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Evidence Outline Mich. 10

A. What is Evidencea. Evidence: Refers to witness testimony and physical items presented by a party and admitted

during trial to prove or to refute and element of an that case

b. Unless evidence is legally admissible under the rules it may as well not existi. Judges and juries cannot consider what is not properly admitted

c. FRE are a body of rules that regulate the admissibility and exclusion of the evidencei. The judge is the arbiter of the rules

ii. FRE grants the judge a fair amount of discretion in doing soGeneral Provisions Article I

A. Scopea. FRE 101. Scope

i. The FRE applies to proceeding in the courts of the US, Bankruptcy, and Statesmagistrate judges

b. FRE 102. Purposei. These rules are in place to secure fair administration, eliminate expense and delay

while promoting growth of law in order that truth may be ascertained in a just

fashion

c. FRE -103 Rules on Evidencei. Effect of Erroneous Ruling.--Error may not be predicated upon a ruling which

admits or excludes evidence unless a substantial rightof the party is affected, and

1. Objectiona. Objections (and motions to strike) are used to contest the

admission of evidence

b. Must be timely and specific2. Offer of Proof.

a. Offer of proof are used to contest the exclusion of evidenceb. Substance of the evidence was made know to the court orc. Was apparent from the questions asked

3. Key Notes:a. To offer proof includes

i. A presentation or description of the evidenceii. A statement of the fact one wants to prove with the

evidence

b. Offers of proof are made outside the hearing the juryii. Once the court makes a definitive ruling on the record admitting or excluding

evidence, either at or before trial, a party need not renew an objection or offer of

proof to preserve a claim of error for appeal.d. FRE 104. Judicial Determinacy/Preliminary Questions

i. FRE 104 (a). Generally provides that the judge, not the jury, makes preliminary legaldecisions about the admissibility of proposed evidence

1. Such as the qualifications of a witness to testify or the existence of aprivilege not to testify.

2. This is typically done outside the presence of the jury.

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3. The judge needs only to believe that it has been show that the governmenthas proved the conditional fact by a preponderance of the evidence.

ii. Huddleston v US( argued that prosecution hasnt proven that the TVs wereactually stolen)

1. The court will simply look at all the evidence in the case and decidewhether the jury could reasonably find the conditional fact (in this case that

the TVs were actually stolen) by a preponderance of the evidence

e. FRE 105. Limited Admissibilityi. Provides that evidence may be admissible for one purpose, but no another and

requires the judge to direct the jury to only consider the specific evidence for a

particular purpose and no other.

ii. Key notes1. Used for impeachment2. Grounds for limiting instructions

B. Types of Evidencea. Testimonial evidence - Testimony of live witnesses answering question under oath before

the fact finder

i. Witness testimony the fact finder must depend on the witness to find the truthii. 4 Testimonial Capacities

1. Sensory Perception - how well could she see/hear/smell2. Memory it usually takes a year or so before the case gets to trial3. Communication - the logic and clarity of the witnesss story 4. Truthfulness do they have a reason to lie

Role of the judge

A. The judge controls the trial process by settling limitation on lawyers in order to achieve justice andefficiency.

B. Process of Proof and the Structure of Triala. Overview of rules that give judges the power to secure fairness

i. FRE. 102 Gives judges the power to use FRE to secure fairness and eliminateundue expense and delay

ii. FRE. 403 Recognizes the power and duty of judge to use their discretion to excluderelevant evidence that is otherwise admissible balance test

iii. FRE. 611 commands the court to exercise reasonable control over mode and orderof interrogating witnesses and presenting evidence

iv. FRE. 614 Gives judges the right to call and question witnesses to clear upconfusion and manage trials whenever necessary

b. US v Reaves (1986-Atorney wants to present multiple tax returns)i. Rule: the court can halt the presentation of cumulative and time wasting evidence

by placing time limits on various states of trial1. FRE 403 and 611 gives them this authority

c. Stone v Peacock(1992 order of witnesses)i. Rule: FRE 611 Allows the court to control the order and presentation of witnesses

d. Comments on the Evidencei. Federal judges are allowed to comment on the evidence presented at trial

1. They typically do this during the reading of the jury instructions.

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2. They do this to assist the jury in arriving at a just conclusion by explainingand commenting upon the evidence

3. The judge is not allowed to add to or distort the evidenceii. United States v Yates (1977 Bank robbery appeal didnt know what he signed)

1. Trial judge's comment, during colloquy as to whether defendant'sconfession should be read to jury, that it was clear that defendant admitted

his participation in the bank robbery exceeded the scope of proper judicial

comment on the evidence and, as the comment went to the heart of the

defense, reversal was required even though defense failed to object to the

statement at the time or to request any curative instruction then or later

2. It was an improper comment upon the evidencee. Questioning Witnesses

i. FRE-614 Expressly grants judges the right to call and question witnesses, evenrepeatedly and aggressively, to clear up confusion and manage trials whenever

necessary

1. This authority is limited judges may not ask questions that signal theirbelief or disbelief of witnesses

ii. Crandell v US(1983 Child with Spinal Meningitis Judge predetermined case)1. A trial judge must not predetermine a case and any conduct before or

during a trial which indicates this must be condoned

f. The order of Proceedingi. Pretrial Conference

ii. Pretrial Motionsiii. Selection of the Jury Voir dire checking for jury biasiv. Opening Statementsv. Presentation of the evidence (s/Prosecutions Case in Chief)

1. Direct examination The goal is to question the witness so as to elicit factsfavorable to the party who has called the witness

a. The questions are short, open ended and non leading2. Cross examination3. Redirect examination4. Objections (FRE 103)5. Offers of proof (FRE 103)

vi. Motions for Judgment as a Matter of Law (by the ) vii. s Case in Chief

viii. Rebuttal (by and )ix. Closing argumentx. Jury Instructions

xi. Deliberationsxii. Post trial

Relevancy and Its Limits Article IV

A. Relevancea. Relevance this is the threshold question of admissibility of all evidence

i. There is an interplay of rules - 401 is very broad, 402 operational rule that giveseffect to 401, and 403 limits the broadness of 401.

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b. Primary Relevance Rulesi. FRE 401 defines Relevant Evidence as evidence having any tendencyto make any

fact of consequence more or less probative (i.e., likely) than without the evidence.

ii. FRE 402 Puts the definition to work, providing that all relevant evidence ispresumptively admissible.

iii. FRE 403 Provides a discretionary balancing test(i.e., limitation) that allows a judgeto exclude even relevant evidence under certain circumstances that weigh against

admissibility. (U C Me U Wave Creep)

1. Unfairly Prejudicial2. Confusing the issue3. Misleading the jury4. Undue Delay5. Waste of Time6. Cumulative Evidence

B. Primary Relevancy Rulesa. FRE-401 Definition of Relevant

i. Evidence that has any tendency to make more or less probable the existence of anyfact of consequence

b. Two Concepts of FRE-401i. Fact that is of consequence

1. Whether a fact is of consequence turns on the requirements of theunderlying substantive law

a. Does this fact relate to an element of the case (substantive law)b. i.e., if it is a statutory rape case the consent of the underage victim

is not relevant

ii. Probative evidence (low standard)1. The evidence has a tendency to make the existence of a fact more or less

probable then it would be w/out the evidence (AKA logical relevance)

c. People v Adamson (1947 Black guy with stockings in his draw)i. Rule: 401 says that demonstrative evidence, tending to prove material issue orclarify circumstances of crime charged, is admissible, despite its prejudicial

tendency, except in rare cases of abuse.

d. FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissiblei. All relevant evidence is admissible, unless it violates some other law. Evidence

which is not relevant is not admissible

e. FRE 403. Exclusion of Relevant Evidence (this is a balancing test) This rule provides thatrelevant evidence may be excluded (at the judges discretion) if its probative value is

substantially outweighed by:

i. 6 counter weights (U C Me U Wave Creep)f. Carter v Hewitt(1980 Beating by guards or not with a letter)

i. Letter is admitted as it is not unfairly prejudicialg. Old Chief (I will stipulate to the felony no need to name it)

i. The court held that the risk of unfair prejudice did substantially outweigh thediscounted probative value of the record of conviction and it was an abuse of

discretion to admit the record when and 105 limiting instructions was available

h. Stipulation v limitationsi. Stipulations

1. Lawyers often use offers to stipulate strategically.

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ii. Limiting Instructions (FRE 105)1. FRE 105 provides that evidence may be admissible for one purpose, but no

another and requires the judge to direct the jury to only consider the

specific evidence for a particular purpose and no other.

