Evidence Outline - Eldred

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Eldred Outline - Evidence: Fall 2010 [1A.] Relevance: 401, 402, 104(a), 104(b), 403
"If A is charged with murder, evidence offered against A is relevant if: "the apparent probability of [A's] guilt is now greater than before the evidence . . . was received." Not all relevant EV is admissible, but ALL irrelevant evidence is inadmissible.
Exam Tips:
Relevance includes probative worth (does the proof support the point for which it is offered?) and materiality (does that point matter in the case?). Standard of probative worth is liberal. Proof can be relevant without being sufficient ("a brick is not a wall"). Proof is rarely irrelevant in the sense of no logical tendency to support a point, but sometimes irrelevant because the point doesn't matter in the case. Relevant evidence may be excluded if it's probative worth is substantially outweighed by risks of prejudice, and for other reasons (most important being confusion or waste of time). Prejudice refers to inflammatory effect (e.g., gory pictures), and jury misuse (OOC statements offered to prove state of mind, but tending to prove acts, events, or conditions).
General:
TWO COMPONENTS: Probativeness AND Materiality. "Materiality": A "fact that is of consequence" to the action. Evidence Must Be Relevant to Be Admissible: Relevancy is the starting point to any evidentiary analysis. Rationale: Necessary to constrain trial length and litigation costs, avoid confusion, and trials would be lengthy. FRE 401: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 401 ACN: A finding of relevance suggests that the evidence "possesses sufficient probative value to justify receiving it." "The fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the determination of the action." "The fact to which the evidence is directed need not be in dispute . . . . Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category. A rule limiting admissibility to evidence directed to a controversial point would invite the exclusion of this helpful evidence, or at least the raising of endless questions over its admission." "A brick is not a wall."
U.S. v. James:
Key Evidentiary Question: Why is the fact there is proof that the victim had a criminal history of violence relevant if the D didn't know it?
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9th Cir.: Because the crux of Jamess defense rested on her credibility and because her credibility could be directly corroborated through the excluded evidence [the court records], exclusion of the documents was prejudicial and more probably than not affected the verdict. We brag about things that are true. If there's proof out there that it happened, and there's a claim he bragged about it, it's more likely to be true. Side Note: Unfair prejudice is not just for the defendant. As long as the evidence that's being offered unfairly suggests a reason for acquittal, it might be prejudicial to the prosecutor.
Definitions:
Relevant: General:
Defined in rule 401 (any tendency to make any fact more/less probable). This is an extremely broad definition. Even evidence that only has the slightest probative value qualifies. If doesn't have to even establish a specific fact, it can establish a piece of a fact. "A brick is not a wall, but even a brick is admissible. a. Only logical relevance is required: Only logical EV is required, NOT legal relevance. BUT, EV having only marginal probative value may be excluded under 403.
b. Does not address specific categories of evidence: This is a general standard applicable to all types of evidence. c. A relational concept: The item must be judged in the context of the specific issues of the case, law, or evidence introduced. d. Need not be in dispute: EV can be relevant to prove a point not contested, although it may be excluded under 403. e. Impeachment evidence: Relevant EV can advance one's case, OR rebut an opponent or impeach witnesses. Materiality: a. Legally significant: EV is material if it has legal significance. b. Merged in FRE 401: Diff. at CL, but merged under 401. This requirement is found in the must "be of consequence to the determination of the action," requirement. Direct Evidence: Direct evidence asserts the existence of the fact to be proven, or embodies or represents that fact. It's always relevant if it proves a fact of consequence to the action. e.g., Eyewitness testimony that she saw the D shoot the V. Circumstantial Evidence: EV is that which a fact-finder can infer an increased probability that the fact exists. Relevancy is important here, and debates arise where there's uncertainty that a particular inference can be drawn. Convictions can rest entirely on circumstantial evidence. e.g., Finding the D's fingerprints on the murder weapon.
Relevancy Requirement Underlies Other Rules of Evidence:

1. Particularized Rules of Relevancy: 404-415 deal with codifications of relevancy determinations. 2. Personal Knowledge Requirement: Helps ensure relevance (by avoiding
conjecture). 3. Lay Opinion: Opinions must be based in personal knowledge (increasing relevance). 4. Expert Opinion: Must qualify (increases relevance). 5. Authentication: A more specific application of the relevancy requirement
Role of Judge and Jury:

1. FRE 104(a): Language: "Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges." ACN:
"The applicability of a particular rule of evidence often depends upon the existence of a condition. Is the alleged expert a qualified physician? Is a witness whose former testimony is offered unavailable? Was a stranger present during a conversation between attorney and client? In each instance the admissibility of evidence will turn upon the answer to the question of the existence of the condition. Accepted practice, incorporated in the rule, places on the judge the responsibility for these determinations."
Thus, only if the judge determines that it's relevant does the jury get to hear it. Then, the jury can decide later how to weigh it. 2. FRE 104(b): Key: The EV offered isn't YET relevant because there's a fact missing.
Depending on the missing fact, original evidence can be classified as either: Not relevant (Rule 401); or Not yet relevant (Rule 104(b);
e.g., Sherlock Holmes; Knife and Wine Glass. Fingerprints found later. Key fact missing implicates 104(b). No clear line between 401 and 104(b). At some point, the inferential leap (link) is too big, and the question goes from relevancy to conditional relevancy. Relevance: ACN "Evidence in a murder case that accused on the day before the shooting purchase a weapon of the kind used in the killing" is clearly relevant. This is the only specific objection that the jury rules on. Where relevancy depends on a preliminary question of fact (e.g., whether a document is a forgery). Language: "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." ACN to 401 addresses 104(b): "In this situation, probative value depends not only upon satisfying the basic requirement of relevancy as described above but also upon the existence of some matter of fact." a. Role of judge: e.g., Judge only decides whether there is sufficient EV to
support a jury finding of genuineness. If so, submit to jury who determines.
b. Role of jury: e.g., If the jury finds it to be a forgery, it is instructed to disregard it

as irrelevant. Converse is true.
c. Connecting up ("admitted subject to connection"): Can allow the jury to
see it preliminarily with agreement to "connect up" later.

i. Admit "subject to" later evidence: e.g., Admit the document where a handwriting expert will be called later to testify as to genuineness. ii. Failure to connect up: If the proponent fails to "connect up," the opposing party should move to strike, and request an instruction. Mistrial may be required if the exposure caused irreparable prejudice.
Relevant Evidence Admissible Unless Otherwise Provided:

402 Language: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." (e.g., FRCP, FRCrimP). 1. U.S. Constitution: Constitutional exclusionary rules (faulty searches, or absence of Miranda warnings). 2. Federal Statutes: e.g., Statute that excludes unlawfully obtained wiretap evidence. 3. Other Evidence Rules: A bunch of FREs that exclude relevant evidence (403-405, 407-412, 501, 602, 605, 606, 610, 701, 702, 802, 901, 1002).. 4. FRCP: Failure to comply with discovery, work product. 5. FRCrimP: Grand jury proceedings, plea agreements, etc.
Judicial Discretion to Exclude Relevant Evidence:

1. Balance in Favor of Admissibility: Exclusion only when the EV is substantially outweighed by competing considerations. Rule is slanted in favor of admissibility. Where probative value is equally balanced against exclusion, the evidence is to be admitted. 2. Stipulations: Courts must consider offers to stipulate in making FRE rulings. E.g., Prosec. offers photo of murder victim to establish location of the body (D might stipulate to location). A party doesn't necessarily have to accept the stipulation. Courts reject stipulations where they are incomplete OR would unfairly deny a party full force of its proof (case we read; "narrative quality"). e.g., Old Chief v. United States: "A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it."
Old Chief v. U.S.; Is the name and nature of the prior crime relevant? What other options of proof are available? 403 Arguments: 1. Propensity/character evidence; and 2. Preventative detention; Michelson v. U.S.: "Prior trouble . . . is said to weigh too much [and] overpersuade." 3 Factors that determining whether stipulations can substitute for normal evidence:
(1) The prosecution should have access to the full color and flavor of evidence, and shouldn't be limited to sanitized, analytical evidence. (2) Whether or not it goes to the law's moral underpinnings.
We don't want to strip the jury of the power to make moral judgments. If it prevents the D from being morally judged in the way the law should allow.
(3) Juror's have an expectation of the way that evidence should be presented, so if it creates a hole, it should be presented.
3. Surprise: Surprise is not an independent ground for exclusion. ACN, "granting of a continuance is a more appropriate remedy [for surprise] than exclusion of the evidence." It may be a factor in finding that the evidence will result in unfair prejudice, confusion of the issues, and undue delay. 4. Credibility Determinations: EV cannot be excluded under 403 simply because the judge doesn't find it credible. Questions of credibility are for the jury. 6. Appellate Review: Substantial deference to rulings under 403, and reverse only for an abuse.
Grounds for Exclusion Under FRE 403:

Strategy for D: Think about what the P is trying to offer, and try and find less prejudicial evidence that proves the same thing (e.g., Marshall Jones Trial; dead baby, RS grave). State v. Bocharski: Photos of head cleared out. State was going to discuss angles of knife wounds, but never did. In the end, "did not contribute to or affect the jury's verdict." 403 Language: "Although relevant, evidence MAY BE [discretionary] excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
ACN: ""Unfair prejudice" within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. . . . In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. . . . The availability of other means of proof may also be an appropriate factor."
1. Unfair Prejudice. General:

Most frequently used ground. "Unfair" language is used because all evidence is prejudicial. We want to avoid the excessive emotional and irrational effects that could distort the accuracy and integrity of the fact-finding process.
a. Excessive emotionalism:
Want to avoid injecting excessive hostility, anger, or sympathy on the part of the jury. Courts can exclude evidence that is "inflammatory, shocking, or sensational." May also be excluded when it evokes the anger or punitive impulses of the jury, unfairly puts a witness/party in a negative light, appeals to prejudice, or gives rise to overly strong, sympathetic reactions. E.g., Ex-felon caught possessing firearm. Bring in evidence of prior torture murder of seven-year-old-girl. This would increase preventative detention tendencies. E.g., Hustler invasion of privacy case. Erred in admitting 128 pictures of the
magazine's "worst pictures."
b. Jury unable to limit use:

Jury might misuse the evidence in some way, or be unable to follow a limiting instruction. E.g, P wanted to introduce "Dr. Shepard has poisoned me," as evidence of showing D's will to live and unlikelihood of her committing suicide.
"...the reverberating clang of those accusatory words would drown out all weaker sounds."
c. Undue weight:
Can be excluded where the jury is likely to give it undue weight. E.g., P wanted to introduce boss' statement that postman had been "taking packages out," where he was accused of improperly opening mail.
d. Demonstrative evidence:
Photos, "day-in-the-life" films, computer-generated visual imagery, courtroom displays of wounds can have an unfairly powerful emotional impact on the jury E.g., "Shaken-baby case". P gave demonstration of man violently shaking a mannequin. Reversed. No support in evidence for force or oscillations.
2. Confusion of the Issues Can be excluded where it distracts the jury with collateral matters. e.g., D tried to offer evidence that coconspirators were not prosecuted in the same crime. Too confusing, properly excluded. 3. Misleading the Jury Can exclude evidence that is likely to mislead the jury. E.g., Personal injuries in rollover case. Introduces simulation with dummies who fly about. Dummies can't hold on, lost limbs. Misleading. 4. Waste of Time or Undue Delay Language which is a "concession to the shortness of life." E.g., Bank robbery. 2 hr video of psychiatric interview excluded where information was already sufficiently established. 5. Needless Presentation of Cumulative Evidence Hard to draw a line, but courts can limit number of witnesses and prevent unnecessary repetition. e.g., PI action of P against farm combine manufacturer. Judge excluded evidence of 6 similar accidents where 3 had already been presented.
Limiting Instructions Under 105: Limited Admissbility

Rule: "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." These are criticized though, because it's hard for juror's to ignore them. Potential Instruction: "In looking at these images it's important to set aside emotion in pursuit of logic. The evidence that the prosecution offered in Exhibits 46 and 47 should only be considered for the purpose of establishing the angles of the decedent's wounds. It's important to keep in mind that this issue was never discussed throughout this trial."
Recurring Issues of Relevance: (EV of Guilty Mind, Other accidents, Other Ks,
[1B.] Authentication & the "Best Evidence Rule:" 901, 902, 1004 (1001-03?) D. Authentication and Identification: 901, 902
Question: Is the exhibit (the evidence) what the proponent (lawyer) says it is? At its core authentication is an issue of relevancy. Examples: E.g., Drug possession. Is the offered package the same one that was found on the D? E.g., For threatening. Is there proof that the D wrote the letter? E.g., Phone threat. Is there proof that the threatening phone call was by the D? Language: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." 901(b) list illustrations: By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge; (2) Nonexpert opinion on handwriting; (3) Comparison by trier or expert witness; (4) Distinctive characteristics and the like; (5) Voice identification (6) Telephone conversations; (7) Public records or reports; (8) Ancient documents or data compilation; (9) Process or system; (10) Methods provided by statute or rule.
Legal test for Admissibility: p.806. Huddleston standard: Sufficient evidence that the jury could reasonably find by a preponderance of the evidence that the exhibit is what its proponent claims." Chain of custody: While a perfect chain is ideal, all that's necessary is what 901(a) demands. Key Inquiry: "Is the item in substantially the same form?" Handwriting Example: Important that analysis "not [be] acquired for purposes of the litigation." Here they were investigating, not thinking about indicting. Tom Hank's Call: Can use 901(b)(5): Wife can identify the voice. Self-Authentication: These are self-explanatory.
E. The "Best Evidence Rule": 1001, 1002, 1003, 1004

Applies: Only to prove the "content of writings, recordings, or photographs." Generally the original is required.
What's an original? FRE 1001(3); Broad definition. (e.g., Photo includes negative or new print).
1002: Requirement of Original except as otherwise provided. Rule 1003: Admissibility of Duplicates As good as a copy unless:
Genuine issues of authenticity are raised; or Unfair to admit duplicate.
"Duplicate": 1001(4): Any mechanical reproduction, as long as it does not include the possibility of human transcription error.
THE KEY: Arises where the rule a proponent seeks to prove THE CONTENT of a W, R, or P by any means other than an original or duplicate. If you have access to the original, the rule wants you to use it. Rationale: It's better for the exhibit to speak for itself rather than another, less effective, means of proof. E.g., Video of Bank Robbery: Can put bank teller on as a witness, and their recollection is okay: Not proof of content. P can play videotape, and the teller can "adopt" it: Not proof of content. Rule Applies:
Where P plays the video w/o the teller. Now we're trying to prove its content! The key: The evidence has "independent probative value" (RB 322)
If the tape was destroyed, or the teller has died, then R 1004 Rule 1004. Admissibility of Other Evidence of Contents, IF: Original lost or destroyed; Original not obtainable; Original in possession of opponent; Collateral matter. BUT, the tape would still have to be authenticated! E.g., Perjury Trial: M on trial for suborning perjury by L. P calls R as a witness to recount what L said under oath. D objects: BER violated! Need to prove by transcript, NOT by recollection!
We're not trying to prove the content of the writing. We're just trying to have someone testify about what they heard in court. Therefore, this is not a best evidence issue at all. BUT, is there a 403 argument? If someone's testifying, especially in a perjury trial, every word matters. This is going to mislead the jury. There's no way that Rogers can testify to every word that he said.
Side Notes: On Quiz 1 A party seeking to prove the contents of the writing, recording, or photograph, must use the original, a duplicate, or explain its absence. Q2: The security guard is testifying about the content of the video. He has no independent knowledge of whether the defendant was in the store on July 1, 2010. Therefore, BE rule applies. Q3: Now he is testifying not as to the contents of the videotape, but what someone else told him. Therefore, no BE rule.
[2.] Special Relevance Rules: 407, 408, 409, 410, 411 Exam Tips:
SRM are excludable if offered to prove negligence, or culpable conduct, or defect in design or product, or inadequate warnings. Broad; can apply to firing of employees. Exception: Proof of SRM to impeach (control, ownership), OR proof of feasibility IF CONTROVERTED. Civil settlement offers/negotiations are excludable IF offered to prove liability or invalidity of a claim, AND covers statements made in efforts to settle, BUT:
Applies ONLY if there is actually a dispute (whether or not a suit has been filed). Covers what's said/done during negotiations, NOT evidence existing prior to negotiations. Settlements ARE sometimes permitted when they bear on other points, like the bias of a witness. Withdrawn pleas, and plea bargaining are excludable from criminal cases. Applies to withdrawn pleas AND nolo pleas. Principle applies to statements made by Ds to prosecuting attorneys, but generally NOT to statements by Ds to police. Proof of insurance is generally excludable, when offered to prove negligence or due care, but insurance is sometimes provable to show: Ownership OR control, or to impeach (e.g., bias in insurance adjusters).
Eldred Overview:
407-409, 411 are rules of limited exclusion (exclude evidence for specific reasons, but allow for all other purposes). By contrast, FRE 410 is a rule of expansive exclusion. It excludes plea discussion for ALL purposes BUT TWO. If the evidence is admissible AFTER 407 - 411 are analyzed, you still need to evaluate 403 (and any other evidentiary rules we discuss). The rules ALL bar certain evidence to establish negligence, liability or culpability. If evidence is being admitted for some other reason, FRE 407-411 do NOT bar their admission. FRE 408 v. FRE 409: Under 408: My bad. Can I pay damages?"
IF there is a claim or dispute (e.g., I'm going to sue you!), "Can I pay damages?" inadmissible under FRE 408.
Under 409:"My bad. Can I pay your medical expenses?"

