Wed, January 19 Probativeness and Relevance/ Conditional Relevance Fisher pp. 18-38; probs. 1.1, 1.2,1.3, 1.4, 1.

.5, 1.6, 1.7 - FRE 401: Relevant evidence o Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence - 2 aspects of relevance: o probativeness and materiality - probativeness: likelihood of tendency o there must be a probative relationship between the piece of evidence and the factual proposition o evidence tends to prove or disprove a point at issue o it makes the existence or fact more or less probable - materiality: (fact/consequence of the action) o evidence must be material o there must be a link between the factual proposition which the evidence tries to establish and the substantive law. o Materiality bears on a fact that is of consequence to the determination of the action - 2 theories of materiality: o relevant to a substantive issue did the defendant do it? Was there intent? o Relevant to witness credibility Should the witness be believed? Is the witness biased? Does the witness have a propensity to lie? - FRE 402: establishes the basic principle that evidence is not admissible if not relevant but typically admissible if relevant - FRE 403: presents the first of many exceptions o Relevant evidence may be excluded if it poses problems that substantially outweigh its probative value o EVERY PIECE OF EVIDENCE SUBMITTED AT TRIAL MUST SURVIVE THIS RULE o Although relevant, evidence may be excluded if its probative value substantially outweighs the risk of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence o A judge decides whether or not to exclude evidence - FRE 104(B) Conditional relevance: when the relevancy of evidence depends upon a condition, that condition must be fulfilled by sufficient evidence in order for it to come in. o A judge decides whether it come in or not o A jury decides by a preponderance of the evidence whether or not it happened

- US V JAMES o Defendant charged with being an accessory to murder. She handed her daughter a gun and the daughter shot the mothers boyfriend o She claimed self defense and therefore has to show justification o Most important witness is herself, her testimony He was violent towards her He bragged about the horrible things he did o The evidence was the records of his prior condition o There can be unfair prejudice to the prosecution o Issue: did she reasonable believe that her life was in danger o The court let his record in bc it goes to her credibility passing 403 Dissent said question of 105 - FRE 105: when evidence which is admissible for one purpose, but inadmissible for another, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly o i.e. dissent in us v james: the court should instruct the jury as to the proper purpose which is the evidence is admissible to prove which proves she believed she was in danger vs. the improper purpose that hes a bad guy doing bad things and deserved to die - COX V STATE o Whether the plaintiff knew of the bail hearing which would show motive that he killed the father in retaliation o 104 (b): sufficient evidence for a jury to find that the conditional evidence had been sufficiently fulfilled o cox argued that they didnt show that he knew about the hearing by a preponderance of the evidence. State said the standard is lower and only sufficient not preponderance o First judge has to decide whether there is sufficient evidence that a jury could find that he heard about it. Once he says yes, then the jury has to decide by a preponderance of the evidence whether he found it or not.

Mon, January 24 Probativeness versus Risk of Unfair Prejudice Fisher pp. 38-45, 50-61; probs. 1.8, 1.9, 1.10, 1.11 BOCHARSKY - photo of a dead baby - relevant photos allowed even if prejudices the jury - if the photo is of the nature to incite passion or inflame jury then look to see if the unfair prejudice outweighs the probative value. o In this case it was left out bc it would play on their emotions. Unfair prejudice substantially outweighs the probative value (403) US V MEYERS

- 1st federal bank robbed by lone gunman- flight case - its probative value as circumstantial evidence of guilt depends on the degree of confidence with which four inferences can be drawn: o behavior of flight o consciousness of guilt o guilt of this crime o actual guilt - must be SUFFICIENT evidence to support each step Wed, January 26 Probativeness versus Risk of Unfair Prejudice (cont): Probability Evidence Fisher pp. 61-89 PEOPLE V COLLINS - dependent shouldnt have had his guilt dependent on odds - evidence that defendant had enough time to commit robbery since she worked in the area o mathematical calculation of instances - you should not be able to find someone guilty beyond a reasonable doubt just based on mathematical probabilities US V JACKSON - defendants accused of robbing bank at gunpoint - 102, 403 read in light of 102: discretionary judgments on evidence to reduce the risk of unfair prejudice - the defendant must stipulate to the fake id and fake name, but the record of assault will be left out to prevent unfair prejudice 3 things courts will do with regard to unfair prejudice: 1. exclude it 2. have defendant make a stip that has equal probative value and much less unfair prejudice 3. jury instruction under rule 105 limited admissibility OLD CHIEF: only deals with cases of status - assault with a deadly weapon - statutory crime: felon with firearm o prosecution has to prove that there was a felony and that he in fact possessed a gun - prosecution offered evidence of a nine millimeter gun and record of conviction - the defendant objects bc the jury will be prejudiced to believe the assault charges and he wants a stipulation - defendant argues that the record of conviction is irrelevant, just to say that he has been charged with crime for which punishment is 1 yr+ - judge denies this argument: relevant under 401

