, auditory delusions, confined to mental institution McKechan: incompetent, paranoid, and hallucinations Deemed competent to testify. Can cross examine them about these issues and then jury can determine credibility. b. Perception i. Federal Rule of Evidence 602. Lack of Personal Knowledge

13

Lindsey Heinz

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness own testimony. ii. Laying Foundation: Must do this before the witness begins to testify. iii. Witness Own Testimony: Must establish that the witness has personal knowledge through one his or her own 5 senses: touch, taste, smell, sound, sight. United States v. Davis [p.78] Prosecutor wanted to prove that the , a convicted felon, possessed firearms before the 2-year SOL expired. To do so, he called a police officer to the stand to testify as to the fact that within the 2-year period, came to police headquarters to pick up his guns that were in evidence ( claimed he didnt own the guns b/c gave them away as a gift, but clearly he had possession of and transported the guns if he picked them up at the station). Problem? the officer who was called was not actually there on the day claimed the guns and instead merely had copy of the report. Not okay because, in reality, all the witness knew is from what he read in the report; however, case is an anomaly b/c the judge allowed witness to testify after prosecutor laid the foundation by asking Do you of your own knowledge know when these guns were released. Never, ask the question Do you of your own knowledge know this question clearly does not satisfy the requirement that you lay a foundation that established perception via one of the 5 senses. Instead, ask: Did you [see, touch, taste, hear, smell] ?

iv. Extent of Personal Knowledge Gladden v. State [p.84] Sheriff testified, without objection, that he observed as he was driving and that he was drunk. Problem? Sheriff merely observed the swerving. Is this enough perception to conclude and testify that was drunk? Court concludes that it was not error to allow the sheriffs testimony. This court developed a minimal standard of what it takes to establish personal knowledge. But what the defense can do is then put on other evidence, e.g., there was a fly in the car, which caused to swerve, and then the jury can make the ultimate conclusion. v. Evidence Independent: admissibility of each piece of evidence should be tested independently to determine if theres adequate perception. c. Recall i. Memory Refreshed 14

Lindsey Heinz

Any Statement or Object we can use anything to refresh a witnesses memory [e.g., their own writing, anothers writing, drinks, drugs, etc...] Thus, when a witness says they cant remember, have following 3 ways to refresh their memory: Own Writing Any Writing Anything Baker v. State [p.90] - Anything was charged w/ crime he didnt commit, which we know b/c after the crime, the victim told the police officer at a drive-by show-up that wasnt the guy. At trial, defense called that same officer to the stand to testify V told me didnt do it. On the stand, the officer couldnt remember so the defense lawyer tried to introduce the police report to refresh the officers memory. Trial judge didnt allow it b/c that officer didnt actually write the report. Instead, a fellow officer wrote it, based on the testifying officers knowledge. Appellate court reversed and said that anything can be used to refresh. Different b/w this and Davis is b/c here, the witness testifying did have the requisite perception; whereas officer in Davis did not [here, would be as if officer who wrote the report testified.] E.g., hypo in class where, when the pertinent event occurred, witness was listening to Grateful Dead, sipping an apple martini, etc Lawyer could serve the witness an apple martini and play Grateful Dead. Anything sensory that could recall the memory. Must say Magic Words we can show the witness anything to refresh his or her memory so long as they have the recollection and say I now remember. Method If a witness needs to be refreshed the attorney should, for example: 1. Show the officer the police report and ask what it is. 2. Officer says its my police report. 3. Officer looks at police report. 4. Attorney takes police report back. 5. Attorney begins questioning officer. NOTE: If officer forgets something attorney gives officer report again; officer looks at it; attorney takes it away; continues questioning; and repeats this process as often as necessary. [Not like what we see on TV where the officer reads straight from the report].

ii. Memory Recorded [a.k.a. Past Recollection Recorded] This is the next step if the above three wont work to refresh. Thus, if we still have a forgetful witness, this is the step needed to complete memory refreshed.

15

Lindsey Heinz

Is a writing that is admitted in place of the witness testimony and is an exception to the hearsay rule.

ELEMENTS to allow a recordation in as testimony, must meet the following elements to lay the foundation so that the writing may be read to the jury: Once Knew Cant recall to accurately testify
Note: In U.S. v. Williams [p.96], was allowed even though it seemed that the witness was being selectfully forgetful.

Made or adopted recordation While memory fresh Read it to jury

Can not give it to the jury, but instead must be read to the jury.

Other side may introduce

NOTE: Memory Recorded most often is used to introduce personal journals. E.g., in s case in chief in a personal injury case. Lawyer would have keep journal each day and it doesnt really refresh their memory of what the pain was like, so the actual journal is read to jury. iii. Hypnoses In People v. Zayas, the court noted that there are 3 different rules regarding the admissibility of hypnotically refreshed recollections Per se rule of admissibility Place burden on trial judge to determine if it was done as scientifically as possible Per se rule of inadmissibility Majority rule per se rule of inadmissibility Rationale? b/c not scientific. Exception Criminal - the criminal can use hypnotically refreshed memory, but the judge will use screening and safeguards to ensure it is as close to scientific as is possible. d. Communication General Rule: Witness must be able to communicate in the English language. If the witness cant, must swear in a qualified interpreter. In Watson v. State, court ruled it was error to allow the caretaker to act as an interpreter no way to quantify the signals the man was given and she was not a qualified interpreter. Maybe if we had something very uniform this would work, but doubtful.

16

Lindsey Heinz

NOTE: If an interpreter is allowed, we can use leading questions! Rationale this is an exception to the use of leading questions b/c a witness who cant communicate is an incompetent witness. IV. Relevance A. Common Law Background: At common law, had 2 aspects relevance and materiality. 1. Relevance: Irrelevant if illogical. A makes B more or less likely. 2. Materiality: B [fact trying to prove] is of consequence to the litigation. CL Applied: In Kansas, have no zone of proximity rule. So if a parent is testifying in a wrongful death case as to how watching her child get hit by a car affected her (the parent) its logical, but it is not material.
Fed Rules 401 and 403 are the two rules we must memorize for the test!

Federal Rule of Relevancy: Takes the common law definition of relevancy and materiality and combines them into only relevancy. NOTE: Remember that if you object now on basis that its immaterial doesnt mean anything. Instead, materiality is merely one prong to relevancy. Thus, objection should be Objection! Irrelevant, not of consequence to the litigation, rater than Objection! Thats immaterial.

B. 401 Relevant evidence means 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 without the evidence. 1. Any tendency more or less likely a. Any tendency may be taken very far. See U.S. v. Foster b. United States v. Foster [p.117] On cross examination, officer was asked isnt it true that you could not see who was in the back seat of the car? was in the front seat. Trial court ruled this question was irrelevant, but was reversed on appeal b/c the question only has to make a fact of consequence more or less probable, and here, the question was whether he could see period. Seems the trial court was looking at this as if the officer had to prove something and the question of whether he could see in the back didnt prove he could see in the front, but this was the wrong analysis b/c its any tendency to make a fact of consequence more or less probable. c. Guns and Drugs: Man arrested on suspicion of meth, police find gun in car. Courts uniformly hold that introduction of gun is relevant b/c makes it more or less likely the is a drug dealer again, shows how far we can take this.

17

Lindsey Heinz

2. of consequence a. U.S. v. Hall [p.121] was arrested on drug charges and govts case rested primarily on testimony of s co-conspirators, but the evidence was uncorroborated by any physical evidence. To bolster its case, govt then put on a DEA agent who testified as to alternate procedures used in the investigations and prosecutions of drug dealers [basically to show that its not always possible to get physical evidence in such cases]; however, this particular agent was not connected to this case. Trial court admitted the evidence, but the appellate court reversed stating that the evidence was irrelevant b/c the agent didnt testify as to any facts bearing on any manner of the prosecution of this particular . b. Praters Take: According to Hall you cant use uncorroborated expert testimony as evidence. Prater thinks that trial court got it right b/c the evidence raised is of consequence to the case b/c it offers a complete denial of s defense that there was no physical evidence. Thus, the fact that the DEA conducts criminal investigations by alternate procedures that dont produce physical evidence is relevant to this case. 3. Language Must Use Both Aspects of Rule 401 Language! So first part is This evidence has a tendency to make it [less/more] likely that And second part is and, this is a fact of consequence to the litigation. so use both when objecting, but also when conducting the analysis. 4. Relevant Evidence is Admissible Unless There Is an Exclusionary Rule See U.S. v. Lowery [case basically just re-states Rule 402]. Thus, even though something is relevant and not unduly prejudicial, it may still be inadmissible if it is inadmissible under some other federal rule. C. 403 admissible unless probative value substantially outweighed by risk of undue prejudice. 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. probative value high probative value low prejudicial effect low prejudicial effect high

18

Lindsey Heinz

Proponent of Evidence: argues evidence has high probative value, low prejudicial effect Opponent of Evidence: argues evidence has low probative value, high prejudicial effect.

Example of Language Used: Opponent of Evidence: Objection! This evidence has a low probative value and a high prejudicial effect Proponent of Evidence: The evidence has tendency to make it more likely that is a drug dealer b/c drug dealers carry guns and this is of consequence to the litigation b/c were trying to prove he is a drug dealer. This has high probative value b/c drug dealers carry guns and it is not prejudicial b/c carrying a gun is not against the law Opponent: It has low probative value b/c, while there may be small tendency to prove is a drug dealer, its highly prejudicial b/c makes jury thinks hes bad guy. 1. Rule 403 Balancing: The probative value must be substantially outweighed by the Rule 403 factors before evidence is excluded. McQueeney v. Wilmington Trust a. Rebuttable Presumption of Admissibility: The rule requires that the probative value be substantially outweighed by the risk of undue prejudice. The policy of Rule 403 is that if the balance b/w probative value and prejudicial effect is close, Judge should admit the evidence. Theres a presumption in favor of admitting relevant evidence. To overcome this presumption, prejudicial effect must be demonstrably greater than probative value of the evidence substantially *Rule operates strongly in favor of the proponent of the evidence. 2. Language: Prater is big on language. In People of the Territory of Guam v. Shymanovitz [p.132] was on trial for sexual criminal conduct with a child. Govt introduced explicit pics and on appeal, court determined that though it was relevant, the probative value was extremely low but the pictures were extremely prejudicial. Court of Appeals language is great example of how to do it: The court does not think there is any tendency to make the fact sought to be proved more or less likely and the fact sought to be prove is not of consequence to the litigation. Even if it is, the probative value is very low and the risk of undue prejudice substantially outweighs that value. 3. Common Applications of the Rule 403 Balancing Test a. Consciousness of Guilt

On Exam, in a close case like this, Prater doesnt care about conclusion, but rather, about using the proper language!

19

Lindsey Heinz

i. If a party purports to offer evidence that is false, the opposing party can admit evidence of the partys consciousness of guilt or of their perjury in attempting to lie to win the case regardless of which party suborned the perjury . . . the party that suborned the perjury which was eventually offered up by the other party can enter the evidence that it was a lie to their own advantage.

ii. Flight and Escape U.S. v. Hankins [p.139] Court held that evidence of flight had probative value in circumstantial evidence for proving consciousness of guilt. O.J. Simpson example: evidence of consciousness of guilt is of consequence to the litigation, and, while it has some prejudicial effect, it doesnt substantially outweigh its probative value. Remember merely b/c something is admitted as relevant and not unduly prejudicial does not mean the jury has to believe it. The opposing party can put on contradictory evidence. b. Poverty or Wealth i. General Rule: Generally, wealth or poverty is simply irrelevant. ii. Exceptions Motive: Irrelevant, unless there has been a recent significant change of financial status that could help to prove motive. E.g., shoe store owners business is going down the tubes, has a high fire insurance policy, and building suddenly burns down due to arson. Punitive Damages: When dealing with punitive damages, wealth of is both relevant and also not unduly prejudicial. Hall v. Montgomery Ward & Co. [p.143] In this case, jury had 3 things to decide: 1. Fault did Montgomery Ward falsely imprison and cause him emotional distress? 2. Actual Damages how was injured? 3. Punitive Damages should we punish Montgomery Ward for an intentional tort? Question: Is wealth of relevant as to this proof? 1. Fault Irrelevant. The fact that Montgomery Ward has insurance has no tendency to make it more or less likely that they falsely imprisoned . 2. Actual Damages Irrelevant. Doesnt make it more or less likely that suffered emotional distress either. 20

Lindsey Heinz

3. Punitive Damages RELEVANT. Here, it matters b/c need to know how much it will take to actually punish this particular . c. Similar Occurrences i. Rule: When trying to offer a similar event in a products liability case, the similar event must be substantially similar to the case at bar. ii. Must Prove Fault in Similar Event: In Nachtsheim [p.145], the similar event was extremely similar to the case at bar [products liability case w/ plane, another accident in the same plane under strikingly similar conditions]. However, the problem was that there was no proof as to what caused the accident in the substantially similar case. Court said it would be essentially trying 2 cases if evidence were allowed. *Remember undue prejudice also includes consumption of time as well as confusion of issues. # of similar cases matters: E.g., Firestone tire case. First puts on expert, but loses. Second wants to use first incident as a substantially similar event, but cant b/c of lack of fault. However, on, for example, the 20th case or 100th case, the similar events will likely be allowed, BUT this will be accomplished through your expert! So the expert will testify that he looked at info from other cases to form his opinion. d. Gruesome Pictures i. Rule: court must determine whether the probative value of gruesome pictures is sufficient to outweigh their inflammatory aspects. If we have a gruesome picture that was done by someone other than , its unduly prejudicial. ii. Autopsy Pictures: Often irrelevant because probative value is outweighed by risk of prejudice these pictures are highly prejudicial b/c inflame jurors minds. Also, these pics show what the medical examiner did and the injuries he or she inflicted NOT what did. Terry v. State [p.155] iii. HYPO: Store clerk leaving store when mugged by 3 guys. B/c end of day, no money in cash register, so 3 men took him out to field and shot him execution style. In prosecutions case in chief, wanted to show autopsy pics to establish angel that bullets went into brain. Likely wont be allowed b/c gruesome and prejudicial. Assume issue was which shot him? Here, not only prejudicial, but the real issue is relevance. Just a reminder that we always need to consider relevancy has no tendency to prove which shot him. e. Implicating Another Some Other Dude Did It [must show a nexus between the some other dude, and what the is charged with] i. Alt. Perpetrator Evidence: to admit alternative perpetrator evidence the must show a nexus b/w the crime charged and the alleged alternative 21

Lindsey Heinz

perpetrator. Unsupported evidence of speculation of another person is not sufficient b/c invites prejudice and confusion probative value is substantially outweighed by undue prejudice. U.S. v. McVeigh [p.157] ii. Good Nexus: fruits of the crime, instrumentalities of the crime, can be identified at the scene or in a neighborhood, etc 4. Evidentiary Alternatives And Stipulations: With applications of Rule 403 balancing test above, only looking at this particular piece of evidence. Old Chief changed this. a. Old Chief v. United States [p.165] Old Chief charged with assault with a gun and felon in possession of gun. B/c of this second charge, prosecution must prove that committed a felony in the past. Seemed easy enough b/c could just put on record of his first assault with a gun charge, which would prove a critical element of states case, and even better b/c casts in bad light w/ jury. Judge would tell jury that they can only consider the evidence as to the felon in possession charge, but jury wont listen. Thus, defense argued that stipulating Old Chief is a felon is enough jury doesnt need to know what felony was, but that it was committed. i. Clearly, evidence is relevant b/c it has a tendency to make it more likely that Old Chief was a felon, and being a felon was of consequence to the crime. Thus, has a high probative value, but theres a risk of undue prejudice. ii. Supreme Courts Holding: a prosecutor may be compelled to stipulate in a felon in possession of a gun case that the is a felon and may not put on evidence of the underlying felony. iii. Rationale? because there were evidentiary alternatives, this made the prejudicial effect of putting on Old Chiefs assault conviction unduly prejudicial it substantially outweighed its probative value. b. Old Chief Rule: In addition to looking at probative value and prejudicial effect of this particular piece of evidence, also must conduct the analysis with evidentiary alternatives. Evidentiary alternative in Old Chief was s stipulation 5. Must be Substantially Outweighed By Risk of Undue Prejudice: this is the key language to remember when determining whether to allow evidence in.