Existence of claim unnecessary to keep out "can I pay your medical expenses," but "my bad" comes in.
Introduction:
General: These issues are so commonplace that specific rules are useful. Here, the purpose is to implement policies unrelated to the litigation process. 1. Exclude and Limit: These rules apply to subsequent remedial measures (SRM), settlement offers (SO), plea bargaining (PB), and liability insurance (LI). In some cases, narrow uses of the proof are permitted. 2. Relevancy Concerns: Most of these have only minimal relevance. These would probably get past 401, but then be excluded as confusing/misleading under 403. 3. Policy: Each exclusionary rule implements a policy unconnected with truthfinding.
Subsequent Remedial Measures: 407

Language: "When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm
less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule DOES NOT require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." Rationale (Found in ACN): 1. Subsequent measures do not reliably indicate prior negligence or fault (things can always be made safer). 2. Parties should be encouraged to make repairs, or take measures to prevent future accidents. Allowing proof would discourage these efforts. 3. It seems unfair to penalize responsible behavior by allowing proof over objection. Feasibility: Where a party offers evidence that a change would be impossible or impracticable to prevent similar accidents, proof of SRM is admissible. Fairness issues: The "if controverted" proviso: This is to avoid attempts to evade the exclusionary principle by sharp crossexamination, or everything as proof of feasibility. ACN: "The requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue be present and allows the opposing party to lay the groundwork for exclusion by making an admission. Otherwise the factors of undue prejudice, confusion of issues, misleading the jury, and waste of time remain for consideration under Rule 403."
Civil Settlement Offers and Negotiations: 408

Most jurisdictions exclude settlement agreements and statements regarding efforts to reach a settlement when offered to prove either "liability or the invalidity of the claim or its amount." 1. Agreements: If the case doesn't settle, the principle normally applies and its excluded. The principle does NOT apply where a party to a settlement agreement sues to enforce it, or a defending party seeks dismissal on grounds that the claim was settled. 2. Statements: Since talks fail, it can only work if it applies to failed negotiations. a. Lawyers and parties: Lawyer statements could normally be used against their
clients under 801(d)(2)(C), so the principle applies.
b. Form doesn't matter:

The form of the statement doesn't matter (e.g., don't need to say "suppose hypothetically." Can say, "my client was speeding). Even qualified assertions (admit to speeding) are excludable, so long as the purpose of the parties was to try to settle the case.
3. Disputed Claim: ONLY applicable where there is a claim AND a dispute that goes either to validity or amount. a. Claim:
A claim exists where a suit is filed, but it can exist prior to this because demands are made. It doesn't apply simply because someone comments about compensation.
b. Dispute:
It does NOT apply to every statement that follows the events that produce a
claim. The purpose is to encourage settlement of disputes. If neither the validity nor the amount of a claim is disputed, the principle doesn't apply.
4. Pre-Existing Materials: Does not apply to documents/statements made prior to settlement negotiations. If they exchange information during settlement talks, they're not covered. Initial Draft: "This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations."
But, the addition was deemed unnecessary because the principle doesn't reach the material.
5. Third-Party Settlement: E.g., P sues D, there's proof that P settled/negotiated with X, or that D settled/negotiated with Y.
It's relevant on the issue of liability or damages. Excludable however, because the rationale encouraging settlements would be undercut.
6. Criminal Cases: Plea agreements are subject to other exclusionary rules (FRE 410). a. Applicability of FRE 408: Appears to apply only to civil cases ("claim" versus "charge"). BUT, 410 doesn't cover statements by prosecutors (only Ds), and some courts have found that 408 applies here (so prosecutor's words are excluded as well). b. Obstructing investigation: E.g., L steals M's car, they settle and M doesn't want to pursue charges. Later, the agreement is likely to be treated as an admission, and be admissible to prove guilt or theft. 7. Exceptions to the Rule Unclear whether the principle applies when the purpose is to impeach by contradiction. a. Proving Bias: E.g., Where a party settled with a nonparty who testifies as a
witness. The fact that the D paid money to the W might incline him to shade his testimony to favor the defense. This can be addressed on cross.
b. Refuting claim of undue delay: An insurance carrier can offer proof of settlement offers as a defense to undue delay. c. Impeachment: Unclear here.
Payment of Medical Expenses: 409

Language: "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury." ACN: "[G]enerally, evidence of payment of medical, hospital, or similar expenses of an injured party by the opposing party, is not admissible, the reason often given being that such payment or offer is usually made from humane impulses and NOT from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person." "Contrary to Rule 408, dealing with offers of compromise, the present rule does NOT extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. This difference in treatment
arises from fundamental differences in nature. Communication is essential if compromises are to be effected, and consequently broad protection of statements is needed. This is NOT SO in cases of payments or offers or promises to pay medical expenses, where factual statements may be expected to be incidental in nature."
Pleas and Plea Bargaining: 410

Strong policy in favor of plea bargaining (system would crumble otherwise). This concerns statements made during plea negotiations and certain pleas as well. Also, encourages Ds to cooperate in the prosecution of their cohorts. Applicable to Prosecutors(?) p. 133 Fisher: Some courts ignore the strict language and bar evidence offered against prosecutors. The rule doesn't restrict the evidence by its language, but "admitting such evidence would discourage prosecutors from negotiating pleas and would thereby frustrate the purpose of the rule." Eldred: Most courts, as a matter of judicial discretion, have said that it applies to the prosecution just as much as it applies to the defendant. 1. Withdrawn Pleas: 410(1) After a plea is entered, it can be withdrawn for good reason with court permission. Where it then proceeds to trial, the plea and the plea bargain themselves are excludable. Same is true if the pleas only disposes of some of the charges, but others will be tried (otherwise the purpose would be undercut). 2. Nolo Pleas: 410(2) Pleas of "no contest" may be entered by court permission. Can obviate a criminal trial, without admitting to civil liability. Nolo pleas are excludable from civil litigation. There's no mention of using nolo contendere convictions, but 803(22) says "excluding felony conviction that rests 'upon a plea of NC.'" 3. Plea Bargaining Statements: 410(3) Statements by Ds and their lawyers during plea bargaining are excludable if they fail to reach an agreement. Narrowly framed: Allows the defendant to exclude statements made during "plea discussions" that involve "an attorney for the prosecuting authority."
This applies to both private communications with a prosecutors, and when a formal plea is entered.
a. Statements to police:
Statements given by suspects to police are generally NOT excludable as attempts to engage in plea bargaining. Could be constitutional reasons though (e.g., 5th and 6th Am.).
b. Two-tiered standard:
BUT, sometimes law enforcement can get involved in plea bargaining. Exclusion can occur: 1. IF the statements/actions by such agents make the D think negotiations can proceed; and 2. IF that belief is reasonable under the circumstances.
4. Permissible Uses of Plea Bargaining Statements: There are no exceptions, not even for impeachment. a. Completeness. b. Perjury: Still can get hit with perjury if you lie, and for making false
statements. c. Impeachment: NO EXCEPTION to use plea bargaining statements to impeach.

BUT, this right CAN BE WAIVED, and the clause is usually found in a proffer agreement or plea bargain.
Proof of Liability Insurance: 411

Proof of liability insurance CANNOT be used to show negligence or other wrongful conduct. 1. Rationale:
1. It is irrelevant on issues of carefulness versus negligence (insurance leads to carelessness v. insurance shows foresight) 2. Proof of liability insurance can be easily misused. Might tempt the jury to find liability where none exists, or avoid where one is uncovered.
3. Exceptions:
a. Agency, ownership, control: Shows a person has an interest. Proof is admissible when it tends to show such points. b. Impeachment: Insurance investigators/adjusters often perform interviews. When they testify to the substance of these statements, the connection to a liability carrier may be shown when it bears on the bias in their testimony or the possible accuracy of their written work.
[3.] Character Evidence: 404(b), 413, 414, 415, 404(a)(1), 404(a)(2), 405, 406 A. The Character-Propensity Rule: 404
Language of 404(a): Character evidence generally: "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except . . ." General Notes: This is a general rule of exclusion, and the exceptions are found in 404(a)(1) & (2), 404(3) & 607-09, 413-15. 404(b)'s "Other acts evidence," is NOT an "exception," because it does not depend on propensity reasoning. Evidence CAN be offered for more than one purpose! People v. Zackowitz: Key Question: "Whether or not the evidence of weapons (3 guns, and a gas/pen combo) should be admissible for the purpose of showing guilt?" 404(a) : General Rule Evidence of character is NOT admissible to prove propensity, meaning, proving action in conformity with the character trait. Policy Rationales:
Preventative detention. Confusion of the jury. To prevent "mini-trials." (about the prior acts).
Like 407-411, Congress has made a policy determination that if we were to do a 403 balancing of propensity evidence, it wouldn't pass, so it should be codified.
EXCEPTIONS: ****************************************************************** [1.] 404(a)(1): The defendant CAN offer evidence of HIS character ("open the door")--by way of OPINION, REPUTATION--to show good character when in issue. [2.] 404(a)(2): The defendant CAN offer evidence of victim's character---by way of OPINION, REPUTATION--in certain cases (homicide, etc.). [3.] Character evidence is admissible in a narrow category of cases in which character ITSELF is an element of the OFFENSE or DEFENSE. [4.] Character evidence and crimes of sexual offense/assault/molestation cases. [5.] Other acts (bad acts/crimes/whatever) MAY be admissible so long as offered for a reason OTHER THAN to show propensity. Language of 404(b): "Other crimes, wrongs, or acts" "Evidence of other crimes, wrongs, or acts is NOT admissible to prove the character of a person in order to show action in conformity therewith. It MAY, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, OR absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." IF admitted, MIGHT warrant a FRE 105 limiting instruction. E.g., Drug Seller: Problem 3.2: Should the fact that the D was convicted previously for sale of drugs, be able to be introduced to show that he did it in this case?
Everyone can sell drugs, therefore it's not great to introduce for knowledge. If you add the knowledge that the person has been previously convicted of the crime before, there's a substantial likelihood of prejudice.
B. Routes Around the Box: Proof of Prior Acts Under 404(b)

Doing a 404(b) Analysis: 1. Is the evidence/act part and parcel of the charged case? 2. If not, is "other act" probative of something other than character that is relevant to this case? 404(b) 3. Could a jury reasonably find by a preponderance of the evidence that the D committed the other act? 104(b) 4. Should other act nonetheless be excluded under 403? 5. If admitted, is a limiting instruction appropriate? 105. Ultimately, jury decides how much to weigh the evidence. Other Key Points: "Other acts" don't have to be criminal! "Other Acts" can be dissimilar to the charged crime. (e.g., adultery, not murder in Presumed Innocent) "Other Acts" can be subsequent (Peltier). Notice under FRE 404(b). Must be "reasonable" unless excused for "good cause" shown. The need of the evidence is ALSO important in these kinds of cases.
Generally: If OTHER ACTS are offered to prove bad character for propensity purposes, it SHOULD BE excluded. MAY be admitted if offered for another reason (404(b) is not exhaustive. Can offer prior crimes, wrongs, act for ANY relevant purpose that does NOT require an inference from character to conduct.). Then, finish with a 403 analysis. Character evidence is generally admissible when character is an element of a charge, claim, or defense, and all three forms of proof are available (REPUTATION, OPINION, and SPECIFIC INSTANCES). 1. Proof of Knowledge E.g., D denies passing counterfeit money ("didn't know it was counterfeit"), a previous conviction for selling counterfeit money would be admitted. 2. Proof of Motive E.g., Admit EV that a D has an expensive drug habit to prove motive for a financial crime like bank robbery. Where prior crimes are offered to prove motive, the need NOT be similar in nature to the charged offense. 403 Balance (Harrison Ford): Side Note: Good Faith Doctrine: In general, a lawyer can ask a question on cross-examination if she has a good faith basis, meaning information that reasonably leads her to believe it to be true. (Model Rule 3.3); BUT in a criminal case, things get murkier when it is defense counsel. Prosecutors are held to the good faith basis. BUT the ABA has taken the position that a defense lawyer, as part of her function to put the prosecution to its proof, can ask a question in an attempt to undermine a witness even if he believes him to be telling the truth.. Proof of Opportunity: Can show that the D was in the vicinity (e.g., prison break), had access to some instrumentality, or familiarity or experience to commit the cirme. 3. Proof of Identity Motive, knowledge, opportunity, intent, plan, and preparation may all tend to identify a D as the perpetrator. Can use this to admit crimes that were performed with a distinctive modus operandi ("signature" crimes) that identify him as the person who committed the charged crime. Assuming it was committed in the same, distinctive way. U.S. v. Peltier
E.g., Found with bomb-making materials and dead cop's gun. A person who possess the victim's gun is more likely to be the perpetrator than some random person. It'd be tough to get the bomb stuff in as it's probably for another crime, and would be used purely as propensity. This is a great problem to show the difference between evidence that is likely admissible because it's evidence of the crime vs. evidence that is NOT part of the crime, and therefore likely propensity evidence.
U.S. v. Trenkler: Modus Operandi Key Evidentiary Issue: Error to admit the Quincy bombing under 404(b) to prove identity via MO. Note: Government moved in limine to determine whether Quincy was
admissible. Why? 404(b) NOTICE requirement. Key test: Must be handiwork, sufficient idiosyncrasy, not prosaic commonality Note what Fisher says: Not enough to show that this was the defendants kind of crime, rather so distinctive that nobody else could have committed this crime. Why? Otherwise its just propensity reasoning. Key is that the evidence must demonstrate that this is the defendants signature! Standard of proof: Huddleston: Need NOT prove beyond a reasonable doubt: ONLY "Whether the jury could reasonably find the conditional fact {the other act] by a preponderance of the evidence. Here, defendant admitted to the prior bombing. But what if he hadnt? P/E Standard. This is evidence just like any other, right? How about just the 401 standard? 104(b) might also be applicable. Degree of Similarity: It will depend on the area of law (e.g. court says bombings are pretty distinctive), but HERE the court said that it must be "sufficiently idiosyncratic." That can be proven by a preponderance of the evidence. It must be MORE than a "collection of 'prosaic commonalities that cannot give rise to an inference that the same person was involved in both acts without regerence to propensity.'" Does NOT have to be an exact replica, and an exact match is NOT necessary. 4. Narrative Integrity e.g., "Russian Roulette" can't say RR. Prosecution for possessing a gun with an obliterated serial number. Although one might believe it's the "same gun," the jury will wonder why she remembers details of the gun. Events that make it more memorable make her testimony more believable. If it makes it more believable, it's part of the "narrative integrity" (a.k.a, res gesta or "inextricably intertwined"). Was the court right to exclude this?
Probably. RR is negative character evidence. It shows the person is highly reckless/dangerous, pointed at her head. Unfair prejudice -> Propensity
5. Absence of Mistake or Accident E.g., D charged with unlawful receipt of child porn. "I didn't know they were underage." P could prove D possessed other child pornography. E.g., Cleaning Gun. Killed first wife on accident.
Someone who did an act in the past, would probably be less likely to do it again. It could show state of mind. Some who had previously killed a wife would be more careful when cleaning than the average person. This is substantially prejudicial, but VERY probative. Most judges would probably allow.
6. Intent E.g., Possession of objects to facilitate an escape where D was involved in
one before. Generally allowed ONLY where intent in a genuine issue in the case (where D denies acting w/ wrongful intent). E.g., Prosecution for car theft, D claimed "borrowed." Can bring in prior conviction for car theft to show intent. E.g., Drug Sale. D charged with intent to sell, but denies he had the intent. Court often will allow prior drug sales as proof that he had the intent.
Rationale: It's limited to the issue of state of mind, NOT whether the D committed the crime. Limiting Principle: ONLY when intent is at issue! If the D denies that it was him, this rationale does NOT apply.
7. Preparation: E.g., D prosecuted for att. bank robbery. Proof that D stole a car the day before to use a getaway would be admissible as preparation. 8. Plan: e.g., D is charged with conspiracy to import illegal drugs. Proof that he attempted to bribe customs agents would be useful.
C. Propensity Evidence in Sexual Assault Cases: 413, 414, 415