- 403: the details of the record stay out, let him stipulate and admit to the status of a felon Mon, January 31 The Specialized Relevance Rules Fisher pp. 90-95, 104-107, 110-128, 131-134; probs. 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8 The Specialized Relevance Rules FRE 407: evidence is not generally allowed that a person too subsequent remedial measure following a mishap, if offered to show that person negligence or culpability. But can be used to prove ownership, control or feasibility. The probative value of most subsequent remedies is that they amount to an admission by the D that its previous conduct was unsafe. Changes made AFTER the victims injury not allowed. Changes made BEFORE the injury is allowed. TUER V MCDONALD - malpractice suit regarding bypass surgery/ anti-coagulant - prosecution wanted to put in evidence that after Tuers death, the hospital changed the protocol for the drug, - Holding: under 407 evidence of subsequent remedial measures inadmissible to prove negligence or culpable conduct FRE 408: evidence of an offer to compromise a claim is not admissible to prove whether the claim is valid or invalid. Does not protect offers to compromise made BEFORE a claim of some sort has been made. Encourages settlements. o In criminal cases statements made during compromise negotiations of disputed civil claims are not admissible in subsequent criminal litigation when offered to prove liability. FRE 409: Excludes evidence of a persons promise to pay medical expenses if offered to prove liability for the injury. An offer to pay such expenses supplies fairly inconclusive evidence of fault. To hold otherwise, discourages assistance to the injured person. FRE 410: bars guilty pleas later withdrawn, statements in plea proceedings, statements in plea talks with prosecutor. Admissible in perjury prosecutions if statement is made under oath, on the record and in counsels presence. FRE 411: the fact that a person carried or did not carry liability insurance is not admissible on the issue of whether he acted negligently. Can be used to prove agency, ownership, control or witness bias.

o Fear that jurors who know a party has insurance may find that part liable only because they believe the liability will be cost free, the insurance co. will pay. - Williams v. McCoy. (prosecutor builds his case on the fact D hired an attorney before going to a chiropractor) o The court refused to allow Ps testimony that she hired an attorney after Ds insurance adjuster visited her. The explanation did not bear directly on Ds liability or wrongful conduct but to simply explain her answer. By denying her explanation is allowed the jury to assume the worst. That she was only concerned with the monetary claim. ** What inference are they asking the jury to draw- permissible purposes vs. impermissible Wed, Feb 2 The Character Propensity Rule and Routes around the Box Fisher pp. 135-159; probs. 3.1, 3.2, 3.3, 3.4, 3.5 The Character Propensity Rule and Routes Around the Propensity Box. FRE 404: evidence that a person has a particular character trait is not admissible to show that the person acted in conformity with that trait at a particular time. Except when o 1. Character of accused o 2. Character of victim o 3. Character of witness o IN CRIMINAL CASES Propensity Box: when evidence is presented to show the D had a propensity to act in a particular way to prove he acted in that way on the night of the crime. This is not admissible. Hes the kind of person..... o Ex: Weapons -- to prove dangerous character - to prove action in conformity therewith - to prove he did the crime. o Propensity evidence ALLOWED: in criminal cases where the D wants to prove his own good character to support an inferences that he did not commit the crime. [404(a)(1)] Route Around the Propensity Box FRE 404(b): It may however be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity. This is getting around the propensity box. Takes an alternate rout. o Ex: Weapons - to prove he was at the scene - to prove he did the crime. PEOPLE V ZACKOWITZ - Husband shot guy that offended his wife at the shop - Threw the gun in the river

- At issue: defs state of mind to determine manslaughter v murder - He had a bunch of guns at his apartment, prosecution wanted to enter it in to show his murderous temperament o NOT ALLOWED o Cardozo said it would be ok under 404 if he had bought the gun in preparation of the crime, but trying to use the possession of guns to jump to temperament is prohibited. ** ON EXAM - it will be a situation where you can argue both ways, that the probative value substantially/doesnt substantially outweigh the unfair prejudice. You need to articulate the probative value in connection with a specific purpose that youre claiming the evidence is being offered to prove. You need to tell the court why its unfair. - U.S. v Peltier 2 FBI agents are killed and D and 3 others are charged with the murder. Trial: Govt wants to prove that earlier D was charged with attempted murder, plead not guilty and released on bond. He then failed to appear for trial and a bench warrant was issued for his arrest. o Govts best argument: Evidence should be admitted because it establishes Ds motive. He knew there was a warrant and murdered to get away from the agents. o Ds best argument: Shows propensity. Proof of M.O.= takes you around the propensity box. Its a signature. There is little likelihood that anyone else has the exact same M.O. or that anyone else did the crime. The idea is that this could not be anyone elses crime. Mon, Feb 7 Routes around the Box (cont) Fisher pp. 159-180, 183-184; probs. 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, US V TRENKLER - def charged with making bomb to use against his friends father - prosecution trying to show the similarities in a previous bomb he admitted to constructing called the Quincy bomb - 404(b): use of other bad act evidence allowed to demonstrate criminal behavior so long as it bears a material issue as to motive, knowledge or identity. - 2 part test: o must determine whether evidence has a special relevance independent of its tendency simply to show criminal propensity o if there is special relevance on a material issue, the court must conduct a 403 analysis to determine if the probative value is not substantially outweighed by unfair prejudice - special relevance= high degree of similarity bw the other act and the charged crim (distinguishing features sufficient to demonstrate the handiwork of a certain indv)