22

Lindsey Heinz

V. Relevancy Special Rules A. Subsequent Remedial Measures 1. Setting: Products liability case, manufacturer has since changed the design, which wants to introduce as evidence that injury would have been less likely to occur if new design was in place at time of accident. But cant do this. 2. Rule 407 Subsequent Remedial Measures When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a 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. 3. Rationale public policy argument, dont want to punish manufacturers for improving their products. So comes down to a legislative decision that subsequent remedial measures, though they may be relevant and have a high probative value, as a matter of policy, their prejudicial effect outweighs their probative value. 4. Subsequent Remedial Measures Include: change in design, warning letters, etc.. 5. Rule: Subsequent Remedial Measures are Inadmissible to Prove Fault 6. Exceptions to Rule: The rule does not exclude evidence of subsequent remedial measures used for other purposes such as to prove ownership, control, feasibility of precautionary measures, if controverted, or used for impeachment. a. Feasibility: should never come up in real world. i. Setting - has a design, is injured, wants to put on evidence of s new design, which was safer. A feasibility defense would be if argued that s suggested design is not feasible (e.g., maybe 100 years from now) ii. Issue? would never do this! If improved product as said they should have, it would be completely ridiculous for to now say its not feasible. iii. Cant say its not feasible to make design change when already made change. b. Control: this is the more likely scenario

23

Lindsey Heinz

i. Setting - is injured when car falls off road into ditch no warning sign. Property owner says she doesnt own land, neither does city; however, after the accident, city puts up a warning sign. ii. By taking this subsequent remedial measure, shows the city does have control

B. Compromise and Offer of Compromise 1. Rule: Statements/offers of compromise or compromise/settlement agreements are inadmissible to prove the validity or value of the claim which was disputed. a. Rationale? Want to promote compromise and, in turn, judicial economy. The policy is to settle w/o suit, allowing evidence of compromise would defeat this purpose. Thus, for it to be excluded it must be that there is a disputed claim; it does not apply to negotiations for a K when there is no basis for a claim. 2. Key = was claim disputed? a. The key is whether the evidence of compromise or offer to compromise at the time it was create was surrounding a claim which was disputed. b. Distinguishing B/W Disputes and Negotiations [See Alpex p.189] i. Communications b/w lawyers and/or from lawyers after suits been initiated are inadmissible easy b/c clearly, theres already a dispute. ii. Communications from lawyers threatening a suit also inadmissible and considered a dispute even though just threats at this point. iii. Negotiations e.g. in case, initial letters offering a license unaccompanied by a threat does not constitute a dispute and instead, is merely a negotiation. 3. Exceptions: Generally not admissible, but there are exceptions: a. Breach of Compromise: If you have an agreement and one of the parties breaches it, you can sue on the agreement and then evidence of the compromise must be admitted to prove something was breached. b. Bias or Prejudice of Witness: often happens when have multiple s in negligence case and one settles cheaply, but then takes stand other s can offer evidence of this s compromise/settlement with to show bias of that particular witness. C. Offer to Pay & Payment of Medical or Other Expense 1. Rule 409: Evidence of furnishing or offering or promising to pay medical, hospital, or
similar expenses occasioned by an injury is not admissible to prove liability for the injury.

24

Lindsey Heinz

2. Rule: Any offer to pay medical expenses is inadmissible, but any other statement admitting fault is admissible. Arnold v. Owens [p.199] if you have an offer to pay medical expenses coupled with an admission of fault, the portion of the statement which mentions fault is admissible, the portion of the statement about covering medical bills is inadmissible. 3. NOTE be careful b/c, for example, if party says Ill pay your medical bills because I was at fault. First part is inadmissible b/c of Rule 409; however, second part of statement is also inadmissible b/c this falls under offers of compromise rule! D. Plea & Plea Negotiations 1. Rule 410: Evidence of the following statements made by are inadmissible in this proceeding, or any other type of proceeding against the who made the plea or was a participant in the plea discussions: a. Plea of guilty which was later withdrawn b. A plea of nolo contendere c. Any statement made in an allocution hearing [rule does not relate to confessions, which are done with officers] d. Any statement made in the course of please discussions with an attorney for the prosecuting attorney which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. 2. General Rule: Evidence of statements made in connection w/ a plea of guilty later w/drawn may not be used against at trial as part of govts case in chief as evidence of guilt or to impeach the defendant and also may not be used in govts rebuttal when it cross-examines . [See U.S. v. Udeagu p.201] a. Rationale: the incriminatory admissions would make w/drawal of the plea meaningless b/c conviction is sure to result at trial. b. Broader than Miranda: With Miranda, if the rights were not read, any statements made are only inadmissible in states case in chief. 3. Waiver Exception a. Waiver of inadmissibility of plea: Way prosecutors can get around this is to have sign a waiver If you sign this waiver, I can use any statements you make to impeach you if you later withdraw your plea and we go to trial. In U.S. v. Mexxanatto [p.204] the Supreme Court held that can waive in admissibility of his plea, at least to the extent of statements made during plea negations to impeach, unless there is some evidence such an agreement was entered into unknowingly or involuntarily.

25

Lindsey Heinz

b. Waiver by Judge: Other example had to do with prosecuting attorney getting waiver, but in U.S. v. Burch [p.210], the judge ruled that as a condition of allowing to withdraw his guilty plea, judge would enforce a waiver of inadmissibility of all plea statements as to states case in chief AND to impeach the witness. *Thus, not a waiver as a condition to entering plea negotiations, but rather a waiver as a condition of withdrawing his plea. The question that remains unanswered is whether the prosecutor can validly obtain a waiver from a that allows the prosecutor to use the plea statements not only for impeachment but also in the case in chief. 4. Praters Wrap-Up of Overall Rule: a. As a general rule, statements made during the course of plea negotiations that result in a plea of guilty or no contest, which are later withdrawn are inadmissible in both the states case in chief and to impeach the . b. It is clear that the prosecution, as a condition of plea negotiation, may require to waive those rights, at least to the extent of the use of those statements to impeach the witness. c. It is not known yet whether a waiver as a condition of negotiations would be binding to allow the prosecution to use the statements in both its case in chief and to impeach. d. A trial judge, however, as a condition of granting a withdraw of the guilty plea, may impose the requirement that s statement be admissible in both the case in chief and to impeach. e. Statements made to police officer while being arrested dont count, public statements dont count [but, note that, for example, public statements that a public
senator is going to resign can be admitted as evidence of guilt shows guilty conscious].

E. Liability Insurance 1. Rule 411: Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 2. General Rule: Proof of liability insurance isnt relevant, let alone the prejudicial effect such evidence would have thus, as a general rule its inadmissible. 3. Exceptions Permissible Uses of Liability Insurance a. Rebut Poor Little Old Me Presumption: In Bernier v. Board of County Road Commissioners [p.215], defense argued they didnt have enough money to fix all of the roads, so had to make decisions as to which roads to fix. This could make the jury feel sorry for and, as such, not impose liability. Thus, judge can allow evidence of s liability insurance to rebut this presumption.

26

Lindsey Heinz

b. To Show Agency, Ownership, or Control: if you insure something, probably will be liable as this shows ownership/control. c. To Impeach a Witness: most common use is to impeach an insurance adjuster. E.g., insurance adjuster came to scene of accident and wrote report. B/c theyre an insurance agent, would write a report more favorable to . So, at trial, if adjuster takes the stand on behalf of , could introduce evidence of liability insurance to impeach the adjuster as a witness. 4. NOTE: In Kansas NEVER use word insurance. Instead, would have to say something like Isnt it true you adjust claims? VI. Character Evidence generally used to show the nature of a person as it pertains to a particular trait. Must discern whether it has to do w/ this particular case if does, then its character evidence. [E.g., reckless, careful, hot tempered, peaceful, violent, calm, etc] A. Analyzing Character Evidence: Follow these steps on exam. 1. Is it substantive or impeachment use of character evidence? 2. Is it a criminal or civil case? [b/c, for example, circumstantial use of character evidence is
inadmissible in a civil case.]

3. Where are we in the trial? 4. What rules are we dealing with? B. Substantive v. Impeachment character evidence may be divided into two primary categories based on how the evidence is used. 1. Substantive character evidence: Offered to prove something about an issue in the case. Thus, when a trait of a persons character is relevant to an issue in the case, evidence of that character trait is substantive. 2. Impeachment use of character evidence: Not offered to prove something about an issue in the case, but rather, to prove that a particular witness is not worthy of belief. 3. Example of Differences Between Substantive and Impeachment: Setting: sues for conversion. argues that he didnt take the money. a. Q: Does the have a reputation as an honest person? i. Substantive b/c trying to prove that an honest person would not have converted the
money this Q is trying to prove something about an issue in the case.

b. Q: [on cross] You, , were convicted of perjury, right?! i. Impeachment b/c has nothing to do with an issue in the case, but has a lot to do with
whether is worthy of belief.

C. Circumstantial v. Character in Issue 2 types of substantive character evidence

27

Lindsey Heinz

Character Evidence After one makes the determination that the use of character evidence is for a substantive purpose, i.e. the character relates to an issue in the case, then substantive character evidence can be roughly divided into two categories of use.

substantive

impeachment

character in issue

circumstantial use of character evidence

1. Circumstantial Character Evidence: when evidence of a persons character or trait of character is introduced to show that on a particular occasion the person acted in conformity with his character. Thus, proponent of character evidence is trying to show the conduct in a particular circumstance conformed to the known character trait. 2. Character in Issue: a character trait is an actual element of a claim or defense. The determination of the actors character will decide the case. NOTE: When character is at issue in a case, its at issue only to the party whos character is involved! E.g., in defamation case, character that was defamed is at issue. 3. Examples of Difference Between Circumstantial and Character in Issue: a. Aggravated spousal battery is a crime, and the statute reads: battery by an aggressive spouse on the other is a crime, unless the victim initiated the dispute. i. Q: Is the victim a peaceful person? Circumstantial. The statute says nothing about a character trait of V, but instead

asks if V initiated the dispute. Thus, whether V is peaceful is character evidence, but its circumstantial b/c it could be used to show that, b/c V is a peaceful person, his conduct on the day in question would have conformed to that character trait.

ii. Q: Does the have a reputation as being aggressive? Character in issue. An element of the claim is to prove that the is an
aggressive spouse. So s character trait as an aggressor is a character in issue.

b. Negligent Entrustment: you are responsible if you loan a car to a person who is known or should be known to be a negligent driver and they injure someone. i. Evidence that person you loaned car to total ed his car the night before and was still drunk the next morning when you loaned him the car. Character in issue b/c an element of the claim of negligent entrustment that the
person is a negligent driver.

ii. Evidence that you often loan your car to people who are negligent. Circumstantial b/c are trying to show that your actions on the day you loaned
your car to him conformed to this known character trait of loaning car to negligent drivers.

28

Lindsey Heinz

D. Methods of Proof three methods of proving substantive character evidence. 1. Reputation what is talked about in the community. The foundational evidence you must lay: have you talked about s reputation with others in the community? 2. Opinion In your opinion, is immoral? With opinion testimony, must lay the foundation that the witness has personal knowledge about the traits of the person he is testifying about. 3. Specific Instance a specific instance of conduct used to show evidence of a specific character trait. E.g., Did take money out of the collection plate? E. The 11 Rules of Substantive Character Evidence, Similar Acts And Habits

Civil
1

Inadmissible
3

Criminal By state of , states case in chief By of , pertinent trait, state rebuttal of By of victim, pertinent trait,
state rebuttal of victim &

Circumstantial Use

Methods of Proof Reputation Opinion

4 5

Character in Issue
2

Reputation Opinion Specific Instances

Homicide Rule: Allegation of first aggressor, state rebuttal peaceful character of V. Essential Element
*character in issue

c i r c u m s t a n t

i
a l

8. Character witness may be cross-examined with specific instances of conduct of person on whose character they testify about good faith basis / collateral. 9. Specific instances not to show conformity, but for other relevant purposes identity, motive, intent, lack of duress, knowledge, to prove a crime was committed. 10. Habit admissible to show conduct conformed to the habit.

29

Lindsey Heinz

Character Evidence of - Criminal Case

Reputation
States Case-In-Chief

Opinion No n/a
outside scope of direct

Specific Instances No n/a

outside scope of direct

Direct
Rule 3

No n/a
outside scope of direct

Cross
s Case-In-Chief

Direct
Rule 4

Yes Yes
ineffective

Yes Yes
ineffective

No Yes No Yes
effective

Cross
Rule 8

States Rebuttal

Direct
Rule 4

Yes Yes
ineffective

Yes Yes
ineffective

Cross
Rule 8

Character Evidence of V Criminal Case

Reputation
States Case-In-Chief

Opinion No n/a
outside scope of direct

Specific Instances No n/a

outside scope of direct

Direct Cross

No n/a
outside scope of direct

s Case-In-Chief

Direct
Rule 5

Yes Yes
ineffective

Yes Yes
ineffective

No Yes
rule 8

Cross
States Rebuttal Evidence of V / Same Evidence of

Direct
Rule 5

Yes / Yes Yes / Yes

ineffective

Yes / Yes Yes / Yes

ineffective

No / No Yes / Yes
effective

Cross
Rule 8

*Remember: no no no na na na yes yes no yes yes yes yes yes no yes yes yes

NOTE: Rules 1 and 2 arent in these charts b/c they deal with civil cases. Rule 8 deals with both civil and criminal cases, but here, is used only in reference to criminal cases. Charts cover rule 3-5. Homicide rule (rule 6) not in chart b/c it isnt specific to character evidence! Instead, covers allegations.

30

Lindsey Heinz

Must use the exact rule language on exam!