Overview: 413: Applies to criminal prosecutions where D is charged with sexual assault. 414: Applies when the D (presumably criminal) is accused of child molestation. 415: Applies to civil cases concerning sexual assault/child molestation. Note: Proof: 405(a)'s O/R proof requirement does NOT apply to 413, 414, 415. These rules REQUIRE that proof is made by specific acts. The prosecution must offer "evidence of the D's commission of another offense or offenses of sexual assault" or child molestation. U.S. v. Guardia: Key Issue: Whether 413 eliminates 403 balancing. 413 does NOT eliminate 403 balancing 413 ALSO does NOT require a special type of 403 balancing. Factors to be considered in 403 balancing:
Similarity of the prior acts to the acts charged; The closeness in time of the prior acts to the charged acts; The frequency of the prior acts; The presence or lack of intervening events; and The need for evidence beyond the testimony of the defendant and alleged victim.
D. The Rape Shield Law: FRE 412

General/Key Points: Like 410, 412 excludes ALL evidence with minor exceptions. 1. Congress intended the terms "sexual behavior" and "sexual predisposition" to be broadly construed (See ACN to 1994 Am.) 2. EV of a victim's reputation for engaging in sexual behavior is barred in ALL CRIMINAL CASES. 412(b)(1).
3. In civil cases, the VICTIM must place in controversy "reputation evidence" for it to be admissible. 412(b)(2). 4. In criminal cases, THREE EXCEPTIONS where specific instances of conduct ARE admissible:
A. To prove another person (not the D) is the source of semen, injury or other physical evidence. 412(b)(1)(A) B. Between the alleged victim and the defendant: i. Offered by the defendant to prove consent. 412(b)(1)(B) ii. Offered by the prosecution. C. To protect a defendant's constitutional rights.
5. 403 ALWAYS APPLIES! 6. Procedural protections in 412, subdivision c.

14 day notice, state purpose, good cause otherwise, service, and in camera hearing, etc.
Problem 5.2: Fingerprints: D claims the source of the fingerprints was his presence a month before the alleged crime, when he and the complainant had consensual sex. Under 412(b)(1)(B) it's probably an issue of whether the specific alleged act was consensual, BUT the ACN says:
"Admissible pursuant to this exception might be evidence of prior instances of sexual activities between the alleged victim and the accused, as well as statements in which the alleged victim expressed an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specific accused."
Under 412(b)(1)(A) the ACN says:

"Where the prosecution has directly or indirectly asserted that the physical evidence originated with the accused, the defendant must be afforded an opportunity to prove that another person was responsible."
State v. Smith: Key Issue: Trial court precluded the D from introducing evidence that the victim has made prior false allegations about being "touched." Under Rule 412, are the prior false allegations admissible?
Not going to come in under 412. This doesn't go, substantively, to whether the act happened. If it's being used as impeachment evidence (under Rule 412), it would be admissible.
E. Proof of Defendant's and Victim's Character: 404(a)(1), 404(a)(2), 405

Overview/EXAM ANALYSIS: Character evidence generally inadmissible to show action in conformity therewith. 404(a) 404(a)(1) (character of accused), 404(a)(2) (character of alleged victim), and 404(a)(3) (character of witness) are TRUE exceptions (unlike 404(b)) to this general rule because the proposed evidence IS being offered to show action in conformity with a person's character. D can offer EV on a pertinent character trait, which the prosecution CAN then rebut. 404(a)(1). If the D introduces character EV, he may do so ONLY by reputation OR opinion. 405(a). The prosecution ON CROSS-EXAMINATION can inquire about reputation,
opinion, or specific instance of conduct. 405(a). Prosecution CAN rebut by calling a character witness on the SAME TRAIT. 405(a). FRE 404(a)(1): Character of accused Language: "(a) Character evidence generally: Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution . . . (emphasis added)." General:
On its face: MUST BE a criminal case; It ONLY applies to a criminal case. If the defendant initially begins the discussion on character evidence ("opening the door"), then the prosecution CAN introduce evidence. It has to be a PERTINENT character trait: Need to ask: Is it a "pertinent" character trait? Clemens was on trial here for perjury ("honesty"). So, testimony by Bonds that Roger "has a reputation for honesty" is permissible.
"By the prosecution to rebut the same . . ."

Once the door is open, the prosecution can call witnesses to rebut Bonds' testimony.
FRE 405(a): Methods of Proving Character Language: "(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation OR by testimony in the form of an opinion. On CROSS-EXAMINATION, inquiry is allowable into relevant specific instances of conduct (emphasis added)." E.g., The P can ask Barry Bonds on cross whether he knows that Roger once cheated on his taxes (Roger put character in issue). Michelson v. United States: Key Issue: Whether it was error to allow the prosecution to inquire into a character witnesses' knowledge of D's 1920's arrest for "receiving stolen goods."
The witness is not being asked the question on a propensity basis. The question is being asked to see whether the witness knows what he's talking about in testifying about the defendant's character.
Rationale: (p. 227 "The price a D must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed . . .")
(1) Prosecution needs to be able to test the validity of the claimed reputation; (2) Because questions about the witness' basis of knowledge or familiarity with the defendant are always relevant. Note: The second rationale is NOT being offered as propensity evidence!
Sufficient Basis for Opinion:

p. 227: Character witness must be qualified to show that he knows enough either
about the D or his reputation in the community to be competent to provide testimony about the D's reputation.
"Good Faith Rule": Things that lead a reasonable lawyer to believe that they have a basis in fact.
Side Note: ABA Criminal Justice Practice: (Defendant's don't have to have a "good faith" basis). The role of the defense is to "test the prosecutions case" of whether there's reasonable doubt that the prosecution has proven its case. To prevent this would be a violation of the confrontation clause. Defense should argue, that according to the ABA Standards . . .
Key Aspects:
1. (p. 225-26): If the P were allowed on their case-in-chief to prove guilt, it would "over-persuade" and be "unfairly prejudicial,etc. 2. (p. 26-27): D cannot prove character by "specific acts" because we don't want minitrials on so many collateral matters.
Problem 3.15: I wouldn't shoot anybody! Can she put her own character at issue? Yes. "I wouldn't shoot anybody."
Could be "I'm not guilty," but could also be putting character into issue. Note: On an EXAM, we'd have to establish that this IS or IS NOT character evidence, before proceeding with an analysis.
Even if it gets through, don't forget about 403! How could the jury NOT want to punish her if she has shot at someone in the past? FRE 404(a)(2): Character of alleged victim Language:
Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.
Proof under 405(a): Proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct (emphasis added). General:
Only the defendant can initiate. Once the defendant initiates, MUST BE by opinion OR reputation. 405(a). Special Wrinkle: IN HOMICIDE CASES If the D does ANYTHING to suggest or try to prove that the victim was the initial aggressor. E.g. Eyewitness to a homicide. D says, the victim pulled out his knife first and tried to stab.
Here, the D has opened the door. Therefore, we're going to allow the prosecution to defend the decedent. They're no longer alive. Evidence of peace should be allowed because the victim is no longer available.
Also, AFTER the defendant offers evidence of V's character, the prosecution CAN offer evidence on the SAME TRAIT of the D.
Problem 3.17: Character of Victim II: U.S. v. James All of this evidence is being offered to show that he has been a violent guy IN THE PAST.
It's being introduced to show that her fear was reasonable because he has been violent in the past. This is NOT being offered for propensity purposes, it goes toward her state of mind. 401: It makes it more likely than it would otherwise be that she had a reasonable fear. BUT, the jury wont be able to distinguish in their mind. She'll get acquitted because he's a bad guy. Prosecution will bring in a 403 argument: This is overwhelmingly prejudicial. FRE 405(b): Proving Character by Specific Instances of Conduct Language:
"In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct."
These types of cases are fairly limited: E.g.,

Entrapment: P would need to show that D was "predisposed" to commit the crime. Character before the crime is the issue. Defamation: Trial will focus on whether the P was indeed the thing accused (e.g., thief, bully, liar). Existence of the trait is crucial. Child custody: Judge must determine which parent is the better parent. Character as good/bad parent is the issue.
Proof: So, where character is an essential element in dispute, can prove by opinion, reputation, and specific instances of conduct. NOTE: In these cases, there is no trip through the box. The litigant is trying to prove the existence of the character trait, not action done in conformity with that trait.
F. Evidence of Habit/Routine Practice of an Organization: 406

Language: "Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice." ACN: "Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. 'Habit,' in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation." "A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic." "It seems apparent to us that an individual's religious practices would not be the type of activities which would lend themselves to the characterization of 'invariable regularity. Certainly the very volitional basis of the activity
raises serious questions as to its invariable nature, and hence its probative value."
THEREFORE: The more conscious, volitional, and variable the nature of the activity, the less probative it it.
Problems: Halloran v. VA Chem:

F: Use of immersion coil to heat Freon, exploded. Did so on thousands of occasions. Should have been admitted. Halloran: "One who demonstrates a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again . . ." Wigmore, Sec. 376: "Party must be able to show on voir dire, that he expects to prove a sufficient number of instances of the conduct in question." Side Note: "Voir dire" in this context relates to a discussion outside of the jury's presence to determine whether or not the piece of evidence can actually be proven.
Problem 3.19: Steroids:

Should the court allow testimony from 8 other patients to prove that Dr. Seltzer prescribed them steroids that he misrepresented to be antihistamines? If there's a calculation in each instance (a weighing), then it's cuts against "volition." ACN's says: Things that are volitional can move into habits. It's difficult to establish habit, and mechanical regularity in this case. Also, consider that if we broaden this we're allowing an increase in the ability to offer habit evidence to show action in conformity therewith.
[4.] Impeachment & Character for Truthfulness: 404(a)(3), 607, 608, 609 General:
Definition: "A lawyer impeaches a witness by casting doubt on the witness's accuracy OR trustworthiness." IMPORTANT!: MUST distinguish character evidence to impeach (under 607, 608, 609) AND other forms of impeachment Fisher: It's the difference between "You're Lying" and "You're a Liar (and therefore you are lying)." Summary/Overview: 404(a)(1)&(2): D in a criminal case can introduce character evidence on a pertinent character trait, and the prosecution can rebut. 405(a) & (b): Methods of proving character. Non-character impeachment:
Bias Contradiction Prior Inconsistent Statements
608: Impeachment by character evidence

608(a): Opinion and Reputation. 608(b): Specific untruthful conduct/no extrinsic evidence.
A. Modes of Impeachment:
Language: 607 - Who May Impeach: "The credibility of a witness may be attacked by any party, including the party calling the witness."
B.1: Non-Character Forms of Impeachment: THREE TYPES

1. BIAS: D: Where the witness has a reason to slant his/her testimony toward one party. E.g., A Few Good Men Impeachment does NOT depend on the character of the witness, but RATHER the particular facts of this case. 2. PRIOR INCONSISTENT STATEMENTS: D: Witness has said different things at different times, therefore is NOT worthy of belief at trial. The inconsistent statement is being offered to establish inconsistency in testimony, and to cast doubt on credibility. E.g., Brother's Keeper Again, impeachment does NOT depend on the character of the witness, but RATHER the particular facts of this case. 3. CONTRADICTION: D: The facts are not what the witness claims them to be (either the witness is lying, mistaken, poor memory, or poor narration). You're causing them to contradict themselves on the witness stand.
E.g. You've said Car A came through the intersection (the video shows it was car b). Like the other 3, impeachment does NOT depend on the character of the witness, but RATHER the particular facts of this case.
NOTE: There may be other constraints on these forms of impeachment: i.e., hearsay, privilege, relevance, unfair prejudice--but NOT FRE 607-609
B.2: Character for Truthfulness (Impeachment by Opinion, Reputation, and Cross-Examination About Past Lies): 404(a)(3), 608
General: This concerns a witness being a liar in general. The idea is that if he lies in general there's a probability he's lying in court. This is PURE propensity. 403(a)(3) is a true exception to the rule against propensity evidence. Other Key Points: ONLY applies after someone becomes a witness.
CAN'T attack the character for truthfulness of a party who has not testified.
UNLIKE 404(a)(1) & 404(a)(2) this applies to BOTH CRIMINAL & CIVIL cases. Can only rehabilitate under 608(a) AFTER the truthfulness is attacked. The limitations in 608 do NOT apply to non-character impeachment. Language of Rules: Rule 404(a): "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except . . .
. . . 404(a)(3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609." Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character. The credibility of a witness MAY be attacked or supported by evidence in the form of OPINION or REPUTATION, but subject to these limitations: (1) the evidence may refer ONLY to character for truthfulness or untruthfulness, and (2) evidence of truthful character [to rehabilitate] is admissible ONLY AFTER the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. Specific instances of 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 rule 609, may not be proved by 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. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness."
Clemens/Bonds Hypothetical: Is Barry Bonds' own use of steroids relevant to determine whether he's being untruthful?
Question: Is there a relationship between the use of steroids and acting untruthful? Can you use the steroid information to establish lying? No! Can we ask Barry, isn't it true that you were questioned by the FBI about your steroid use and you lied? It's a specific instance of conduct. There wasn't a conviction. It goes to truthfulness of the witness' character; AND It's on cross-examination. Can we offer evidence to show that Barry lies about using them? (minitrials?) NO! This is extrinsic evidence. SO, under 608(b) WE'RE STUCK with the WITNESS'S TESTIMONY.
608(b): "Specific instances of 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 rule 609, may not be proved by extrinsic evidence." The Prosecution CAN call a witness to impeach Bonds' testimony under 608(b).
C. Impeachment with Past Convictions: 609

General Theory: (1) People who have committed serious crimes are, in general, less trustworthy than others; and (2) Some crimes are more probative of truthfulness than others. FRE 609 is probably the most cited rule after 404(b).
[Gross Simplification of the Rule:] Rule 609 permits impeaching a witness OR defendant with evidence of a felony conviction, or with evidence of any conviction involving dishonesty OR a false statement, so long as conviction is less than 10 years old. Key!: If the EV doesn't qualify UNDER 609 because there was NO conviction, STILL decide if it's admissible under 608! NOTE: MOST COURTS (discretionary under 608(b)) won't allow EV that is inadmissible under 609 through the backdoor of FRE 608(b). AND, even if it were admissible, it would have to get past 403. ALSO: Whether or not its a crime that involves proof of dishonest or false statement has to be readily determinable under 609(a)(2)! Breaking Down the Rule: 609(a)(1): Witness with felony conviction, subject to 403. So, there is a presumption in favor of admissibility for witnesses 609(a)(1): Defendant-Witness with felony conviction, subject to special balancing test ("SBT") (probative value > prejudice) SBT: "If the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." So, the prosecution has the burden of proof for defendant-witnesses
Different standards because the rule is concerned about protecting criminal defendants because the jury might engage in propensity reasoning.
609(a)(2): ALL Witnesses/Defendants: Any crime involving dishonesty/false statements shall be admitted.
Felony OR misdemeanor; NO discretion, NO balancing! (this is unique under the rules!) ACN to 2006 Am.:
"[D]ishonesty and false statement" it meant "crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the [witness's] propensity to testify truthfully." Historically, offenses classified as crimina falsi have included only those crimes in which the ultimate criminal act was itself an act of deceit." 609(b): Time Limit
Conviction, from date of release, must be LESS THAN 10 years old. IF OLDER, admissible ONLY with advance NOTICE AND in interest of justice (probative value "substantially" outweighs unfair prejudice). Strong presumption AGAINST admissibility. Think of this as "REVERSE 403" BALANCING.
609(c): Effect of pardon, annulment, or certificate of rehabilitation:

Pardon, annulment, or other procedure based on innocence INADMISSIBLE. BUT, if Pardon, annulment, or other procedure, then CAN'T have had a subsequent felony.
609(d): Juvenile adjudications:

Juvenile adjudications inadmissible against D and in civil cases, BUT may be admitted, when fair to do so, in criminal cases against non-defendant witnesses ON credibility ACN: NO discretion when sought to be offered against accused. "Admittedly, however, the rehabilitative process may in a given case be a
demonstrated failure, or the strategic importance of a given witness may be so great as to require the overriding of general policy in the interests of particular justice."
U.S. v. Brewer: D on trial for kidnapping, want to introduce 4 past convictions, 1, 17 years ago, was for kidnapping. 5-Part Balancing Test (Gordon v. U.S.):
(1) The nature of the crime; Violence has little or no direct bearing on honesty and veracity. (2) The time of conviction and the witness subsequent history; The D's subsequent convictions while on parole support the admission of the convictions. (3) Similarity between the past crime and the charged crime; Where same crime, strong reasons for exclusion arise, because jurors think that "if he did it before, he probably did it this time." (4) Importance of defendants testimony; and This factor favors nonadmission. (5) The centrality of the credibility issue; This factor favors admission.
NOTE: THIS WILL BE ON THE EXAM. The Brewer decision cites Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967), which provides the factors a court should consider in determining whether to admit a prior conviction as impeachment evidence against a DEFENDANT who takes the witness stand in a criminal case.
It does NOT address how FRE 609 applies to non-defendant witnesses. The proper calculation for non-defendant witnesses under FRE 609(a)(1) is whether the conviction's probative value is substantially outweighed by unfair prejudice, waste of time, or juror confusion under FRE 403; and under 609(a)(2) is whether the crime is for dishonesty or false statement.
D. Rehabilitation:
Under 608(a)(2) CAN only rehabilitate AFTER character for truthfulness has been attacked. Question: When is character for truthfulness "attacked"? Bias? NO! Contradiction? Probably not, but maybe if evidence is of pervasive lies. Prior Inconsistent Statement? Probably not, but maybe if evidence is of pervasive lies. REMEMBER: If impeachment is NOT character based, then 608 and its restrictions do NOT apply!
E. Use of Extrinsic Evidence:

CANNOT introduce extrinsic evidence under 608(b), and under 405(a) the litigant reaches a dead end after cross-examination (no other evidence allowed). Key: Only applies when the sole purpose of the extrinsic evidence relates to character. If there is a NON-CHARACTER REASON (i.e., bias, impeachment by contradiction, PIS), then its a case-by-case determination. In the parlance of common law, no extrinsic evidence if it is collateral to matters in dispute.
E.g., Isn't it true you wore a red dress yesterday?
Under FRE, key is FRE 403: Is the probative value of the extrinsic evidence is substantially outweighed by waste of time, confusion, prejudice? If so, no extrinsic evidence Fisher p. 304: Because bias is NOT deemed a collateral matter, extrinsic evidence to prove bias IS allowed.
Confrontation Clause Side Note:

Sixth Amendment to US Constitution protects defendants right to confront his or her accusers. FRE 412 Context (Rape Shield Law), much litigation over whether the constitution protects a defendants right to impeach the general character of a complainant about past false allegations (i.e., the applicability of Olden v. Kentucky). NOT an issue under FRE 412, which does NOT prohibit evidence of past false allegations (e.g., State v. Smith). In state courts, there is no consensus, as Fisher points out. 2 Key Points: 1) Constitution trumps FRE; 2) Sixth Amendment is very important when we discuss hearsay.
[5.A.] Reliability: The Rule Against Hearsay: 801(a)-(c), 802, 802(d)(2)(A)-(E), 104(a), 613, 801(d)(1), 602, 804, 806, 803(1)-(10), 612, 807 !!!!HOW TO DO YOUR HEARSAY ANALYSIS !!!!
Do your step by step analysis: Is it an out of court statement? Verbal/non verbal assertion. Is it offered for the truth of the matter asserted? Does it fit within an exception (e.g., 803, 804, 807). If you are a proponent of the evidence, come up with a theory of admissibility. If you are an opponent, resist ALL theories, then look for other ways to prevent the evidence! FRE 602? FRE 403? FRE 104(a)?
A. Introduction
Now we're moving away from relevancy. Now, the evidence matters, but is it sound? Is the witness competent? Is the witness's proposed testimony trustworthy? Competency: FRE 601 Competency is only an issue if the witness can't communicate, recall, or isn't able to know right from wrong. 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 with State law."
Competency Compromises:
Interested Parties: BIAS Non-Christians: Rules 603 and 610 Racial Minorities: 14th Amendment. Convicted Felons: Rule 609 Defendants: Bias Children: ?? Cross-exam?
602: Personal Knowledge Required! Language: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Except experts (who are governed by 703). If competency is about WHO can be a witness, hearsay is about WHAT they can be a witness to.
B. Defining Hearsay: 801(a), 801(b), 801(c) & 802

1. The Basic Rule Hearsay is ALL about the reliability of the evidence the jury hears. Normal, non-hearsay Testimony: Four possible sources of unreliability (in testimonial capacities):
E.g., "Then I saw John pull the trigger." 1. Perception: W saw Tom pull trigger, but mistook him for John. 2. Memory: W saw/recognized Tom, but now thinks it was John. 3. Narration: W means to say Tom, but says John. 4. Sincerity: W means to deceive.
Witnesses are permitted to testify because we can test them with three tools:
1. The Oath: Ws must swear/affirm that they will tell the truth (religious, perjury pressure). Solemnity prompts sincerity and care. 2. Demeanor Evidence: Jurors watch faces/mannerisms, signs of stress, and judge intellect, precision, and trustworthiness. 3. Cross-Examination: Opposing counsel probes for deficiencies in perception, memory, narration, and sincerity. Also, W must answer questions while facing the accused.
Therefore, General Problems with Hearsay:

Can't cross-examine the declarant. Declarant NOT under oath. Can't observe the declarant's demeanor.
Breaking Down the Rule/Language:

802: "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." 801(c): Hearsay Defined: ""Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." In ENGLISH (LIF): Hearsay is:
(1) A statement; (2) Made by the declarant outside of this trial or hearing; and (3) Offered to prove the truth of the matter asserted in that statement.
801(b): "Declarant": "A "declarant" is a person who makes a statement."
801(a): "Statement": "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."
In essence, an assertion is an intent to communicate something to someone.
"Offered to Prove the Point Asserted": Is the litigant offering the statement to prove the truth of what's asserted?; or For some other reason?, i.e.,
For effect on listener; To prove a legal right; To impeach by prior inconsistent statement.
ANALYSIS:
Under Rule 801(c) we MUST ask two questions to decide whether any particular out-of-court statement is hearsay: (1) Is the litigant offering the statement to prove (the truth of) what it says or was meant to say? (2) Did the declarant assert - that is, did she mean to communicate - that fact? UNLESS the answer to BOTH questions is YES, the statement is NOT hearsay! Focus on whether it matters that the OOC statement is true. If so, likely hearsay.
**Nonhearsay Uses of Out-of-Court Statements**

Words Offered to Prove Their Effect on the Listener: E.g., AB told BC to be careful b/c Joey was looking for him & had a gun. Statement not offered for truth (not offered to prove Joey had a gun). Statement offered to show it was reasonable for BC to have fear. The evidentiary significance of ABs words, when offered to prove the defendants reasonable fear of Joey, does not depend on the AB's testimonial capacity. Even if what AB said was false, BC could have reasonable fear. All that matters is that AB said the words, and that BC heard (and believed) the words. B/c it does not matter whether ABs testimonial capacities were sound, it does not matter that the opposing lawyer cant subject AB to oath/presence b/f the jury/cross-examination. Legally Operative Words (Verbal Acts): Simply by uttering certain words, a declarant can trigger a legal right or duty or commit an offense. These are "verbal acts," because they have objective meaning. All these statements operate independently of the speakers belief or intended meaning. E.g., If other conditions met, saying "I accept," can create a K. E.g., "I will kill you" can constitute a threat. E.g., "I do," makes a marriage. Testimonial capacity doesn't matter, so there's no reason to exclude as hearsay. Inconsistent Statements Offered to Impeach: The theory is that the out-of-court statement proves that the witness has said different things at different times about this fact, so his/her testimony on this point cant be trusted. The truth of the OOC statement is irrelevant. EV of inconsistent statements offered ONLY to impeach therefore is not hearsay.
Problems Clip: Shallock v. Heinze
P in sexual harassment suit is on the stand. P says, "I told our supervisor that we (female employees) made an agreement not to be alone with Mr. Heinze." What is it being offered for? To show fear. If it's being offered to show fear, it's being offered for its truth and it's hearsay. An irrational fear cannot be used as evidence to show that she was sexually harassed. What if it was being offered to show that the employer was on notice? Then, it doesn't matter whether the statement is true. It has a legally operative effect (one of the obligations is to show notice). Evidence CAN BE offered for more than one purpose! It can be offered for an admissible and an inadmissible purpose. Request Limiting Instruction: Please keep in mind that this evidence can only be considered to show that Mr. Heinze's employer was on notice, and not as evidence of Mr. Heinze's conduct toward his employees. Limiting instruction would probably want to refer to the actual contents of the communication.
Problem 7.1: Rollover Affidavit: P wants to offer affidavit of chief witness (who might die) about the SUV being prone to rollovers.
Break it down: (1) Is this statement? Yes, under 801(a)(1) this is a [written] assertion. (2) This statement was made out of court; (3) Affidavit being offered to prove the truth of the matter asserted [that the SUV prone to rollovers] Yes it is hearsay b/c the statement/gesture is being offered for the truth value of the declarant's statement.
Problem 7.2: The Gesture: A says she saw B make "money gesture" with his fingers. This is a statement (non-verbal assertion), out of court, being offered to show that B needed cash (truth of the matter asserted). Problem 7.3: Quoting Herself Declarant is on the stand and says, while she was at the police station she identified the D, and said, "He's number three."
(1) Is it a statement? Yes. (2) Was it made out of court? Yes. Out of court. (3) Is it being offered to prove the matter asserted? Yes, offered to prove the defendant robbed Alice.
This is technically hearsay (but would come in under an exception). ACN to 801(c):
"Prior statement by witness. Considerable controversy has attended the question whether a prior out-of-court statement by a person now available for cross-examination concerning it, under oath and in the presence of the trier of fact, should be classed as hearsay. If the witness admits on the stand that he made the statement and that it was true, he adopts the statement and there is no hearsay problem."
2. Defining Assertions: Key: Sometimes OOC statements are relevant to prove the truth of what the declarant believes, but nonetheless is NOT hearsay.
This is because it does NOT manifest itself as an assertion. Under 801(a) a statement is a type of assertion. This is important because if there's NO assertion, there's NO hearsay analysis.
Compare Problems: ACN: "Nothing is an assertion unless intended to be one." Ship Inspection; 7.9:
Captain inspects ship before taking his family out on a trip.
Amchitka Holiday; 7.10:

Schlesinger, Chairman of the Atomic Energy Commission told press he was taking his family to the site of a nuclear blast.
Key: Ship Captain did NOT intent to communicate anything by his inspection; Schlesinger did.
The key difference is the OOC actor's sincerity. Captain had no audience, so he could not have been lying. Schlesinger was seeking to dispel fears of danger. Underlying Rationale: We don't have to worry about non-assertions because people don't lie to themselves. So, If it's intended as an assertion, then the credibility of the declarant matters, and then we need to do a hearsay analysis. When ANALYZING: Ask, could this conduct be a lie?
Problem 7.3 Revisited:

What if she said I picked out (pointed) #3? This was assertive conduct. ACN: "Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly equivalent of words, assertive in nature, and to be regarded as a statement.
Implied and Indirect Assertions:

Implied: Based on context: Don't have to say, "I know that there is a stop sign ahead." But, there's an intent to communicate facts by implication. Declaration: "Don't run that stop sign" is an assertion that there is a stop sign. Implied Question: "Do you see that there is a stop sign ahead"? Indirect: Relationship to relevancy: Remember, evidence is relevant if it's "one brick in the wall" Any brick can be hearsay. E.g., A's OOC statement, "I just spent all morning with the architect planning my retirement home."
Hearsay if offered to prove how A spent her morning. BUT, what if the P offered it to show that A did not intend, expressly or impliedly, to communicate anything about suicide. MUST look at the chain of inferences: 1. A was planning her retirement home; leads to 2. A was planning for the long term; leads to 3. She was probably not mulling suicide. Therefore, it IS being offered to prove the truth of what it asserts, and IS hearsay.
**More Nonhearsay Uses of Out-of-Court Statements**:

Nonassertive Words: Involuntary expressions are really the only clear example. "Ouch!" Probably would NOT be hearsay if offered to prove that you were in pain. Words Offered to Prove Something Other Than What They Assert E.g., Wright v. Tatam:
Contested will, letters between testator and people that knew him well. Offered to show that the authors (now dead) thought the testator was of sound
mind. Letters proved that the authors believed the testator was competent, a belief they felt no need to communicate. Court did exclude the letters as hearsay. Under 801(c) these would NOT be hearsay because they weren't offered for the truth of the matter asserted.
Assertions Offered a Circumstantial Proof of Knowledge E.g., Bridge v. State (p. 385): V said D sexually assaulted her. D denied the claim, and said he'd never seen her before.
V's mother and police who interviewed V testified about what V told them about where the D had taken her (e.g., specific facts describing the room). The room matched the description. Her statements "constituted at least circumstantial evidence that she then had such knowledge; and that such state of mind on her part was acquired by reason of her having been in that room and house prior to making the statements." The V's knowledge of the appearance of the residence was used to prove circumstantially that she had been there. NOT offered to prove the accuracy of the description of the D's room.
Heres the chain of inferences that makes the statement NOT hearsay: 1) The girl described the room accurately; 2) Someone who describes the room accurately must have knowledge of how the room looked; and 3) Someone who has knowledge of how the room looked must have been there. Heres one way to think about it: Her testimony about the details of the room have no evidentiary significance on their own. Its only the inferences we draw from her statements that make them significant. Therefore, this is circumstantial, and not direct, evidence of her knowledge, and therefore not hearsay. Key: We dont care about her testimonial capacities! There is no way she could have been lying, or misperceived or misremembered the room, because her description was accurate. 3. Exceptions to Hearsay: An Introduction 5 GENERAL AREAS:
1. Prior Statements By Witnesses: 801(d)(1) (A) Prior Inconsistent Statements (B) Prior Consistent Statements (C) Statements of Identification 2. Admissions by Party-Opponents: 801(d)(2) (A) The Party's Own Statement (B) Adoptive Statements (C) Statements by Spokespersons (D) Statements by Agents (E) Coconspirator's Statements 3. Exceptions in Which The Availability of the Declarant is Immaterial: 803 (1) Present Sense Impressions (2) Excited Utterances (3) Then-Existing Mental, Emotional, or Physical Condition (4) Statements for Medical Diagnosis or Treatment (5) Recorded Recollections (6 & 7) Business Records (8 & 10) Public Records and Reports 4. Exceptions Applicable Only When the Declarant is Unavailable: 804
(b)(1) Former Testimony (b)(2) Dying Declarations (b)(3) Statements Against Interest (b)(6) Forfeiture by Wrongdoing 5. Residual Exception: 807
4. Hearsay Within Hearsay Rule 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."
C. Statements of Party-Opponents : 801(d)(2)(...)