US V STEVENS - 2 airforce officers sitting at bus stop robbed and sexually assaulted o in line up they both id Stevens as assailant - stevens calls victim of similar crime to say similar things happened to them and it wasnt Stevens o wanted to establish they are signature crimes, reverse 404b, didnt do the first ones so didnt do the second one o Reverse 404(b): Defendant may use similar other crimes evidence defensively if it tends to negate (either alone or with other evidence) his guilt of the crime charged against him. Wed February 9 The Huddleston Standard/ Propensity Evidence in Sexual Assault Cases Fisher pp. 190-197, 208-223; prob. 3.13 HUDDLESTON V US - defendant charged with selling stolen goods - key issue: did he know they were stolen - prosecution trying to show 2 previous acts to prove knowledge - govt cant say hes the type of guy who buys and sells stolen goods, but can say since he had knowledge that previous person sold him stolen goods, he knew or should have known that these goods were stolen - HUDDLESTON STANDARD: o 404(b): requirement that evidence being offered for a proper purpose o 104(b): relevancy required (also 402 relevancy) o 403 probative value of similar acts as evidence substantially outweighed by potential for unfair prejudice o 105 trial court(upon request) instruct the jury that the similar acts of evience is to be considered only for the proper purpose for which it was admitted - Rule 413: Evidence of Similar Acts: Sexual Assault o In a criminal case in which the defendant is accused of sexual assault, evidence of the defendants commission of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant US V GUARDIA - gyno charged with sexual assaulting patients - prosecution wants to bring in previous assault instances o say that 413 is mandatory and 403 does not apply - Court says prosecution is wrong, you always do the weighing test - If there is a risk that the jury is going to hear previous assaults and think that hes guilty in this one instance, then there is a risk of unfair prejudice Mon, February 14 Proof of the Defendants and the Victims Character/ Evidence

of Habit Fisher pp. 223-45; probs. 3.15, 3.16, 3.17, 3.18, 3.19 FRE 404 (a)(1): permits criminal Ds to offer proof of pertinent trait of their own character. (only the D opens the door, once he opens the door then the prosecution can call character witnesses to rebut the same) Ex: D is charged with murder. He will be allowed to show that he has a reputation for being peaceable/peaceful. But he will not be allowed to show that he has a reputation for being truthful, since the trait of truthfulness is not relevant to the issue of guilt or innocence of murder. If D was charged with embezzlement, he would be allowed to show that he has a reputation for truthfulness, but not that he has one for peacefulness. o REBUT: by bringing in other witnesses and can cross examine the Ds witnesses. FRE 404 (a)(2): permits criminals Ds to offer proof of traits of the alleged victims character. (ex: when D aims to prove he acted in self defense against a violent person) Propensity evidence allowed to show victim has the propensity to be the aggressor inferred by violent character. REBUT: prosecution can rebut with good character evidence of the victim or bad character evidence of the D. 404(a)(1) & 404(1)(2): come in only during criminal cases. EXCEPTION TO 405: ADMISSIBLE PAST ACTS OF CONDUCT IN CERTAIN INSTANCES When does Rule 405(b) apply? when the existence of the character trait (and not conduct done in conformity w/ that trait) is the thing to be proved. FRE 405(b) in cases in which character or a trait of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that persons conduct. RULE: evidence to a Ds character is admissible if is sought to prove an element of claim RULE: character is proved to show a certain character (not in show action in conformity with that character. Most common instances: 1. rebutting an entrapment defense. Permitted: specific instance where victim alleged he was entrapped as a defense. Govt can put in evidence of prior bribes to prove no entrapment. 2. establishing the defense of truth in libel action

permitted: introduction of specific act examples to show person has that character. (ex: I am sued bc I printed that Bloomberg is a narcissist. May put in evidence that he was in the Bahamas during the snowstorm cleanup) 3. resolving a parental custody dispute permitted: evidence of character of parent (ex. may put in evidence of hosting birthday parties, gifts, discipline) POINT: proving existence of a character trait, not action in conformity which such trait (does not go through the propensity box) Note: self defense is not an exception under 405(b). you can prove a self-defense defense without proving Ds character