1. Rule #1. Circumstantial use of character evidence is not permitted in a civil case. a. Rationale? can get to be cumulative, becomes a contest of who has more friends, and jury loses sight of the real issue in the case. b. Ginter v. Northwestern Mutual Life Insurance Co. [p.227] Decedent failed to put something on insurance form so, legally, insurance co. didnt have to pay if he did this to defraud them. His wife wanted to put on evidence of decedents character as an honest guy (circumstantial use) [note that hes dead so cant testify and anything he said to his spouse would be hearsay, so this was only way she could do this]. Court ruled she couldnt introduce this evidence b/c circumstantial use of character evidence is inadmissible in a civil case. c. Additional Examples: Cant put on evidence of s prior speeding tickets or that hes a bad driver in a negligent driving case. 2. Rule #2. When character evidence is in issue in a civil case, evidence of the pertinent character trait is admissible and may be proven by reputation, opinion, and specific instances of conduct. a. Schafer v. Time, Inc. [p.230] - sued (Time) for libel (they put s picture in the paper, and basically claimed he was a terrorist, but got wrong guy). B/c its a libel action, the character evidence of Times truthfulness is in issue. Problem in the case is that character was not in issue b/c truth isnt s defense! Time admitted they got the picture of the wrong guy, but defend on grounds that it wasnt done maliciously. As such, the real issue in the case had to do with the measure of damages to s reputation b/c measure of damages in a defamation case is how much the s reputation was actually damaged. Thus, court did allow character evidence of s reputation and used it to show that he really wasnt that damaged b/c his reputation wasnt worth much to begin with. b. Overall Statement of Schafer Rule: In a defamation case where truth is the defense, character evidence of truthfulness may be proven by reputation, opinion, and specific instances of conduct. When in a defamation case truth is not the defense and admits the mistake, character evidence of truthfulness is not admissible b/c has already admitted it was false. However, as to damages, we do allow specific instances of conduct to show what someones reputation is as a measuring stick for damages. c. When is character in issue in a civil case? a list: i. In a defamation case if truth is a defense / character that was defamed. ii. Child custody battles, where character trait is fitness for being a parent. iii. Negligent entrustment cases. d. Example Of Jury Instructions: In negligent entrustment case, judge will instruct jury as follows: Ladies and Gentleman of the jury, I allowed evidence of 6 situations in which Peck drove negligently, this evidence is admissible only on issue as to whether Peck is a known negligent driver to Hecker, but it is inadmissible on issue of whether Peck drove negligently on the night in question. 31

Lindsey Heinz

3. Rule #3. In a criminal case, the prosecution may not offer character evidence concerning the defendant in its case in chief. a. Nicknames of are inadmissible unless necessary to establish s identity. [nicknames are technically specific instances] b. United States v. Williams [p.234] Prosecution wanted to introduce evidence was known as fast eddie [shows hes a bad guy]. However, wasnt allowed b/c prosecution can not offer character evidence concerning in its case in chief. 4. Rule #4. In a criminal case, character evidence of a pertinent trait of the defendant is admissible if offered by the defendant, after which the state may offer rebuttal evidence. Proof may be made only by reputation and opinion. a. We give criminal what we take away from civil litigants and the state in its case in chief b/c this is important stuff s life or a long time in prison is at stake. b. Pertinent Trait = a trait that is relevant to the crime charged. i. Battery case trait of honesty/truthfulness not relevant; trait of aggression or being law-abiding is relevant. ii. Larceny trait of aggressiveness is not relevant. iii. Robbery almost everything is relevant, except perhaps honesty. c. Michelson v. United States [p.237] charged with bribery and in his case in chief introduced evidence of his good reputation. This is pertinent. d. Lesson: unless your criminal defendant is a saint, its wise to choose the narrowest character trait so that you dont open the door too far. For instance, raising the character of good moral conduct or being law abiding opens the door extremely far for the prosecution in its rebuttal. 5. Rule #5. In a criminal case, character evidence of a pertinent trait of a victim is admissible if first offered by the defendant, after which the state may offer rebuttal evidence as to the victim as well as on the same trait of the defendant. Proof may be made only by reputation and opinion. a. Setting: rule will come up most often in cases where V was initial aggressor. b. United States v. Keiser [p.243] there was an incident outside the courtroom where the victim yelled at the s brother and defense wanted to put on evidence of this incident to prove that it was more likely the victim was the initial aggressor in the fight at issue. Thus, evidence of the incident was clearly relevant; however, court held it was improper b/c such testimony would introduce the evidence through a specific instance, which is impermissible.

32

Lindsey Heinz

6. Rule #6. In a homicide case, if the defendant offers proof that the deceased was the first aggressor, the prosecution may then offer rebuttal evidence of the peacefulness of the victim. Proof may be made only by reputation and opinion. a. State v. Hicks [p.249] Hicks () got in bar fight with V and killed him. During opening statement, defense counsel referenced Vs nature, but didnt thereafter present evidence trying to prove V was the initial aggressor. Thus, the court held it was error for the lower court to allow the prosecution to put on evidence of Vs peacefulness because the never put on evidence that V was the initial aggressor (state had no right to put on evidence V was peaceful, and merely mentioning this during opening statement didnt open the door). Moreover, even if the state did have the right, the evidence they used was a specific instance (Ive never seen him get in a fight.), thus, didnt fit into specification in the rule anyway. b. Only Applies to Allegations: here, not talking about strictly character evidence. c. Differences between Rules 5 and 6: i. 6 applies to homicide cases; 5 applies to criminal cases in general. NOTE: 6 will not kick in if merely attempted homicide. ii. If theres no character evidence and only an allegation of V being the initial aggressor by the , triggers homicide rule (in a homicide case), but mere allegations will NOT trigger Rule 5. iii. Book Problems: Assume criminal in a battery case testifies the V was the first aggressor, but does not call a character witness to testify V had a reputation as aggressive. Could the prosecution property call witnesses to testify: V has a reputation as a peaceful person.
No, only Rule 5 would apply here [b/c not homicide] but even then, this is merely an allegation, not character evidence. No for same reasons, but also b/c this is a specific instance. No for same reasons as first example.

V once stopped a bar fight by calming the participants. has a reputation for aggression. beats his spouse.

No for same reasons, but also b/c this is a specific instance.

Assume criminal in homicide case testifies V was the first aggressor, but doesnt call a character witness to testify V had a reputation as aggressive. Could the prosecution properly call witnesses to testify: V had a reputation as a peaceful person V once stopped a bar fight

Yes. Here, rule 6 kicks in and b/c testified to allegations that V was initial aggressor; prosecution can now introduce evidence of Vs peacefulness. No. This is a specific instance, which is impermissible under rule 6. No. Unlike rule 5, rule 6 only allows rebuttal evidence as to Vs character, not s. No b/c this is a specific instance.

has a reputation for aggression. beats his spouse.

33

Lindsey Heinz

7. Rule #7. In a criminal case, when character evidence is an essential element of a charge, claim, or defense, proof may be made by reputation opinion, and specific acts of conduct. a. Almost never happens! Dont worry about this rule, but know it exists. 8. Rule #8. Any character witness may be cross-examined concerning that witnesss knowledge of specific instances of pertinent bad acts committed by the person whose character that witness has endorsed; the cross-examiner must have good faith proof that the acts occurred. a. Applies equally as between civil and criminal cases. b. Good Faith Basis Requirement: before you ask a question on cross, must have a good faith basis for the specific instance of conduct you allege and must be able to prove it if called upon to do so by a preponderance of the evidence. c. Pertinent: the claims on cross also must be pertinent, not to the charge, but rather, to the character trait raised on direct as it relates to cross examining the witness. E.g., in United States v. Holt [p.251], Holt put on character witnesses that he was law abiding and honest. On cross, the prosecution asked these witnesses if they knew Holt was behind on child support and that there were allegations against him at work for sexual harassment. Sexual harassment and backed child support go towards the character issue of law abidingness and thus, are pertinent. d. Collateral: when you cross examine a character witness with specific instances of conduct, you are stuck with whatever answer you get. Thus, if the witness claims she was unaware of the conduct alleged thats it. You may not prove that whatever conduct you alleged is true, because it is collateral. All were trying to do with this rule is test the witnesss knowledge. e. Judge determines good faith. Again, cant prove truth of conduct alleged. Its up to the opposing counsel to object and then the judge can decide if you must prove your good faith basis by a preponderance of the evidence. You prove this to the judge to establish good faith basis, but not to the judge as a trier of fact. 9. Rule #9. Similar Acts Specific instances of conduct are admissible to prove intent, motive, plan, design, or any purpose other than character, so long as the probative value of the evidence as to its not-for-character purpose is not substantially outweighed by the risk of prejudice, confusion, and undue delay. a. Rule 404(b) Evidence of other crimes, wrongs, or acts in 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. [this is where we get rule 9]

34

Lindsey Heinz

Rule 9 [similar acts] Continued: b. Applies equally as between civil and criminal cases. c. Normally, this type of evidence violates Rule 3, but may be admissible under this rule. Prosecution first looks to Rule 3, realizes she cant introduce the evidence under that rule, and looks to Rule 9 to try and get the evidence in that way. d. Effect of Stipulation: Old Chief is a very narrow decision. So in the context of Rule 9, the rule is as follows: the state, in its case in chief, may, as a general rule, put on specific instances of conduct if relevant for a purpose other than character and may not be forced to accept a stipulation, except as narrowly confined by Old Chief. Thus, must look at any evidentiary alternatives. i. United States v. Crowder [p.274] appealed use of evidence of his prior drug convictions in current conviction for possession & distribution. s argument is that because he was willing to stipulate that whoever had the drugs intended to sell them, prosecution cant put on evidence of past events where he did sell drugs. Court disagreed b/c the stipulation was too vague. Had the said I indented to distribute it wouldve worked, but of course, wouldnt do this. ii. Prater Sand Painting HYPO: Prosecution wants to introduce evidence of Praters previous drug trafficking to prove knowledge (that he knew it wasnt sand, but rather, heroin). If Praters willing to stipulate that what he brought across the border was heroin (in the present case) wouldnt work! e. Burden of Proof for Specific Instances of Conduct: In Huddleston v. United States [p.282] court concluded that the burden of proof is whether the judge thinks a reasonable jury could find, by a preponderance of the evidence, that the specific act took place. i. Pro-Admissibility: this is an extremely low burden of proof. ii. Not only is it not beyond a reasonable doubt, but its what the judge thinks a reasonable jury could find this is a much lower standard than what wed have if it were based on the judges own finding. f. Purposes Allowed: i. Identity United States v. Carrol [p.258] armed robbery case. Prosecution didnt have much to prove the identity of , but was convicted in the past of another robbery. Wasnt allowed b/c there was nothing distinct about the previous robbery to allow it in. Sounds like all other bank robberies. However, if the robberies both were done by a robber in a crazy outfit, would be different b/c thats unique. Evidence of a s prior crimes is admissible when the two situations are so unique that a reasonable jury, when comparing the two crimes, could conclude they were committed by the same person. 2 parts: (1) Modus Operandi [the signature trait]: distinctiveness of the facts makes the crimes unique; and (2) Proximity of the crimes in space and time 35

Lindsey Heinz

ii. Motive United States v. Potter [p.261] charged with prescribing controlled substances for 5 persons not in the usual course of professional practice and not for legitimate medical purposes. Prosecution introduced evidence that, in the past, prescribed controlled substances to patients (a stripper and a prostitute) in exchange for sexual favors. Court allowed this evidence in, not to show conformity with character, but instead to prove motive. iii. Intent / Lack of Duress United States v. Hearst [p.264] Hearst charged with armed robbery. Her defense was that she was kidnapped and did this under duress. Prosecution introduced evidence of a previous crime she committed with the same co-s where she was left alone outside and when her co- was about to be arrested, she fired an automatic rifle into the store. Court allowed this evidence b/c it showed intent or lack of duress. iv. Knowledge most often comes up in drug cases: HYPO: Prater does textured sand paintings. A guy offers him a bag of white sand for $5K. Prater is arrested for possession of heroin and claims he just thought it was sand. However, if he had a prior conviction of importing heroin, its admissible cant say youre ignorant of the sand really being heroin when you have prior convictions of drug importation. United States v. Martinez [p.267] Serrano and Martinez were charged with illegal importation of drugs. Serranos girlfriend was his drug mule and she worked with the cops, who recorded a phone conversation where she called Serrano to pick her up at the airport and said to him Im scared dude, Ive been carrying this shit. When Serrano and Martinez went to pick her up at the airport, they were arrested. Serrano and Martinez will both try to say they didnt know she had drugs [S: I was just going to pick up my g.f. M: I was just giving my friend a ride.]. Court allowed evidence of both Serrano and Martinezs prior convictions of drug importation, but Prater says this was wrong: Serrano: this was okay b/c evidence of his prior conviction tends to prove his knowledge that when his g.f. said shit he knew the shit she was referring to was heroin. Martinez: court got it wrong. Really, evidence of his prior conviction can only show his character conformed (hes a bad guy), but Serranos g.f. never said anything to him about the shit nor did Serrano himself. Courts rationale was that Martinezs prior conviction proves his knowledge that driving to the airport with Serrano must have been to get drugs, b/c the g.f. was a mule, but this is a thin argument. v. Multiple Events to Prove Crime was Committed multiple events, but cant prove any one, can introduce evidence of the events to prove the last one. United States v. Woods [p.271] s foster child died after he was unable to breathe. Prosecution cant prove that the mother caused this particular child to die, but several of her other children died under similar circumstances (seems like she has munchausen by proxy syndrome). Clearly this is relevant, and court allowed the evidence in. 36

Great case to show distinctions b/w when this evidence is admissible and when its not.

Lindsey Heinz

g. Jury Instruction: In these cases, the judge will instruct the jury as follows: Ladies and gentleman of the jury, I admitted evidence that has been convicted of . That evidence is not admissible to show that, because hes a bad person, he should be convicted of this crime. Instead, it is only admissible on the issue of [motive, intent, knowledge, etc 10. Rule #10. Habit evidence of habit is admissible to show that conduct conformed to habit. a. Habit a repeated response to a specific situation (automatic). b. To be Admissible, Evidence of Habit Must be Tailored to Issues when dealing with evidence of habit, the evidence must be tailored to the particular issue(s) in the case. See Perrin v. Anderson (below). c. Most Common Application of Rule: Was the , in a car crash, wearing seatbelt? d. Need a Certain Amount of Evidence: will depend on issue. E.g, assume runs a stop sign and killing a pedestrian. Defense has a witness who has seen him run this stop sign on 5 occasions and a record that hes been charged 3 times in the past for running this stop sign. Defense here can not introduce this evidence. This only shows 8 instances and we dont know how many times hes gone through this particular stop sign. Not enough to establish habit. e. Holloran v. Virginia Chemicals Inc. [p.292] blew off his hand when can of refrigerant exploded. was the only witness to this event, and claimed that he merely put the can in warm water to heat it. Defense, however, put on evidence where third parties had seen use a heating coil to heat the cans of refrigerant, and, more specifically, that had been warned of the danger this habit posed. Court allowed the evidence if you establish a habit, its admissible to show that conduct conformed to this habit on the particular day in question. f. Perrin v. Anderson [p.296] Wife sues cops for wrongful death of her husband due to excessive force by a police officer. Defense wants to put on evidence of 4 events: V kicked toilet bowel, rammed head into cell bars, was drunk and attacked an officer, was sober and three officers had to subdue him. Purpose was to show that V had a habit of aggressive violence towards police. Court allowed the evidence in, but this is WRONG! The issue in this case was whether V grabbed for the cops gun. If defense had argued that V had a habit of reaching for the gun, then may have worked. Furthermore, only 2 of the 4 instances could go towards showing a habit of aggression towards the police. 2 out of 4 doesnt work to prove habit. Finally, evidence of aggression towards cops is a character trait not habit! 11. Rule #11. The rules on character and bad act evidence are applied differently in cases involving rape or sexual abuseevidence of the victims prior sexual activity is more strictly regulated, while evidence of the defendants prior bad acts is more permissively treated. *b/c each state has own rape shield laws, dont cover in class.

37

Lindsey Heinz

VII. Foundation A. Real Evidence 1. Defined the thing that was actually involved in a piece of litigation. E.g., the gun that was used, the actual blood, the bottle, etc 2. Chain of Custody a. Rule: When dealing with real evidence, if the item is not subject to change and has some unique identifying characteristics, it may be admitted solely on a persons testimony that they say it is what it is. i. Lockhart v. McCotter [p.332] was convicted of armed robbery. He argued that there should have been a chain of custody introduced to prove that the wallet introduced at trial as evidence wasnt tampered with. However, b/c the wallet was real evidence the testimony of the officer who put it into evidence was enough. ii. Limitations on Rule: things like cocaine, blood, urine samples, etc.. are not subject to this rule b/c they are easily subject to change. As such, you do have to put on full chain of custody with these items. b. Evidence of Tampering: If there is no evidence of tampering, there is a presumption that the officers of the court discharged their duties properly. See United States v. Edwards [p.336] case is important b/c once weve admitted an exhibit, it effectively belongs to the court. No one can remove it b/c this would destroy the chain of custody. c. Missing Link: If theres a missing link in the chain of custody, most judges would still allow the evidence. The missing link goes towards credibility, not admissibility. 3. Still must conduct Rule 401 and 403 Analysis cant admit it just b/c its real evidence: a. 401 relevance b. 403 undue prejudice

38

Lindsey Heinz

B. Demonstrative Evidence 1. Helpful to understanding of testimony unlike real evidence, demonstrative evidence wasnt at the scene or part of the crime. Instead, its something that is used to help in the understanding of testimony. [e.g., a chart, graph, etc] a. Smith v. Ohio Oil Co. [p.342] doctor testifying on behalf of in injury case used a plastic skeleton to demonstrate how the injuries affected s hip. Test was this helpful to understanding of testimony? yes. Further, it was allowed it b/c not unduly prejudicial and clearly relevant. b. Where not okay in Smith use of plastic skeleton OK, but, for example, rolling in a cadaver would not be okay. Its helpful, relevant, but clearly unduly prejudicial. 2. 401 3. 403 C. Photos v. Videos 1. with witness person must testify that the pic/video is an accurate depiction: when introducing a photo or video with a witness, witness can testify that the photo/video is an accurate depiction of the scene it purports to depict. [See Brown v. Barnes [p.344], car accident, woman claimed she ran stop sign b/c truck was blocking her view of it. 1 year later, picture was taken at intersection with a similar truck blocking view of sign. Woman in accident, though didnt take the pic and didnt know who did, can just testify that the pic represents the scene] 2. without witness must law scientific chain of custody foundation: when we have a picture or video without a witness (usually in context of security camera), must put on a scientific chain of custody foundation. a. Chain of Custody: i. Picture who took it, who developed it, who took it back from the developer, etc (the full chain of custody) ii. Video who removed it, who put it in the safe, who gave it to police. b. Scientific: someone to say that the machine was operating properly, the pictures were developed properly, etc D. Recordings: with or without a witness, must have a scientific chain of custody. E. X-Rays: must establish scientific chain of custody (that the process leads to accurate results). Rule is the same as photos/videos w/o a witness, which makes sense b/c even the technician who is there is not a witness in the sense that she cant see inside the body. 1. King v. Williams [p.348] In King the technician was not there, but there were notations on the x-rays (date, time, patients name, hospital, etc..). A doctor who looked at the x-rays testified. Court allowed it in, but Prater said this case was thin.

39

Lindsey Heinz

F. Voice Identification 1. Personal Knowledge at any time a. A witness can take the stand and ID a voice so long as they have personal knowledge of that voice, associated with the speaker, which was gained at any time even in preparation for trial. b. Personal knowledge can be obtained to authenticate a voice at any time. See United States v. Watson [p.351] cop can learn voice in trial prep. 2. In-Coming Phone Call self I.D. alone not sufficient / from the circumstances a. With an in-coming phone call, the caller merely self-identifying [e.g., hi, this is so and so.] is not enough by itself. BUT, self-id paired with surrounding circumstances or surrounding circumstances alone can work. b. United States v. Parker [p.354] appeals admission of a conversation where witness was unable to identify s voice other than the fact that in the context of the conversation he gave an indication of his identity by stating that Mrs. Parker was his old lady. Meaning, this is how figured out was Mr. Parker. 3. Out-Going Phone Call a. To person i. Elements Necessary to Lay Foundation: To authenticate an outgoing phone call to a person, must have testimony that the witness looked up their number in the phone book and that the person then self-IDd (hello, this is so and so). b. To business i. Barrickman v. National Utilities Co. [p.356] - alleges she called her utility company and told them about a gas leak, which they failed to repair. This phone call is very important b/c unless she gave them notice of the leak, the utility company is not liable. Shes never spoken to the particular person who answered the phone before so has no personal knowledge and she made the call so thats why were in this rule. Also, she clearly has a motive to lie. ii. Elements Necessary to Lay Foundation: To authenticate an outgoing phone call placed to a business, you must have testimony that the witness wanted to call X business, looked up the business number in the phone book, this is the number that was listed, this is the number that they called, and that they discussed matters relevant to that business. 4. From the Circumstances If you dont have the elements for the other methods described above, can always try to authenticate a voice based on the surrounding circumstances. 5. Rules go to admissibility only. Thus, the weakness of this type of evidence is always subject to attack on cross examination. E.g., Kim Bassinger hypo w/ Praters personal knowledge.

40

Lindsey Heinz

G. Handwriting 1. Non-expert, personal knowledge not in anticipation of litigation a. In re Diggins Estate [p.359] witness testified as to authenticity on signature on a note, but hadnt seen the signature in something like 20 years. Still OK. b. Minimal Standard: a non-expert with personal knowledge, even when minimal, can authenticate someone elses handwriting, they only have to see the handwriting once, and it doesnt matter how long ago they saw it. c. Witness Testifying Must Have Obtained Knowledge Prior to Trial: Unlike rule with voice identification, here, personal knowledge can not be obtained in anticipation of litigation (trial prep). d. NOTE: clearly, doesnt matter that the witness didnt see the party sign this particular document (the one thats at issue in trial). 2. Experts an expert can be called to authenticate a writing by comparisons. 3. Jury exemplars of known writing a. United States v. Ranta [p.360] 3 roommates. 1 noticed he wasnt getting his govt issued checks, FBI became involved, turns out other 2 roommates were stealing his checks and forging his signature. No lay person can ID the forged signature so non-expert rule didnt kick in and, as it turned out, the expert cant even say w/ certainty which roommate forged the signature. So, the prosecution took handwriting samples (exemplars) of the s and submitted it with the forged check so that the jury could decide. b. When this is done, jury decides both authenticity AND credibility. 4. Surrounding circumstances a. You can authenticate a writing based on the surrounding circumstances. b. United States v. McMahon [p.362] convicted of extortion conspiracy, linked by a note that he slipped to another counsel member during a counsel meeting that he was attempting to block the building of a car dealership b/c the dealer wouldnt pay him off to get it done. Appeal claiming the note was not proven to be his writing. Clearly here, the issue was as to the content of the note, so it had to be authenticated; however, the note is gone so theres nothing for anyone to compare against. Instead, the court allowed the note to be authenticated based on the surrounding circumstances. It was written in first person I, it reflected what others heard say in previous conversations, etc c. Response Doctrine most common example of where rule kicks in. Write someone a letter, they respond; thus, you can authenticate that it was the business you wrote to that responded merely by their response, meaning, you dont actually have to know the business person who signed that particular reply letter. H. Public and Business Records: If you want to prove the content of a public and/or business record all you need it the authenticated copy. Today, these records come with a stamp of authentication or some sort of notation that they are authenticated copies. So long as it has the stamp that it came from the public or business office and is a true and accurate copy this is all you need to admit the evidence.

41

Lindsey Heinz

VIII. Best Evidence Rule A. Defined: when proving the content of a writing, photo, or recording, must introduce the original 1. Exception: If the originals are not available, we will allow testimony as to their contents, so long as they were not lost or destroyed in bad faith. DeMarco v. Ohio Decorating Products, Inc. [p.379] B. Real Evidence ONLY the rule doesnt relate to whether demonstrative evidence is admissible or as to whether one witnesss testimony is better than anothers. Instead, only relates to writings, photos, and recordings when youre trying to prove their content! C. Does Not Apply to Witnesses: Remember that the rule only applies to writings, photos, or recordings. Thus, a best evidence objection b/c one witness was closer than another, for example, is not accurate b/c the rule doesnt apply to witnesses. D. Rationale for Rule: Have rule to avoid perpetration of fraud. The writing is better than a witnesss oral testimony as to whats contained in the writing so that theres no intentional or accidental fraud (e.g., with a long K, its hard to remember all terms in K). E. Illustration of Procedural Problem: Witness is on the stand and is asked What does this picture show? or What did the tape recording say? this is a violation of the rule. First, you must get the evidence admitted and then the witness can testify that its an accurate representation of what they saw or heard / what it shows. So its okay to ask what did you see w/o a picture admitted but cant ask what the pic shows until admitted F. Original original means much more than the original. For instance, carbon copies are originals; today, most Ks have 4 originals so all parties get an original copy; any print from a negative is an original, and so on G. Writing 1. Yes: contracts, deeds, wills, judgments / No: salary, marriage, payments a. With the yes items need an original you cant testify to the content. But, you could, for example, testify that you own property, but just not to the actual content of the deed (e.g, that theres an easement on that same property). i. You can testify as to execution and delivery, but not content. ii. Example:
Q: A: Q: A: Q: A: Did you enter into a K with Hecker? Yes Did you sign the K? Yes [execution] Did you deliver the K to the other party? Yes [delivery]

*all okay to do w/ just testimony. b. With the no items you dont need an original with these writings and, as such, you can merely testify that you are married, paid someone, etc[E.g., man paid Macys with a check branded on side of cow. Doesnt have to bring in the check (meaning the cow) and instead can just testify that he did pay.] c. Example of language used: your honor, the best evidence rule does not apply to proof of payment; OR the best evidence rule does not apply to proof of marriage...

42

Lindsey Heinz

2. Seiler v. Lucasfilm, Ltf. [p.383] contends Lucasfilms copied his original drawings for Imperial Walkers in The Empire Strikes Back. doesnt have the originals and tries to introduce replicas created after the release of film. Does the rule apply to drawings? yes, not writings per se, but close. Yes, here, the judge didnt believe and ruled that he lost/destroyed originals in bad faith so the replicas werent allowed. 3. Writings Defined: include drawings, things with inscriptions on them, etc... 4. Copyright Infringement Cases: in a copyright infringement case, its the content of the original that youre trying to prove. Thus, the best evidence rule applies. H. Chattels 1. When you have a chattel with a writing on it, court can look at it in one of two ways: a. Use Best Evidence Rule must have original b. Chattel Rule any witness can describe what they have seen [for example, a stop sign has writing on it, but we will treat this as chattel as anyone can easily testify as to the writing on the sign]. 2. Simple Writing if the writing is simple and anyone could remember it, then we use the chattel rule. See United States v. Duffy [p.387]. Makes sense when we recall that the purpose of the best evidence rule is to avoid fraud. 3. Example of language used: your honor this is a chattel, with a simple writing, and thus the best evidence rule should not apply. Tape Recordings 1. A witness can testify as to what he or she heard even when we have a tape recording of that same conversation. Thus, witness can say what they heard, you can play the recording, or you can do both. See United States v. Howeard [p.389] 2. Rationale given? The witness isnt testifying to the content of the tape, but rather to the content of the conversation and thus the best evidence rule doesnt apply. 3. The only time content of a tape will be in issue is in a copyright infringement case. Picture, X-Ray, Films 1. Pictures/Films: Generally, best evidence rule doesnt apply because they are used for demonstrative purposes. The content of a photograph/film will be in issue so that the rule does apply when its a question of obscenity. United States v. Levine [p.391]. 2. X-Rays: Generally, does apply to x-rays: doc testifies to what they show (contents) we cant see inside the body. Doc cant testify to what x-ray shows until admitted. Duplicates 1. General Rule: Duplicates are admissible in the same way as originals; unless a. Genuine issue as to authenticity of original/whether even was an original; or b. Admission of the duplicate is somehow unfair to the opposing party; Secondary Evidence 1. There is no second best evidence rule. Once you have gotten through the hoop of finding an exception, then any evidence of the writing or recording is admissible. Thus, once we get to an exception to the rule, any type of secondary evidence is admissible. See Neville Construction Co. v. Cook Paint and Varnish [p.398] Exceptions to best evidence rule 1. original is lost or destroyed w/o bad faith *this is the only one we have to know on exam 2. original isnt obtainable 3. original is in possession of opponent 4. collateral matter 43

I.

J.

K.

L.

M.

Lindsey Heinz

IX. Opinion Evidence A. Lay Person Rule 701: If the witness is not testifying as an expert, the witnesss testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of a witness, (b) helpful to a clear understanding of the witnesss testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 1. Categories of lay person opinion evidence: were going to allow lay persons to give opinion testimony as to things that are commonly known to humankind. These include: age, height, weight, distance, time, emotion (including whether someone was drunk), speed, appearance, etc 2. Rationally based on perception a. Must lay the foundation that the witness has personal knowledge [thus, with hearsay NO rational basis for perception]: United States v. Hoffner [p.411] Dr. Hoffner was convicted of distributing controlled substances pursuant to a prescription not issued for legitimate medical purposes. On appeal, argues that the trial court erred when it did not allow him to call three lay witnesses to answer the following Q: whether, in your opinion, Dr. Hoffner intended to issue these particular prescriptions for a legitimate medical purpose. i. Clearly, you cant do this b/c these witnesses were not even there and how can you have an opinion rationally based on perception when you have no firsthand knowledge? ii. Moreover, inadmissible under the third prong of Rule 701 b/c this sort of opinion requires specialized knowledge and thus, requires an expert. b. Example: negligence case for a car wreck. Defense calls witness to the stand: i. Q: Sir, do you have an opinion as to whether Hecker was speeding? ii. A: Yes he was speeding. iii. Problem with this? we havent even established that this witness was at the scene! So immediately after the question was asked, the prosecution should have said Objection! Lack of foundation of witnesss personal knowledge. 3. Helpful to trier of fact a. United States v. Yazzie [p.413] charged with statutory rape. s affirmative defense is that he thought the girl was 16. To prove this, testified that she smoked, drank, wore makeup, had a mature figure, and drove a car. also wanted to allow opinion testimony of others that were there who believed she was 16. On appeal, argues the trial court erred by not allowing this lay person opinion testimony. Appellate court agreed this was an abuse of discretion. This evidence would have been helpful to the trier of fact and, because the girl was older now, they couldnt really form their own opinions as to what she looked like that day.

44

Lindsey Heinz

b. Situations where lay person opinion testimony is not helpful to trier of fact: i. Intent of another [jury has same information] United States v. Rea [p.417] was charged with tax evasion and tax fraud. Prosecution must prove s intent (that he knew he was committing these crimes). Court held that, although there was a rational basis for the witnesss opinions (they knew the , where there, etc), this testimony was not helpful to the trier of fact b/c the jury already had all of the evidence that these lay witnesses did. Though opinion testimony may be rationally based on perception, its not admissible when the jury already had all of the same evidence as the lay witness b/c its not helpful.

ii. Witness told truth NOTE: remember to distinguish this from character evidence. We know under character evidence that a witness can testify as to his or her opinion of whether someone is a truthful person in general. This rule, on the other hand, deals with a lay person testifying as to whether they think someone is telling the truth to the court today. This is for the jury to decide.

iii. Legal conclusions see subpart 5. 4. Not Expert lay witness cant give opinion that requires expertise, must admit this testimony under the Expert rule and thus qualify the witness as an expert first. 5. May embrace ultimate issue, if otherwise admissible a. Rule Negates Itself: how rule works you can testify about an ultimate issue, but only if it is otherwise admissible. An issue is not otherwise admissible unless it is helpful to the jury and legal conclusions are not helpful to the jury! b. Kostelecky v. NL Acme Tool/NL Industries, Inc. [p.422] sued his company for injuries he received on the job. Causation is the ultimate issue b/c it was a negligence case. Lay witness testified that caused his own injuries and that the accident could have been avoided. Not okay. Witness could testify to the following: I warned him about the slippery conditions, he didnt follow my instructions, he looked drunk, even I dont think he was paying attention. BUT, can not testify that he caused his own injuries. c. Overall, courts wont allow a witness to testify that the party was at fault, negligent, or caused the injuries because this invades the province of the jury. d. Language Used: Objection! Though this is an ultimate issue, it is not otherwise admissible. The evidence invades the province of the jury because it makes a legal conclusion and is thus not helpful to the trier of fact.

45

Lindsey Heinz

B. Experts 1. Line Between Lay and Expert Testimony: If you lay a foundation that the witness is testifying based on skill, training, or experience its an expert. Thus, you cant put on someone as a lay witness if theyre really rightly an expert b/c would violate the non-expert requirement under that rule. E.g., cop testifying that certain conduct is that of a drug dealer. This is not within common knowledge, so should be an expert. 2. Qualify a. Witness can be qualified as an expert by knowledge, skill, education, experience, or training. b. Experience Alone Usually Sufficient: Experience, even w/o proper education or training can be enough to make someone an expert so long as it is a field where experience gives you enough information to be an expert. 3. Scientific, technical, or other specialized knowledge witness may be qualified, but their testimony must also be admissible. They can testify to the flip side of within common knowledge about scientific, technical, or specialized knowledge. a. Rules for this evidence: i. Testimony is based upon sufficient facts or data; ii. Testimony is the product of reliable principles and methods; and iii. Witness applied the principles and methods reliably to the facts of the case. b. No Junk Science in some instances the witness may be qualified to testify, but the substance of their testimony is at issue. In Berry v. City of Detroit [p.432] the court got it wrong. The witness was likely the only expert who was qualified to testify to this, but there was no scientific foundation or basis for his testimony so it wasnt admissible. OR in Kansas, there was a case where the issue was whether committed suicide or not. Witness testified that he conducted a psychological autopsy and based on that he was of the opinion the didnt commit suicide. This is junk science and is thus inadmissible. c. Proper Subject Matter there are things that are scientific, technical, or specialized, and things that are within common knowledge. Will have to look at what type of evidence youre offering and for what purpose and then need to think about the type of witness youll need. E.g., in Scott v. Sears, Roebuck & Co. [p.438], it was improper for the expert witness to testify that women in heels are more likely to avoid grates this is within common knowledge. d. Frye test (Old Rule) - something isnt scientific unless it is generally accepted in the scientific community in which it is a part (NOTE: still the rule in Kansas) i. Problem with General Acceptance Test when you have a concept that is new, you cant get this evidence admitted b/c it is not generally accepted by the scientific community;

46

Lindsey Heinz

e. Daubert test (Modern Rule) Judge Performs Gatekeeper Function i. Expert may testify if: (1) testimony is based on sufficient facts/data; (2) which are the product of reliable principles and methods; (3) witness has applied the principles/methods reliably to the facts of the case;. ii. Factors we should look at to determine if something is scientific: (1) Whether it can be tested; (2) Whether it has been published or subjected to peer review; (3) Potential rate of error during testing; (4) General acceptance by the scientific community; iii. Important Differences b/w Frye and Daubert: Under new test, the judge determines whether something is scientifically valid; whereas, under Frye, the scientific community makes this decision. This is the tradeoff we have to make though to allow new or novel science to be let in at trial. iv. Lie detector tests still not admissible, even under Daubert. 4. Assists Trier of Fact 5. Basis of opinion a. Gen. Rule #1: Can ask opinion without first laying the foundation: Diff. from lay witness b/c there must show the knowledge is rationally based on perception, meaning, you must lay the foundation before the opinion is allowed. Conversely, with experts, you can ask for their opinion first, without having laid the foundation. You would never do this though b/c want to jury to know the witness is reliable. b. Gen. Rule #2: An expert may give opinion testimony even if certain evidence on which the opinion was based was not admitted in court, so long as the evidence is the type reasonably relied on by an expert in that field. i. Thomas v. Metz [p.534] it was okay for the doctor (expert) to look at the medical stuff w/o introducing it (what the other doc saw, etc); however, not okay that the expert relied also on depositions of those other doctors. This is not the type of evidence reasonably relied on by doctors in general. 6. Ultimate issue, mental state a. Ultimate issue, if otherwise admissible. the exact same rule as w/ lay witness. Rule negates itself b/c something is not otherwise admissible if its not helpful to the trier of fact. i. Things that arent helpful to trier of fact: Legal conclusions Truthfulness of witness

47

Lindsey Heinz

b. Mental State of Criminal : Expert may not testify to the mental state of a criminal defendant, but may give opinions as to the mental state of similarly situated persons. See United States v. Thigpen [p.504] i. Can ask: What types of things does a crazy person do? Does a crazy person know difference between right and wrong? Does the suffer from schizophrenia? ii. Cant ask: Does the D know the difference between right/wrong? iii. Regardless, can still get the necessary evidence in, its just a matter of how you present the evidence (a word game).

48

Lindsey Heinz

X. Hearsay Defined: a declarants statement, other than ones made while testifying at the [this] trial or hearing, offered to prove the truth of the matter asserted. A. Rationale? the exclusion of hearsay is meant as a truth-telling device. We have the right to cross-examine the witness. If we didnt have this rule, then wed have the wrong person testifying to the evidence. The theory is that the person who actually witnessed the event is the one who should testify. B. Basics 1. A statement can be made in a courtroom, and still be hearsay: definition really means that statements other than ones made at this trial are inadmissible when offered to prove the truth of the matter asserted. E.g., witness testifies at preliminary hearing in felony criminal trial, doesnt show up for real trial, his statements in the preliminary hearing are, at least definitionally, hearsay. 2. A witness on the stand who repeats something they said out of court is hearsay: meets the threshold definition at least, but will see an exception. C. Declarant a declarant is the human being that made the statement. 1. People v. Centolella [p.509] witness testified to what bloodhounds did (sniffed, ran, barked at spot). Objected on hearsay, but court disagreed b/c dogs arent declarants. 2. Thus, animals are not declarants [dogs, dolphins, parrots, etc]; radar guns are not declarants; thermometers, etc D. Truth of matter asserted [this is one analysis you can use, independent legal significance is another if applicable see below] 1. General Rules of Thumb: a. If offering words just to prove it was true words were spoken not hearsay. b. If offering the words to show the spoken words are actually true is hearsay. c. NOTE: thus, if a witness is testifying to something that he heard (so he didnt actually
say it), not hearsay b/c just trying to prove words were spoken. Its essentially the same idea that a witness can testify to anything he received w/ his own senses. What he saw, touched, tasted, smelled, and heard! E.g., if all were trying to do is prove that Prater said that Hecker ran the stoplight, the party that heard Prater say this can testify. BUT, if were trying to prove that Hecker actually did run the stoplight, Hecker must testify to this b/c Prater and third party would be the wrong witnesses!

d. Hypo 1: Mr. and Mrs. Prater in car accident, both die. Mrs. Prater has lots of family money. State has no simultaneous death act, so if Prater survived his wife, his family gets the money. Thus, the issue is who lived the longest. Cop came to window, saw Mrs. Prater was decapitated. If Mr. Prater said the following to the cop, can the cop testify to this at trial, or is it hearsay? i. The semi-truck swerved into our lane. yes, b/c not trying to prove the truck swerved into the lane, but rather that Mr. Prater spoke, which shows he was alive. ii. Im still alive. still yes. Although the statement does go to show that Mr. Prater was alive, were not trying to prove what he said was true really, again, just trying to prove that he said anything, which proves he was alive. e. Hypo 2: Now, Praters mom and dad are suing the truck company. Here, if the cop testifies that Mr. Prater said the truck swerved into our lane it is hearsay b/c there you are trying to prove the truth of Praters statement that the truck was in his lane. 49

Lindsey Heinz

f. Hypo 3: Praters sons are concerned hes wasting away his money and there wont be any left for them when he dies. One day in class, Prater puts on a hat made out of newspaper, and yells out I am Napoleon in French. i. Suit 1: Issue is whether Prater was mentally ill. Can a student from his class testify about the Napoleon incident and what Prater said? yes. First, his actions arent statements, so no hearsay problems. But then, his statement is okay b/c the sons are not trying to prove Prater really was Napoleon. Instead, trying to show he believed he was, which leads to inference that he was mentally ill. ii. Suit 2: Bank files an interpleader suit b/c they dont know who Praters funds belong to. On their records it says they belong to Napoleon. Can the student testify to what Prater said in class here? this is hearsay because they are trying to prove that Prater is Napoleon (for purposes of the bank account) so that the sons can get the money. 2. Independent Legal Significance [second type of analysis you can use if applicable]. This is a list of times when the words are being offered to prove the words were spoken, not that those words are true: a. Contracts i. As a matter of K law, the words spoken either create the oral K or break it, regardless of whether true! So we can offer these words b/c of their independent legal significance b/c not hearsay. *also applies to words that are written to create a regular K. ii. Creaghe v. Iowa Home Mutual Casualty Co. [p.512] had an unsatisfied judgment against Osborn obtained in an action for damages arising out of a car wreck. alleged that Osborn was insured by , but argued that Osborn cancelled his policy prior to the wreck. (insurance co) put agent on the stand who testified that Osborn came to their office and said I want to cancel my policy. This was a statement made out of court, by Osborn (declarant) and the insurance company is offering it to prove that the words were spoken, not that they are true. It doesnt matter if Osborn was being truthful that he wanted to cancel the policy b/c the mere speaking of those words effectively cancelled the policy. (how else are you going to admit evidence of a spoken contract) iii. Truth of matter asserted analysis: Words which are spoken to create a contract are not offered to prove the truth of the matter asserted, but rather, that the words were spoken and those words are relevant to this case. iv. Independent legal significance analysis: words which create or terminate legal rights or responsibilities have indep. legal significance and thus arnt hearsay. b. Perjury / Slander [only offer to prove words were spoken, and that they are false!] i. Perjurious words have independent legal significance and are not hearsay. United States v. Anfield [p.515] Prosecutor wanted to offer into court a statement made in another trial, he believed was a lie made under oath. This is definitely okay b/c he is only offering the words to prove they were spoken, and moreover, he will have to prove they were false!

50

Lindsey Heinz

ii. Slanderous words have independent legal significance and are not hearsay. In most slander cases, the defense is truth. Thus, when offering slanderous words (in case in chief), you merely need to prove they were spoken and that the words were false so this is not hearsay. iii. Overall remember where you are in the case b/c wont apply in the same way if the party is responding to allegations of perjury or slander. c. Assault / Fraud i. Assault Rule: words of assault have an independent legal significance and therefore are not hearsay (under truth of matter asserted analysis when words of
assault are offered , these words are not being used to prove the truth of the matter asserted, but rather, to prove the words were merely spoken.)

United States v. Jones [p.516] is being prosecuted for assault. In the previous trial, he threatened to kill the judge and his family right before the judge was about to sentence him (so these are out of court statements). Court reporter called to stand to testify to the words spoke and defense objected on hearsay grounds. Court overruled the objection. ii. Fraud Rule: fraudulent statements have an independent legal significance and therefore and not hearsay. E.g., bank sues Prater and wants to show that the statement he wrote on his loan application was fraudulent. Bank tries to present this statement in its case in chief, objects on hearsay grounds. s response? not offering it to prove the truth of the matter asserted, instead, offering it to prove the words were written and ultimately that they were false! These words have an independent legal significance and thus arent hearsay. d. Notice [State of Mind of Listener/When Relevant] stmt. offered for its effect on
listener

i. Vinyard v. Vinyard Funeral Home, Inc. [p.517] Slip and fall case. In this jurisdiction, the must prove: (1) had knowledge of the slippery condition; (2) that it was, in fact, slippery. had received a phone call from an unknown caller who said the ramp was slick. introduced evidence of this phone call. This is not hearsay b/c only offering it to prove the first element that the had notice of the slippery condition. Then the testified as to the second element, b/c remember, the phone call cant prove this or else is hearsay. Jury Instruction E.g., Ladies and gentleman of the jury, the evidence of the phone call is only admissible to show that the had knowledge the ramp was slick, not that the ramp actually was slick. Words which put you on notice of a hazardous condition, whether or not they are true, impose an obligation on you to inspect that condition. ii. McClure v. State [p.519] Husband killed wife b/c she was cheating on him (which you can do in TX). can testify that Billy Bob told me my wife was cheating b/c this puts him on notice mere fact the words were spoken affects listeners state of mind regardless of whether they were true.

51

Lindsey Heinz

Language to use: The words are not being spoken to prove the truth of the matter asserted. Instead, the words have an independent legal significance and show the state of mind of the listener of those words. HYPO: change the facts. If didnt kill his wife, and she was on trial for adultery, could we introduce this evidence? NO b/c there, would be testifying as to what he heard to prove it was true!

iii. Relevancy of Cops State of Mind: Courts split on whether the state of mind of a cop is relevant (as to why he or she went to the scene of an accident) Setting: Officer is on the stand, asked: why did you go to the scene of the accident? A: I was dispatched there. Q: What did the dispatcher say? Not hearsay b/c not being offered to prove truth of matter asserted. However, courts are split on whether this is relevant. 3. Other Not For Truth Purposes: Possession a. United States v. Wicks [p.522] prosecution offered piece of paper found on that had instructions for how to make meth. Not hearsay b/c not being offered to prove truth of matter asserted, but rather, just trying to prove possession. 4. Remember: when you are a proponent of the evidence and say: Im not offering those statements to prove the truth of the matter asserted you havent proved the truth of the matter asserted so you still must put on additional evidence to prove that element of your case. Even if a jury will take that evidence into consideration (though not supposed to), if you dont prove an element of your case, the judge can enter a default judgment against you! E. Statement 1. Oral 2. Writing 3. Response to Question with Action a. Non-Verbal Conduct Intended as an Assertion: non-verbal conduct can be a statement. Stevenson v. Commonwealth [p.528] when she handed the shirt over to the police she was saying this is the shirt. Thus, when the officer testified to this on the stand, it was hearsay b/c was being offered to prove truth of matter asserted and, as such, was inadmissible. b. Response to Q w/ Conduct: E.g., Ask someone wheres your car parked? And they walk to the car w/o speaking. They are stating that is where they parked it. Or in a drive-by show up, the cop cant testify that the witness pointed b/c pointing is saying thats the guy. This is hearsay.

52

Lindsey Heinz

XI. Exclusions these are situations where, though it meets the definition of hearsay, its excluded so that the statements are admissible, insofar as the hearsay rule is concerned. A. Prior Statements: prior statement must be a prior statement of a witness on the stand for the rule to apply. Thus, even though this witness is the declarant, his or her previous out of court statement is definitional hearsay. However, may be excluded depending on the type of prior statement (3 categories) 1. Inconsistent Prior Statements: Here, we are offering the statements to prove the truth of the matter asserted (which is why we need to get it in under the exception). *remember, you can always cross examine a witness w/ prior inconsistent statements on issue of credibility to impeach the witness.
A prior inconsistent statement generally may be used to impeach witness on credibility issue A prior inconsistent statement made by oath, at depo, or hearing is admissible as exclusion to hearsay rule as proof that the prior statement was true. [substantive proof]

a. Witness testifies b. Subject to cross examination about prior inconsistent statement i. Subject to Cross = witness was asked about prior inconsistent statement, and denied it. ii. The witness must be there, and subject to questioning about the prior statement!. Thats it. The witness does not have to remember (what they argued in U.S. v. Owens). iii. Thus, you must ask the witness about the prior statement in order for him to be subject to cross on that prior statement. iv. E.g., witness at deposition testified light was red. At trial, testified light was green. Prosecutor cant stop there! Instead, the prosecutor must say something like Didnt you testify at your deposition that the light was red? Only then, if the witness lies, can prosecution call a witness about the prior statement. v. Applies to All Three Rules! this standard is relevant for prior consistent statements and prior statements of identification as well. c. Prior statement inconsistent with in-court testimony d. Prior statement made under oath, at deposition, hearing, or other proceeding i. HYPO: Prater saw run red light and cause accident. After he witnessed the accident, went to the Shenago lounge and told the bartender that the ran the red light. Later, he repeated this statement at a deposition. At trial, Prater testifies that the light was green. The prosecution wants to admit his prior statements to prove the truth of the matter asserted (which is why we need to get it in under a hearsay exception). Statement to bartender is inadmissible as substantive proof b/c wasnt made under oath, depo, but admissible to impeach the witness Statement made at deposition, however, is admissible for both purposes. ii. Other Proceeding: Must have some impartial party conducting the proceeding. E.g., in United States v. Livingston [p.546] her statements were made under oath, but to a postal worker so not admissible under hearsay exception b/c not made at a proceeding. Statements made to an investigation officer dont constitute proceedings. Statements made to a grand jury do.

53

Lindsey Heinz

2. Consistent Prior Statements: Again, offering to prove the truth of the matter asserted. Moreover, rule is parallel to that of inconsistent prior statements:
Can use for substantive purposes if meet the rule. If not, generally can use the statement on the credibility issue to rehabilitate the witness meaning, the credibility of the witness

a. Witness testifies b. Subject to cross examination about prior consistent statement c. Can only be offered to rebut a charge of recent fabrication or improper motive d. Prior consistent statement was made before the improper motive or reason for fabrication arose. i. Tome v. United States [p.551] Facts: father charged with sexual abuse of his daughter. On direct, she testified to the effect that he abused her. On cross, the defense tried to establish that the girls mother implanted these abuse ideas in the childs head so that the mom would win the custody battle (e.g., Didnt your mom just take you to Disney Land? Did your Mom tell you that if you testified, you could live with her? etc). Child became confused and clearly, at this point, prosecution cant win. So, the prosecution brought in several witnesses to testify about the childs previous consistent statements that, in fact, her father abused her. At this point, the first three elements were met, and, at the time, there was no fourth element. However, the court determined that these statements were inadmissible and created this fourth element. Rule: in order for the statement to be admissible, the prior consistent statement must have been made before the improper motive or reason for fabrication arose. In the case, the stmts were made after the motive arose. ii. Example of Objection: Objection! Those prior consistent statements are inadmissible under the hearsay exclusion because they were made after the motive arose. iii. Example of Jury Instruction: Ladies and gentleman of the jury, I admitted into evidence a statement by a teacher that the child told her that daddy had been abusing her. That statement is not admissible to prove its true that the was abusing the child. That statement is only admissible on the issue of the credibility of whether the child was telling the truth in court today. 3. Prior ID of a Person [a.k.a. the District Attorneys Exception]
Setting: witness idd in a line-up, but wont id the at trial (usually b/c too scared to do so). Prosecution then wants to call up the DA or the cop that was at the line-up to testify that the witness did, in fact, id the at that time. Rationale? prosecutors need this rule when witness is frightened (reason for the aka name)

a. Witness testifies b. Subject to cross examination about prior statement

54

Lindsey Heinz

B. Admissions Doctrine 1. Admission = a statement by a party to the action or attributable to a party to the action, offered against that party. a. Parties to the action = people named in the caption. Thus, something Hecker said cant be offered against Hecker, Inc. unless it can be attributed to Hecker, Inc b. Must be offered against that party. If it is merely offered by the party, not admissible under the admissions doctrine. E.g., in State v. Johnson [p.569] the s accountant was called to the stand in the prosecutions case in chief and testified that the told him I didnt pay. This is admissible b/c it was a statement, made by a party to the action (the ), and it was being offered against the . On cross, the defense sought for the accountant to testify that the said I couldnt pay b/c this would negate the intent the prosecution sought to establish. However, this was not an admission b/c wasnt being offered against , but rather, by the . c. See also, Illustration on p.568 of book. 2. Admission Does NOT Have to be Incriminatory When Made: So long as the statement is being offered against the party, it does not matter whether it was against that partys interests when the statement was made. E.g., a man was arrested in NYC for armed robbery. When arrested, he told the cop that he didnt do it b/c he was in New Jersey w/ his brother on the night in Q. At the same time, his brother was being arrested in N.J. for an armed robbery there. The police knew the brother committed the robbery in NJ and that he was with another man, but didnt know who that man was. At trial, the cop testified to s statement when arrested in NYC that he was w/ his brother in NJ on the night of the robbery. Even though he thought that statement was going to help him at the time it was made doesnt matter. Still an admission. 3. Declarant Doesnt Need Personal Knowledge: usually, the party must have personal knowledge, but, insofar as admissions are concerned, it doesnt matter. Mahlandt p. 575 4. Own Statement 5. Attributable to the Party: The next three categories have to do with admissions that, though not made by the party, are attributable to the party. a. Adopted Statement a party can adopt a statement by manifesting a belief in the truth of that statement. i. United States v. Hoosier [p.572] told the witness he was going to rob a bank, the witness saw three weeks later and had money, diamond rings, and the s girlfriend said that aint nothing, you shouldve seen the money we had in the hotel room bags of money. In response to her statement, did nothing. The prosecution offered the girlfriends statements (via the witness) against the . So, the never said a word of what was being offered against him and the witness never heard say anything. However, the court allowed it as an adopted statement b/c a reasonable person under the circumstances, especially after having previously told witness he planned on robbing a bank, would have denied the statements if they werent true. ii. Admission adopted by silence = tactic admission doctrine

55

Lindsey Heinz

b. Agency Principles: The final two statements that are manifested to a party have to do with law of agency principles: i. Speaking Agent General Rule: A Principal is bound by her speaking agents statements so that they can be offered against the P. Speaking Agent = lawyers are speaking agents of clients; CEOs of businesses; actors and sports agents; public information officers; board of directors; etc.. most common examples. ii. Other Agent General Rule: Statements made by other agents are admissible when made during and within the scope of the agency relationship. Example: Janitor at the law school makes comment about how Hecker is a bad teacher. He is an agent of the University, but in his role as a janitor, not qualified to judge Heckers teaching abilities. However, if Dean Maza made the statement, you could use it b/c made within scope of his agency relationship with the school. Agents statements can be attributed to the Principal, not the other way around. Within Scope of Agency Relationship Hill v. Spiegel, Inc. [p.579] witness heard statements from 3 men, high up in the company, that the was fired b/c of his age. Prosecution sought to introduce these statements against the Corporation (3 employees = agents). Court didnt allow it b/c, although the men were all very high w/in the company, they had nothing to do with the hiring and firing decisions. Prater says was a close case. Case defined within the scope narrowly. Its the power that matters, not the position when determining whether an agents statements are within the scope. iii. Mahlandt v. Wild Candid Survival & Research Center, Inc. [p.575] Parents of boy sued Mr. Poo and Corporation. No one saw the wolf bit the child, but Mr. Poo said The wolf bite the kid and similar statements were made in 3 contexts. W/o the statements, s had bad case b/c an expert testified that the wolf was probably nurturing the child, and that his injuries may have come from the chain link fence.
Statement Writing Poo Writing is admissible against Mr. Poo individually, because its his own statement being offered against him Not admissible against Mr. Poo b/c he didnt make the statement, and the board of directors are not Mr. Poos agent its the other way around he is their agent. Corporation Admissible against company as an other agent statement made during and w/in scope of his employment (Mr. Poos job was to take care of the wolf) Admissible against corp b/c the board of directors were either speaking agents or also admissible as other agent stmt.

Oral Minutes from board of directors

56

Lindsey Heinz

iv. Hearsay statement alone not sufficient to establish agency relationship: there must be corroborating proof that the agency relationship exists. E.g., Im Mr. Poo, I work for Corporation. That wolf bit that boy! his statement that the wolf bit the boy can be used, but only after we have corroborating proof of the agency relationship. His mere statement that he works for Corporation alone is insufficient to establish this relationship. Examples of Corroborating Proof: Mr. Poo had no a shirt that said Mr. Poo, Dog Man of Corporation Can call partys personnel director, etc 6. Co-Conspirators a co-conspirators statements are admissible against another coconspirator, but first must prove the following a. Setting: Prater asks A to help him rob a bank. A agrees (a conspiracy is formed). Later, A asks B to be the wheel man for the robbery outside of Praters presence. A can testify to Praters statements because its an admission by Prater, his own statement being offered against him. What about the second statements b/w A and B? These arent his own statements and he wasnt there so he couldnt have adopted them. And theres no agency relationship. Instead, must look at the Co-Conspirator exception to hearsay under the admissions doctrine. b. Existence: must prove the existence of a conspiracy. c. Statements of co-conspirators are admissible must be corroborated: as with agency, the hearsay statements alone cant prove the existence of the conspiracy. However, they are admissible as part of the evidence to prove the existence of a conspiracy but alone arent sufficient to prove a conspiracy existed. Need corroborating evidence that matches those statements. See p.600; problem 11-1: i. On these facts, not enough b/c there is no corroborating evidence yet! Example of judges ruling: Before I can admit these co-conspirators statements, I must first establish the existence of a conspiracy by a preponderance of the evidence. These statements are admissible to determine the existence of a conspiracy, but alone are not sufficient. Thus, in the absence of corroborating evidence, the statements are inadmissible. ii. If we changed the facts so that there was evidence that Clean Cut went to the park and that Drug Dealer had on a top hat, then we would be able to prove the existence of a conspiracy. However, would then need to look at each statement in isolation to see if it was made in furtherance of the conspiracy. d. Preponderance of evidence: existence of the conspiracy must be proven by a preponderance of the evidence. *For admissibility purposespreponderance of evidencenot beyond a reasonable doubt. e. During: statements must have been made during the conspiracy

57

Lindsey Heinz

f. In Furtherance: stmts. must have been made in furtherance of the conspiracy. In Furtherance [cont] i. E.g., if in the setting described above, A then bragged to the bartender about the conspiracy not admissible b/c not in furtherance of the conspiracy. ii. United States v. Harris [p.593] - was in hospital after staging a car accident to defraud an insurance company. While in the hospital, talked to another man in the bed next to him who, as it turned out, was also defrauding insurance companies. These in-hospital statements were being used against one of s co-conspirators (who wasnt in the room at the time they were made) werent his own statements and not there so couldnt have adopted them. Two views of these statements: In furtherance b/c conversations can be viewed as mutual attempts to gather useful information to further each others conspiracy. Not in furtherance b/c statements can be viewed as casual admissions of culpability by to someone he individually decided to trust. iii. In Furtherance Examples: seeking members to join conspiracy; seeking items to effectuate the conspiracy (e.g., guns, cars, masks); seeking information to help plan the conspiracy; trying to dispose of the fruits of the conspiracy. iv. Not in Furtherance: bragging to bartender about the conspiracy. v. P. 600; Problem 11-1 [notes continued from above] Ive got this buddy in furtherance b/c trying to get people to join. If this goes down clean, I know another dealer who can settle the score Prater says is admissible b/c is a carrot in front of the guy Maybe can argue not in furtherance b/c deals w/ another conspiracy. I guess he wont be able to sell at the high school now. No. Not in furtherance. Stmt. to arresting officer will never be in furtherance instead, just pointing fingers.

58

Lindsey Heinz

XII. Unavailability Exceptions: here, the statement meets the definition of hearsay; however, we allow the statements in b/c they were made under reliable conditions. Before we allow the statement, however, we must prove that we couldnt get the witness to testify. A. Unavailability Defined: Step 1 must show that the declarant is unavailable. 1. Exempt by privilege a. Rule 804(a)(1) Unavailability as a witness includes situations in which the declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement. b. Burden of Proof: i. The proponent of the statement bears the burden of proof, and must do the following to meet this burden: Witness must come into court; Witness must assert her constitutional privilege; Proponent must lay a factual basis to show the privilege is proper; Judge must rule I find you exempt by privilege from testimony. ii. Not enough for the proponent to merely assume the witness is unavailable. E.g., in U.S. v. Pelton & Rich [p.606] the proponent of the statement (here, grand jury testimony) merely told the judge that he spoke with the witnesss lawyer, and he said he would advise her to plead the 5th. 2 probs: (1) he never actually advised her of this; (2) she never established she would take the 5th. c. Example of Judges Ruling [see Illustration; p.606] Overruled. Mr. Prosecutor, you must bring the witness into court, he must assert the 5th, there must be a factual basis laid to show the privilege is proper, and only then can I find that this witness is exempt from testifying under the privilege exception. 2. Refusal a. Rule 804(a)(2) Unavailability as a witness includes situations in which the declarant persists in refusing to testify concerning the subject matter of the declarants statement despite an order of the court to do so. b. Refusal Alone, Insufficient: See United States v. MacCloskey, where the court indicated the correct procedure is to require witness to testify outside jurys presence and judge should order witness to testify subject to threat of contempt. If the witness still refuses, then the witness is unavailable under Rule 804(a)(2). c. Necessary Steps: i. Witness takes the stand, refuses; ii. Court orders witness subject to contempt; iii. Additional refusal to testify; iv. Citation for contempt, taken to jail. 59

Lindsey Heinz

3. Lack of Memory testifies a. Rule 804(a)(3) Unavailability as a witness includes situations in which the declarant
testifies to a lack of memory of the subject matter of the declarants statement.

b. Test Look to Duration of Memory Loss: If it appears that it will be long enough so that we are unable to postpone the trial long enough for the witnesss memory to come back, then we will allow the out of court statements. c. In North Miss. Commun., Inc. v. Jones, the court held that a witness was not unavailable where he remembered the general subject matter of a conversation but could not remember certain details. 4. Death, Disability a. Rule 804(a)(4) - Unavailability as a witness includes situations in which the declarant is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity. b. Tests: *note, do not need to know these tests on the exam, instead, just need to know that different tests exist in each jurisdiction: 5. Absence a. Rule 804(a)(5) Unavailability as a witness includes situations in which the declarant is absent from the hearing and the proponent of the statement has been unable to procure the declarants attendance by process or other reasonable means b. 2 Types of Absence: i. Cant Find, Subject to Good Faith Search: merely sending a subpoena is not enough. Instead, do an investigation to find the witness. ii. Can Find, Not Subject to Process: whereabouts known, but the witness is outside the courts jurisdictional reach. 6. Procurement or wrongdoing: a. Rule 804(a)(5) A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement of wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. b. Negligence: merely having something to do w/ the witnesss unavailability alone is not enough. There must be some sort of wrongdoing. E.g., in United States v. Mathis [p.619] witness was unavailable b/c she was mistakenly released from jail (had same name as someone who was supposed to be released). Not the prosecution or defense that made her unavailable, but rather, the state. As such, the court held that her testimony was admissible under the absence rule. *Procurement/ wrongdoing means what it says must be culpability or intent. 60

Lindsey Heinz

B. Exceptions: Step 2. Once weve established that the declarant is unavailable these are the circumstances under which their prior testimony will be admissible: 1. Former testimony a. Rule 804(b)(1) [Former Testimony] is not excluded by the hearsay rule if the declarant is
unavailable as a witness. [Former Testimony is] testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with the 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.

b. Will come up most often in the following circumstances: i. Deposition: so long as person against whom the deposition is offered had an opportunity to cross examine the declarant at that depo. ii. Preliminary Hearings in Criminal Case: the witness was in a court room, subject to cross, and those statements are being offered against the criminal . iii. First Trial Transcript: declarant was in court, subject to cross. 2. Dying declarations a. Rule 804(b)(2) [A statement under belief of impending death] is not excluded by the hearsay
rule if the declarant is unavailable as a witness. [A statement under belief of impending death means] in a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarants death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

b. HYPO: Prof. Stacey comes into class, shoots Prater, as Prater dies, he yells Hecker shot me! I could testify that Prater said this. Doesnt matter that he really didnt that will come into play w/ other evidence in the trial. c. Non-Vs Dying Declarations Admissible doesnt have to be the actual victim. d. Elements: i. Is it a civil or criminal case? Homicide, criminal only: In the criminal setting, can only use dying declarations in homicide cases. Thus, the V must actually die. All civil cases: In civil setting, V doesnt actually have to die, but still must be unavailable by some other means.
Dead Live: Civil YES YES: civil court for battery Criminal YES: in homicide case of NO: aggravated battery in criminal setting

ii. While believing death imminent Standard: Hopeless settled expectation of imminent death. Cts. look to: State of mind of declarant Surrounding circumstances, and how these surrounding circumstances would affect a reasonable person e.g., nature of injury, what doctors tell the V, etc iii. Causes & circumstances: stmt. must relate to causes/circs. of declarants death. E.g., Praters shot, while dying says Hecker stole $500 from me 3 years ago! not admissible b/c doesnt relate to cause or cirs of Ps death.

61

Lindsey Heinz

3. Declaration against interest a. Rule 804(b)(3) [A statement against interest]..is not excluded by the hearsay rule if the declarant is
unavailable as a witness. [A statement against interest is] a statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

b. Distinguished from Party Admissions:

Admissions Made by party or attributable to party Stmt. need not be disserving when made

Declaration against interest

Made by non-party, and declarant must be unavailable Admitted b/c thought to be reliable declarant would not say something disserving to his interest unless it were true

c. Pecuniary or Propriety Interest (money or ownership of something) i. Ghelin v. Johnson [p.636] Issue on trial was whether the deceased was married to Mrs. Chapman [fight was over his estate]. Chapman testified they both decided they were married (worked at the time). Deceaseds family then introduced his tax return, where he marked the single box. If he was married, he could have saved a lot of money, so it was against his pecuniary interest to say he was single. Moreover, this also would have fit under the next exception b/c this would have been fraudulent to lie about his status. d. Subjects Declarant to Civil or Criminal Liability i. Co-Perpetrator Rule / Pointing Finger Statements: co-perpetrators stmt made to police, which inculpates another co-perpetrator is not a declaration Exam Note: 2 most important rules to against the declarants interest. remember for exam Williamson v. United States [p.638] Harris told cop me and Williamson here are: (1) the codid it, but mostly Williamson. At Williamsons trial, the cop testified to perpetrator pointing Harriss statement. Doesnt fit under co-conspirator rule b/c not in finger rule usually furtherance. At first glance, this statement does seem against Harriss not against interest; (2) Criminal offering interest b/c it subjects him to criminal liability. Court disagreed: anothers exculpatory I did it is against Harriss interest; stmt. on s behalf Williamson did it too, mostly him. not against Harriss interest. must have corob. evid. Rationale? Statements that curry favor w/ the police and/or prosecution are not against the declarants interest. e. render a claim they might have invalid f. such that a reasonable person would not have made the statement, unless believing it to be true. g. Exculpate the accused requires corroboration i. In a criminal case, if the criminal offers another persons declaration against their interest ii.
for purposes of exculpating the criminal , there must be corroborating proof. E.g., A and B become good friends in jail. B agrees to say he killed the guy A is accused of murdering. Because this is being used to exculpate A, we must have corroborating proof. Easiest case? B, where were you when the guy was murdered? B responds In jail. A cant use the statement.

62

Lindsey Heinz

iii. Corroborating Proof: Fruits of the crime? yes; Able to commit the crime? yes; Motive
to commit the crime? maybe

4. Family History
Rule 804(b)(4) [A statement of personal or family history] is not excluded by the hearsay rule if the declarant is unavailable as a witness. [Such statements include:] (A) A statement concerning the declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the others family as to be likely to have accurate information concerning the matter declared.

Three exceptions to the hearsay rule when the witness is testifying to declarants out of court statements concerning family history: a. Own Statement: a declarants own statements about his or her own family history is admissible as an exception to the hearsay rule. b. Family Members Statement: a declarants own out-of-court statement about a relatives family history is admissible as an exception to the hearsay rule. c. Intimately Associated w/ Family: A declarants own out of court statement about family history, if that declarant is someone intimately connected to the family, is admissible as an exception to the hearsay rule. [e.g., a neighbor, must lay a
foundation establishing the intimate association]

5. Forfeiture
Rule 804(b)(6) [Forfeiture by wrongdoing statements] are not excluded by the hearsay rule if the declarant is unavailable as a witness. [Such a statement is] a statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

a. General Statement of Rule: If you procure the absence of a witness against you, anything theyve ever said is admissible against you as an exception to the hearsay rule. Rationale? wont allow you to be advantaged by your wrongdoings. b. Standard for Finding Forfeiture by Wrongdoing: Proponent must show by a preponderance of the evidence, that the party against whom the witness was going to testify killed that witness or maimed the witness such that they couldnt testify against that party. OR a co-conspirator who, though he didnt do the deed, has forfeited any hearsay objection b/c of his acquiescence and the act was reasonably foreseeable and within the scope and in furtherance of the conspiracy. c. How Relates to Unavailability Defined: i. Step 1: The witness is unavailable. However, if, for example, the procured the
unavailability of a witness, he can not claim the witness is unavailable under the hearsay exception b/c the unavailability is due to his own wrongdoing. ii. Step 2: The , however, can use hearsay of the witness. Again, weve already established the witness is unavailable and, b/c of the flip side of step 1 rule, the has forfeited the right to object based on hearsay b/c of his own wrongdoing.

63

Lindsey Heinz

XIII. Unavailability not required exceptions: situations where the conditions under which the statements were made are so reliable that we dont care if its hearsay nor if the declarant is available (they can even be in the courtroom). A. Trump Other Hearsay Rules: a statement may not meet, for example, the dying declaration exception b/c thats a hard standard to meet; however, if it meets an exception here, this will trump the fact that the statement did not meet the prior exception. 1. Classic Example: Excited utterance rule trumping dying declarations. E.g., Prater says I think I am going to die, it was horrible, it was Hecker. Prater doesnt die. Were in the criminal battery case against Hecker. Cant get Praters statement in under the dying declaration rule b/c its not a criminal homicide case. However, is admissible as an excited utterance. B. Present Sense Impression: 1. Defined: a statement made describing or concerning an event while perceiving the event, or immediately thereafter. 2. Theory: if youre talking about something while youre seeing it happen, dont have time to make up a lie (reliable). 3. Must Lay Proper Foundation! Proponent Must Ask: Q1. Did you say these words while you perceived the event? If no, then Q2: How much time passed between the event and your statement? [the amount of time allotted is dependent upon the jurisdiction]. 4. Time is Controlling Factor C. Excited Utterance 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. 1. Relating to a startling event or condition 2. Made while under stress caused by the event or condition 3. Remember, there is more than one type of being excited. Can shout in excitement, or stand in silent shock, simply muttering what happened. 4. Role of Time Passage: unlike w/ present sense impressions, time is not a controlling factor; however, it is a factor to consider. Courts apply a reasonable person standard to determine whether the person should still be excited after the passage of time. Thus, in the proper situation, a statement could be made 20 years later if its reasonable to still be under the stress of the event. [adults v. children too] a. Difference b/w Excited Utterance and Present Sense Impression i. Present Sense Impression a.k.a. Contemporaneous Exception; reliable b/c you dont have time to think up a lie. ii. Excited Utterance a.k.a. Spontaneity Rule; reliable b/c youre too excited to think up a lie. 5. Must Lay Proper Foundation! Must establish that the declarant saw something that put him under stress/in an excited state. a. Unknown Declarant: wont work unless you establish personal knowledge & excited emotional state of declarant or that he was under the stress of the event.

64

Lindsey Heinz

D. Then Existing State of Mind, Emotion, or Physical Condition Rule 803(3) Then existing mental, emotional, or physical condition. A statement of the declarants 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 the declarants will. 1. State of Mind a. Then Existing i. RULE: then existing state of mind statements are admissible to prove someones then existing state of mind. ii. Must concern then existing state of mind statements iii. How related to present sense impression rule: Prater says in class its hot in here student can testify to this under present sense impression exception to hearsay. Prater says in class I am hot. student can testify to this statement b/c its a then existing state of mind statement. Thus, here, its really just a specialized present sense impression. b. Future Intent: i. RULE: then existing state of mind statements are admissible to prove the intent of the declarant to do some act in the future then existing state of mind statements are admissible to prove the conduct of the declarant. Whether then existing state of mind statements are admissible to prove the conduct of someone other than the declarant is the Hillman doctrine. ii. A statement of intent to do an act in the future is admissible as an exception to the hearsay rule as a then existing state of mind statement. [Supreme Court in Hillman is where this rule comes from] iii. Hillman Doctrine: a statement of future intent made by one person is admissible to show Declarants Future Intent; AND Declarants Future Conduct conformed to her future intent; AND Anothers Future Conduct. This is the Hillman dilemma b/c Rule 803(3) only mentions the declarants own intent and future conduct. iv. HYPO: Prater tells Bob that he is going to Topeka tomorrow to meet Hecker at a bowling alley and that Hecker is going to try and sell him drugs. Prater later dies and Hecker is charged w/ his murder. Bob takes the stand and relates Praters statements: Admissible to show Praters intent Admissible to show Praters conduct (that he did in fact go to Topeka) To prove that he did meet Hecker? depends, the Hillman dilemma.

Exam note! Must know this case on exam (along w/ R.401/403)

65

Lindsey Heinz

c. Past Conduct i. Rule: statements of memory relating to past conduct are inadmissible under the then existing state of mind analysis, unless they meet the wills exception. d. Wills i. Rule: though stmts relating to past conduct gen. inadmiss. under then existing SOM analysis, theyre admissible if refer to declarants execution of a will. e. Illustration i. Bob tells Tom Im going to bank tomorrow to meet with the bank manager. Bob disappears. Tom takes the stand. Assuming relevance in the pending litigation, is the statement admissible under the state of mind exception? To show Bob intended to go to the bank? YES declarants intent. To show Bob went to the bank? YES then existing state of mind stmts are admissible to show that the conduct conformed to that intent. To show office manager was at bank next day?maybe,Hillman dilemma. ii. Bob tells Tom I was at the bank yesterday and talked to the office manager. Bob disappears. Tom takes the stand. Assuming relevance, is the statement admissible under the state of mind exception: To show Bob made an appointment with the office manager before seeing him? NO, b/c this is a statement of memory of past conduct. To show that the officer manager was at the bank? NO, for same reason To show that Bob was at the bank? NO, for same reason. iii. Bob tells Tom You remember when I wrote my will, the witnesses werent really there when I signed it. Bob dies. Tom takes the stand in a probate contest. Is the statement admissible to show the witnesses werent there when the will was signed? Yes, although it is a statement of memory, its admissible because its a statement concerning the execution of a will. E. Statement Made for the Purposes of Treatment or Diagnosis 1. Treatment: has been around since common law, theory is that the statement is likely to be reliable if youre seeing someone for treatment. 2. Diagnosis: usually deals w/ statements made to the opposing partys doctor during the litigation, so this aspect of the rule was added specifically for civil litigation. 3. Can be made to anyone, so long as its shown the declarant was intending to seek medical treatment. 4. History is Admissible, so long as reasonably pertinent to treatment. a. E.g., I was walking down the street, hit by a truck, Hecker was driving. I think my back
is broken. all admissible, except statement that Hecker was driving (deals w/ fault).

b. Generally, a statement about fault or who hurt you is not pertinent. i. E.g., Rock v. Huffco Gas & Oil [p.708] I slipped and twisted my ankle admissible; but I slipped b/c it was a bad step no admissible. HOWEVER, ii. Slight change in facts, would change result. I fell b/c I stepped on a rusty nail. admissible b/c rusty nail part is pertinent to treating tetanus. iii. I was hit by a car going 60 mph admissible b/c how fast car going is pertinent. c. Sexual / Marital Abuse Cases:

66

Lindsey Heinz

i. Girl tells doc my stepfather is abusing me this is fault and identification but is also pertinent to treatment b/c a doctors job is to protect the child, so he needs to know not only what was done, but who did it. F. Hearsay within Hearsay whenever more than one out-of-court declarant is involved, hearsay analysis must focus on each, finding a legitimate exception, exemption, or nonhearsay rationale for each statement. So long as each is admissible, it makes no difference how many statements are part of the declaration in question. Rule 805. Of course, the more layers involved, the less likely that the jury will find the evidence highly probative and Rule 403 may step in at some point. Thus as links increase: probative value goes down, prejudicial impact goes up. 1. Rule 805: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
Prater said to take down this proposition verbatim need to memorize!

2. United States v. Dotson [p.716] Proposition from Dotson: when you have multiple links in a hearsay chain, if you can cure every link by either an exception, an exclusion, or a non-hearsay purpose, then the entire chain is admissible insofar as the hearsay rule is concerned. [even though the rule just says exception].

G. Business Record 1. any compilation 2. any data 3. made at or near time of event 4. by or from a person with knowledge 5. ordinary course of business 6. regular practice 7. custodian or other qualified person a. Johnson v. Lutz[p.718] police report contained what a passerby said. That statement is not admissible under the business records exception b/c the passerby Step 1: does it is not an employee of the police force (doesnt carry same reliability b/c no duty meet bus. rec. exception? If so, to talk truthfully to the business). admit record but b. Though not explicit, by or from a person with knowledge in Rule 803(6) means then. by or from an employee in every jurisdiction. Step 2: analyze each statement on c. The Non-Employee Problem: Thus, if you have a non-employee statement, presents a hearsay within hearsay problem, so you can get the record in under its own. these rules, but then must find an independent exception, exclusion, or nonhearsay reason to allow the non-employee statement. 8. trustworthy a. Usually not hard to prove, unless you have an incident report this is where a trustworthy problem can arise b. Records Prepared in Anticipation of Litigation. i. Presumption that these records are untrustworthy. ii. When you have an accident investigation report, typically prepared in anticipation of litigation, statements by employees may be deemed

67

Lindsey Heinz

untrustworthy and therefore held inadmissible b/c the employees self-interest becomes greater than his interest to the employer. Palmer v. Hoffman [p.729] 9. HYPO a. Accident Report, written by KU employee. Statements are as follows: i. Employee: KU truck, was beeping. ii. Co-worker: truck was not beeping iii. Student: saw truck back up fast. Student told me this immediately after the event. b. Judges Ruling: Accident report, on its face is admiss. b/c its a comp.of data made at or
near time of event by a person w/ knowledge of the event, made in the ordinary course of bus. and its in the regular practice to maintain these records by a custodian. Thus, unless its untrustworthy, Ill allow it in. As to the first statement, it was made by an employee; however, because this is an accident report likely prepared in anticipation of litigation and the statement is favorable to the employer, the will have to overcome the presumption that its inherently untrustworthy. The 2d was made by a co-employee and, unlike the first employees statement is not favorable to the employer so there is no trustworthiness issue and I will allow it in. The 3d statement, was made by a nonemployee, which creates a hearsay within hearsay problem. The document itself is admissible under the business records exception, but to allow the non-employees statement there must be an independent basis to admit this statement. Here, the students statement is a present sense impression made describing or explaining an event and made immediately after perceiving the event. Thus, non-employees stmt is also admissible.

H. Public Record 1. Agencys Own Records 2. Observed and reported under duty of law, except police & other law enforcement reports against criminal . a. E.g., accident and officer on scene writes report. Stmts were excited utterances. Are admissible in civ.lit.b/c this type of rep. is w/in the duty of law of the officer. However, those same statements are not admissible in criminal trial against . 3. Factual findings made pursuant to duty of law except against criminal . a. Admissible in civil and criminal litigation (as with 2), except against criminal . b. Beech Aircraft Corp. v. Rainey [p.735] factual findings = conclusions of law too.
JAG rep. said pilot error. = a conclusion of law, but Ct. allowed it b/c a difficult line to draw.

4. Non-Employee Statements on Agency Records: Same analysis as w/ business recs. 4 non-employee stmts to be admiss. for truth, must meet indep. non-hrsy rule, excp, or exclu. I. Learned Treatise 1. 803(18) is hearsay exception allowing the reading to the jury (but not introduction as an exhibit) of statements in published treatises, periodicals or pamphlets [in] history, medicine, or other science or art to the extent called to the attention of an expert upon cross-examination or relied upon by the expert witness in direct examination [if] established as reliable authority by testimony or judicial notice. a. Although rule doesnt specify, can be a video too. Costantino v. Herzog [p.749] 2. Used on Cross E.g., after expert for the defense testified, prosecution shows the expert the treatise, please turn to page X, doesnt it say just the opposite of what you testified to earlier today? this is using the treatise on cross. -OR3. Relied on in Direct expert relied on the treatise in their direct testimony 68

Lindsey Heinz

4. Established as Reliable Authority 5. In field requiring expertise 6. Proven by admission, testimony, or judicial notice in prac. only first 2 will apply 7. Read it to jury XIV. Impeachment A. Introductory Matters: 1. Intrinsic vs. Extrinsic Impeachment a. Intrinsic Impeachment = On cross-examination of witness, asking him questions seeking him to self-contradict his own testimony. b. Extrinsic Impeachment = When discrediting fact comes from a source other than this witness. E.g., calling another witness, using an exhibit, etc c. Illustration: i. On-cross examination of witness: Q: Isnt it true that you were convicted of perjury 4 years ago? A: Yes. intrinsic impeachment. BUT, if the witness said no ii. Later on, atty calls the jury foreman from the perjury trial. Q Did you find this witness guilty of perjury 4 years ago? A: yes. extrinsic impeachment. 2. Collateral vs. Non-Collateral Issues a. Collateral = No Extrinsic Impeachment b. Not Collateral = Admissible for both Intrinsic and Extrinsic Impeachment c. A collateral matter is something that is not of real importance to the litigation. 3. Vouching Rule Abolished today, you may impeach your own witness. 4. Good Faith Basis Required must have a good faith basis to ask Qs with intent to impeach the witness. 5. Witness Must First Testify: as gen. rule, witness must first testify before impeached. B. Modes of Impeaching A Witness 1. Level One The Elements of Competency a. Mode 1: Oath NO. Can not ask questions about a witnesss religious beliefs to impeach them (concerns their reliability to take an oath). However, you can ask about religion if it is somehow related to the case (e.g., to show bias) b. Mode 2: Perception - Yes c. Mode 3: Recall - Yes d. Mode 4: Communication Yes 2. Level Two Character Impeachment a. Mode 5: Convictions / Prior Crimes i. NOTE: prior convictions are non-collateral. Thus, if the witness denies a conviction, you can prove it with extrinsic impeachment. ii. Rule (a): any witness who testifies is sub.to impeach. by prior convictions. 2 important aspects of rule to remember: Prior crime may be a misdemeanor or a felony. Judge has no discretion: NO 401/403 balancing analysis! Dishonesty what dishonesty means is depends on the jurisdiction: Elements Only Jurisdictions: can only look at crimes as defined by statute. If, as defined in the statute, the crime has an element of deceit, then it is admissible to impeach the witness. If not, inadmissible. NOTE: b.o.p. is on Elements + Underlying facts Jurisdictions: 3 possible steps: proponent of evidence,
so prosecutor bears burden of proof.

69

Lindsey Heinz (a) in elements only analysis. If in big 4 admissible; if not (c) out is crime a crime of aggression? If so, inadmissible, if not (b) middle did crime as actually committed involve lies or deceit?

Crime Importation of Cocaine Petty theft: A just steals B switches price tags

If so, admissible; if not, inadmissible. Examples: dishonesty meaning depends on jurisdiction

Elements Only NO not a crime involving dishonesty or false statement

Petty theft is defined as the intentional taking of property of another w/o consent. NO, not a crime of dishonesty or false stmt.

Elements + Underlying Facts (a) no; (c) no; (b) maybe Just crossing border? NO Lie on customs form YES (a) no; (c) no; (b) maybe A [stealer] NO B [switcher] YES

If inadmissible under Rule (a), move to Rule (b) iii. Rule (b) under this rule, we treat the two categories of witnesses differently: Witness other than criminal : any felony conviction is admissible to impeach the witness following a 403 balancing test.
Here, dont need much prob. value

Language: is the probative value on the issue of untruthfulness substantially outweighed by the risk of undue prejudice? When Unduly Prejudicial: rare case b/c this is non-crim. , but one example is where the witness was convicted of child molestation; very prejudicial (jury not likely to buy anything he says) and not relevant to this trial

NOTE: more likely to be tested on Rule b as it pertains to criminal as witness

Criminal as witness: any felony, so long as its probative value of truthfulness outweighs its prejudicial effect.
we make the admissibility more difficult b/c want to give more protection to the criminal when being impeached w/ his prior convictions. E.g., Crim. is charged w/ illegal importation of heroin. Has 2 prior convictions: (1) felony theft of TVs; (2) felony of illegal distribution of drugs. Second is problematic b/c even w/ a proper jury instruction, the jury will use this to convict the on this charge. So we wont allow it. Balancing Test: To determine whether felony is more probative of truthfulness than prejudicial, courts look to the following. U.S. v. Hayes Recentness: the more recent the prior conviction, the more probative it is of truthfulness; Is it a type of crime that could involve a lie?: e.g., importation of drugs yes; robbery no. Similarity to crime now charged: if similar, more prejudicial; jury is more likely to misuse (only supposed to look at prior crime on issue of truthfulness of witness, but here, could use it to convict the ).

Here, do need a lot of prob. value cast more in terms of exclusion.

RULES C F apply to BOTH A and B. iv. Rule (c) 10-Year Rule: if the conviction is more than 10 years old, can not use it to impeach. *BUT may still be able to get it in under reverse 403. 10 years from the date of conviction or release, whichever is later. Thus, if were prosecuting a criminal who was convicted of embezzlement 10 years ago, dont automatically assume we cant get it in can if he spent 1 year and 1 day in jail.

70

Lindsey Heinz

Continuance Issue: if criminal asks for a continuance, the court can grant it, subject to allowing the prosecution to use the prior conviction. v. Rule (d) Expungement: expunged conviction can NOT be used to impeach. vi. Rule (e) Juvenile Adjudications: inadmissible to impeach a witness. Exceptions: when its a witness against a criminal , that witnesss prior juvenile adjudication may be used to impeach him if the judge finds it is necessary for a fair trial. E.g., Criminal takes the stand Isnt it true you were adjudicated as an
embezzler when you were 17? NO E.g., 2 Witness against Criminal Isnt it true you were adjudicated a perjurer when you were 17? MAYBE, if this is the only witness, judge might find it necessary for fair trial to allow this adjudication.

vii. Rule (f) Appeal: you can impeach someone with a prior conviction, even if that conviction is currently on appeal. b. Mode 6: Bad Acts i. Untruthful Only ii. Collateral iii. Rule: You may impeach a witness on cross using bad acts ONLY when involving specific acts of untruthfulness. At CL, could use bad moral conduct to impeach, but cant do that now. Now, federal rule doesnt allow impeachment solely based on bad acts of moral conduct instead, only allows impeachment on lies. iv. E.g., Can Use: lying on job/loan application; lying on affidavit in divorce case Can NOT Use: You knocked down an old lady, kicked a dog, etc. v. Collateral Issue: When dealing with impeachment w/ lies, we are limited to intrinsic impeachment b/c prior lies are collateral! Thus, can ask the Q, but cant follow w/ extrinsic impeachment is the witness lies again stuck w/ the answer we got. vi. Simmons, Inc. v. Pinkertons Inc. [p.913] Cant admit the results of the witnesss lie detector test to impeach, but prosecution could ask the Q (intrinsic impeachment) of whether the witness lied about taking the lie detector test. *If he said no, cant use extrinsic impeachment! c. Mode 7: Character Witness on Untruthfulness/Truthful i. Reputation and opinion only ii. Untruthful after witness testifies iii. Truthful only after attack on character trait for untruthfulness Convictions Bad acts Character witness on untruthfulness iv. Cross-Examine w/ specific instances v. Collateral vi. Rules: 71

Lindsey Heinz

Can call a character witness to testify by reputation and opinion that a preceding witness has a character trait of untruthfulness. Can call a character witness to testify that a preceding witness is truthful, ONLY when the preceding witnesss character was attacked. vii. Attack: you can only call a character witness to testify that a preceding witness is truthful after that witnesss character for truthfulness was attacked thus, if the preceding witness merely denied the allegations of untruthfulness, we still meet this requirement b/c still constitutes an attack. viii. Can only use specific instances on CROSS! ix. Collateral: If the character witness denies knowledge, cant call another witness b/c these matters are collateral stuck with the answer we get. x. NO Expert Testimony as to Truthfulness: an expert may not testify, for example, that in her opinion, a witness is a sociopathic liar. This is essentially telling the jury what to believe, which invades the province of the jury. Thus, general rule: we wont allow experts to give opinions on credibility of wit. 3. Level Three Inconsistencies a. Mode 8: Prior Inconsistent Statements i. Collateral, unless opportunity to explain or deny ii. Compared to Exclusion from Hearsay of Prior Inconsistent Statements Under hearsay exclusion, the statement is admissible if: Inconsistent w/ in-court testimony Witness subject to cross Prior statement made under oath, at depo, or other proceeding. If the statement meets this rule we let it in for BOTH substantive and impeachment purposes (so dont need to look to this new rule). Thus, we ONLY look to new rule if we couldnt get it in under the hearsay exception. iii. E.g., HYPO where Prater told bartender that Hecker ran a red light and also made this statement in depo. The depo statement was admissible under hearsay exclusion, but statement to bartender was not. The bartender statement is the one were dealing with here. iv. Rule: Can always use prior inconsistent stmt for impeachment purposes. v. Must ask witness about prior inconsistent statement period. Same rule for hearsay exception: must ask so that witness is sub. to cross Under impeachment rule we must do this in case the witness denies so that we can call another witness if we do not give the witness the opportunity to explain or deny its collateral and cant call another wit. b. Mode 9: Contradictions *Skip wont be on exam. c. Mode 10: Bias, Interest, Prejudice, Corruption i. Rule: can use bias, interest, prejudice, or corruption to impeach a witness. ii. Not Collateral: thus, will allow extrinsic proof to impeach. iii. Bias: a predisposition in favor of someone iv. Prejudice: a predisposition opposed to someone 72

Lindsey Heinz

v. Interest: witness has a stake in outcome of litigation vi. Corruption: witness has been bribed to testify

73

Lindsey Heinz

Methods/Modes of Impeachment Recap

Level 1 Elements of Competency Level 2 Character Impeachment

(1) Oath *no

(2) Perception

(3) Recall

(4) Communication

(5) Convictions/Prior Crimes

*non-collateral

Witness other than criminal Criminal as witness (a) any conviction for a crime involving dishonesty or false statement
judge has no discretion [no 401/403 analysis] here, can be felony or misdemeanor.

Dishonesty Jurisdiction Elements + Underlying Facts (a) In Big 4 (b) Middle did
crime as committed involve lie/ deceit? (c) Out crimes of aggression.

Elements Only (a) In Big 4:

1. embezzlement 2. false pretense 3. fraud 4. perjury

(b) felony + 403

(b) felony + more probative of untruthfulness than prejudicial

(c) 10 year rule: if > 10 yrs. from date of conviction/ release, cant use to impeach (d) expungement: expunged conviction cant be used to impeach (e) juvenile: no juv. adj. to impeach, unless witness v. crim. . + ness. for fair trial (f) appeal: can use prior conviction to impeach even if currently on appeal

(b) Out

Balancing Test Factors: 1. Recentness: more recent, more prob. 2. Type of crime that involves a lie? 3. Similarity: sim. to crime charged,
more prejudicial. [misuse potential]

(6) Bad Acts

untruthful collateral

(7) Character Witness for Nontruthfulness

Reputation and opinion only Untruthful after witness testifies Truthful only after attack on character trait for untruthfulness Convictions Bad acts Character witness on untruthfulness Cross-X w/ specific instances Collateral

Level 3 Inconsistencies

(8) Prior Inconsistent Statements

Collateral Unless, opportunity to explain/deny

(9) Contradictions

(10) Bias, Prejudice, Interest, Corruption

Collateral

74