No requirement of first hand knowledge (of the declarant) for statement to be admissible for its truth. 1. The Party's Own Words: 801(d)(2)(A) Language: A statement is NOT hearsay if
"(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity . . ."
So, even where someone testifies that a defendant "told them" something, the exception works (see U.S. v. Barrett). Rationale:
Against interest (?) The statement does NOT need to be against interest. It need only be relevant under 401, but could be excluded for 403 and 404. Inability to cross a hearsay declarant is NOT applicable since the party is the declarant. Necessary to adversary system.
2. Adoptive Admissions: 801(d)(2)(B) Language:

"A statement is not hearsay if Admission by party opponent . . . The statement is offered against a party and is . . . (B) a statement of which the party has manifested an adoption or belief in its truth."
E.g., Double Indemnity: "Look Mr. I'm just a poor guy." He was accused of burning out his truck. There's a natural expectation that you're going to deny such an accusation. He didn't, so the silence could be adoptive. Admissibility depends on FOUR preconditions:
1. The party* heard the statement; 2. The party could have responded; 3. That the circumstances naturally called for a response; and 4. The party failed to respond or deny (or responded, but did not rebut) *against whom the statement is offered.
Problem 7.13: Buddies: A told undercover B, "I don't have anymore drugs, but you can get another from my buddy."
(1) He was two feet away, and he reacted and got drugs. (2) He could have responded. (3) Maybe he's just a neighbor, so he doesn't necessarily have to respond. Not only did the circumstances call for a response, he DID respond. Then, he affirmatively adopted the statement but his actions after. This is not silence, it's adoption by conduct. (4) Did respond.
3. Statements of Agents: 801(d)(2)(C) & 801(d)(2)(D)
Subdivision (C): Statement made by a person authorized by party concerning the subject; or Subdivision (D): Statement made by agent Statement within scope of employment Statement made during agency relationship 4. Coconspirator's Statements: 801(d)(2)(E) & 104(a) Language:
"A statement is not hearsay if . . . (2) Admission by party-opponent. . . The statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."
Elements:
OOC statement; Of co-conspirator of a party; Made during the course of the conspiracy; and Made in furtherance of the conspiracy.
Bourjaily v. U.S.: Facts: FBI informant (Greathouse) and a friend (Bourjaily) enter into an agreement with Lonardo to buy cocaine. Question: Are Lonardos statements to the FBI admissible against Bourjaily? To be admissible: Conspiracy involving declarant and defendant, statement made during and in furtherance of conspiracy. FRE 104(a): Judge makes the admissibility determination by a preponderance of the evidence standard. Proof of Conspiracy: Contested statement can be considered, but is alone insufficient, to show existence of conspiracy or membership in conspiracy (now part of the rule, see 1997 amendment). FRE 104(a) vs. FRE 104(b): 104(b): We know from Huddleston that the standard is: Can a jury reasonably find the conditional fact by a preponderance of the evidence? Applies only to issues of conditional relevance (including 404(b)); Can only use admissible evidence to make the determination; If the Huddleston standard is met, the jury decides whether the condition has been satisfied. 104(a): The judge decides preliminary issues of admissibility; Standard is a preponderance of the evidence; The judge may consider inadmissible evidence in making its determination. Not a jury question.
D. Past Statements of Witnesses and Past : 613 AND 804(d)(1)

1. Introduction: Language: "A statement is not hearsay if . . . The declarant testifies at the trial or hearing AND is subject to cross-examination concerning the statement AND: The statement is inconsistent and was made under oath in a
proceeding; (d)(1)(A) The statement is consistent and offered to rebut a charge of recent fabrication; (d)(1)(B) The statement is one of identification; (d)(1)(C) 2. Inconsistent Statements Offered to Impeach: 613 & 801(d)(1)(A) FRE 613: Language:
"(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2)."
FRE 613 Summary: Allows you to impeach a witness with ANY prior inconsistent statement. In addition, if witness denies the statement, you CAN offer extrinsic evidence to prove up the statement. Witnesses need to be allowed to explain or deny prior inconsistent statements (except party-opponents!). Contrast this with FRE 608(b), which does not allow extrinsic evidence to prove specific instances of conduct that attack or support character for truthfulness.
Comm. v. Troisi: Facts: Robbery. Victim got into the cab, and cabbie drove her home.
Did she pay the cab, or did someone else pay? Did the person that says that she was robbed pay the cabbie?
Defense attorney is asking about a prior inconsistent statement.

He's essentially saying, "He's said so many things that he's not sure what's true."
More Questions:
Cab driver admits that he did say that she paid for the cab, but got it wrong. I was tired, and had been working. The gentleman paid. What if the only evidence in the whole case was his statement. In the closing argument, can the defense argue that she in fact paid for it? No! This was NOT a statement given in a prior trial or proceeding. KEY: It's admissible under Rule 613, but it's NOT admissible under a hearsay rule as substantive evidence.
Limiting Instruction:
"The statement can only be used for impeachment, and can't be considered for its truth." Limiting Instruction (p. 429); This has the importance of showing the opposing counsel that they can't argue it during the closing statement (or I'll move for a mistrial). Side Note: 403 argument; There's no way that a jury will be able to understand a limiting instruction, so it shouldn't be admitted.
608(b) Strategy: Also, better to get explanation about inconsistencies while the witness is on the stand (because of the cabbie leaves and you can't
subpoena him again, the judge may not allow you to put the other witness on).
FRE 801(d)(1)(A): Language: "A statement is NOT hearsay if . . . The declarant testifies at the trial and is subject to cross-examination concerning the statement and: The statement is inconsistent and was made under oath [in a proceeding]; (d)(1)(A)." U.S. v. Barrett: Can defense lawyer cross-examine Bass and Buzzy about any cooperation agreements they received to testify? You can always ask a witness about bias. This is just a general rule. What if Bass and Buzzy deny that there's a cooperation agreement? Can these be brought in? Clearly. This is NOT character based impeachment. But, there are three non-character ways: prior inconsistent statements, bias, and contradiction. Can the defense introduce extrinsic evidence of the cooperation agreements? Yes. Problem 7.17: Retraction:
A says M fired the fatal shot. Then at trial denies ever having made the statement. Proc. calls the detective who says she fired the fatal shot. Margaret files a motion for DV (no reasonable view of evidence). Question is: Should the motion be allowed?
Yes. A prior inconsistent statement does NOT come in as substantive evidence. It has only been introduced to impeach, and it's not coming in as substantive evidence. It's just showing that the witness isn't credible. Therefore, the statement's not coming in for its truth. There's NO affirmative evidence, so the judge would have to grant the motion for acquittal.
U.S. v. Ince: Prosecutor attempts to get information about prior confession in front of the jury via impeachment evidence. If a prosecutor is seeking to "play a game" (where the witness isn't going to "remember" that he made the statement), and the prosecutor is going to introduce extrinsic evidence. If they're trying to get evidence in to impeach that wouldn't be admissible, it's not going to be admissible. This is going to violate 403. If some information is inadmissible under hearsay, you can't try and get it in through a back door. 3. Inconsistent Statements Offered SUBSTANTIVELY: 801(d)(1)(A) Language" "A statement is not hearsay if the declarant testifies and is subject to cross-examination and: (a) statement is an inconsistent statement given under oath in a proceeding;
(b) statement is consistent and offered to rebut a claim of recent fabrication; (c) statement is one of identification; THREE Requirements:
1. The declarant testifies at trial/hearing; 2. Is subject to cross-examination on the statement; AND 3. The statement is inconsistent with the declarant's testimony, and was given under oath, subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.
Problem 7.19: Domestic Violence

Q: Can F.T.'s grand jury testimony be admitted as substantive evidence of Robinson's guilt? Prior proceeding? Yes. ACNs even say that a grand jury is a prior proceeding. Is it inconsistent? Yes. Was it under oath? Yes. It was a grand jury hearing, so it was under oath and subject to perjury. Is this good policy? She changed it. At the grand jury, she was willing to testify. But, her husband is present at the actual trial. Rationales for 801(d)(1)(A): Need to deal with "turncoat" witnesses (e.g., witness intimidation). No dispute that prior statement was made (most likely there will be a transcript). Reliability less of an issue because:
Prior statement is made under oath, at a proceeding, and declarant is now subject to cross-examination in the current proceeding. Prior statement is made closer in time to the conduct in question.
Hypo: What if F.T. is on the witness stand, and is confronted about the inconsistent testimony? And, she says, "You're right, I said it." Now, it's an in-court statement. She's adopting her statement. Look at ACN (p. 215).
Defining "INCONSISTENT":
Does it need to be diametrically opposed? NO. There only needs to be "a tension" between the trial and prior statement. Has there been a "shift" in the testimony that matters? Generally, Courts treat lack of memory as inconsistent. (there are few reported cases in this area.) This is because when people say that they don't remember, there's probably some other reason. Here, they may not want to remember. Are there some factors here?
How long ago was the testimony? Physical reasons for her lack of memory? She had a blow to the head.
Ultimately, the decision is for the court under FRE 104(a);
4. Past Consistent Statements: 801(d)(1)(B) Language: "A statement is not hearsay if the declarant testifies at trial and is subject to cross and the statement is: (b) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or
improper influence or motive." Video Clip: Anatomy of a Murder: D is on trial for temporary insanity. D calls his jail mate. Jail mate's statement, although hearsay, is admissible under 801(d)(2)(A). How can the defense ask about the prosecutor's statements to the jail mate? Hearsay analysis: It's out of court, it's a statement, but what's it being offered for? It's being offered to establish that the witness had a bias! What if the prosecution calls the jail mate's mother on rebuttal who's prepared to testify: "My son called me from prison last night and said, guess what the D told me? He's fooling everyone!" This is a consistent statement that's being "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Timing is important!: If he called his mother before talking to the prosecution, this rebuts the bias. If he called his mother after talking to the prosecution, this doesn't rebut anything. Tome v. U.S. F: 6 y.o. girl unable to testify fully about alleged sexual abuse, prosecution offers 7 out of court prior consistent statements in which victim described the abuse. Key EI: "Whether OOC consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under 801(d)(1)(B)." Holding: Recent fabrication means recent fabrication; in other words: The prior consistent statement MUST HAVE been made BEFORE the motive to fabricate arose. Does an attack on a character witness under 608/609 allow you to use 801(d)(1)(B) to introduce the statements as substantive evidence? If the prior consistent statements are coming in purely for impeachment, then it probably can come in. It's not being introduced substantively, but being used to rebut the allegation that the witness is not credible (to rehabilitate). There's no question that the evidence can come in to rehabilitate the witness. Note: If you distinguish the reasons for why the evidence is being offered, then the admissibility changes (substantive evidence v. impeachment). The question of whether the statement is consistent is narrowly defined. Why? This is being offered as substantive evidence under 801(d)(1)(B). If it wasn't narrow, you could argue that anything could come in as non-hearsay as consistent. This does NOT have to be under oath in a prior proceeding. 5. Statements of Identification: 801(d)(1)(C) The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement . . . .(1) The statement is offered against a party and is . . .(C) one of identification of a person made after
perceiving the person." The Player: Whoopi What if we now have Whoopie Goldberg on the stand? Is it hearsay? It's out of court, offered for the truth of the matter asserted (it's being offered to show that she identified someone). Did Ms. Andrews already testify at trial? Yes. After her direct, she was capable of being cross examined. If the police officer couldn't get on the witness stand, would the ID have any meaning? No. The rule does NOT say that the declarant is the only person who can testify about the identification. BUT!!, if Ms. Andrews did NOT testify, Whoopi (police officer) could not get on the witness stand! U.S. v. Owens: Holding: A witness who testifies AND is available for cross (the precondition for 801(d)(1) statements), means only that. There is NO requirement that the witness remember the prior identification. Confrontation Clause: We will deal in much detail with after we are done with hearsay - just remember, Owens is still good law: The CC guarantees only an opportunity for effective cross-examination, not cross-examination that is effective. Summary of 801(d)(1): IF the preconditions (they testify and are available for cross-examin.) are met, the prior statements ARE admissible as substantive proof of the matter asserted.
E. Hearsay Exceptions Under 804(b): "Declarant Unavailable"

Intro: Unlike 801(d)(1) "exceptions," where a declarant must testify and be subject to cross, 804 ONLY applies when the declarant is unavailable (i.e., when the declarant's testimony is unavailable). These exceptions are founded on the rationale: Even though the testimony is unavailable, we as a society deem the declarant's prior statement particularly trustworthy and/or necessary. Unavailability Defined: "Unavailability as a witness" includes situations in which
the declarant: 804(a)(...) (a)(1) Exempt by privilege; or (a)(2) Refuses to testify; or (a)(3) Lack of memory; or (a)(4) Death, physical, or mental illness; or (a)(5) Unavoidable Absence; Is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process or other reasonable means; Or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony by process or other reasonable means.
NOT UNAVAILABLE: . . .[A]s a witness if:

Exemption, refusal, claim of lack of memory, inability, or absence is due to the
procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
OVERVIEW: If declarant unavailable, her out of court statement offered for truth MAY still be admissible IF:
Statement is former testimony and certain conditions met. FRE 804(b)(1) Statement against interest. FRE 804(b)(3) Dying Declaration. FRE 804(b)(2) Forfeiture by Wrongdoing. FRE 804(b)(6)
1. Past Testimony: 804(a) & 804(b)(1) Language: Rule 804(b)(1): Former Testimony: 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, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination (emphasis added). Preliminary Points:
Former testimony does NOT need to be in the same proceeding. There MUST be an opportunity for proper examination (usually crossexamination). In criminal cases, the opportunity MUST be afforded to the party against whom the evidence is offered. In civil cases, the opportunity must have been afforded to a "predecessor in interest."
Problem 7.23: Roadway Incident: "[H]ad an opportunity and similar motive" Is the declarant unavailable? Yes. Is it being offered against a party? Yes (against Crewing). Did he have opportunity and similar motive to develop former testimony in prior proceeding? NOTE: This doesn't require ACTUAL cross, JUST the opportunity. What was Crewing's motive regarding Sarah's testimony in the civil proceeding? What interest did he have? Is Crewing going to have to pay damages? No. The insurance company is. Arguably, Crewing is NOT as concerned about liability as he would be in a prosecution for drunk driving. What would be Crewing's motive in the criminal proceeding? What other facts do we need to know about the civil case? Amount of damages? (fender bender v. substantial damages). What's the possible penalty here? (this helps in the determination). Would the judge let it in? Probably not. The judge would probably say that the motive was sufficiently dissimilar, and not let it in. Problem 7.22 Revisited: What if the D wanted to introduce the grand jury testimony by Robinson, against the prosecution? (That she and Robinson were in a custody dispute.)
Was there testimony given in a formal proceeding? Yes. Against whom is it being offered? Offered against the prosecution. Was the prosecution in the grand jury proceeding? Yes. Now we're dealing with motive. Prosecution has the opportunity to direct examine in a grand jury proceeding. Did the prosecution have the same motive as he would in the trial? In a grand jury, the standard is probable cause for indictment. The standards are completely different at trial (beyond a reasonable doubt at trial). You also don't want to expose your key witness as uncredible. Can make a very good argument that the motives were too dissimilar. When might this argument work? E.g. Hostile witness comes into the grand jury. The witness doesn't want to give them any favorable testimony. There might be more of an argument there that the motive was similar. But, where it's the victim of a crime (as above), you're not going to "beat them up" as much. "Predecessor in Interest": CIVIL CASES
Former testimony is admissible if a "predecessor in interest" to the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony.
Lloyd v. American Export Lines: F: A & L fought on a ship. A sued SC for not protecting him. The CG had brought charges against L to terminate his merchant's license. L is unavailable, so SC wants to introduce L's testimony from the CG hearing. KEI: Was the Coast Guard a "predecessor in interest" to A with the same or similar motive to develop L's testimony? Holding: They had a community of interest sufficient to allow the former testimony under 804(b)(1). Both wanted to establish (Lloyds) culpability and a remedy. Same nucleus of operative facts. Key Phrase: [I]f it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was afforded an adequate opportunity for such examination, the testimony may be received against the present party. (quoting McCormick). Concurring opinion in Lloyd: Congress rejected the community of interest approach in favor of predecessor in interest, which connotes mutual or successive relationships to the same rights of property. !!!!!EXAM ANALYSIS: !!!!!! "Community of Interest" VS. "Predecessor in Interest" Under "sufficient community of interest" this would probably be fine;
Where a court requires a stricter "privity"-esque requirement, it would probably be insufficient. 2. Statements Against Interest: 804(b)(3): Now corroboration is needed for both D and P offers. Language: 12/01/10 NEW RULE!: Now in subsections, 804(b)(3)(A) & 804(b)(3)(B)
(3) Statement against interest. A statement that: (A) a reasonable person in the declarants position would have made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the declarants claim against someone else or to expose the declarant to civil or criminal liability; AND (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Old ACN: [O]ne senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents, enhanced in either instance by the required unavailability of the declarant. (RB 287.) 2010 ACN:
"Subdivision (b)(3). Rule 804(b)(3) has been amended to provide that the corroborating requirement applies to all declarations against penal interest offered in criminal cases. A number of courts have applied the corroborating circumstances requirement to declarations against penal interest offered by the prosecution, even though the text of the Rule did not so provide" "All other changes to the structure and wording of the Rule are intended to be stylistic only. There is no intent to change any other result in any ruling on evidence admissibility."
Preliminary Points: Under 804(b)(3)(a), the statement must be against the declarants proprietary OR financial interests, invalidate a legal claim, or expose him or her to civil or criminal liability. Last part: Statement against penal interests So statements that might only cause embarrassment or ridicule are NOT covered. The test is objective. Would a reasonable person in the declarants position have made the statement? Why? The declarant is not there, so how are you going to ask him about how he felt in that situation? Context is everything: "I committed the crime" means one thing when said to the police, quite another when said by an actor in a play. Corroboration Factors: (from United States v. Hall): 1. the timing and circumstances under which the statement was made; 2. the declarants motive in making the statement and whether there was a reason for the declarant to lie; 3. whether the declarant repeated the statement and did so consistently, even under different circumstances;
4. the party or parties to whom the statement was made; 5. the relationship between the declarant and the opponent of the evidence; and 6. the nature and strength of independent evidence relevant to the conduct in question. Williamson v. U.S.: Entire Statement or Just Parts? Harris arrested with 19 kilos and gives several stories about source of the drugs and about defendant Williamsons role. If Harris testified, then we wouldnt have any problems, right? He could describe the conspiracy and Williams admissions. Here, Harris refuses to testify, and prosecutor calls the agent to relate Harriss statements under FRE 804(b)(3). Williamson appeals, claiming Harriss statements were hearsay and improperly admitted against him. KEI: Whether Harriss whole statement is admissible under FRE 804(b)(3). Supreme Court rejects the narrative view that Harris whole statement (including the part that incriminates Williamson) is a statement against interest. Instead, only the self-inculpatory portion of statements are admissible under 804(b)(3). This is the collateral statements rule: Non-self-inculpatory parts are not admissible. RATIONALE: Because self-serving statements that tend to shift blame to another person are inherently untrustworthy. They dont satisfy the rationale of the rule which is that, we let statements in that are so against their interest because people don't usually lie in these situations. ***BUT!!! Some self-inculpatory statements that implicate -- but do not directly incriminate -- the defendant ARE admissible. Example (p. 473): I was robbing the bank Friday morning, coupled with evidence that the declarant and the defendant were driving together Friday morning and that two people robbed the bank. The statement only incriminates the declarant, so it would be admissible under FRE 804(b)(3). Yet, the prosecution will want to admit it as evidence of the defendants guilt. More on the Analysis: The court needs to look to context to see if the portion that inculpates the declarant ALSO inculpates the defendant. If it does, then the court will need to consider various factors to determine whether it is admissible, including: Is the statement even handed OR attempting to shift blame? How connected are the declarant and the defendant? (for example, is the crime an act that required joint action?). Does the statement make sense if you eliminate references to the defendant? Remember: Self-inculpatory statements will be admissible only if
there is sufficient corroboration. ALWAYS PROCEED TO CC ANALYSIS; 3. Dying Declarations: 804(b)(2) & 806 Language: And 804(b)(2) says. Statement under belief of impending death. In prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing (subjective?) that the declarants death was imminent, concerning the cause of circumstances of what he believed to be impending death. Elements/Analysis:
1. Any civil case or in a criminal case for homicide; 2. OOC statement by the declarant; 3. Made while believing death is imminent; 4. Concerning the causes or circumstances; 5. Declarant is unavailable;
Shepard v. United States: Facts: Ms. Shepard gravely ill on May 20, 1929. On May 22 she is much better and says Dr. Shepard poisoned me. Gets worse on May 27, dies on June 15. So is Dr. Shepard has poisoned me a dying declaration? No. In this case it's merely speculative. What does Justice Cardozo say is the test? A settled hopeless expectation of death and the statement is made in the hush of its impeding presence. Rationale? There's heightened reliability. Why in homicide cases? The one witness is dead; there's a necessity. Also, Ms. Shepard did NOT have personal knowledge: Rule 602: Witnesses must have personal knowledge. ACN: In a hearsay situation, the declarant is, of course, a witness, and neither this rule [FRE 803] nor Rule 804 dispenses with the requirement of first-hand knowledge. (RB 234) Exception: Party-Opponent admissions: If you make a statement, even if there's no knowledge, it's going to be held against you. Who decides and under what standard? 104(a) "Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. Remember Bourjaily: The question here is "whether or not" it's a dying declarations. This is a question of admissibility. Thus, it's going to be a question for the court. Side Note: FRE 806 A hearsay declarant's credibility can be attacked in most of the same ways
that are available as any other witness. This is "extra credit" territory. Can't attack a declarant's testimony under 608(b): Can prove bias, contradiction by inconsistent statements, contradiction by other evidence, and evidence of untruthful character. Specific acts suggesting untruthfulness will probably not be allowed since the declarants aren't at trial, and there's a extrinsic evidence bar. 4. Forfeiture By Wrongdoing: 804(b)(6) Language of 804(b)(6): Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. US v. Gray: 3 elements:
(1) opponent engaged in wrongdoing; (2) intended to render the declarant unavailable as a witness; and (3) that did render declarant unavailable.
F. Hearsay Exceptions Under 803: "Availability of Declarant Immaterial"

Intro: DOESN'T MATTER whether the D is available to testify. 803 Exceptions compared with 804 Exceptions: Rule 804 ONLY applies when declarants testimony unavailable. The thinking is that this exception is necessary for certain statements that have an indicia of reliability. Rule 803: Declarants availability immaterial because these types of statements are presumptively reliable. In other words, the hearsay is better than live testimony! 1. Present Sense Impressions 803(1) AND Excited Utterances 803(2): Tips:
803(1) and 803(2) closely overlap! EXAM TIP: Look for them together, and ARGUE BOTH!
803(1) - Present Sense Impressions (VERY NARROW): Which saysThe following are not excluded by the hearsay rule, even though the declarant is available as a witness: "Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, OR immediately thereafter." The declarant is describing it AS IT'S HAPPENING. Big on immediacy here. 803(2) - Excited Utterances (MORE BROAD): Which says The following are not excluded by the hearsay rule, even though the declarant is available as a witness: "Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Excited Utterances compared with Present Sense Impressions:
EI - 803(1): Limited to statements made during or immediately after (moments later) the event or condition. Applies only to statements describing or explaining the event or condition. PSI - 803(2): Limited to the length of time of the excitement (measured by the subjective state of the declarant. Applies to statements that relate to the startling event or condition (broader than 803(1)) Problem 7.31: Domestic Violence V: We're the prosecution. She denies at trial. 803(1)?: Probably not going to fly; if you have a "moment" to reflect, then we're past the time for subdivision 1. 803(2)?: There's an exciting event, she was stressed, was a victim of physical abuse. Was still suffering under the excitement or stress of it. Elements (Analytically): Was there an external stimulus? Was there an excited reaction? Did the statement relate to the stimulus? 2. Statements of Then-Existing Condition: 803(3) (a.k.a.., The "state of mind" exception) Language: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. Problem 7.33 Kidnapping: F: A leaves his friends at restaurant and walks into parking lot, never returns. 2 friends testify that A earlier said that he was going to meet D to get pot, and that when he left he said Ill be right back. Should As statements be admissible to prove he did not disappear voluntarily? Should statements be admissible to prove D was the one who kidnapped A? "State of Mind" Analysis: Step 1. Is it relevant? Usually, it is offered to prove that the declarant acted consistent with her state of mind. E.g., Adell said hed be right back, and a person who says he intends to return is more likely to do so than someone who doesnt. Dont get fooled into believing its not relevant simply because the declarants state of mind isnt the ultimate fact. Remember, an indirect assertion is still a statement if its part of the
chain of inferences that leads to the ultimate fact. Also dont get fooled because the statement needs to be interpreted. Its still an implied assertion about state of mind. E.g., assume Adell said Lets go to a movie after we leave here. Thats still a statement about his intent to return, just made in a more fact-specific way. Step 2. Is it hearsay? Is the out of court statement being offered as direct evidence of the declarants state of mind, meaning no inferences are required? e.g., Adells statement is direct evidence that he intended to return. In other words, it has independent relevance as proof of the matter asserted. Step 3: Does it meet FRE 803(3)? Is it a statement of the declarants then existing state of mind? If yes, then it is admissible. E.g. Adell statement Ill be right back is a present statement about his future conduct. Is it a statement of the declarants memory or belief to prove the fact remembered or believed? If yes, not admissible (unless relates to a will). E.g. Adells statement that he was going to meet with the defendant to get pot, which of necessity was a statement about the past - that he and the defendant had agreed to meet at 9:30pm. Rationale for 803(3): Nobody knows a declarants state of mind better than the declarant. The statement itself is better evidence of the state of mind than later testimony about it (think how hard is it to remember what you were thinking in the past). In other words, for statements of the declarants then-existing state of mind, there is less risk of unreliability because there are no dangers of faulty memory, NOR dangers of misperception. E.g., At the time Adell said Ill be right back, there is no danger that he forgot that hed be right back, or that he misperceived whether he would be right back. Of course, there is always the danger that the declarant is lying. But thats not enough to justify exclusion. Contrast this with statements about ones memory of belief (ie, the declarants past state of mind). Now all 4 of the hearsay dangers are present. E.g. Adells statement that he planned to meet the defendant in the parking lot: He might have misremembered the time they were to meet. He might have misperceived what was said when they agreed to meet. He might be lying. He might not narrate well. If 803(3) applied to statements of memory or belief, then it would destroy the hearsay rule, since all statements are of memory or belief. i.e. The car was red is really I recall that the car was red
FRE 803(3) AND 3rd Parties: Before the FRE (ie, 1975), a statement by a declarant about his state of mind could also be used to prove what another person did. For example: A court would permit Als statement to be admitted to prove that the D was the person who would be in the parking lot at 9:30. Comes from a very famous case: Mutual Life v. Hillmon (1892) (its in your casebook) TODAY, according to the House Report, Rule 803(3) is intended to limit the doctrine of Hillmon so as to render statements of intent by a declarant admissible only to prove HIS future conduct, NOT the future conduct of another person. (RB 237) The House Report is the better view because conduct of a third party will almost inevitably depend upon the declarants memory or belief. Some courts nevertheless follow the Hillmon rationale. Problem 7.33 Kidnapping SUMMARY: Ill be right back is direct evidence of As then-existing state of mind. And therefore, although its hearsay if offered to prove that he did not disappear voluntarily, it fits FRE 803(3) and is therefore admissible. Im going to meet [the D] at 9:30 pm to get pot is direct evidence of Adells memory or belief. If offered to prove the fact asserted (that the defendant is the one who kidnapped Adell), then it is hearsay and not admissible under FRE 803(3) (at least if a court follows the House Report interpretation of 803(3)). "Direct" vs. "Circumstantial" Evidence of State of Mind: If the statement is direct evidence of state of mind, then we are in the world of FRE 803(3). But, in the rare case the statement is offered as circumstantial evidence of the declarants state of mind. If so, it is NOT HEARSAY because the statement is not being offered for the truth of the matter asserted! SUMMARY: Forward looking statement (a/k/a then existing state of mind) is admissible to prove future conduct. E.g. If last week I said, I plan to go to the store. The statement is admissible to prove whether I went to the store. In most cases, there is some corroborating evidence of the future conduct. Otherwise, its relevance to prove future conduct is often minimal. Backward looking statements (a/k/a memory or belief) NOT admissible to prove the fact remembered. E.g. If I say today, last week I had planned to shop. the statement is not admissible to prove that I did. Declarants statement about another person that disguises backward looking inferences to prove the behavior of the other person is not admissible, at least not by itself. E.g., So Adells statement that he is going to meet Angelo, if based on a prior conversation with Angelo, should not be admissible (Problem 7.33)
Yet, some courts still allow disguised backward looking inferences. Most commentators (and I) think this is bad law. But if there is sufficient corroboration, then its probably ok. Why? Because the statement can be admitted to prove the declarants state of mind. The corroborating evidence proves what the third party did. Opponents: Always think FRE 403! 3. Statements for Medical Diagnosis: 803(4) Language: Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Problem 7.34; Elder Abuse F: V claims he was pushed down by D. Told lawyer, his doctor, then couldn't talk at trial. Admissible? Statements to lawyer? Under this rule, NO. Not a medical diagnosis. Under present sense? No, he called a day later. Under excited utterance? No. No evidence that he was still suffering. The doctors testimony that Browning said he fell and hit his head? Yes. Needed to know why he hit his head in order to provide diagnosis and treatment. The doctors testimony that ? Someone pushed him? Yes. Need to know the reason for the fall. It was Maples who pushed him? Can make the argument that is relevant: Since she is his care giver, there may be other signs of neglect OR abuse. Advisory Committee Notes: "Statements as to fault would not ordinarily qualify under this latter language. Thus a patient's statement that he was struck by an automobile would qualify[,] but NOT his statement that the car was driven through a red light. Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included." US v. Iron Shell (1980): When doctor testifies that knowing what happened (i.e., the cause of injury) is important in the examination and treatment, the court will usually allow the statement. But only as to what, NOT as to who. Other Thoughts: Child abuse cases: Courts are very liberal, but there is a limit. Some courts will exclude
evidence if its clear the child does NOT understand the doctors role. Who committed the abuse. Some courts will allow naming the abuser on the ground that its necessary to treat the psychological damage caused by the abuse. Doctor statements to patients: Courts are split, some allow, some do not. ADDITIONALLY: The rule does not require that the speaker be the patient. There have been cases where the doctrine has been applied to statements by family members -- and even to Good Samaritans. Generally, however, courts require that the patient be unable to speak for him/herself BEFORE this exception is applied to such speakers. 4. Refreshing Memory/Recollection 612 AND Recorded Recollection 803(5): Recorded Recollection - 803(5): "(5) Recorded recollection. A memorandum 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 memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party."
Breaking it Down:
Record or memo Made or adopted when witness had knowledge AND memory was fresh; Memo must accurately reflect knowledge (which means that the witness must now be able to vouch for its accuracy in some way). NOW cant remember* (*which means that an effort should first be made to refresh the witnesss recollection). Memo can be read, but NOT admitted unless offered by adverse party. Problem 7.38: License Plate Facts: Rs husband dies by hit and run driver. Lawsuit against B. 2 witnesses: (1) Menandier; (2) Sullivan Menandier: Bystander calls out license plate number to Sullivan. Sullivan writes it on an envelope, tells police officer, retains envelope. At Trial: Sullivan testifies first. Cant remember plate. Lawyer shows her the envelope, attempts to refresh recollection, but doesnt help, so offers envelope into evidence. Q #1: Anything improper about attempting to refresh recollection? No, anything can be used to refresh. Q #2: Can the envelope be admitted? The Two-Person Documents Rule (see ACN p. 239): When two people are involved in creation of the record: one sees and other writes, the writing can be admitted as recorded recollection if both testify as follows:
1. The observer must testify that s/he once had knowledge and accurately described the event while fresh in mind, but no longer remembers. It can be read aloud. BUT, IF the witness says they now remember after seeing the writing, can't be read aloud because they are now testifying as to their recollection. 2. The writer must testify that they recorded it properly. IF both so testify, it meets all of the requirements and there's NO double hearsay problem. If NOT, then: Double hearsay problem Layer 1: Menendier to Sullivan; Can be described as both present sense impression AND excited utterance. Layer 2: Sullivans writing; Contents can come in, but NOT the envelope itself. But, if Menendier testified, it fits the rule. Refreshing Memory/Recollection - 612: Adverse party has a right to: See it and cross-examine about it; Introduce those portions that relate to the witnesses testimony; If the offering party fails to produce the writing; Judicial discretion in civil cases Criminal cases -- strike testimony OR maybe mistrial. 5. Business Records: 803(6) & 803(7) 803(6): Language: "(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." Break Down of Rule: Record; Made in a timely manner; By or from someone with knowledge; Courts have read into the rule a requirement that the person with knowledge be a member of the business (see ACN p. 242). If kept in the ordinary course of business activity; Regular practice to make such record; Demonstrated by custodian of records;
Rationale: Want to limit the amount in the record. Truth can be inferred from regular practice. Palmer v. Hoffman: Exception to 803(6) (1940): Facts: AFTER train accident where newlyweds are killed and disfigured, railroad company conducts an investigation by interviewing the trains engineer, who explains that neither he nor the railroad company was negligent. At trial, court refuses to include the interview report despite defendants claim that it fell within the business records exception. Holding Court concludes that the interview report is NOT a business record because the report was prepared in anticipation of trial, thus NOT in the regular course of business. To admit the report would DESTROY the purpose of the rule, which is to admit records that are routine reflections of the day to day operations of a business. Examples of business records: Payrolls, accounts payables, bills of lading Although this case was decided prior to the FRE, the rationale STILL applies. 803(7): Language: "(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence OR nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, UNLESS the sources of information or other circumstances indicate lack of trustworthiness." 6. Public Records & Reports: 803(8) & 803(10) 803(8): Language: "(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness." Notes: Public records setting forth activities of public agency. Public records setting forth matters observed pursuant to duty to observe and report, excluding matters observed by law enforcement in criminal cases.
Factual findings resulting from investigation made by public authority !!!! IMPORTANT! !!! !!!! POLICE REPORTS !!!!! 803(8) expressly EXCLUDES, from the public records hearsay exception, police reports offered in CRIMINAL cases. Question: Does this mean police reports are inadmissible, or might they come in under 803(6)? Some courts apply 803(8)s ban to ALL law enforcement reports. Others limit it to adversarial reports. 7. Other 803 Exceptions: Records of vital statistics; Records of religious organizations; Family records; Statements in ancient documents; Learned treatises; Reputation as to character;
G. Residual Exception: 807