Michaelson v. US: D called five char witnesses to testify about Ds good character. Cross examination: pros asks the witness whether he knows of Ds previous arrest (not conviction). D challenges the right of the pros to cross-examine his character witnesses based on an arrest (as opposed to a conviction) HOLD: the cross-examination question was proper because reports of Ds arrest would tend to weaken Ds assertion that he was known as an honest law abiding citizen. Goes to the issue of credibility how well the character witness really knows Ds reputation. RULE: in cross examination of a character witness, if you have a good faith basis, pros can ask about specific instances to test how well the character witness actually knows the D or knows the rep of the D. EXCEPTION TO THE CHARACTER-PROPENSITY RULE: HABIT FRE 406: evidence of habit or a person or of the routine practices of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Halloran v. Virginia Chemicals Inc. RULE: evidence of habit in past conduct is generally admissible to prove conformity on specified occasions. There must be a strong relationship between a habit and conduct on a specific occasion. Who determines? Judge RULE: MUST do 403 test some of the factors to consider to determine whether something is a habit or tendency: Habits are automatic, predictable, involve repetitive pattern of conduct (dont think about your actions) and moral (i.e. drug dealing once every two weeks is not moral and therefore, most likely not a habit)

 How many times does a person have to do something for it to become a habit? Sufficient number left up to trial courts discretion MUST be demonstrated to have occurred repeatedly Habit is NOT character evidence. Note: MUST distinguish habit from tendency to be careless or other character traits. Wed, February 19 Impeachment and Character for Truthfulness Fisher pp. 246-55, 258-264; probs. 4.1, 4.2 Character for Truthfulness : Rule 607 & 608 (apply both in civil and criminal cases) Impeachment: showing that the witness lied intentionally, had questionable memory, or made statements that are factually incorrect. The only way you can impeach someone is after they take the stand. Once the witness takes the stand, parties are entitled to counteract the force of the testimony through cross examination and by other evidence that makes the witness less credible. Un-Convicted Bad Act FRE 607: Either party may attack a witnesss credibility, including the part that sponsored the witness. FRE 608: Evidence of Character and Conduct of Witness The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitation: 1. The evidence may refer only refer to character for truthfulness or untruthfulness and. 2. Evidence of the truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. FRE 608(b): Specific Instances of Conduct Specific instances or the conduct of a witness, for the purpose of attacking or supporting the witness character for truthfulness, other than conviction of crime as provided in 609, may NOT to be proved by extrinsic evidence. If it deals with crimes or convictions -- GO TO 609 NO EXTRINSIC EVIDENCE: Just yes or no and thats it. No outside evidence to prove denial or non-denial. o Questioner must have good faith belief that the bad act actually occurred. Extrinsic evidence: are specific instances or events. Does not have to be tangible extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness character for truthfulness or untruthfulness, or (2)

concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Impeachment with Past Convictions If a witness has been convicted of a crime, evidence of the conviction is admissible. When dealing with prior convictions to impeach someone, skip 608 and go straight to 609. FRE 609(a): for the purpose of attacking the character for truthfulness of a witness, 1. Evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to 403, if the crime was punishable by death or imprisonment of more than one year. Evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs prejudicial effect to the accused. RISKY FOR D. 609 (a)(2). Dishonest Crime Convictions Evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, it is readily can be determine that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. These automatically come in. NO WEIGHING TEST. FRE 609(b): Time Limits If more than 10 years has elapsed from end of jail term, the conviction is NOT admissible unless the court determines probative value substantially outweighs the prejudicial. Date the D was released from prison is what matters. How 609 works: If the impeaching material evidence is neither a conviction for a crime punishable by death or more than one year imprisonment, then the material must come in as an unconvicted bad act under 608 If punishable by death or over 1 year in prison - then you have to determine if the crime required prosecution to prove dishonesty or false statement as an element crimen falsi. If a crimes elements require proof of dishonesty or false statement to support the conviction, evidence that any witness was convicted of it, usually admissible to impeach. 403 DOES NOT APPLY. If it is crimen falsi - have 10 years past since release [609(b)]? o No: admissible & 403 balancing test does not apply. o Yes: inadmissible unless court determines too high probative value. If NOT crimen falsi - Ask if the witness is also the accused. o Witness is NOT the accused -- ask whether prejudice substantially outweighs probative value. (

 Yes: inadmissible No: admissible o Witness IS the accused: Ask if the convictions probative value is outweighed by prejudicial effect. (extra measure of protection. The conviction gets excluded even if its prejudicial effect only slightly exceeds its probative value) Yes: inadmissible No: admissible - Crimen Falsi crimes: perjury, fraud, embezzlement, forgery, counterfeit, filing false taxed etc... - Non-crimen falsi crimes: murder, rape, assault, battery etc... Substantive vs. impeachment evidence - substantive evidence: show materiality, elements - impeachment evidence: just suggests to the jury that the witness shouldnt be believed o no substantive value - exception: can be substantive evidence that can also be offered for impeachment BUT MUST SAY YOURE BRINGING FOR BOTH Forms of Impeachment: - witness got it wrong o facts are other than what witness says o witness didnt see, didnt remember - witness is not telling the truth o biased you have an interest in giving an adverse testimony o made an inconsistent statement earlier Mon, February 28 Impeachment with Past Convictions/ Rehabilitation Fisher pp. 265-69, 273-287, 295-305; probs. 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 US V BREWER - one county kidnapping and count of transporting stolen - defendant moves to suppress government proposed intro of the past convictions - rule 609 puts burden on prosecution to prove its admissible o 5 factors for determining probative value (Gordon): nature of the crime time of conviction and witness subsequent history similarity bw the past crime and charged crime importance of defendants testimony centrality of the credible issue o most important thing is probativeness: probative to whether you have a character for truthfulness or not - issue: whether, even when limiting instruction, the evidence of a prior conviction