Relevancy Character Evidence

A. GR: Character evidence is not admissible to prove conduct conformity on a particular occasiona. FRE 404. Character Evidence Not Admissible to Prove Conduct; Exception; Other Crimes

i. NOTE: 404 Must be read with 405b. FRE 405. Methods of Proving Characterc. FRE 406. Habit Evidenced. 4 Questions to Ask

i. Purpose (is it to show)?1. Character offered to infer conduct in conformity (FRE 404(a))-GR not

allowed

2. Character isdirectlyat issue GR Alloweda.

When a persons character is a material elementin the case aseither an element of the cause or action, crime, or a defense

b. Defamation, fraud, perjury, negligent entrustment, custody3. Impeachment (FRE 608 and 609(b)) GR not allowed

ii. What Character Trait is at Issue?1. It must be the specific pertinent character trait which is substantively at

issue in the case.

iii. Type of Case?1. Criminal or Civil? (404 EXCEPTIONS apply only to criminal cases)

iv. Method (Form FRE 405)?1. Reputation2. Opinion3. Specific Acts of Conduct

B. FRE 404(a)(1). Character evidence of a defendant (AKA Mercy Rule)a. GR: Character evidence is not admissible to prove conduct conformityb. Exception: The accused CAN offer evidence (via witness testimony) of his pertinentgood

character to prove conduct in conformity [purpose #1] but ONLY by the following methods:

i. FRE 405(a)Methods:1. Reputation and/or2. Opinion3. The witness can NOT testify to specific good acts

c. The prosecution cannotoffer bad character evidence in any of the 3 forms in his/her case inchief, IF the sole purpose is to show criminal disposition to infer guilt

i. Unless the opens the door under FRE 404(a)(1) this is the mercy ruled. Prosecution options in response to Mercy Rule witnesses

i. The prosecution has two options:1. Specific Acts - They can cross examine the defense witness by asking

whether he has heard about specific bad acts of the that rebut the positive

character testimony on direct

a. This is limited toi. Have you heard? or

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ii. Did you know?b. The prosecution is stuck with the answer given

2. The prosecution can present its own witness to testify that the has a badreputation for the character trait in question

ii. The prosecution may only ask its question in good faithC. FRE 404(a)(2). Character evidence of an alleged Victim

a. Typically involves victim character in Self Defense case and is offered by the accused () b. GR: Character evidence is not admissible to prove conduct conformityc. Basic Rule: (FRE 404(a)(2)):

i. In a criminal case, where a claims self defense, evidence of a pertinent charactertrait of the victim is admissible only after;

1. The opens the door by taking the initiative to show the character of thevictim as being violent as circumstantial evidence to infer that the alleged

victim was actually the first aggressor in the situation.

ii. Method of proof: (the same method for presenting opinion and reputation evidenceas under the Mercy Rule) (read with FRE 405)

1. Defendant can ONLY show the victims violent character by a. Reputationb. Opinionc. NO specific acts of misconduct are allowed

d. Prosecution options in response to character attacki. The prosecution can present its own witness to testify that the has a violent

reputation

ii. The prosecution can present its own witness to testify that the victim has a peacefulreputation

iii. Limited to1. Reputation2. Opinion3. NO specific acts of misconduct are allowed

e. Special Rule that ONLY applies to HOMICIDE cases: (FRE 404(a)(2)):i. Specific Acts - On cross if the defense has introduced any kind of evidence showing

the victim was the first aggressor (not limited to character evidence) the prosecutor

can rebut with specific actsshowing victims peaceful character.

1. This is limited toa. Have you heard? orb. Did you know?

2. The prosecution is stuck with the answer givenii. AND Prosecution can then rehabilitate the character of the victim for peacefulness

when its been attacked, but only with:

1. Reputation2. Opinion

D. Rule 404b Character Evidence Not Admissible to Prove Conduct; exceptions; other Crimesa. FRE 404(b) sets forth situations where specific acts are admissible when being offeredfor

some other non-character purpose other than to prove character in conformity, including:

b. Mnemonic: MIAMI KOPPi. Motive

ii. Intentiii. Absence ofMistake or accident

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iv. Identityv. Knowledge

vi. Opportunityvii. Preparation

viii. Planc. Applies to BOTH civil and criminal trials

i. BUT typically used in criminal trials b/c they deal with fact questions relating tointent, identity, opportunity, plan, motive, etc., more so than civil trials

1. Limited by 403 if it gets passed 403 then limiting instructions are given2. Not limited to convictions

a. It can be arrests, fights, or other prior acts of misconduct that arepertinent

d. MIAMI KOPP evidence is admissible when;i. When the misconduct is relevantto prove a material fact, OTHER than criminal

disposition (i.e., to prove some relevant issue separate and apart from bad

character)

e. 404(b) 3 Requirementsi. In order for the evidence to be admissible under FRE 404(b), the party offering

character evidence for a non-character purpose must satisfy 3 requirements:

1. Fact at issue - Identify a fact at issue to which the specific act is relevant2. Pass FRE 403 - If the opponent objects under FRE 403, s/he must convince

the court that the counterweights listed do not substantially outweigh the

probative value of the evidence

3. Proof - Prove (by evidence) that the person whose specific act is in questiondid actually commit the act

f. Factors judge considers in FRE 403 balancing test:i. Probative value (party wants it in):

1. Similarity to other act evidence2. Reliability3. Need for the Evidence (i.e., the extent to which the factual issue can be

established by other evidence in the case)

ii. Unfair Prejudice (Party wants it out):1. Degree to which the evidence is of a shocking nature2. Remoteness of the act3. Strength of unfair prejudice (degree to which the evidence will be misused

or misunderstood by the jury).

g. Notice Requirementi. In a criminal case,

1. Upon requestby the defense, the prosecution is required to givereasonable notice of its plan to offer any 404(b) evidence at trial.

h. Intenti. Other act evidence that is relevant to show intent is typically certain repeated

occurrences of specific unusual events make it unlikely that any of those prior acts

happened by mistake or accident

ii. Sometimes intent is referred to the persons state of mind which proves up theintent element

i. Us v Hearst()

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i. Similarity of other crimes was not necessary under these circumstances b/c r aisedthe duress defense and the other crimes, although different from bank robbery,

showed that she did all of them with the same group of people and that showed her

state of mind

j. Plan or Identityi. Other act evidence that is relevant to show a same or similar common scheme as the

crime charged.

1. 3 typical situations:a. Prior acts shows theres a broader plan or scheme to the charged

offense, which are admissible under 404(b) if they survive the 403

balancing test

i. Criminal steals a car to use in a robberyb. Prior acts are proof of the charged crime that includes a plan or

scheme element

i. If the prior act evidence is merely shows the full context ofthe crime, its called intrinsic evidence and not governed

by 404(b)

ii. If its offered as direct proof of a charged crime (i.e.,conspiracy), 404(b) allows its admissibility to prove the

plan or scheme element

c. Sometimes this plan evidence can be used to also establish theidentity of the defendant b/c the prior acts and the crime in

question were committed by such unique and similar methods.

i. Identity typically becomes at issue when the defendantclaims, It wasnt me

ii. If so, then anything connecting him to the crime that showshe did do it is admissible (subject to 403)

k. Modus Opernadi: this is the name sometimes used to prove identity when the prior acts andthe current charge crime were so unique (i.e., signature) it identifies the defendant

i. Ex: prior 2 murders were committed by stabbing with a pitch fork through thestomach and the victims were laid out with their hands crossed over them. Same as

current charge

Relevancy Limitations

A. Relevancy Limitation Based on Policya. The following rules are exclude relevant evidence for policy reasons, such as preventing

unjust results or encouraging parties to settle disputes and remedy harmful or dangerous

conditions

i. FRE 407 - Subsequent Remedial Measuresii. FRE 408 - Compromise and Offers to Compromise

iii. FRE 409 - Payment of Medical and Similar Expensesiv. FRE 410 - Inadmissibility of Pleas, Plea Discussions, and Related Statementsv. FRE 411 - Liability Insurance

vi. On the EXAM Mention1. ALL of this policy based limitations to relevance are subject to FRE 403,

giving the judge the discretion to exclude such evidence if s/he thinks it is

too unfairly prejudicial or there is other evidence that may show it.

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B. FRE 407 - Subsequent Remedial Measuresa. GR: Subsequent remedial measures are NOT admissibleb. 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 thesubsequent measures is not admissible to prove:

i. Negligence, culpable conduct, a defect in a product, a defect in a product's design, or aneed for a warning or instruction.

c. This rule does not require the exclusion of evidence of subsequent measures when offeredfor another purpose (these things must be in controversy or at issue)

i. Such as proving ownership, control, or feasibility (capable of taking additional) ofprecautionary measures, if controverted, or impeachment.

d. Key Notes:i. The underlying policy is that the admitting evidence of subsequent remedial measures

would discourage potential defendants from taking precaution that are in the public

interest

ii. This rule only applies to parties1. So if the measure is taken by a non-defendant, FRE doesnt apply and it may

be admissible

e. Anderson v Malloy(1983 Woman raped in hotel were additional safety measure werefeasible)f. FRE 407 The impeachment exception

i. Subsequent remedial measure are admissible to impeach a testifying witness1. This is generally narrowly construed to prevent the exception from taking

over the rule at judges discretion

2. A subsequent remedial measure is not admissible for impeachment if it isoffered for simple contradiction of a defense witnesss testimony

a. If the witness testifies that this is the safest product on the market,and then there is a subsequent change this will be seen as more

than a simple contraction

ii. Harrison v Sears (1992 that machine cut fingers off but it couldnt have happenedthe way he said. We changed the design just because)

1. Here the simple fact that the testified that the product was safe, thesubsequent remedial measure does contradict the testimony, but not a lot

as there could be other reasons for the change other than safety concerns

C. FRE 408 Compromise and Offers to Compromisea. General Rule: Evidence of settlement negotiations in civil cases are NOT admissible to prove

fault, liability, or amount of damage, or to impeach through prior inconsistent statements or

contradictions, including:

i. Settlement agreements, Settlement offers or counter-offers, or any statements orconduct made during the course of settlement negotiations

b. Permitted uses - Exceptions (FRE 408(b)): Settlement talk may be admissible for any otherpurpose not prohibited by the rule

i. Bias or prejudiceii. Negating a contention of undue delay

iii. Proving an effort to obstruct a criminal investigation or prosecution.c. Key Notes:

i. FRE 408 only applies if liability or amount of the claim is in disputed.1. If there is no dispute, FRE 408 doesnt apply!

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2. If a party admits that s/he is BOTH liable (i.e., at fault) AND doesnt disputethe amount, then it doesnt fall under FRE 408, and the statement may be

admissible unless its excluded under a different rule.

a. You need a Claim and a Claim in dispute3. FRE 408 specifically excludes using prior inconsistent statements or

conduct as another purpose

a. This means that you cant use prior inconsistent statements toimpeach, even though you can use bias.

d. Pierce v FR Tripler(1992 age discrimination case where the lawyer called prior to filingthe claim to see if a settlement could be had)

i. Holding: Where counsel, threatens litigation and has initiated first administrativesteps in litigation, any offer made between attorneys will be presumed to be offer

within scope of FRE 408

e. There is no immunizing otherwise admissible evidence under 408i. A party may not keep- otherwise admissible evidence from being admitted by talking

about it in settlement negotiations

ii. Only matters prepared solely for settlement purposes are excluded under FRE 408f. John McShain inc v Cessna Aircraft(1977 The landing gear failed twice I am going to call

the parts person as my expert witness)

i. Rule: FRE 408 admits evidence of compromise offers, acceptances or negotiations toprove the witness bias or prejudice

ii. Reasoning: the fact that the sister corporation of Harmons employer had been rel easeform liability in exchange for Harmons testimony cast doubt upon Harmons

impartiality

D. FRE 409. Payment of Medical and Similar Expensesa. FRE 409. Payment of medical and Similar Expenses

i. General Rule: Evidence of payments, offers to pay, or attempts to pay medical,hospital, or other similar expenses are NOT admissible to prove liability for an injury,even though is NOT really a settlement offer

b. Exception:i. If an admission of fact (liability) accompanies an offer to pay hospital or medical

expenses, the admission may be admissible.

c. Key Notes:i. Under FRE 409 the claim does not have to precede the offer; Unlike FRE 408

1. Thus if two people are in an automobile accident and one immediatelyoffers to pay the others medical bills, FRE 409 would keep this offer out of

evidence where as 408 would not

2. There is no disputed claimii. Generally statements or fault are admissible where as offers to pay medical expense

are not, unless the admission cannot be disclose without also disclosing the offer

1. i.e., dont worry. Because the accident was my fault, Ill pay your medicalbills.

E. FRE 410. Plea Bargain Agreement in Criminal Casesa. FRE 410. Inadmissibility of Pleas, Plea Discussions and Related Statements

i. FRE 410 excludes the following plea bargain agreements from being used against the in both civil and criminal proceedings:

1. Withdrawn pleas of guilty2. Pleas of nolo contendere (a.k.a. no contest)

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3. Statements made by the defendant during plea negotiations in the course ofdiscussions with the prosecutor or trial judge

ii. Exceptions:1. Perjury and false Statement prosecutions2. introduce excluded 410 evidence

a. If the introduces evidence of a statement excluded under 410 -then his opponent can introduce evidence of any related statement

made in the course of the same plea discussion

b. Key Notes:i. FRE 410 apples only to negotiations in criminal cases

ii. The s statement must be made to a prosecuting attorney to obtain the protection ofrule 410

c. United States v Mezzanatto (1995 I didnt know it was meth lets make a deal) i. Holding: Absent some affirmative indication to that the agreement was entered into

unknowingly or involuntarily, an express agreement to waive the exclusionary

provision of the plea-statement rules is valid and enforceable

F. FRE 411. Liability Insurancea. FRE 411. Liability Insurance - Elements

i. Evidence that a person was or was not insured against liability is not admissible uponthe issue whether the person acted negligently or otherwise wrongfully.

ii. This rule does not require the exclusion of evidence of insurance against liability whenoffered for another purpose;

1. Such as proof of agency, ownership, or control, or bias or prejudice of awitness.

b. Charter v Chleborad(1977 Flag worker sustained leg injuries, the was his physician,complications occurred and leg had to be amputated)

i. Rule: Evidence that a person was insured against liability is not excluded if suchevidence is being offered to show proof of agency, ownership, or control, or bias or

prejudice of a witness

G. Relevancy Limitation Based on Policy Sexual Misconducta. FRE 412. Victims Character in Sex Offense Casesb. FRE 413-415 - Defendants Character in Sexual Assault and Child Molestation Cases

i. These rules allow admission ofa s prior sexual acts to prove character in conformity(that he is the sort of person that due to his past, would engage in future sexual

misconduct merely being accused is enough)

c. Basic Rule: In civil or criminal cases, prior similar acts ofs misconduct are admissible toshow propensity in:

i. Sexual Assault Cases1. FRE 413 addresses use in criminal cases2. FRE 415 addresses use in civil cases

ii. Child Molestation Cases1. FRE 414 addresses use criminal cases2. FRE 415 addresses use in civil cases

d. What about FRE 403?i. Most circuits require a 403 balancing testbefore sexual misconduct is admitted

based on the notion that admitting any character evidence to show propensity is

generally frowned upon b/c it almost certainly guarantees a conviction, which is

unfairly prejudicial.

e. FRE 413. Evidence of Similar Crimes in Sexual Assault Cases

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i. In a criminal case in which the defendant is accusedof an offense of sexual assault,evidence of the defendant's commission of another offense or offenses of sexualassault is admissible, and may be considered for its bearing on any matter to which itis relevant.

f. FRE 414. Evidence of Similar Crimes in Child Molestation Casesi. In a criminal case in which the defendant is accused of an offense of child molestation,

evidence of the defendant's commission of another offense or offenses of childmolestation is admissible, and may be considered for its bearing on any matter towhich it is relevant.

g. FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or ChildMolestation

i. In a civil case in which a claim for damages or other relief is predicated on a party'salleged commission of conduct constituting an offense of sexual assault or child

molestation, evidence of that party's commission of another offense or offenses of

sexual assault or child molestation is admissible and may be considered as provided in

Rule 413 and Rule 414 of these rules.

H. FRE 412Victims Character in Sex Offense Cases (Rap Shield Law)a. General Rule: (FRE 412(a)):

i. Evidence of past sexual behavior and predisposition of a victim is NOT admissible in acriminal or civil proceeding involving sexual misconduct (an alleged sexual assault or

child molestation)

b. Exceptions: (FRE 412(b))i. In Criminal Cases, it is allowed as follows:

1. Alternative source of Semen/injury - Specific Acts (but NOT reputation oropinion) of sexual behavior are allowed to prove that SOMEONE ELSE was

the source of semen, injury, or other physical evidence

2. Consent - Specific Acts (but NOT reputation or opinion) of sexual behaviorto prove consent b/n the defendant and alleged victim

3. Constitutional Rights - If the exclusion would violate the CONSTITUTIONALRIGHTS of the accused (i.e., Confrontation Clause)a. Sometimes happens with Impeachment challenges where the

credibility of the victim is at issue

b. Defendant can argue admissibility of the victims past sexualconduct is required or his 6th Am right to confront his witness is

violated.

ii. US v Begay, (1991), held that the defendants Confrontation Clause rights wereviolated when the court refused to allow the defendant to cross-examine a child victim

about a prior rape by another man in order to challenge the credibility of the Drs

testimony, and to challenge the memory of the victim.

c. In Civil Cases, alleging sexual misconduct, is allowed, ONLY if its probative valuesubstantially outweighs the danger of harm to the victim AND unfair prejudice to any party.

i. Note: This is really a specific extension of 403, but it only applies to civil cases.1. Since the victim filed the lawsuit, the drafters didnt think it was necessary

b/c the victim wouldnt be deterred from testifying as in a criminal case

ii. The victims reputation is admissible in a sexual misconduct case1. BUT only in CIVIL cases and ONLY if the alleged victim first opens the door

by placing his/her reputation in controversy

Witnesses Article VI

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A. Qualification of the Fact Witnessa. FRE 601. General Rule of Competency

i. Every person is competent to be a witness except as otherwise provided in these rules.ii. However, in civil actions and proceedings, with respect to an element of a claim or

defense as to which State law supplies the rule of decision, the competency of awitness shall be determined in accordance with State law.