Language: "A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is NOT excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of 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." Points/Analysis of 807: 1. Is the statement regarding a material fact? 2. Are there equivalent circumstantial guarantees of trustworthiness? Courts heavily rely on two factors: Is the declarant available to testify? (especially important since Crawford v. Washington!), Is there sufficient corroboration? E.g., U.S. v. Laster (6th Cir. 2001): Where the court found applicability of the exception. Near miss to FRE 803(6). 3. Is the statement more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts? 4. Do the interests of justice so require? 5. Proper notice?
[5.B.] Hearsay and the Confrontation Clause:
A. Confrontation Clause and Hearsay
Introduction: (6th Amendment, U.S. Constitution, ratified 1791) Language: [I]n all criminal prosecutions, the accused shall enjoy the right . . .to be confronted with witnesses against him. NOT applicable in civil cases. The CC is separate from the hearsay rule. Answer: The Constitutional right to confrontation and statutory rules under the FRE are independent of each other: Each can be a basis to exclude hearsay. BEFORE Crawford: That there might be a conflict between 6th Amendment right and hearsay rules was pretty much ignored. And it was easy to ignore for three reasons: 1. 6th Amendment didnt apply to states until 1965. 2. Declarants usually testified. And if they didnt, the defendant usually had an opportunity to cross-examine at the time the pre-trial hearsay statement was made. 3. Ohio v. Roberts (1980) California v. Green, 399 U.S. 400 (1970): Where declarant IS present, and prior OPP. to cross-examine. When the declarant is present, testifies at trial, AND responds to questions about the out-of-court statement (OOC), there is NO Confrontation Clause violation. If, despite best efforts, the prosecutor cannot produce the declarant, NO Confrontation Clause problem when the OOC was made under oath & subject to cross-examination (this looks similar to 804(b)(1); need opp. to C-X). KEY POINT: Also, NO CC problem IF the OOC is NOT being offered for the truth of the matter asserted! WHY? The entire point of seeking to confront/cross-examine is to figure out if they're telling the truth or misperceived the truth. If the statement is NOT being offered for its truth, we don't care whether the declarant was telling the truth, so there's NO CC issue. ONLY where the OOC is being offered for its truth (where it's hearsay) do we run the risk of a CC violation. CC Question epitomized: What about cases where declarant didnt testify at trial AND there was no prior opportunity to confront? ENTER Ohio v. Roberts (1980): The Right to Confrontation NOT violated IF: Witness is truly unavailable; Statement is independently reliable OR firmly rooted in a hearsay exception. For the most part, IF hearsay exception applied, the Confrontation Clause was satisfied. 1. Crawford v. Washington Roberts' reliability standard is gone: "The [Confrontation] Clauses ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in
a particular manner: by testing in the crucible of cross-examination. (p. 583) With Crawford, the Court threw a boulder into the placid waters of Confrontation Clause jurisprudence. Facts: Justice Scalia's Opinion: Petitioner argues that [the Ohio v. Roberts] test strays from the original meaning of the Confrontation Clause and urges us to reconsider it. Historical Analysis: What was the principal evil that the 6th Amendment was responding to? (Part III(A) & (B)) Ex parte examinations that are not subject to cross-examination and that are introduced against accused. What are those? Ex: Sir Walter Raleighs treason trial. Main witness (accomplice) testified at pre-trial proceeding (Privy Council) and wrote an incriminating letter, neither of which were subject to cross-examination, either before or at trial. The accomplice did not appear at trial, so the evidence was read to the jury. Raleigh found guilty and executed. Key: Pre-trial statements of witnesses who are unavailable at trial and that were not subject to cross-examination before trial. But NOT all hearsay is covered by the CC. "The text of the 6th Amendment tells us what's not covered." Textual analysis: The Confrontation Clause refers to witnesses. (Part III(A)) How does Justice Scalia define witnesses? Websters Dictionary: Witnesses bear testimony, so the evidence must be testimonial OR its functional equivalent. HOLDING: Under Crawford: The 6th Amendment bars hearsay evidence that is testimonial or its functional equivalent, UNLESS: 1. The declarant testifies; OR 2. The declarant is really unavailable AND the D had a prior opportunity to cross the declarant. Performing a Crawford Analysis: 1. Are we in a criminal case? 2. Is the government seeking to introduce evidence against the defendant under a hearsay exception? 3. Is that hearsay evidence testimonial OR its functional equivalent? Statements that ARE testimonial: 1. [S]olemn declaration[s] or affirmation made for the purpose of establishing or proving some fact (p. 579) 2. Statements made in response to police interrogation, even if not sworn (p. 579) Note: Need not be sworn 3. Statements produced with the involvement of government officers . . . With an eye toward trial (p. 581, n.7) 4. Prior testimony at a preliminary hearing, grand jury, former trial
(p. 585) Crawford Language: ("We leave for another day any effort to spell out a comprehensive definition of testimonial.'" (i.) Testimony or functional equivalent (affidavits, custodial interrogations, prior un-cross-examined testimony)that declarant would reasonably expect to be used prosecutorially. (ii.) Extrajudicial statements contained in formalized testimonial materials (affidavits, depositions, prior testimony, confessions) (Justice Thomass definition in White v. Illinois, 502 U.S. 346 (1992)) (iii.) Statements made under circumstances which would lead an objective witness to reasonably believe statement would be preserved for trial. Statements that are NOT testimonial: 1. An off-hand, overheard remark (p. 578) 2. Casual remark to an acquaintance (p. 579) 3.Statements in furtherance of a conspiracy (p. 580-81) 4. At least some business records (p. 580) 3(a). If YES, its inadmissible UNLES declarant testifies, OR declarants unavailable but defendant had prior opportunity to cross. 3(b). If NO, the Confrontation Clause does NOT apply and the statement can be admitted. 2. Davis v. Washington AND Hammon v. Indiana: Facts of Davis:
911 Call; Was he drinking? What's his name? Would probably have been admissible under excited utterances or a present sense impression exception.
Facts of Hammon:
Wife said nothing had happened. Then, police saw the furnace had been broken. Then she put her statements into a battery affidavit.
HOLDING - "Primary Purpose Test" Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. "Statements are testimonial when the circumstances objectively indicate that there is NO such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Factors: 1. Whether there's an ongoing emergency? 2. Whether the questions were focused on the present or past? 3. The "formality" of the question. Scalia doesn't think the 911 call question is "formal." In Crawford, it was at the station house; it was much more formal. What's the primary purpose in both cases? Davis: Needed to know his name to figure out whether he was a convicted
felon so that the police know what to expect when they try to apprehend him. Hammon: Scalia thinks that she was being prompted. She was sequestered. She would know at that point whether or not she'd be subject to criminal sanction. What about the separation of the police and the abuser? This is sufficiently formal. Scalia thinks that the ongoing emergency is over, and the purpose is information gathering for a prosecution. She asked about the restraining order, is this an eye toward litigation? But, there's no way of telling where he is, so it could be an ongoing emergency. 3. The CRAWFORD - DAVIS AFTERMATH: ANALYSIS Statements that are non-testimonial:
Same as in Crawford ABOVE.
Statements that are testimonial: SAME as in Crawford ABOVE: Primary Purpose: Statements made in the course of police investigation . . . .When the circumstances objectively indicate that there is no . . . Ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution (p. 600-01). Factors Under Primary Purpose for deciding whether a statement is NON-testimonial: 1. The statement describ[ed] past events, rather than events as they were actually happening (Davis, p. 602); 2. The declarant was [not] facing an ongoing emergency (Davis, p. 602); 3. The statement was needed simply to learn . . . what had happened in the past, not to resolve the present emergency (Davis, p. 602); 4. The statement bore indicia of formality, such as: being taken in calm circumstances when the declarant was out of danger (see pp. 602, 604); being taken in the stationhouse; involving a series of questions; being recorded by the police interrogator (Davis, p. 602); following custody and Miranda warnings (Davis, p. 600, 603); involving separation of the declarant from the suspect (see Davis, p. 604); and being made in circumstances in which deliberate falsehood risked severe consequences (Davis, p. 602); and 5. The statement served as an obvious substitute for live testimony, because [it did] precisely what a witness does on
direct examination (Davis, p. 604). Unanswered Questions: Davis clarifies when police interrogation is testimonial. Sort of. Whose primary purpose? Probably the police. From whose point of view, the speaker or the listener, or some objective spectator? Probably objective. But how about cases where the hearsay is not the product of custodial interrogation? Blurted out statements? FN. 1 suggests they might be covered. Statements to doctors, social workers, friends, etc. How easy is it to decide the primary purpose in cases when there is some evidence (even small) of an emergency? 4. Forfeiture: Giles v. California: Giles v. California (2008): A defendant forfeits his/her rights to confrontation if, as with FRE 804(b)(6), the declarant is unavailable because of the defendants conduct and the defendant acted with the purpose of preventing the declarant from testifying. 5. Melendez Diaz v. MA and Afterthoughts: Found IN RB p. 403. Facts: Certificate (Affidavit) by forensic analyst that the material seized by police is cocaine. Analyst doesnt testify at trial. Scalia writes 5-4 opinion, with a concurrence by Thomas (so its really 4-1-4). Is the affidavit testimonial? Yes, because affidavits are testimonial is a straightforward application of Crawford. (p. RB 406) What test does Scalia use? Says the three formulations are now the definition of the core class of testimonial statements. No longer just possibilities! Each as an alternative, or all as one definition? 1. Testimony or functional equivalent (affidavits, custodial interrogations, prior un-cross-examined testimony)that declarant would reasonably expect to be used prosecutorially. 2. Extrajudicial statements contained in formalized testimonial materials (affidavits, depositions, prior testimony, confessions) (Justice Thomass definition in White v. Illinois, 502 U.S. 346 (1992)) 3. Statements made under circumstances which would lead an objective witness to reasonably believe statement would be preserved for trial. Specifically reiterates:
Thomas test from White v. Illinois (p. RB 405) Another formulation: An [O]bjective witness to reasonably believe statement would be preserved for trial. (pp. RB 405-06) His definition From Websters Dictionary: solemn declaration[s] or affirmation made for the purpose of establishing or proving some fact (p. RB 405) Daviss definition: The affidavits are functionally identical to live, in court testimony, doing precisely what a witness would does on direct examination. (p.RB 405) Note: The primary purpose test is missing!
Other Interesting Points: 1. [N]ear-contemporaneous statements to the events reported can be testimonial (p. RB 408) 2. Testimonial statements can come from witnesses who are not
eyewitnesses (p. RB 409) 3. Statements that are not the result of interrogation can be testimonial! (p. RB 409) 4. Reiterates that business records/public records/coconspirator statements are generally non-testimonial (p. RB 414) !!!! EXAM STRATEGY: !!!! If the question addresses a settled issue (clear emergency/911 tape, or former testimony, you must state the law, apply it, and move on). What if it's more ambiguous? E.g., Child witness who tells a social worker about past sexual abuse. Make an argue from the available factors. Primary purpose: ("It doesn't seem to be an emergency, so the PP test might not apply"). Analysis: Under these factors it would be testimonial. Under these factors it would be non-testimonial. Here's the best conclusion/here's the best argument.
B. The Bruton Doctrine

Bruton kicks in when, in a criminal case, evidence is admissible against ONLY of multiple defendants, but not all. The typical Bruton case is a confession case. F: Coconspirators to a bank robbery, E confessed. TRIED JOINTLY. Key evidentiary question: Whether one conspirator's confession can be used against the other. It was admissible. How did this come in? Admissible against Evans because it's a statement by party opponent (or, collaterally, statement against penal interest). On appeal, court says it was error for it to come in against , but that's a side issue. Even though it came in against Evans, is it admissible against Bruton? If E's statement is NOT admissible against B, then nonetheless is there a violation of Bruton's confrontation rights because it came in against E. Court issued a limiting instruction. What was the limiting instruction? (FN2) Don't listen to E's confession as evidence against B. This is a case where there's NO WAY that the jury can understand the instruction. Isn't it true that all limiting instructions therefore are suspect? Court says no. Under these circumstances, there's no way that that a jury can follow this. There's WAY too much risk that the jury will use this in the wrong way. The CC is too important under these circumstances to let these types of statements come in without the right to confrontation. Redaction: By definition, someone usually says, "I've committed a crime with _______ ," and two people are on trial, there's a good chance the jury will infer that the other person is the person being tried alongside. HOLDING:
Because of the substantial risk that the jury, despite instructions to the contrary, will look to the incriminating extra judicial statements in determining the defendant's guilt, the admission of D's confession in this joint trial violated D's right to cross-examination.
Additionally, as a matter of constitutional law, no limiting instruction is adequate to protect the D's right to confrontation. This is NOT 403. In Summary: The Bruton doctrine applies when codefendants are tried jointly before the same jury and the prosecution attempts to introduce a confession by one codefendant that incriminates (but is inadmissible against) another codefendant. In such circumstances, there is too much risk that the jury will disregard a limiting instruction that the jury not consider the confession against the non-confessing codefendant. Dealing with Bruton: Some solutions. No joint trial; Empanel two juries; And, if the D is willing to waive their right to a jury, then a judge is presumed to be able to separate this information out.
Examples/Questions:
Some Crawford/Bruton Hypotheticals: 1. Can Sylvias statement to the police be admitted into evidence if Michael goes to trial alone?
These are the facts of Crawford. It's a custodial interrogation statement. She doesnt testify at trial. It violates the CC.
2. What if Mike and Sylvia are tried together?