from the same crime might allow the jury to engage in the impermissible assumption that if he did it before, he probably did this time - evidence of kidnapping stays out, but the other three come in - perjury automatically allowed bc involves dishonesty - rule 609: crime punishable by one year or more10 years from date of conviction or 10 years from date of last year in jail o if before stays in, if after stays out - 403: stays IN unless unfair prejudice SUBSTANTIALLY OUTWEIGHS probative value (severely prejudicial) - 609: stays OUT unless probative value OUTWEIGHS prejudicial effect o not as high of a standard Wed, March 2 -- The Rape Shield Law Fisher pp. 306-333, 346-47; probs. 5.1, 5.2, 5.3, 5.4, 5.5, 5.5 FRE 412: RAPE SHIELD LAW - sex offense cases; relevance of alleged victims past sexual behavior or alleged sexual disposition - evidence generally inadmissible o the following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c) evidence offered to prove that any alleged victim engaged in other sexual behavior evidence offered to prove any alleged victims sexual predisposition - exceptions: o specific evidence that another person was source of semen, injury or other physical evidence o evidence that proves consent o evidence the exclusion of which would violate the constitutional rights of the defendant STATE V SMITH - Girl previously lied and retracted accusation of sexual assault to the cousin. Now said the defendant did similar act. Should it be put into evidence? - The rape shield law, which prohibits the introduction of evidence related to a victims past sexual behavior, is not applicable to evidence relating to a victims past false allegations of sexual behavior. - 412 doesnt apply, 403 does Mon, March 7 Competency/ The Rule Against Hearsay: Defining Hearsay Fisher pp.350-374; probs. 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8

Rule 601: General Rule of Competency - every person is competent to be a witness except as otherwise provided in these rules, 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 a witness shall be determined in accordance to state law. Rule 602: - 2 kinds of witnesses o experts o 1st hand experience and personal knowledge of the matter 4 Testimonial capacities of competency: (almost everyone is competent usually only problems with children) 1. perceive accurately 2. remember accurately 3. recording (report accurately) 4. know the diff between truth and falsity/ obligation to tell the truth Infirmities 1. perception: witness saw Tom pull trigger but mistook for John 2. memory: witness saw and recognized Tom, but now thinks its John 3. narration: witness means to say Tom but says John 4. witness means to deceive: sincerity (focus on assertions) *most important one Tools to Address Infirmities - oath - demeanor - cross examination Monday, March 14 The Rule Against Hearsay (cont.): Defining Assertions/ Fisher pp. 374-391; probs. 7.9, 7.10; Hearsay Quiz FRE 801 HEARSAY DEFINITIONS (a) Statement: is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant: is a person who makes a statement. (c): Hearsay: is a statement, other than one made by the decalrant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. - Out-of-court statements offered to prove the matter asserted = Hearsay = NOT admissible. Ex: An issue at a trial was whether Mr. Driver had drunk beer at a party before driving a car. Testimony by a witness who said while at the party he heard Mr. Host say Driver had been drinking all night would be relevant because it supports the proposition that Driver had been drinking. o This is an example of hearsay. It offers proof that the out-of-court words were said and supports the exact assertion.

- Nonhearsay Uses of Out-of-Court Statements 1. effect on listener- watch out for Joey, he has a gun 2. legally operative statements- I do at the altar, its a deal customers declaration 3. inconsistent statement offered to impeachFocus on what the statement is being offered to prove and how the statement proves that fact. o Critical question: Whether the litigant is offering evidence of the out-ofcourt statements to prove what the out of court speaker was asserting (it is hearsay) or merely to prove that statement was made and heard (not hearsay). o Out-of-court statements offered to prove that the words were actually said, NOT that they were true = allowed = NONHEARSAY. - Assertions: Are intended to COMMUNICATE something for an AUDIENCE. Focus on the person making the statements INTENT. Was his intent to assert something? Depends on CONTEXT Direct Assertions o John says to Annie its raining If offered to prove its raining= Hearsay If offered to prove why Annie carrying an umbrella= Not Hearsay Indirect Assertions: When the matter asserted is just one link in a chain of inferences leading to the ultimate fact to be proved. Implied Assertions: The speaker does not expressly say there is a stop sign ahead but they intend to communicate those facts. o Ex: Laura ought to give that dog a bath. Can conclude that dog was dirty which is what she intended to communicate. - Verbal Acts: - This is a gift and hand someone money = the statement is not hearsay because the statement would be introduced merely to show that the words were said. If offered to prove it was an actually gift thus showing the intent of the giver = hearsay. - Conduct: Some conduct is clearly assertive. Ex: why dont you fix that beat up car? the D rubs his 2 fingers together (no money). If that conduct is being offered to prove D didnt have the money to fix the car = HEARSAY. - Words offered to prove something other than what they assert. Sometimes a lawyer offers the declarants words to prove something other than what the declarant intended to communication. -

- Wright v. Tatham: Wright was the beneficiary of a contested will. He sought to prove that the testator was competent by offering letter written to the testator by other people who knew him well. The letters were about business and politics and said nothing about the testators competence. Wright argues that the tone of the letters showed the testator was competent. They wouldnt write letters to him in regards to business and politics if he was not competent. HOLDING: The letters contained no assertion that the testator was competent. - Silence = not an assertion Ex: At the trial of Scott Peterson for the murder his pregnant wife and prosecution alleged that Peterson dumped his wifes body at sea from a boat. The prosecutor argues that Patersons failure to tell his wife about the boat showed he bought it as part of his murder plan. o To prove that Peterson never disclosed the purchase to his wife they offered testimony of her sister and facialist saying she never told them about the boat. o By never mentioning the point there was no intention to convery Peterson never disclosed the purchase to his wife. Wed, March 16 Exceptions to the Hearsay Rule: Statements of Party-Opponents Fisher pp.392-416; probs. 7.11, 7.12, 7.13, 7.14, 7.15, 7.16 FRE 805: Hearsay within Hearsay - 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. **ALWAYS ASK: is it hearsay? If yesis there an exception? Exceptions to the Hearsay Rule Fall into 5 broad categories; Rule 801 (d) (1): Prior Statement by Witnesses o (a) prior inconsistent statements o (b) prior consistent statements
TOME V U.S. o o o Tome is charged with molesting his daughter Says that wife made it up bc wanted sole custody Prosecution wants to admit prior out of court statements to prove consistency Defense says timing of statements after perceived motive, so cant come in Court agrees with defense under 801(d)(1)(b)

o (c) Statements of Identification

U.S. v. Owens (Rule 801 (d)(1)(c) Statement of identification of a person made after perceiving them) Foster is a correctional officer who was beaten with a metal pipe. He lost his memory for 2 days. After a few days he named Owens as the attacker and Idd him from photos. On trial: Foster testified he remembers iding Owens during his interview. On cross: Foster admitted he could not remember seeing Owens. Owens was convicted and sentenced to 20 years On appeal the D says you cant cross examine the victim because he cant remember anything. Unreliable. Court: its not about the effectiveness of the cross examination. Whatever problems the witness has on cross examination will be clear for the jury top see. He can understand the questions. That is all that is needed.

Rule 801 (d) (2): Admissions by Party-Opponents o (a) The partys own statement o (b) Adoptive statements: greek guy in response to questionable assurance fraud evidence im just a poor guy hes adopting the truth of the inference by not denying it o (c) Statements by spokespersons o (d) Statements by agents: this exception only applies to party opponents any statement you have made out of ct can be used agst you by the opposing party in ct victims are witnesses, not parties have to establish he was an agent and that is decided by judge by preponderance of the evidence
Mahlandt v. Wild Candid Survival & Research Center Poos kept a wolf for the research center neighbor; the wolf may have bitten Daniel. No witnesses saw or knew how Daniel was injured. Poos left a written message to heard of center Sophie bit a child and also called saying Sophie bit a child. Meeting was held at the center, Poos not present, but meeting was documented. Issue: was Poos statmenet Sophie bit a child admissible against the center? o Holding: The note and statement are NOT hearsay and is admissible against Poos under 801(d)(2)(d). o Poos was acting as an agent in a matter within the scope of his employment ** Know preponderance versus sufficiency: - With Poos- his own statement could be used in determining whether he was acting as an employee

- what is the standard the court uses to determine the admissibility? o 104(a) Preponderance of the evidence - 104(b): conditional relevance o sufficiency standard, lower standard than preponderance

o (e) Coconspirators statement

o o o o BOURJAILY defendant charged with intent to distribute cocaine and conspiracy government must show intent to distribute only have circumstantial evidence putting in car doesnt give intent BOURJAILY agrees that 104(a) applies preponderance of the evidence Issue: whether you can use the stmt between leonard and FBI agent to determine whether its a conspiracy of statements in furtherance of the conspiracy? Holding: The standard of review for the initial determination of whether a coconspiracy exists for the purposes of applying Rule 801 (d)(2)(E) is a preponderance of the evidence, and the evidence available met that threshold. The court is allowed to look at the hearsay statements in making that determination. Since the requirements of Rule 801 (d)(2)(E) are the same requirements of the Confrontation Clause of the United States Constitution, the fact that the Rules requirements were met indicate that Petitioners constitutional rights were protected. The co-conspirator exception not only allows statements by co-conspirators to come in as a hearsay exception, but the statements themselves can be used to determine if there is a conspiracy for the purposes of letting the statements in.

Rule 803: Exceptions in Which the Availability of the Declarant is Immaterial. o 1. Present sense impressions: a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. o 2. Excited Utterances- a stmt relating to a starting event or condition made while declarant was under the stress of excitement caused by the event or condition can be made after the event if you are still under stress from it o 3. Then-existing mental, emotional, or physical condition when making a statement about ur own physical condition
MUTUAL LIFE V HILLMON*** - Hillman suing for life insurance money, husband died and has body to prove it - Insurance company thinks theres foul play bc it might be Hillmans friends body (Walters) - Letter to sister from Mr. Walters should be admitted as statement of intent - The statements are admissible to show the state of mind of Mr. Waters, and to show his intent to do certain acts. These things are not provable by any other testimony, as Mr. Waters himself is unavailable to testify at trial.

o 4. Statements for medical diagnosis or treatment:

US v IRON SHELL - this can also included psychological diagnosis - little girl assaulted by defendant he doesnt dispute assault, only disputes the sexual part - tells police an hour later of what happened, tells dr two hours later police testimony shouldnt come in under 803(2), dr should come in under 803(4) bc all elements present 803(4) allows description of what led to medical attention in as evidence of medical diagnosis or treatment - 2 part test: declarants motive consistent with the purpose of the rule reasonable for the physician to rely on the info in diagnosis or treatment

o 5. Recorded recollections A memo or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness memory and to reflect that knowledge correctly. If admitted, the memo r record may be read into evidence by may not itself be received an as exhibit unless offered by an adverse party. 612 refresh vs. 803(5) record refresh= testifying from their memory, makes them no diff from any other witness testifying from memory. Dont have to show them a document theyve written or anyone else wrote to refresh. (anything can be used to refresh) record= must show a doc or record to record the recollection. (NOT INTRODUCED AS EXHIBIT!!) 4 elements: once you knew, and now you dont you wrote it when u remembered u reflected that knowledge correctly it may be read aloud in court
JOHNSON V. STATE D (Johnson) convicted of murdering Frank Taylor, who was present at the robbery and murder came to police to give written statement, later being uncooperative in order for evidence to be admissible under the state equivalent of Federal Rule of Evidence 803(5), four elements must be met. Here, the court reasoned, two of those elements were not present, namely that the witness have firsthand knowledge of the event, and that the witness vouch for the accuracy of the written memorandum. The court pointed out that the witness here, did not testify regarding the basis of the allegations contained in his statement, i.e., whether he was present during the commission of the offense . . . [nor did the witness] guarantee[] that his memory was correctly transcribed or that the factual assertions contained in the statement were true.

As a result, the court concluded, the evidence was inadmissible hearsay and should not have been admitted.

o 6&7. Business records

PALMER V HOFFMAN Palmers wife hit by the train, filed wrongful death suit Business records admissible under the hearsay exception rules do not include accident reports prepared for litigation even if the reports are prepared in a routine, systematic process. Not a business report because not made within the course of business

U.S. v. Vigneau o The District Court allowed the prosecution to introduce over 70 Western Union money forms, 21 had Ds name etc. o D appealed: court erred in allowing the forms, the info on the forms are inadmissible hearsay to show D as the sender. o Holding: the forms containing Ds info NOT admissible. D was NOT an employee/part of the business. He was an outsider.
Beech Aircraft Corp v. Rainey Brief Fact Summary. The spouses of the plaintiffs died during flight training when their plane was unable to recover from an evasive maneuver. The defendant, Beech Aircraft Corp. (the defendant) attempted to admit an investigative report that concluded the accident was caused by pilot error. Synopsis of Rule of Law. Federal Rules of Evidence (F.R.E.) Rule 803(8)(c) should be construed broadly to ensure reports that contain opinions or conclusions are not automatically excluded from evidence. Holding: The court allowed the investigation report to be admitted under F.R.E. Rule 803(8)(c) despite the presence of opinions and conclusions by the investigator. The court wanted a broad interpretation of the Rule to encompass records that may have these statements and yet have a high level of trustworthiness. United States v. Oates Law enforcement reports absolutely inadmissible against defendants in criminal cases U.S. v Hayes Rule 803(8) does nto copel the exclusion of docs properly admitted under 803(6) where authoring office or investigator testifiees U.S. v. Weiland Penitentiary packet (prison records) o Govt used to prove status as felon Govt may not use 803(6) to avoid 803(8) Dallas County v. Commercial Union (1957) Insurance for lightning and fire Admissibility of newspaper to prove courthouse damaged by fire

o 8&10. Public records and reports.

Clock tower fell file claim with insurance citing lightning as cause of damage o Insurance co says no, poorly built, deny claim Say char came from fire over 50+ years Use the newspaper to prove Both requisites to exception of the hearsay rule (808 residual exceptions): o Necessity o Circumstantial guarantee of trustowrthiness Ancient docs: long lapse of time, ordinary handwriting unavailable and therefore permissible to resort to circumstances evidence The court reasoned that although the newspaper did not fall under any, readily identifiable and happily tagged species of hearsay exception, it was nonetheless properly admissible because it of its necessity, trustworthiness, relevance, and materialness, and because the lower court judge has the discretion to admit it as such

Rule 804: Exceptions Applicable Only When the Declarant is Unavailable. o (b) (1) Former Testimony o (b) (2) Dying Declarations
SHEPARD v. U.S. - 3 reqts for stmt to come in under this exception: o unavailable o hopeless o knowledge or opportunity for knowledge - The defendant was convicted of poisoning his wife, allegedly because he was in love with another woman and wanted to marry her. At trial, the prosecution attempted to admit evidence of a conversation that the dying woman had with her nurse, in which she had implicated the defendant. - In order for a statement to be admitted as a dying declaration, there must be sufficient proof that the statement was made in the shadow of impending death and that the declarant had no hope of recovery whatsoever

o (b) (3) Statements against interest

WILLIAMSON V. U.S. - Williamson caught with cocaine, admits to possession but tells a story along with it - refuses to take the stand at court, so police testifies as to his out of court statement -Rule 804(b)(3) provides that certain statements against interest may be admitted even though they are hearsay, because they contain certain guarantees of trustworthiness not contained in hearsay generally. The Supreme Court of the United States (the Supreme Court) defines statement in this case narrowly, and would exclude all statements in a larger contextual narrative that are not explicitly self-inculpatory.

o (b) (6) Forfeiture by wrongdoing

US v Gray - defendant told her friend that she killed her 1st husband bc of abuse, said she killed 2nd husband as well and killed the guy for blackmailing her s - Forfeiture-by-wrongdoing exception elements The district court must find, by the preponderance of the evidence, that o The defendant engaged or acquiesced in wrongdoing

That was intended to render the declarant unavailable as a witness and o That did, in fact, render the declarant unavailable as a witness. - The district court need not hold an independent evidentiary hearing if the requisite findings may be made based upon evidence presented in the course of the trial - Defendant only needs to intend to in part procure a witness availability - Doesnt have to already be a witness, could be a potential witness as in this case

Rule 807: Residual Exception

**Under 806, you can attack or support a hearsay declarants credibility - can put into evidence that the decalarant is biased - applies to all hearsay except 801(d)(1) Mon, March 21 Past Statements of Witnesses and Past Testimony Fisher pp. 416-430; probs. 7.17 Rule 613: Prior Statements of Witnesses (Impeachment) Simply showing the witness is inconsistent and shouldnt be believed. Not using the substantive evidence Not an under oath statement. Offered to impeach and not offered for the truth of what they assert. * dont have to show it, if opposing partys lawyer requests it, can show it directly to him or her Use 613 to impeach. Use 801 to PUT IN the actual evidence. US BARRETT The Ds lawyer was trying to show that Buzzy was saying something different before (inconsistent statement). Rule 613. The Ds lawyer was not trying to use Buzzys statement to prove D didnt do the crime. He was just using it to show Buzzy shouldnt be believed. Although used to impeach...the jury still hears the evidence..which thus reflect their ultimate decision. shows how seriously courts take it when you are the defendant and trying to raise reasonable doubt

US V INCE they refreshed the witness recollection with her prior written statement o not hearsay bc in court now recollecting from her own memory o 403 applies not 613 613 doesnt give us a standard, what governs is the 403 balancing test

Under Federal Rule of Evidence 607, a witnesss credibility may be attacked through impeachment testimony, but when testimony lacks any probative value and carries a high risk of prejudice, the evidence must be excluded, even when it meets the technical requirements of Rule 607. INCREDIBLY PREJUDICIAL***** They are going to use the evidence to conclude ince shot the guy instead of for impeaching her

Wed, April 13 Lay Opinions and Expert Testimony (cont.); Authentication (introduction) Fisher pp. 683-707, 805-813; probs. 9.3, 9.4, 9.5, 9.6, 9.7, 9.9, 9.10, 10.1, 10.2

Rule 701: Lay Opinions

If the witness is not testifying as an expert, the witness testimony in the from of opinions or inference is limited to those opinion or inferences which are: 1. Rationally based on the perception of the witness and, o Reaffirming the first-hand knowledge requirement. 2. Helpful to the jurys fact finding. 3. Not based on science, technical or other specialized knowledge with the scope of an expert. U.S. v. Ganier: o Case where the govt brought computer forensic info into evidence day before trial, Ganier moved to dismiss o While a lay witness may not offer an opinion based on specialized knowledge, the witness occasionally may do so based on the witness particularized knowledge gained by virtue of his or her position in a business

Rule 702 Expert Testimony

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issues, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Monday April 18th No Class: Passover Wed, April 20 Authentication (cont.); The Best Evidence Rule Fisher pp. 814-839; probs. 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9

Mon, April 25 Hearsay and The Confrontation Clause Fisher pp. 567-68, 573-87, 593-610 Wed, April 27 Hearsay and The Confrontation Clause (cont.) Fisher pp. 610-22, Fisher Supplement pp. 403-439, Fisher pp. 622-630; probs. 8.1, 8.2, 8.3, 8.4, 8.5