b. FRE 602. Lack of Personal Knowledgei. A witness may not testify to a matter unless evidence is introduced sufficient tosupport a finding that the witness has personal knowledge of the matter.

c. FRE 603. Oath or Affirmationi. 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 awakenthe witness' conscience and impress the witness' mind with the duty to do so.

d. These rules work together as follows:i. Presumption of Competency (FRE 601) when a witness is:

ii. Oath (FRE 603) Requires all witnesses to be under oathiii. Perception (FRE 602) - requires that the witness has personal knowledge and

PERCEIVED something relevant

1. Competency (Memory ) witness can recollect/remember what wasperceived

2. Capacity (Communication) witness is able to communicate what wasperceived

3. Credibility (Veracity) witness can demonstrate his/her appreciation tounderstand the duty to tell the truth

iv. FRE 601 Exceptions1. FRE 605 - Presiding judges cannot testify in that trial2. FRE 606(a) - Jurors cannot testify as a witness in a trial in which they are

sitting on

3. FRE 606(b)- Jurors cannot testify as to any matter or statements madeduring jury deliberations- three exclusions:

a. Extraneous prejudicial info was improperly brought to the jurysattention

b. Clerical Mistakes - Whether there was a mistake in entering theverdict onto the verdict form.

B. FRE 608(a). Bad Reputation or Opinion for Truth & Veracitya. Opinion and reputation character evidence can be used to attack or support a witnesss

credibility

b. 2 limitationsi. Opinion/Reputation can only be about truthfulness or untruthfulness

ii. Rehabilitation with truthfulness ONLY comes in AFTER the witnesss character hasfirst been attacked! (otherwise it would be bolstering, which isnt allowed!)

1. rehabilitation is limited to opinion and reputationc. Foundation Requirement! FRE 608(a) requires that a foundation be laid in order to keep

unreliable evidence from being heard by the jury.

C. FRE 608(b). Specific Acts of Deceit or Lying (may be inquired into on Cross)a. Requirements:

i. Specific Acts (instances) must be probative of truthfulness or untruthfulness ii. Can only be done on CROSS which must concern:

1. Witnesss character for truthfulness OR

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2. The character for truthfulness of another witness as to whom the witnesstestified.

3. Extrinsic Evidence NOT allowed (stuck w/ answer)4. Good Faith & reasonable basis for asking is required cant just make it

up!

D. FRE 609. Impeachment by evidence of Conviction of a Crimea. Any felony not involving dishonesty, subject to 403b. Any felony or misdemeanor involving dishonesty or false statement (no discretion)c. Subject to 10 year limitation, subject to 403

E. FRE 609(c) Effect of Pardon, Annulment, or Certificate of Rehabilitationa. If any of these occur, the evidence of the conviction is not admissible if it occurred based on a

finding of innocence.

b. If any of these occur, even if no finding of innocence, the conviction will still not beadmissible, as long as there havent been any subsequent felonies.

F. FRE 610. Religious Beliefs or Opinionsa. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for

the purpose of showing that by reason of their nature the witness' credibility is impaired or

enhanced.i. Exception: to show biasb. Firemens Fund Insurance v Thien (1995 Plane crashes and he brings in two witnesses

that are members of Thien church)G. FRE 611. Mode and Order of Interrogation and Presentation

a. (b) Scope of cross-examination. Cross-examination should be limited to the subject matter ofthe direct examination and matters affecting the credibility of the witness.

b. (c) Leading questions. Leading questions should not be used on the direct examination of awitness 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.

H. FRE 612. Writing to Refresh Memorya. GR: Witness usually cannot read testimony from previously prepared document as this ishearsay.

i. There are two exceptions (FRE 612 AND FRE 803(5))b. When a witnesss memory fails (either prior to testifying at trial or at trial) any writing can

be used to jug the memory, but it is only shown to the witness; it is not submitted as

substantive evidence.

i. This writing does not have to be reliable as its only purpose is to refresh the memoryii. It is not be offered as truth of the matter

c. Mandatory and Permissive Provision of FRE 612.i. If a writing is used to refresh prior to trial the opponent has an absolute right to have a

copy of the writing, cross-examine the witness regarding it, and introduce portions of

it into evidence for impeachment

ii. If the witness uses the writing to refresh her memory during questioning at trial,disclosure is discretionary with the judge

d. FRE 613. Impeaching Witness w/ Prior Inconsistent statementsi. One of the most common ways to impeach the credibility of a witness is by showing

that on some prior occasion the witness made a statement different from and

inconsistent with a materialportion of the witnesss present in court testimony

ii. Limitations:

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1. Generally admissible ONLY to impeach, not for its truth as substantiveevidence b/c its hearsay, unless it falls into a hearsay exclusion or

exception (i.e., typically as a prior inconsistent statement made under oath

at a trial, hearing, or other proceeding, or party admission)

2. Extrinsic Evidence is NOT allowed to prove the prior inconsistentstatement, UNLESS a foundation has occurred.

State Dead Mans Statues

A. State Dead Mans Statutes (State Law Driven)a. These are state laws, that vary by state, prohibiting testimony from an interested witness in

respect to conversations or transactions with the deceased

b. When does this apply?i. In a diversitycase in federal court with a state substantive issue (Diversity of

Citizenship + $75,000+)

c. 5 Elements of a Dead Mans Statute: (if all elements are met the testimony of the livingperson is excluded)

i. Witness on stand must be an interested witness with a direct stake in outcome.ii. Interested witness must be testifying for their own interest.iii. Interested witness must be testifying against decedents interest.iv. Subject matter of testimony is important. (only as to transactions/communications

w/ decedent.)

v. ONLY applies to civil matters; never applies to criminal.e. EXCEPTION to statute is a Waiver

Hearsay Article VIII

A. Hearsaya. Statements that are made outside of a courtroom generally used to describe what one

person hears another person say.i. Inherent in this doctrine is the possibility that what is ultimately testified to in a

court of law may be untrustworthy

ii. Areas of hearsay risk1. Perception (or misperception)2. Recollection (or faulty memory)3. Narration (or ambiguity in the statements)4. Sincerity (or insincerity on the part of the speaker)

b. NOTE: to be admitted, evidence which is hearsay must meet an exception or exemptionB. Utterances/Conduct that are Not Hearsay

a. Effect on Listeneri.

What effect did the statement have on the listener, not whether the statements weretrue

ii. A persons state of mind e.g., her knowledge, belief, good faith, and reasonablenessare an important issue

1. To prove reasonableness or lack of reasonableness (manslaughter case)2. To prove notice (tort)3. To prove good or bad faith

b. Verbal Acts

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i. Statements that itself shifts or creates a legal relationship or the fact that the wordswere spoken is at issue (not for their truth of assertion)

1. Words of a contract, slander, and threatsa. In a contract the words I accept has legal value

2. Words of offer, acceptance, defamation, conspiracy, bribery, cancellation,misrepresentation, waiver, permission, consent, etc.

ii. Here the court is only interested in if the words were said and not if the words aretrue

iii. The words satisfy the actI.e., I am going to kill you . The words are the act of athreat. The verbal act.

c. Verbal Parts of Acts (subcategory concerning actual physical acts)i. Statements are offered in evidence to show only that the statements were made and

to explain an otherwise ambiguous act

1. They explain an otherwise ambiguous actthe verbal expression explainthe witnesss ambiguous acts

2. E.g., statements made in connection with handing over a bag of money as abribe

3. Or words of donative intent accompanied by the transfer of diamondsd. Impeachment of a witness

i. Prior inconsistent statement (do not need to made under oath)ii. the validity or truth of the statement is not at issued the fact that they were

inconsistent is

iii. A witness may be impeached though silence.1. If witness remained silent under circumstances in which a reasonable

person would likely respond

e. Circumstantial evidence of a state of mindi. A person one day says, I really hate my husband he is so cruel later the husband

contest the will as he is not in it. This statement can be use to circumstantially show

the wifes state of mind in writing the will f. Circumstantial evidence of memory or beliefg. McClure v State (1978 My wife was sleeping with 3 other men, I wasnt thinking straight)

i. Rule: When an utterance is offered to evidence the state of mindwhich ensued inanother person in consequence of the utterance, the utterance is admissible so far as

the hearsay rule

h. Hanson v Johnson(1924 conversion of corn Verbal Acts)i. Rule: testimony that tenant pointed to the crib and told plaintiff that corn therein

was his share held not objectionable as hearsay, the language of the tenant being a

verbal act.

ii. Here just the fact that the words were spoken have independent significance whether or not the words constitute a contract will be evaluated later

C. Hearsay Analysis under the rulesa. Path of hearsay

i. FRE 801 (a-c) Define hearsayii. FRE 801(d) Exclusion (the hearsay rule is exclusionary) Hearsay will not be

admitted into evidence

iii. FRE 803 Exceptions availability of declarant not an issueiv. FRE 804 Exceptions Declarant must be unavailable

1. See if Crawford Applies

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b. FRE 802. Hearsay rule (an exclusionary rule)i. Hearsay is not admissible except as provided by these rules or by other rules

prescribed by the supreme court pursuant to statutory authority or by act of

congress

c. Assertionsi. Direct assertion the words used directly state the meaning that the speaker

intended to convey

ii. Hidden Assertions the literal word so not always express what the speaker intendsto assert

1. i.e., the car is really hot (is she talking temp, stolen, or looks)iii. Hyperbolic assertions a statement that is expressed as a hyperbole (A figure of

speech in which exaggeration is used for emphasis or effect,)

1. i.e., I am so hungry I can eat a horseiv. Assertions by conduct pick up the umbrella and go home= your umbrellav. Nonverbal conduct such as the act of pointing to identify a suspect in a line up

vi. Indirect assertions an assertion that is intended with the words spoken but is notreflected in the words spoken

1. The bank was robbed at 6 pm. Hmm I saw X walking outside the bank at 6.vii. Linked assertions these require additional information to determine what is being

asserted by the declarant

1. Yes means nothing without the question. He said yes.viii. Vicarious assertions is an assertion by a declarant treated as thought it had been

made by another person

1. i.e., John saw the green car run the red light. The statement is attributed toJohn even though John didnt speak them

ix. Implied an assertion which is not directly reflected in the words spokenHearsay Article VIII - Exclusions

A. FRE 801. Hearsay Definition and Exclusionsa. An out of court statement made by the declarant offered for the truth of the matter assertedb. Exclusions. A statement is not hearsay if--

i. (1) Prior statement by witness - The declarant testifies at the trial or hearing and issubject to cross-examination concerning the statement, and the statement is

1. (A) Prior statement inconsistent with the declarant's testimony, and wasgiven under oath subject to the penalty of perjury at a trial, hearing, or

other proceeding, or in a deposition, or

2. (B) Prior statement consistent with the declarant's testimony and is offeredto rebut an express or implied charge against the declarant of recent

fabrication or improper influence or motive, or

3. (C) Prior statement of identification of a person made after perceiving theperson; or

ii. (2) Admission by party-opponent - The statement is offered against a party and is1. The party's own statement, in either an individual or a representative

capacity or

2. A statement of which the party has manifested an adoption or belief in itstruth, or

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3. A statement by a person authorized by the party to make a statementconcerning the subject, or

4. A statement by the party's agent or servantconcerning a matter withinthe scope of the agency or employment, made during the existence of the

relationship, or

5. A statement by a co-conspirator of a party during the course and infurtherance of the conspiracy.

iii. Hearsay Exclusions Pneumonic:1. CAPPP (CAP are tested the most heavily)

a. Co-Conspirator Statements.b. Admission by a party opponent.c. Prior inconsistent statement UNDER OATH!!!d. Prior Consistent statement.e. Prior ID

c. Interplayi. FRE 801 must be read with rule 401 and rule 403 as the statement may be unfairly

prejudicial

B. Hearsay 801(d) Statements which are not hearsay exclusionsa. These are statements thatdo fall within the definition of hearsay and are being offered for

their truth BUTthe Federal Rules EXCLUDEthem from the definition of hearsay due to their

inherent reliability by nature.

C. FRE 801 (d)(1)(A) Prior Inconsistent Statementsa. Prior inconsistent statements by witness made under oath during the trial or depositionb. The prior in court statement must be inconsistent with the testimony given by the witness

testifying in court

c. Judge determines if inconsistency existsd. US v Barrett(1976 The 2 people at the dinner heard him say something different then his

testimony)

i. This was a statement of impeachment against the 1stwitness and is hearsay. It canbe admitted to impeach the witness it cannot be admitted to the truth of the matterD. FRE 801(d)(1)(B). Prior Consistent Statement to Rebut.

a. Prior consistent statements offered to rebut a charge of fabrication.b. When a cross examiner directly or by implication charges that a witnesss testimony is a

resent fabrication or the product of improper influence a prior consistent statement may

rebut this charge

i. These statements are admissible for both its truth and to prove a factii. This rule has a temporal requirement - the statement must predates the improper

influence or motive to fabricate to be allowed in

c. Tome v US(1995 Daughter want to live w/mom dad is charge with sex abuse )i. the introduction of the consistent out of court statements to rebut a charge only

when those statements were made before the charged recent fabrication or

improper influence or motive

1. The statements must be pre-motive to lie. All of these statements cameafter the motive to lie was established

E. FRE 801(d)(1)(C) Prior IDa. An out of court statement by witness of identification of a person made after perceiving the

person is not hearsay

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b. Instead of the victim testifying to the lineup identification, can the cop who was present atthe line up testify that the victim picked the defendant as the mugger?

i. YES! Anyone who was there could testify to the victims prior statement ofidentification under the FRE.

c. US v Lewis (1977 Photo identification v in court identification witness didnt rememberwhat he looked like on the stand but did recall by looking at pics and picking him out)

i. Prior out of court statements by witness of identification of a person made afterperceiving the person is not hearsay

F. FRE 801(d)(2) deals with admissions by a party-opponenta. This section excludes admissions of a party opponent from the hearsay rule by defining them

as not hearsay and they are offered against a party to the suit

b. These rules are not treated as hearsay for two reasonsi. The main object to hearsay is that the party against whom the statement is offered is

denied the opportunity to cross the speaker dont need to cross ones self

ii. Trustworthiness is assumed as on would not make statement contrary to interestc. Firsthand knowledge and Opinion Rules

i. The firsthand knowledge and Opinion rules do not apply to admissions of a partyopponent

G. FRE 801(d)(2)(A) Partys Own Statement of Admissiona. The individual own admissions are offered by the partys opponent is not hearsayb. This is a statement made that amounts to a prior acknowledgment by one of the parties to

the action of one of the relevant facts.

c. The statement need not be against the partys interest at the time it was made d. Elements

i. Out of court admissionii. Made by one of the parties to the case

iii. The admission can only be offered by that partys opponent (can only b e use againstthe opposing party)

e. Jewel v CSX(1998 6yr old with brain injury said trains coming or did she)i. Rule: FRE 801(d)(2)(A) provides that a statement is not hearsay if the statement isoffered against a party and is the party's own statement in either an individual or

representative capacity.

H. FRE 801(d)(2)(B) Adoptive Admissiona. A statement of which the party has manifested an adoption or belief in its truth.b. The evidence should be considered when it is clear that the party adopting the statement has

made up his mind about the statements truth.

c. Adoptive Admission - the speakers statement becomes that of the declaranti. By Use

1. Use of a document made by a third party may amount to an approval thatits statements are correct

ii. Express1. The party orally express her agreement with the statement, repeats the

statement or reads and signs a statement prepared by a third party

iii. Silence if a party (1) hears the statement, (2) understands the statement (3) hasknowledge of the matter stated; and (4) the circumstances were such that she would

have likely replied had she disagreed with it.

d. US v Morgan (1978 Gov informant said x, based on this a warrant was given)

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i. Rule: FRE 801(d)(2)(B) provides that statements made by an agent or servantconcerning a matter within the scope of his agency or employment, made during the

existence of the relationship shall be treated as admissions by his principal.

ii. Where a government has indicated in a sworn affidavit to a judicial officer that itbelieves particular statements are trustworthy, it may not sustain an objection to

the subsequent introduction of those statements on the grounds that they are

hearsay.

I. FRE 801(d)(2)(C) Authorized Admissionsa. Statements made by a person who is authorized by a party to make those statements are

admission and not exempt from hearsay

i. The authority of the person to make the statement is established at trialb. Kirk v Raymark(1995 He was authorized then but not now)

i. Testimony of an expert employed by a party in a previous trial cannot be used infuture litigation against that party as an authorized admission.

1. As they were only authorized to speak for them at that timeii. Experts that are hired to investigate an issue are agents

iii. Experts that are hired to give their opinion are not agentsJ. FRE 801(d)(2)(D)- Partys Agent Admission

a. A statement by the party's agent or servant concerning a matter within the scope of theagency or employment, made during the existence of the relationship

b. Mahlandt v Wild Research Center(1978 Wolf bit the boy and the employee left a note)i. Rule: A statement made by ones agent concerning a mater within the scope of his

employment during the time of employment is admissible and not hearsay

K. Distinction between FRE 801(d)(2)(C) and FRE 801(d)(2)(D)a. Authority The authority was given to this person to speak for that other personb. Agent They actually works for you at the time of the statement and the statements are

within the scope of the employment

L. FRE 801(d)(2)(E)- Statements by a Coconspiratora. A statement made by a coconspirator during the course of and in furtherance of theconspiracy is admissible against other co-conspiratorsb. Three conditions

i. There must have been a conspiracy in which the and declarant participatedii. The statement must have been made during the course of or in furtherance of the

conspiracy; and

1. Note once the crime has been committed the acts are complete. Statementsmade after are not admissible

iii. The statement was part of the initial agreementc. This rule only applies if the offering party establishes the existence of a conspiracy

Hearsay Article VIII Exceptions

A. FRE 803. Hearsay Exceptionsa. FRE 803. Hearsay Exceptions; the availability of the declarant is immaterial

i. Spontaneous Statements FRE 803(1-4) (PETS)1. (1) Present sense impression.2. (2) Excited utterance.3. (3) Then existing mental, emotional, or physical condition.4. (4) Statements for purposes of medical diagnosis or treatment.

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ii. Records FRE 803(5-8) (RRAP)1. (5) Recorded recollection.2. (6) Records of Regularly Conducted Activity.3. (7) Absence of entry in records kept in accordance with the provisions of

number 64. (8) Public records and reports

B. FRE 803. (1) Present Sense impression.a. A statement describing or explaining an event or condition made while the declarant wasperceiving the event or condition, or immediately thereafter.

b. Elementsi. A statement

ii. Describing an event or condition madeiii. Made while the declarant was perceiving the event or condition or immediately

there afterc. Note:

i. Timeliness is a critical element for this rule no more than a slight lapse of timebased on the circumstances

ii. These statements are admissible because they are made spontaneously and are freefrom memory defects - They lack calculated narration

iii. Speaker must have perceived the eventd. Schindler v Seiler(2007 You said I was a bad doctor X told me so and that is defamation )i. FRE 803(1) does not apply as the speaker did not make the statement while

perceiving the event or immediately there afterii. Defamation Verbal acts proof that the words were spoken

C. FRE 803. (2) Excited Utterance.a. 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.b. Note:

i. Excited utterance has a lesser time limit you just need to not have a cooling offperiod and time to think

1. A few mins later good2. A couple of hours latter maybe not so much (argue this)

ii. It must be made while the declarant was under the stress of excitement caused bythe event or condition1. Look for the exclamation point2. Words like the person shouted, exclaimed or yelled

c. City of Dallas v Donovan(I heard an old woman excitedly say that the city had notice)i. Unlike present sense impression, here, the statement only needs to relate to the

startling event or condition, which grants a broader scope of subject mattercoverage

D. Difference between Present Sense Impression (1) and Excited Utterance (2)a. Nature of the Event or Condition: An excited utterance requires a startling event or some

kind of excitement.i. But a present sense impression does not. Virtually any event or condition may

suffice.

b.

Time Lapse: The event for an excited utterance does not have a time limit.i. There is an immediacy requirementfor present sense impression (there cant beany appreciable time lapse here)

c. Scope of Subject Matter of Statement: An excited utterance has a broader scope of subjectmatter coverage than a present sense impression b/c the statement only needs to relate to

the startling event or condition.i. Under present sense impression, the scope is limited to a description or explanation

of the actual event or conditionE. FRE 803. (3) Then Existing State of Mental, Emotional, or Physical condition.

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a. A statement of the declarant's then existing state of mind, emotion, sensation, or physicalcondition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), butnot including a statement of memory or belief to prove the fact remembered or believedunless it relates to the execution, revocation, identification, or terms of declarant's will.(SEPS)

i. State of Mindii.

Emotioniii. Physical Condition

iv. Sensationb. These are hearsay statements of the declarants own then existing (at the time the statement

was made) thoughts of physical condition:i. These are statements similar to present sense impressions, but instead of describing

external situations as they happen,they describe internal situations thedeclarant is actually thinking or feeling.

ii. Anyone who heard it can testify to it.iii. It does NOT include statements which refer to past matters of memory (to prove the

fact remembered) or belief (to prove the fact believed)iv. EXCEPTION: Statements which refer to past matters ARE admissible if they relate to

statements about the declarants will (relating to the execution, revocation,

identification, or terms of the declarants will) v. This exception does not need to be made to a medical professionalc. Hillman Doctrine

i. Can be use to prove future conduct1. the statement of present state of mind are admissible o prove that the

declarant subsequently acted in accordance with that state of mindii. Mutual Life v Hillmon (1892 my husband said in a letter he was going fishing over

where the body was found)d. Casualty Insurance v Salinas (1960 A bolt fell on my shoulder and I have complained

about the pain)i. Holding: A verbal and articulate statement of complaint comes within the exception

to the hearsay ruleF. FRE 803. (4) Statements for purposes of medical diagnosis or treatment.

a.

Statements made for purposes of medical diagnosis or treatment and describing medicalhistory, or past or present symptoms, pain, or sensations, or the inception or generalcharacter of the cause or external source thereof insofar as reasonably pertinent todiagnosis or treatment.

i. Elements1. Purpose is medical diagnosis - Statements were made for the purpose of

medical diagnosis or treatment and2. Describes Medical history - It describes any of the following:

a. Medical history orb. Past or present symptoms, pain or sensations orc. The general character of the cause or external source of the

symptoms3. Pertinent to Diagnosis this is a limitation as the statements must be

reasonably pertinent to the diagnosis or treatment (two part test)a. Motive of the speakerb. Contents of the statement

b. State v Moen (1990 I diagnosed my patient with depression based on her comments abouther son-in-law; which later murdered her)

G. FRE 803. (5) Recorded Recollection.a. A Rule: If a witness is unable to remember all or part of the details of a transaction about

which s/he once had personal knowledge of, his/her own writing that is shown to be reliablemay be admitted in place of her testimony

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b. Witness must take the stand to testify to lack of present memory for this exception to beavailable

c. Elementsi. Personal Knowledge - The witness once had personal knowledge of the matter

ii. Refreshing doesnt help - The witness now has insufficient recollection to enable thewitness to testify fully and accurately

iii.

Adopted by Witness - The memo/record is shown to have been made or adopted bythe witness when the matter was fresh in her memoryiv. The memo/record is shown to reflect that knowledge correctly

d. Fundamental difference b/t refreshing (FRE612) and recorded is, the writing substitutes forthe witness testimony, while with refreshing recollection, itsimply jogs the witnesssmemory who then testifies to what he remembered.

i. Limitation: Whole writing is READ into evidence.1. It is not submitted to the jury2. Unless adverse party offers it

e. State v Moeni. Holding: witness's prior statement recorded before purported memory loss was not

admissible as recorded recollection as she never adopted the statement as her

own

H.

FRE 803 (6) Records of Regularly Conducted Activitya. Elementsi. Evidence may be a memo, report, record, or data compilation in any form

ii. Evidence must be offered by a witness who is the custodian or other qualifiedwitness

iii. The record must have been made by a person with knowledge of the facts or wasmade from info transmitted by a person with knowledge of the facts;

iv. The record must have been made at or near the time of the acts, events, conditions,opinions, or diagnoses appearing on it.

v. The record must have been made as part of the regular practice of that businessactivity, AND

1. This means the record must be one that is kept as a regular practice of thatparticular business

2.

Ex: Medical Records are regularly kept in the business of a hospital or Dr.soffice.b. Keogh v Commissioner of Internal Rev

i. Holding: the diary was a record kept in the course of the dealer's own business andoccupation.

I. FRE 803(8). Public Recordsa. Public records refers to governmental records or official recordsb. Requirements:

i. Public official who is under an official duty to furnish and record information re:ii. The activities of the office or agency OR

iii. Matters observed pursuant to the duty, ORc. Exception: In criminal cases, matters observed by cops and other law enforcement

personnel are excludedi. E.g., Adversarial police reports regarding what the cop saw at the scene of the crime

or made during apprehensiond. In civil cases AND in criminal cases against the Government, factual findings resulting from

an investigation made pursuant to authority granted by the lawi. In civil cases, this allows public officials charged with making findings of fact to

include their conclusions in the report.e. Trustworthiness Limitation: The Record is admissible UNLESS the sources of information or

other circumstance indicate lack of trustworthiness.J. FRE 803 (10) Ancient Documents

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a. Statements in ancient documents. Statements in a document in existence twenty years ormore the authenticity of which is established.

i. This exception presumes reliability of a document that is:1. At least 20 years old2. Regular on its face3. Is found in a place of natural custody.

ii. If these requirements are met, it is not only admissible for its truth, but it is alsopresumed to be authentic without any foundation

b. Rationale:i. Statements were likely made prior to the controversy in question, so they are

presumed to be reliable.

ii. Unlikely there is a witness who is available with first-hand knowledge of thecontents within the ancient document who can testify live today.

K. FRE 803 (18) Learned Treatisesa. This allows the contents of a learned text, treatise, or article concerning a relevant discipline

to be admissible for its truth as an exception to hearsay IF it is established to be a reliable

authority by:

i. Relying on an expert testimony on direct, ORii. An admission on cross by an opposing expert, OR

iii. Testimony of any other expert in that field, ORiv. Judicial Notice

b. LIMITATION: The relevant part is ONLY READ to the jury. The text itself is not received intoevidence.

c. Statements are only READ to the jury by the expert witnessd. Impeachments

i. The text may be used to impeach any contrary opinion by a defense expertii. A learned treatise can always be used to contradict what your opponents expert is

testifying to.

e.

Note:i. You can use a learned treatise to support your own experts opinion

1. Although typically, you are not allowed to bolster your own witness underthe FRE, you can do so under this particular exception without first waiting

for your opponent to attack.

ii. It is an exception to hearsay, so it can be used for its truth and to impeach!L. FRE. 805 Hearsay Within Hearsay

a. Hearsay included within hearsay is not excluded under the hearsay rule if each part of thecombined statements conforms with an exception to the hearsay rule provided in theserules.

b. Hearsay within Hearsayi. Statements that contain more than one hearsay statement (i.e., there is more than

one layer or level of hearsay)ii. Such statements MAY still be admissible, but only ifeach hearsay statement

independently meets an exception of exclusion to the hearsay rule.c. Example: A cops note book inside he wrote down a witnesses statement

i. Both the book and the statement must meet an exceptiond. FRE 803(22) Prior Convictions

i. Just know that this is DIFFERENT than using prior convictions to impeach.ii. This rule allows for the admissibility of previous felony convictions (crimes

punishable by death or imprisonment exceeding one year), after a final judgment

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entered after a trial, OR upon a plea of guilty, but does NOT include a plea of nolo

contendere, to be used to prove a fact essential to sustain the judgment.

1. Civil Cases: can be used to prove an essential fact in present case,regardless of who was convicted (one of the parties, a witness, or anyone

else)

2. Criminal Case:a. By Defense: to prove an essential fact, regardless of who was

convicted

b. By Prosecution: to prove an essential fact ONLY if the personconvicted is also a defendant in the current case.

iii. Pendency of Appeal: Its still allowed, but the party adversely affected by theevidence may inform the jury of the pendency of appeal.

A. Hearsay Residual Exceptiona. FRE 807 Residual Exception

i. A statement not specifically covered by Rule 803 or 804 but having equivalentcircumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, ifthe court determines that:

1. (A) The statement is offered as evidence of a material fact; and2. (B) The statement is more probative on the point for which it is offered

than any other evidence (best evidence) which the proponent can procure

through reasonable efforts; and

3. (C) The general purposes of these rules (FRE) and the interests of justicewill best be served by admission of the statement into evidence.

4. However, a statement may not be admitted under this exception unless theproponent of it makes known to the adverse party sufficiently in advance of

the trial or hearing to provide the adverse party with a fair opportunity to

prepare to meet it, the proponent's intention to offer the statement and the

particulars of it, including the name and address of the declarant.

ii. Note:1. The criteria here is that the evidence must be reliable, material, probative

and serve the interest of justice

2. The evidence has an equivalent guarantee of trustworthiness as the otherexceptions in 803 and 804

3. This is a way for inadmissible evidence to be admitted without meeting aspecific hearsay rule

4. This rule is useful when the dangers inherent in hearsay evidence, such aslack of memory, faulty narration, intent to influence the court proceeding,

and plain lack of truthfulness are not present

b. Dallas County v Commercial Union (1961 there was a fire way back in 1901 thenewspaper says so)

i. Holding: The newspaper article is admissible because it is necessary andtrustworthy, relevant and material, and its admissions is within the trial judges

discretion in holding the hearing within reasonable bounds

Hearsay Article VIII Exceptions Witness Unavailable

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B. Hearsay Exceptions: Declarant Unavailablea. 804(a) Definition of hearsay. Unavailable as a witness includes situations in which the

declarant (PRISM)

i. Privilegeii. Refusal to testify

iii. Incapacityiv. Service of process (upon reasonable effort they could not be served)v. Memory (lacks memory)

b. 804(b) the following statements by the unavailable declarant are allowed in SFFPDi. Statement Against Interest

ii. Former Testimonyiii. Pedigreeiv. Dying Declarationv. Forfeiture by wrong doing

D. 804(b)(1) Former Testimonya. Testimony given as a witness at another hearing of the same or a different proceeding, or in

a deposition taken in compliance with 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, apredecessor in interest, had an opportunity and similar motive to develop the testimony bydirect, cross, or redirect examination.

i. Note: the whole thing comes in not just a piece of itc. Elements:

i. The declarant must have been a witness at another trial, hearing or deposition.1. The testimony in the prior proceeding or deposition is the same as the

present testimony

ii. If the party against whom the testimony is now offered had a meaningfulopportunity and similar motive to develop the testimony

d. Opportunity and Motive Test Did the party against whom the former testimony is beingoffered against have a meaningful chance to challenge its truthfulness at the first proceeding

e. Key Pointi. Most courts admit testimony taken during a preliminary hearing when offered by

the government even thought the defense attorney ask few questions of the

government witness at the preliminary hearing

ii. Predecessor in Interest In a civil case - someone with a similar motive andopportunity to question the witness in the prior proceeding

f. US v DiNapoli(1993 Two Grand Jury Witness were questioned by the prosecutor, thedefense wants to use that testimony during the trial)

i. FRE 804(b)(1) Testimony given by currently unavailable witness at a priorhearing is not excluded by the hearsay rule if the party against whom the testimony

is now offeredhad an opportunity and similar motive to develop the testimony

ii. The prosecutor (US) is the party against whom the testimony is now offered1. His motives in the investigatory states of the case are different from the

motive of a prosecutor conducting a trial so the similar motive requirement

is not satisfied

iii. Court reasoned that the test must not turn on whether the questioner is on the sameside of the same issue at both proceedings but also if the questioner had

substantially similar interest in asserting that side of the issue (similar degree of

interest in prevailing on that issue)

C. FRE 804(b)(2) Statement under belief of Impending death (dying declaration)

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a. In a prosecution for homicide or in a civil action or proceeding, a statement made by adeclarant while believing that the declarant's death was imminent, concerning the cause or

circumstances of what the declarant believed to be impending death.

b. Notesi. The rationale is that one is unlikely to lie as they are dying

c. Subject this to CUBAi. Cause of Death

ii. Unavailableiii. Belief of Impending deathiv. Admissible - Only in murder cases and all Civil cases

D. FRE 804(b)(3) Statement AgainstInteresta. Elements

i. Declarant is unavailable; andii. At the time the statement was made it was so contrary to the declarants pecuniary ,

penal, or proprietary interest that it would subject them to civil/criminal liability; or

iii. The statement would have rendered a claim by the declarant invalid againstanother; and

iv. A person in the declarant position would not have said it if they did ntthink it weretrue

b. Criminal Cases - If the statement arises in a criminal prosecution and is being used by thedefense there are these additional requirements

i. A statement tending to expose the declarant to criminal liability; andii. The statement is offered to exculpate (free) the accused then

iii. The statement must be corroborated (by other evidence)1. Note: this is to show that the declarant is not trying to take the fall for

someone else

2. Some evidence besides a 3rd party confession buttresses thetrustworthiness of the statement

c. Note: these statements require personal knowlegeE. Statement Against interest v Admission of Party-Opponenta. They ARE similar, and sometimes may overlap, BUT here are the differences:

i. Statement Against Interest must be against the interest at the time it was made1. A party admission does not

ii. Statement Against Interest may be made by ANY person, not necessarily the party.1. A party admission can only be made by a party to the case

iii. Statement Against Interest requires personal knowledge1. A party admission does not2. Ex: I hear my neighbor was bitten by a dog, and I say, It must be my dog

thatbit her, Im sorry!

a. Ok for party admission, but not Statement Against Interestiv. Statement Against Interest requires UNAVAILABILITY of the witness

1. Obviously, this is a BIG difference, as with a party admission, the party is incourt!

v. Is it accurate to say that a party admission always qualifies as a statement againstinterest?

1. No!2. You can have a any person make a statement against interest, but with a

party admission, only the party can make it

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F. FRE 804(b)(4) Pedigreea. A statement regarding the declarant own heritageb. A statement concerning the heritage of anotherc. If the declarant is related by marriage or blood or intimately associated with the other family

G. FRE 804(b)(5) FORFEITURE by Wrong Doinga. The witness is unavailable and you made it happen or acquiesced in the wrong so you have

no standing to complain if the statement comes in

b. Elementsi. The party engaged in some wrong doing

ii. That was intended to prevent someone from being a witnessiii. And that these wrong doings did prevent the witness from testifying

c. US v Gray(2005 Shhh dont tell but I killed my two husbands and my co -conspirator )i. is saying that 804(b)(6) should not apply as she did not to prevent her late

husband from being an unavailable witness at the current trial

1. Court said that the rule requires only that the intend that the declarant beunavailable as a witness prevents the witness from being a witness

against in any proceeding forfeits their right to exclude the testimony on

hearsay groundsH. Hearsay and Constitutional Issues

a. Both Constitutional and FRE requirements must be met in criminal casesi. 6A In all criminal prosecutions accused has a right to be informed of the nature

and cause of the accusation; to be confronted with the witnesses against him

b. Out-of-court statements that qualify as testimonial, are not admissible, under theConfrontation Clause, unless witness is unavailable and defendant had prior opportunity to

cross examine witness, include at a minimum:

i. Prior testimony at preliminary hearing, before a grand jury, or at a former trial, andii. Statements elicited during police interrogation

c. Crawford v Washington (2004 My wife said he raped her and I thought I saw a knife, itwas self defense)

i. Rule: The Confrontation Clause, providing that accused has right to confront andcross-examine witnesses against him, applies not only to in-court testimony, but

also to out-of-court statements introduced at trial, regardless of admissibility of

statements under law of evidence.

ii. New Test1. The Crawford test to determine reliability focuses on

a. Cross examination (does the accuse have an opportunity to crossthe declarant)

b. Whether the statement was testimonial or notd. Davis v Washington/Hammond v Indiana (2006- Domestic abuse cases)

i. Rule: Statements taken by police officers in the course of an interrogation arenontestimonial, and not subject to the Confrontation Clause, when they are made

under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency.

e. Primary Purpose of Testimoniali. Non-testimonial when made in the course of police interrogation objectively

indicating thatthe primary purpose ofthe interrogation is to enable police

assistance to meet an ongoing emergency

1. If so, they are admissible b/c they dont violate the 6th Am

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ii. Testimonial when circumstances objectively indicate there is no such ongoingemergency, and the primary purpose of the interrogation is to establish or prove

past events that are potentially relevant to a later criminal prosecution.

1. If so, they are NOT admissible b/c they do violate the 6th Am2. A hearsay statement is testimonial if the declarant makes the statement

that s/he anticipates will be used in the prosecution or investigation of the

crime.

3. This includes:a. Witness statements made to the police or other law enforcement in

response to police questioning

b. Any testimony given at a formal proceeding (preliminary hearing,grand jury, motion to suppress, etc.)

c. Guilty plea allocutions of co-conspirators to prove that a conspiracyexisted

d. Forensic lab reports revealing drugs, fingerprints, firearmevidence, blood, DNA

f. On the Exam look at:i. Likely motivation and intent of the declarant making the statement (to get help or

provide evidence?)

ii. Likely motivation of the interrogator (to safeguard a victim or secure a scene or toget evidence?)

iii. Type of event (ongoing emergency or description of past events?)iv. Identity of person eliciting the statement (cops vs. acquaintance/relative of the

declarant?)

v. Degree, amount, circumstances, and location of the interrogation (preliminary on-scene questions, or structured questioning?)

Article IX - Authentication

A. Authenticationa. FRE 901 Requirements of Authentication or Identification

i. General provision. The requirement of authentication or identification as acondition precedent to admissibility is satisfied by evidence sufficient to support afinding that the matter in question is what its proponent claims.

1. Sufficient to support a finding of authentication low threshold (by thejudge- per 104b)

2. Weight of the evidence goes to the juryii. Illustrations. By way of illustration only, and not by way of limitation, the following

are examples of authentication or identification conforming with the requirementsof this rule (10 examples provided)

b.

Key Notesi. 901(a) deals with non testimonial evidence1. Documents letters, contracts, photos, receipts, memos, emails, ect 2. Exhibits the murder weapon, keys, clothing, ect

ii. Non testimonial or Physical evidence must be shown to be authentic by theoffering party because one cannot cross an exhibit. Two Types

1. Real Evidencea. Real evidence goes back into the jury room

2. Illustrative Evidenceiii. 901 three basic requirements

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1. Authentication is a condition precedent to admissibility2. The condition is satisfied by evidence which supports the finding and3. The finding must be that the matter in question is what the proponent

claims it to be (this piece of evidence is what we say it is)iv. How the item is to be used in occur determines the foundation that must be laid

c. US v Collado (1992 fleeing suspect drops bag it went into chain of custody)ii.

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed tobe and (4) Distinctive characteristics and the like. Appearance, contents, substance,internal patterns, or other distinctive characteristics, taken in conjunction withcircumstances.i. The trial court must be able to determine that it is reasonably probable that there

was no material alteration of the evidence after it came into the custody of theproponent.

ii. Presumption of Official Regularity a court is entitled to rely on a presumption ofofficial regularity where prosecution established chain of custody of heroin either

by official records or by testimony concerning normal police procedure

and where appellant offered no evidence that the drugs had beenaltered

d. Lockhart v McCotter(Armed robbery wallet stolen - bad chain of custody with the walletattorney did not object to wallet as evidence authentication)

i. Rule: Tangible objects involved in a crime are admissible in evidence only whenidentified and shown to be materially the same condition as the time of the crime

ii. Failure to establish proper chain of custody will go only to the weight of theevidence rather than its admissibility

iii. When the object is expressly identified at trial as the object involved in the crime,establishing chain of custody is not necessary for the object to be admissible

e. US v Bagaric(That letter has not been authenticated)i. Rule: The requirement of authentication is satisfied by evidence sufficient to

support a finding that the matter is what its proponent claims,

1. This finding may be based entirely on circumstantial evidence, includingappearance, contents, substance ... and other distinctive characteristics ofthe writing

f. US v Espinoza (Transportation of child porn authentication of telephone conversation)i. Rule: Although witness has never met defendant and cannot identify him as person

from whom he conspired, his testimony concerning telephone conversations withdefendant was admissible where there was compelling circumstantial evidencetending to identify defendant as person with whom witness spoke in telephoneconversations

g. US v Hyles (You have a conspiracy to commit murder and a picture of a car the conspiratorsand some writing on the bake of it)

i. Holding: evidence sufficient to support a finding that the matter in question is whatits proponent claims. Under this standard, the party need only demonstrate arational basis for its claim that the evidence is what the proponent asserts it to be

h. US v Soto Beniquez ()B. FRE 902 - Self Authentication

a. Extrinsic Evidence of authentication as a condition precedent to admissibly is not requiredwith respect to the following

i. Domestic public documents under sealii. Domestic public documents not under seal

iii. Foreign public documentsiv. Certified copies of public recordsv. Official publications

vi. Newspapers and periodicalsvii. Trade inscriptions and the like

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viii. Acknowledged documentsix. Commercial paper related documentsx. Presumption under acts of Congress

xi. Certified domestic records of Regularly conducted activityxii. Certified Foreign Records of Regularly conductive activities

b. These are self authenticating because there is such a low probability of forgery existing inthese instancesi. So the foundation already exist within the document itself

C. Judicial Notice means that they speak for themselves - six things were we can self authenticate(CONTAC)

a. Certified copies of public recordsb. Official publicationsc. Newspapers and periodicalsd. Trade inscriptions Greys anatomye. Acknowledged documentf. Commercial Paper

D. Subscribing to Witness Testimonya. FRE 903 Subscribing Witness Testimony Unnecessary

i. The testimony of a subscribing witness is not necessary to authenticate a writingunless required by the laws of the jurisdiction whose law govern the validity of thewriting

b. SUBSCRIBING WITNESS. One who subscribes (signs) his name to writing in order to be ableat a future time to prove its due execution; an attesting witness.

Article X Best Evidence Rules

A. Best Evidence Rule (FRE 1001 1008)a. Rules

i. FRE 1001 Definition and Basic Ruleii. FRE 1002 Requirement of Original

iii. FRE 1003 Admissibility of Duplicates1. Duplicates are allowed unless

a. A genuine question about the authenticity of the original is raisedb. Fairness requires production of the originaliv. FRE 1004 Admissibility of other Evidence Contents (I.e., Secondary Evidence)

1. Provided 4 exceptions to the rulea. Original lost or destroyedb. Original not obtainablec. Original in opponents possessiond. Collateral Matters

v. FRE 1006 Summaries1. Instead of entering volumes of writing this rule permits the use of

summaries in the form of charts, summary or calculations2. Note if the original are in question the summaries of the original are not

allowed

b. Key Notesi. FRE 1002 - To prove the content of a writing, recording, or photograph, the originalwriting, recording, or photograph is required, except as otherwise provided in

1. The best evidence rule requires that the original be introduced in evidencewhen trying to prove its contents unless an exception applies

ii. Exceptions1. FRE 1003 Duplicate2. FRE 1004 (secondary evidence)

a. Original lost or destroyed has a good faith elementb. Original not obtainable

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c. Original in opponents possession opponent does not providerequested info

d. Collateral Matters matters which are not closely related to acontrolling issue

3. FRE 1005 Public Records4. FRE 1006 Summaries5.

Opponent Admissionsiii. Judge and Jury function

1. Judge - In most circumstance the per 104 the judge decides whether awriting is an original or duplicate and whether a party attempting to provethe contents of a writing or recording

2. Jury plays an extended role in 3 circumstancesa. Where there is a questions as to whether a writing ever existedb. When another writing is claimed to be the original andc. When the issue is whether other evidence correctly reflects the

contents of the originaliv. To guard against incomplete or fraudulent proofv. Only Drive It Monday Tuesday or