This is a straight Bruton application. It's her statement, it's only admissible against her, and not against Michael. Under those circumstances it's a violation of Bruton.
3. What if Mike and Sylvia are tried together and . . .

A. Sylvia made her statement before her arrest as a co-conspirator?
Under Crawford its admissible. If the statement is admissible against the D, then there's no confrontation clause problem, as long as it's non-testimonial. It's non testimonial if it's made in furtherance of a conspiracy. Under Bruton, if co-defendants are tried together, and the statement of the co-defendant is being offered. If it's only admissible against the co-defendant, it's a Bruton violation. If it's independently admissible against the D, there's NO Bruton violation. Then, do a separate Crawford analysis. A coconspirator's statement is NOT testimonial.
B. Sylvia testifies at trial?
Green. This is admissible because he can cross-examine her.

C. What if Sylvia made her statement at a preliminary hearing and was crossexamined by Michaels lawyer?
Green again. The pre-trial statement was subject to crossexamination.

D. Can Sylvias statement be admitted if all references to Mike are redacted?
If the reference by the D is being redacted, then there MAY not be a CC violation. Redactions might work in some situations where there's no way that a jury can infer the blanks. E.g. Bank robber, seven people involved, and all you have after redaction is "I was a getaway driver in a bank robbery," it's probably okay. If the jury can reasonably infer that it involves the D, then it's a CC violation. Problem 8.6: "Dog O' War" Facts: Noel/Knoller tried jointly as associates of Aryan Brotherhood gang in dog mauling operation and death of Whipple. Noel writes letter to inmates: "Knoller likes to refer to their scheme as 'Dog O' War' operation." Assume it's offered for its truth. Is it admissible?: Against Noel? Yes. Admission. Statement by party opponent. Against Knoller; Hearsay, BUT: Admissible under the co-conspirator exception (p. 406). Conspiracy existed at the time the OOC was made. Conspiracy included the declarant (Noel) and the party against whom the party is being offered (Knoller). Declarant spoke during the course of, and in furtherance of, the conspiracy.
Bruton violation?
Noel takes the 5th. This is NOT a Bruton violation. Bruton kicks in when, in a criminal case, evidence is admissible against one defendant, but not all of them.
Crawford violation?
Was Noel's statement testimonial? Under the primary purpose test: Scalia says that this is the classic statement that's NOT a violation. No criminal in that position would think about "preserving the evidence" against them. It's a conspiracy. Note: If it's a clear cut answer, we need to tell him what the clear cut answer is (The definition that the court has used that's clear cut (to show testimonial v. non-testimonial) that co-conspirator statements are non-testimonial).
Then, ALWAYS consider whether there's a FRE 403 reason to keep evidence out.
[6.] Reliability: Lay and Expert Opinions: 701, 702, 703, 704(?), 705(?) A. Lay Opinions: 701 (and 602 again).
Rule Language: 602: "Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses."
701: "Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."
As with all evidence, must have a proper foundation under FRE 901: Evidence sufficient to support a finding that the matter in question is what its proponent claims ACN: The ''prototypical example(s) of the type of evidence contemplated by the adoption of Rule 701 relat(es) to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.'' Problem 9.3; White Powder: 21-y.o.; Found cocaine. Had been using it since 14, tasted it, etc. Proper basis? Answer is in ACN (p. 179): "Courts have permitted lay witnesses to testify that a substance is a narcotic, as long as there is a sufficient basis." If you NEED to have specialized knowledge, it's NOT a lay opinion. Specialized knowledge: "Results from a process of reasoning which can be mastered only by specialists in the field." Personal knowledge: "Results from a process of reasoning familiar in everyday life." Compare: What if the question was, where the cocaine was manufactured? Or, the purity of the cocaine based on its chemical composition? ACN (p.180): How it was manufactured, or the distribution network, need to qualify as an expert. Summary: Lay opinions are fine IF: Rationally based on witnesss perception; Helpful to the jury; Not based on scientific, technical or specialized knowledge; If scientific, technical, or other specialized knowledge involved, FRE 702 applies. Very important, because FRE 702 allows experts to do things lay witness cant; also, there are certain notice and discovery provisions relating to expert testimony that do not exist for lay testimony. FRE 701 seems liberal in admitting simple opinions. Based on rule, courts have allowed lay persons to testify about: speed, distance, temperature, appearance, lighting, physical characteristics, general impressions.
Just nothing that seems expert. Example: Fine: He looked crazy. Probably not fine: Hes clearly schizophrenic.
B. Expert Testimony:
INTRODUCTION: 1. Must have special knowledge, skill, experience, training, or education on topic of testimony; 2. Must concern a topic beyond the understanding of average juror and assist jurors; 3. Must be based on adequate facts; 4. Must be the product of reliable methods; 1. Who Qualifies as an Expert?: 702 Language: Rule 702. Testimony by Experts. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Problem 9.5: Horticulturalist (p. 693): F: Testifying against trafficker. Could tell by look, smell of smoke, and "high" he got. Smoked it more than 1,000 times, identified it more than 100 times, and sold it more than 20 times. Is he qualified? (knowledge, skill, experience, training, or education" Knowledge/skill? Yes; Experience? Yes. Training? No. Based on experience alone, he probably has enough of a basis. Compare with 9.3 (that was lay testimony). The rule is VERY LIBERAL: If you have specialized knowledge, you'll probably have sufficient qualifications to be qualified as an expert. Court COULD rule it inadmissible under Daubert, but the qualifications probably wouldn't be an issue. Who qualifies as an expert? Almost anyone who has sufficient knowledge, skill, experience, training, or education to give the opinion rendered First Requirement: Must have special knowledge, skill, experience, training, or education on topic of testimony This can be anybody. Remember Colombian marijuana expert? But must be expert on topic of testimony. E.g., Jinro America Jinro v. America: The debate, however, is over the experts qualifications. What is Pelhams expertise based on? Observing Korean businessmen. Does that make him qualified as expert to opine on honesty of Korean businesses? Key: The question is not only whether the expert has sufficient qualifications, but also whether the expert is qualified to give the
opinion rendered. What is the expert qualified to testify about? (p. 697) Experts are allowed to testify based on hearsay and need not base their opinions on personal knowledge (see FRE 602). Expert opinion tends to carry special weight with the jury. 2. Improper & Proper Topics of Expert Testimony: 702 & 704 Opinions on Law AND Ultimate Issue: FRE 704(a): Except for 704(b), experts testimony can embrace the ultimate fact. FRE 704(b): No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. Second Requirement: "Must concern a topic beyond the understanding of average juror and assist jurors." FRE 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue . . . In other words . . . It MUST concern a topic beyond the understanding of average juror and assist jurors. Hygh v. Jacobs, 961 F.2d 359 (2d Cir 1992), Whereas an expert may be uniquely qualified by experience to assist the trier of fact, he is not qualified to compete with the judge in the function of instructing the jury. Summary: Must concern a topic beyond the understanding of average juror and assist jurors. Expert testimony CAN embrace ultimate issue but NOT supplant the role of the judge or jury. Testimony that states a legal opinion, out of bounds; Testimony that passes on credibility of witness, out of bounds; Testimony that merely tells jury what result to reach, out of bounds; Third Requirement: "Must be based on adequate facts." Language: "Bases of Opinion Testimony by Experts:" FRE 703 "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Adequate Basis: Facts or data perceived by OR made known to the expert at or before hearing. Expert does an analysis of the evidence before the trial, then testifies;
OR An expert bases his testimony on either evidence he observes at hearing, or on hypotheticals put to him by attorneys. "Facts Made Known to" Expert Before Hearing: If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Experts opinion CAN be based on hearsay! But, if so, must be based on type of fact or data reasonably relied on by experts in that field. One Wrinkle!! "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." For expert testimony based on [hearsay] facts made known to the expert, the hearsay, if inadmissible, remains inadmissible by proponent. But, the judge CAN admit those facts for the limited purpose of assisting the jury to evaluate the experts opinion (but not for their truth!) Test: [P]robative value must substantially outweigh prejudicial effect (Reverse 403!) Limiting instruction! 703 Reliability Analysis: WHO Decides? What Standard? 104(a)!!!! If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion upon them, an opinion which rests entirely upon them must be excluded. In re Agent Orange, 611 F. Supp. 1223 (1985) (Weinstein, J.,). The proper inquiry is not what the court deems reliable, but what experts in the relevant discipline deem it to be. In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 276 (3d Cir. 1983) 705: Disclosure of Facts or Data Underlying Opinion FRE 705: On cross-examination, the opponent can ask about the underlying hearsay that is the basis for the experts opinion. FRE 803(18): Exception to FRE 703: Learned treatises are admissible as substantive evidence if the expert (or someone else) establishes their reliable authority. Ex: Grays Anatomy (1918) Read to the jury, not shown to the jury. Why?
C. Proper Bases of Opinion Testimony: 703 & 705
[7.] Privileges: 501 A. FRE 501
Language: "Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. 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 privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law." Introduction: Advisory Committee recommended several privileges (501-513) The only one enacted is 501. Rationale for privileges. For OUR purposes (gross over simplification): Federal common law applies in all cases except diversity cases . . . Remember: FRE 501 left the evolution of federal privileges to federal courts based on reason and experience.
B. Psychotherapist Privilege
Proposed 504; Jaffee v. Redmond**** (1996): Issue: Whether it is appropriate for federal courts to recognize a "psychotherapist privilege" under Rule 501 of the FRE. Decision is based on "reason and experience." The goal of protecting confidentiality has to serve a public good: We want people to be mentally healthy. Upholding confidentiality encourages people to go to them. Conclusion: We're not going to balance case-by-case to determine such a privilege. We'll apply this across the board, AND to clinical social workers. Problem 11.1: Relayed Threats The essence of confidential communication is that there's a subjective expectation that the information will be kept confidential. Here, he KNEW that the information was being disclosed. There's a difference between recognizing the existence of a privilege, AND the notion of confidential information. We want therapists to disclose to help avoid threats, and prevent the violence. This goes to whether there's a right to confidentiality. The court says, as a public policy matter, that you don't.
Difference between "Privilege" and "Confidentiality:"
Privilege: Holder of the privilege cannot be forced to disclose information that is privileged in court proceedings. Here we're just dealing with the issue of whether there can be a forced disclosure in court proceedings. Confidentiality: Duty exists irrespective of court proceedings. E.g., A-C privilege vs. duty of confidentiality
C. Familial Privileges
1. The "Privilege Against Adverse Testimony" (a.k.a. Spousal Testimonial Privilege): 505 Life After Trammel: General rule: Spouse in criminal case CAN'T be compelled to testify against defendant-spouse, but if witness spouse wants to, s/he can. So, the privilege still exists, but is now held solely by the spouse-witness. The Privilege Under Federal Common Law: Civil or criminal: Criminal Requirement: Valid Marriage (civil union/domestic partnership) Prohibits testimony about: Everything Holder: Witness spouse Waiver: Witness spouse Duration: Marriage only Exceptions? (1) Spouse or Child Victim: Doesn't apply when the crime is against witness spouse or child victim. [Possible Exception] (2) Joint Criminal Activity: Some federal courts say that joint criminal activity eliminates the adverse testimony privilege. Other federal courts don't. Could have rendered issues in Trammel moot. Ditto for Crawford. 2. The Marital Confidences/Communications Privilege: General rule: Confidential marital communications are privileged. Rationale: To promote marital harmony. The Marital Communications Privilege: 2 Questions ALWAYS ASK: (1) Is the testimony barred by the adverse testimonial privilege? (ATP) (2) If it's not, is the testimony barred by the marital communications privilege? (MCP) Civil or criminal: Both Requirement: Valid marriage (civil union/domestic partnership). Prohibits testimony about: Not everything; just confidential marital communications. Holder: Both spouses. Waiver: Both spouses Duration: Forever Even IF they get divorced, this doesn't lapse. Communications between ex-spouses are NOT privileged. Exceptions? (1) Spouse or Child Victim: Doesn't apply when the crime is against witness spouse or child victim. (2) Joint Criminal Activity: Some federal courts say that joint criminal activity eliminates the adverse testimony privilege. Applying the ATP AND MCP: Bon Fire of the Vanities Hypo: Facts: Maria is found dead, and Hanks is charged with her murder. The prosecution subpoenas Hank's wife to testify against him. The phone call?
Spousal privilege? (ATP/STP) Yes, she can assert, But she CAN waive Marital communications privilege? (MCP) Wife asserts the privilege. What's her expectation? She can. It is a conversation between her and her husband, during the course of their marriage. Confidentiality: Does she have any reason to believe that someone is listening in, or that it will be used in court? Husband asserts: He can't. He thought he was speaking to his mistress. Prosecutor would argue that this wasn't a confidential communication. She can still assert the privilege, and would have to waive it. She CAN intervene to protect her privilege, BUT, she CAN waive it. Conversation at home? Spousal Privilege?: (ATP/STP) Wife? Yes. She can assert it; same reasons as before. Marital communication privilege? (MCP) Wife? Yes. It was a communication that happened during the course of their marriage, and it was confidential. Husband? Yes. He knows he's speaking to his wife. What if wife/Hanks gets divorced before trial? Spousal Privilege? (ATP/STP) Wife? No. It ONLY lasts during the time of the marriage. Marital communication privilege? (MCP) Wife? Yes. Because it happened during the marriage, and it was confidential. Problem 13.1: Office Emails Facts: E sends email describing extortion to his wife from work computer that has a "no privacy warning." Spousal privilege? (adverse testimony privilege): Husband wants to assert the privilege. Can E assert martial confidences privilege?: Under this privilege, there's no expectation that what he was doing is private. Defense: The warning is pro forma. People don't read them. Most courts would probably say that this doesn't fly. How about his wife?: No evidence that she had the same warning. No proof that she had a pop-up. Side Note: If there's evidence that he told her in the past that the stuff was monitored, it might be an issue.
And, where there's a non-holder of the privilege in the room, it's NOT confidential.

Evidence Outline - Eldred

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Evidence Outline - Eldred

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Role of Judge and Jury:

b. Role of jury: e.g., If the jury finds it to be a forgery, it is instructed to disregard it

c. Connecting up ("admitted subject to connection"): Can allow the jury to

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see it preliminarily with agreement to "connect up" later.

Relevant Evidence Admissible Unless Otherwise Provided:

Judicial Discretion to Exclude Relevant Evidence:

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Grounds for Exclusion Under FRE 403:

1. Unfair Prejudice. General:

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magazine's "worst pictures."

b. Jury unable to limit use:

Limiting Instructions Under 105: Limited Admissbility

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E. The "Best Evidence Rule": 1001, 1002, 1003, 1004

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Under 409:"My bad. Can I pay your medical expenses?"

Subsequent Remedial Measures: 407

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Civil Settlement Offers and Negotiations: 408

b. Form doesn't matter:

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Payment of Medical Expenses: 409

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Pleas and Plea Bargaining: 410

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statements. c. Impeachment: NO EXCEPTION to use plea bargaining statements to impeach.

Proof of Liability Insurance: 411

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B. Routes Around the Box: Proof of Prior Acts Under 404(b)

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6. Intent E.g., Possession of objects to facilitate an escape where D was involved in

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C. Propensity Evidence in Sexual Assault Cases: 413, 414, 415

D. The Rape Shield Law: FRE 412

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5. 403 ALWAYS APPLIES! 6. Procedural protections in 412, subdivision c.

Under 412(b)(1)(A) the ACN says:

E. Proof of Defendant's and Victim's Character: 404(a)(1), 404(a)(2), 405

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"By the prosecution to rebut the same . . ."

Sufficient Basis for Opinion:

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These types of cases are fairly limited: E.g.,

F. Evidence of Habit/Routine Practice of an Organization: 406

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Problems: Halloran v. VA Chem:

Problem 3.19: Steroids:

608: Impeachment by character evidence

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B.1: Non-Character Forms of Impeachment: THREE TYPES

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C. Impeachment with Past Convictions: 609

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609(c): Effect of pardon, annulment, or certificate of rehabilitation:

Nonhearsay Uses of Out-of-Court Statements

More Nonhearsay Uses of Out-of-Court Statements: