Evidence - MBE, TX

Thursday, July 01, 2010

EVIDENCE! I. GENERAL CONSIDERATIONS A. Sources of evidence law 1. MBE is governed by the FRE. Beware of answer choices that give the common law rule. B. Relevant evidence is generally admissible if it is competent. 1. Evidence is relevant if it tends to prove (probativeness) of any fact of consequence to the action (materiality) 2. Evidence is competent if it doesn't violate any of the rules that call for exclusion. Ex: hearsay rule. C. Direct versus circumstantial evidence 1. Direct evidence involves no inferences. It is testimony or real evidence that speaks directly to a material issue. 2. Circumstantial evidence is indirect and relies on inference. It's evidence of a subsidiary or collateral fact from which the existence of a material issue can be inferred. D. Evidence can be admissible for one purpose but not for another, or to one party but not for another. 1. Upon request, the court must restrict evidence to its proper scope and instruct the jury accordingly. II. RELEVANCE A. DETERMINING RELEVANCE 1. Evidence is relevant if it tends to prove (probativeness) of any fact of consequence to the action (materiality) 2. Evidence must relate to time, event, or person in controversy. Remember to think about the proximity in time to the events at issue. 3. Exception: Previous similar occurrences might be relevant if they are probative of a material issue and the probative value outweighs the risk of confusion or unfair prejudice. Examples: (i) Evidence that a particular business had an established business routine is relevant as tending to show that a particular event occurred. (a) Industry custom can be offered to show adherence or deviation from an industry-wide standard of care, but it isn't conclusive. The entire industry could still be acting negligently. (ii) Complicated issues of causation can be established by evidence concerning other times, events, or people. Ex: damage to other homes caused by the defendant's blasting can be relevant to prove D's blasting damaged the plaintiff's home. (iii) Evidence that party has made previous similar false claims is generally inadmissible as to the invalidity of the present claim but IS usually relevant to prove that (a) the present claim is likely to be false or (b) that the plaintiff's condition is attributable in whole/part to the prior injury. (iv) Evidence of prior accidents or injuries caused by the same event/condition is admissible to prove (a) The existence of a dangerous condition, (b) The defendant had knowledge of the dangerous condition, and (c) The dangerous condition was the cause of the present injury (d) The absence of this evidence is not usually allowed to go to the absence of negligence or lack of a defect, but can go to lack of knowledge of the danger. (v) Evidence of previous similar acts can be introduced to prove someone's present motive/intent when those elements are relevant. (Ex: history of school segregation admissible to show motive for current exclusion of minorities) (vi) Evidence of sales of similar personal/real property that aren't too remote in time can be relevant to prove value. Prices quoted in mere offers to purchase are NOT admissible, but evidence of unaccepted offers by a party to buy/sell the property can be used against them as an admission. (vii) Habit describes a person's regular response to a specific set of circumstances. In contrast, character describes someone's disposition in respect to general traits. Unlike character evidence, habit evidence is relevant to prove the conduct of the person on a particular occasion WAS IN CONFORMITY with the habit. (a) Look for "instinctively" "automatically" and volitional action. B. DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE 1. A trial judge has broad discretion to exclude relevant evidence if it's probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time or money. Unfair surprise IS NOT enough for 403 exclusion. C. EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS 1. Liability Insurance. Evidence of insurance against liability is NOT ADMISSIBLE to show negligence or ability to pay a substantial judgment. (i) BUT can be admissible: (a) To prove ownership or control if controverted (ex: dispute over who owns the stairs you tripped on, D insuring the stairs suggests D owns them) (b) to impeach, or (ex: show bias of a witness by showing they're hired by the defendant's insurance

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(b) to impeach, or (ex: show bias of a witness by showing they're hired by the defendant's insurance co.) (c) as part of an admission. (ex: "don't worry about it, my insurance will cover it") 2. Subsequent Remedial Measures. Evidence of repairs/precautionary measures after injury is NOT ADMISSIBLE to prove negligence, culpability, defect, need for warning, (i) BUT can be admissible: (a) To prove ownership or control (b) To rebut a claim the precaution wasn't feasible (not admissible if they don't argue feasibility) (c) To prove the opposing party destroyed evidence 3. Settlement Offers and Withdrawn Guilty Pleas are NOT ADMISSIBLE to prove liability for or invalidity of a claim that's disputed as to validity or amount. Not even direct admissions during negotiations are admissible. (i) Remember that just because you say something in negotiations doesn't immunize it from coming in against you in court! (a) Must be intent to make a claim if you volunteer an admission and offer to settle immediately after the event, usually admissible because there hasnt been enough time for the other party to indicate an intent to make a claim! (b) Claim must be disputed as to liability/amount if you admit liability and the amount of damage but offer to settle to avoid litigation costs, all of that will come in against you! (ii) BUT conduct/statements made during negotiations in a civil dispute with a government regulatory/investigative/enforcement authority are NOT excluded when offered in a criminal case. 4. Offers to Pay Medical Expenses. Payment of or offers to pay the injured party's medical expenses are NOT ADMISSIBLE BUT unlike statements made during negotiations, admissions of fact accompanying offers to pay medical expenses ARE admissible. D. CHARACTER EVIDENCE (a special problem!) 1. Character evidence CAN be offered as substantive (rather than impeachment) evidence to serve as circumstantial evidence of how a person probably acted 2. Means of Proving Character (i) Evidence of specific acts (ii) Testimony of someone who knows the witness can testify to their opinion of someone's character (iii) Testimony as to a person's reputation in the community 3. Character evidence is generally not admissible in civil cases unless character is directly at issue (defamation, entrapment). Raising a character trait to suggest the person acted in accordance with that character trait is generally not allowed. (i) Examples (a) Can't introduce evidence that you're a generally cautious driver to prove you weren't negligent on the day in question. (b) Can't introduce evidence that the defendant is usually a reckless driver to prove her negligence on the day in question. (ii) EXCEPTION: when character is directly at issue, character evidence is admissible BUT limited to opinion and character, SPECIFIC ACTS NOT ALLOWED. (a) In a defamation action, where D is sued for calling P a thief and pleads an affirmative defense that she spoke the truth, P's character is clearly at issue. (b) If an employer is charged with negligently hiring an unstable and violent employee, the character of the employee is directly at issue. 4. Character evidence in criminal cases is allowed in limited circumstances: (i) The prosecution cannot initiate evidence of defendant's bad character to show she is more likely to have committed the crime (might be able to for other reason). (ii) The DEFENDANT may introduce evidence of HER OWN GOOD CHARACTER to prove innocence through opinion or reputation testimony - not specific act. And character trait must be relevant. (a) Once the defendant opens the door by introducing evidence as to defendant's own character, the prosecution can rebut by CX and EE: (1) CXing/impeaching the character witness regarding the basis for his testimony, including whether he knows/heard of specific instances of the defendant's past bad conduct. I. ANY BAD CONDUCT can be mentioned this way, but limited to the CX - no extrinsic evidence of bad acts. So can ask about arrests, but if they lie, no recourse. II. Remember the difference between CXing a character witness with questions about the defendant's past arrests (allowed) and impeaching the witness on CX with questions about the witness's past arrests (NOT allowed). (2) Calling other qualified witnesses to give opinion/reputation evidence as to bad character. (iii) The DEFENDANT in a non-rape criminal case can introduce opinion/reputation evidence of the VICTIM'S BAD CHARACTER when it's relevant to show the accused's innocence. (violence) () (a) Once the accused opens the door by introducing evidence of the victim's bad character, the prosecutor can rebut by CX and EE: (1) evidence of the victim's good character AND

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(1) evidence of the victim's good character AND (2) evidence of the accused's bad character FOR THAT TRAIT ONLY. (b) (what the defendant knows about the victim's violent reputation/specific acts that awareness can be proven to show defendant's state of mind of fear to show defendant acted reasonably 5. In any civil/criminal proceeding alleging sexual misconduct, evidence offered to prove the sexual behavior/disposition of the victim is generally inadmissible. (i) In criminal cases, (a) the victim's sexual behavior is admissible to prove that someone other than the defendant is the source of physical evidence; and (b) specific instances of sexual behavior between the victim and the accused are (1) admissible by the prosecution for any reason; and are (2) admissible by the defense to prove consent only. (ii) In civil cases, (a) Evidence of the victim's sexual behavior is admissible if it's not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim/unfair prejudice to anyone. (b) Evidence of the victim's reputation is admissible only if it has been placed in controversy by the VICTIM. 6. Specific Acts are inadmissible if offered to establish a criminal disposition or bad character, but IS ADMISSIBLE to prove five different things: (i) Five things specific acts ARE able to prove (MIMIC): M. Motive I. Intent M. Mistake (absence of) I. Identity C. Common plan or scheme (ii) To be admissible there must be: (a) Sufficient evidence to support a jury finding that the defendant did the prior act, AND (b) The probative value must be enough to overcome Rule 403. (iii) Evidence of prior sexual assaults or child molestation is admissible where the defendant is accused of committing one of those acts again. Must disclose to the defendant 15 days before trial or later if good cause. III. JUDICIAL NOTICE A. JUDICIAL NOTICE OF A FACT is recognition that a fact is true without formal presentation of evidence 1. Facts Appropriate for Judicial Notice (i) Judicial notice can be taken at any time whether or not requested! Can be judge's own motion. (ii) Courts take judicial notice of indisputable facts that are either notorious facts (matters of common knowledge in the community) or manifest facts (capable of verification by looking at easily accessible sources of unquestionable accuracy, ex: scientific principles). Courts increasingly take judicial notice of scientific principles as manifest fact. 2. Procedural Aspects of Judicial Notice (i) If a court doesn't take judicial notice of something on its own accord, a party must formally request that notice be taken. OK to do this for the first time on appeal. (ii) A judicially noticed fact is conclusive in a CIVIL case but NOT a CRIMINAL case. In a criminal case, the jury is instructed that it can but isn't required to accept a judicially noticed fact as conclusive. 3. "Adjudicative" and "Legislative" facts (i) The FRE only govern judicial notice of adjudicative facts = those that relate to the particular case. (ii) Do NOT need to be of common knowledge/capable of indisputable verification to be judicially noticed if it's a legislative fact = those relating to legal reasoning and lawmaking, like the rationale behind spousal privilege. B. JUDICIAL NOTICE OF LAW - mandatory or permissive 1. Courts MUST take judicial notice of federal/state law and official regulations of the forum state and the federal government. 2. Courts MAY take judicial notice of municipal ordinances and private acts/resolutions of Congress/local state legislature/laws of foreign countries. C. EFFECT OF JUDICIAL NOTICE 1. IN CRIMINAL CASE (i) Jury is NOT REQUIRED to conclude fact was established. (ii) Prosecutor's burden of producing on the fact is satisfied. 2. IN CIVIL CASE (i) The fact judicially noticed is CONCLUSIVELY ESTABLISHED. IV. REAL EVIDENCE A. Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. It may be direct, circumstantial, original, or prepared (a demonstrative).

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circumstantial, original, or prepared (a demonstrative). B. GENERAL CONDITIONS OF ADMISSIBILITY 1. Must be relevant 2. Must be authenticated = identified as what the proponent claims it to be either by: (i) Testimony of a witness that she recognizes the object as what someone says it is; or (ii) Evidence that the object has been held in a substantially unbroken chain of possession 3. If the condition of the object is significant, must be shown to be the substantially same condition. (i) If it's super physically inconvenient/indecent or improper/unduly prejudicial, might outweigh the need to admit the real evidence. C. PARTICULAR TYPES OF REAL PROOF 1. Reproductions and Explanatory Real Evidence (i) Relevant photos, diagrams, maps, other reproductions are admissible if their value isn't outweighed by the danger of unfair prejudice. (ii) Items used entirely for explanatory purposes are permitted but usually not admitted into evidence - not given to the jury for deliberation. 2. Maps, Charts, Models (i) Usually admissible for the purpose of illustrating testimony. (ii) Must be authenticated. Need testimonial evidence that they are faithful reproductions of the object or thing depicted. 3. Exhibition of Child in Paternity Suits (i) In paternity suits almost all courts allow exhibition of the child to show whether she is of the race of the putative father!!! (ii) Courts are divided with respect to the propriety of exhibition for the purpose of proving physical resemblance to the putative father 4. Exhibition of Injuries (i) Exhibition of injuries in a personal injury or criminal case is generally permitted by the court has discretion to exclude if unfair prejudice. 5. Jury View of the Scene (i) The trial court has discretion to allow the jury to view places at issue. Think about the need for view and changes in the condition of the premises. 6. Demonstrations (i) The court has discretion to permit experiments and demonstrations in the courtroom. Demonstrations of bodily injury may not be allowed where the demonstration would unduly dramatize the injury. V. DOCUMENTARY EVIDENCE A. AUTHENTICATION 1. A writing or any secondary evidence of a writing's content will not be received into evidence unless authenticated by proof that shows the writing is what it's claimed to be. 2. The proof must be sufficient to support a jury finding of genuineness. Genuineness must be admitted by the pleadings or by stipulation. 3. How to authenticate documentary evidence: (i) Admissions. The party against whom it's offered admitted its authenticity or acted on it as authentic. (ii) Eyewitness testimony. A document can be authenticated by testimony by someone who sees it executed or hears it acknowledged. The testimony need not be given by a subscribing witness. (iii) Handwriting verifications. The opinion of a non-expert with personal knowledge of the alleged writer's handwriting is okay, so is expert testimony. Genuineness can also be determined by the trier of fact through comparison of samples. (a) Remember that a non-expert without personal knowledge of the handwriting can't become "personally familiar" just for the purpose of testifying. (iv) Ancient documents. A document (applies to all writings!) may be authenticated by evidence that it is (a) at least 20 years old, (b) in a condition free of suspicion as to authenticity, and (c) found in a place where such a writing would likely be kept. (v) Reply letter doctrine. A writing can be authenticated by evidence that it was written in response to a communication sent to the claimed author. (vi) Photographs are admissible generally only if identified by a witness as a portrayal of certain relevant facts and verified by the witness as a correct representation of those facts. Usually having a witness at from the scene will be sufficient, don't need to have the photographer. (a) If a photo is taken where no person who could authenticate is present, the photo may be admitted upon a showing that the camera was properly operating at the relevant time and the photograph was developed from film obtained from that camera. (vii) X-Rays and EKGs require a showing that the process used was accurate, the machine was in working order, and a custodial chain to prove no tampering. 4. How to authenticate oral statements (i) When a statement is admissible only if said by a particular person (like admission by a party)

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(i) When a statement is admissible only if said by a particular person (like admission by a party) authentication as to the identity of the speaker is required. (a) Voice identification. A voice may be identified by the opinion of anyone who has heard the voice at any time INCLUDING after litigation has begun for the sole purpose of testifying. (b) Telephone conversations. Statements made during a telephone conversation may be authenticated by one of the parties to the call who testifies that (1) She recognizes the other party's voice, (2) The speaker has knowledge of certain facts only a particular person would have, (3) She called a particular person's number and a voice answered saying they were that person or that person's residence, or (4) She called the business and talked with the person answering the phone about matters relevant to the business 5. Self-Authenticating Documents (i) Certain writings prove themselves. Extrinsic evidence of authenticity is NOT required for: (a) Certified copies of public records (b) Official publications (c) Newspapers and periodicals (d) Trade inscriptions (e) Acknowledged documents (notarized, etc.) (f) Commercial paper and related documents (g) Certified business records B. BEST EVIDENCE RULE / ORIGINAL DOCUMENT RULE 1. To prove the terms of a writing, recording, or photograph the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing (like oral testimony) is admissible only if the original is unavailable. 2. The rule applies when the writing is: (i) A legally operative or dispositive instrument, or (ii) The knowledge of a witness concerning a fact results from having read it in the document. (a) Ex: Witness can't testify about the content of a written deed unless sufficient reason is given for not producing the written deed; (b) Ex: Witness who only knew the mileage recorded on a car sticker for a certain date can't testify as to the mileage without establishing a reason for the unavailability of the writing 3. Valid EXCUSES - must prove by a preponderance that (a) the loss/destruction of the original (b) the original is in the possession of a third party out of the jurisdiction and is unobtainable (c) the original is in the possession of an adversary who fails to produce it after due notice 4. Don't need the original when (i) The fact to be proved exists independently of the writing. (a) Many writings record details of essentially non-written transactions. Oral testimony of these facts can be given without the original writings recording the event. (b) Ex: witness can testify orally that she paid for goods received without showing the receipt; can testify about birth, marriage, age though certificates exist; someone who heard testimony in another trial doesn't need to reproduce the transcript; admissions/confessions can be testified to by whoever heard them, even if they were later reduced to writing. (ii) Voluminous records (a) Can be presented through a summary or chart provided that the original records WOULD be admissible and they are available to the other side for copy/inspection. (b) The original records themselves NEED NOT be placed into evidence (iii) Certified copies of public records (a) Don't need to original records. That would be chaos. (iv) Collateral documents (a) The writing is collateral or of minor importance to the litigated issue. (v) A proponent can prove the contents of a writing, recording, or photograph through the testimony, deposition, or written admission of the party against whom it is offered without accounting for the original, but the contents cannot be proved by out-of-court oral admissions. (a) Ex: W testifies "I head D say the telegram he got said xyz" - D's oral admissions out of court are inadmissible to prove the contents of the telegram. 5. Definitions are all totally unintuitive (i) Writings: include photographs and recordings! Includes film or print from negative of film, computer printout. (a) Handwritten copies are considered SECONDARY evidence and are only admissible if the original/exact duplicate is unavailable. (ii) Original: is the writing itself OR ANY DUPLICATE. (iii) Duplicate: = exact copy of an original, like a carbon copy. Duplicates are admissible in federal courts

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(iii) Duplicate: = exact copy of an original, like a carbon copy. Duplicates are admissible in federal courts unless the authenticity of the original is challenged or unfairness would result. 6. Admissibility of Secondary Evidence of Contents (i) If the proponent can't produce the original writing in court, he can offer secondary evidence of its contents (= handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the nonproduction of the original. (ii) All secondary evidence is the same, no degrees. 7. Functions of Court and Jury (i) Usually it's for the COURT to make determinations of fact about the admissibility of duplicates, other copies, oral testimony as to the contents of the original. BUT FRE reserves the following questions of preliminary fact for the jury: (a) Whether the original ever existed (b) Whether a writing, recording, photograph produced IS in fact the original; and (c) Whether the evidence offered correctly reflects the contents of the original C. PAROL EVIDENCE RULE 1. If an agreement is reduced to writing, that writing IS the agreement and constitutes the ONLY EVIDENCE of it. Prior and contemporaneous negotiations/agreements are merged into the written agreement and are inadmissible to vary the terms of the writing. 2. The PER does NOT apply to (i) Incomplete or ambiguous contracts (ii) Where a party alleges facts (mistake) entitling her to reformation (iii) To show the contract is void or voidable (iv) To show the contract was made subject to a valid condition precedent that has not been satisfied 3. Parol evidence IS ADMISSIBLE to show subsequent modification or discharge of the written contract. VI. TESTIMONIAL EVIDENCE A. COMPETENCY OF WITNESSES 1. Witnesses must pass tests of basic reliability to establish their competency to give testimony but are generally presumed competent until it is established otherwise. Witnesses must possess to some degree four basic testimonial attributes: (i) The capacity to observe (ii) The capacity to recollect (iii) The capacity to communicate (iv) The capacity to appreciate the obligation to speak truthfully 2. Federal Rules of Competency (i) Witness must have personal knowledge of the matter to which she's testifying AND (ii) The witness must declare she will testify truthfully (oath) (iii) If a witness requires an interpreter, the interpreter must be qualified and oathed to make a true translation. 3. Modern Modifications of the Common Law Disqualifications (i) No more mental or moral qualifications, no more disqualifications for lack of religious belief, conviction of a crime, and interest in the lawsuit. (ii) The competency of an infant depends on the capacity and intelligence of the individual as determined by the trial judge (iii) An insane person can testify provided he understands the obligation to speak truthfully AND has the capacity to testify accurately. (iv) Presiding judge and jurors can't testify as a witness in the trial in which they're sitting. (a) Jurors can't testify (1) In same case they're sitting (2) In other cases as to statements made in deliberations, or effect anything had on deliberation (v) Oath or affirmation required - acknowledge you must tell the truth and consequences if you don't. 4. Typical state Dead Man Act: party/person in civil action who is interested is incompetent to testify to a personal transaction/communication with a dead person when that testimony is offered against the representative/successors-in-interest of the deceased. (i) No Dead Man Acts in the FRE but a state Act will apply in federal cases where state law provides the rules of decision according to the Erie doctrine. B. FORM OF EXAMINATION 1. Leading Questions are those which suggest the desired answered and are generally improper on direct but ARE allowed: (i) To elicit preliminary or introductory information (ii) On cross-examination (iii) When the witness needs aid to respond because of loss of memory, immaturity, physical/mental weakness (iv) When the witness is hostile 2. Improper Questions

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2. Improper Questions (i) Questions that are misleading = can't be answered without making an unintended assumption (ii) Compound questions = requiring a single answer to more than one question (iii) Questions that are argumentative, conclusory, cumulative, unduly harassing or embarrassing (iv) Questions that call for a narrative answer or speculation (v) Questions that assume facts not in evidence 3. Improper Answers (i) Answers that lack foundation = the witness has no personal knowledge to answer the question (ii) Answers that are non-responsive = that don't answer the question asked. 4. Use of Memoranda by Witness (i) Present recollection revived is used to "refresh recollection". (a) Can use ANYTHING to refresh witness's PRESENT recollection. (b) Can't read from it while you actually testify because the writing is NOT AUTHENTICATED and NOT IN EVIDENCE. (c) If you use a DOCUMENT, must provide for other side, other side can intro to evidence if it wants. (ii) Past recollection recorded. When a witness says she has insufficient recollection of an event to enable her to testify fully and accurately even AFTER she has consulted a writing given to her on the stand, the writing itself is read into evidence only if the proper foundation is laid, which must include proof that: (a) The witness at one time had personal knowledge of the facts in the writing (b) The writing was made by the witness or under her direction, or was adopted by the witness (c) The writing was timely made when the matter was still fresh in her mind (d) The writing is accurate; AND (e) The witness has insufficient recollection to testify fully without it. (iii) Whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to CX the witness on it, and to introduce the portions relating to the witness's testimony into evidence. C. OPINION TESTIMONY 1. Opinion Testimony by Lay Witnesses (i) Only admissible when it is (a) Rationally based on the witness's perception (b) Helpful to a clear understanding of her testimony/helpful to the determination of a fact in issue; AND (c) Is NOT based on scientific, technological, or other specialized knowledge. (ii) Generally admissible with respect to (a) The general appearance or condition of a person (b) The state of emotion of a person (c) Matters involving sense recognition (d) Voice/handwriting identification (e) Speed of a moving object (f) Value of the witness's own services (g) Rational or irrational nature of another's conduct; and (h) The intoxication of another. (iii) Generally NOT ADMISSIBLE with regard to (jury questions!) (a) Whether someone was acting as an agent of another (b) Whether an agreement was made 2. Opinion Testimony by Expert Witnesses (i) Only admissible when (a) The subject matter is one where scientific/technical/specialized knowledge would assist the trier of fact (and is relevant and reliable) (b) The witness is qualified as an expert (possess special knowledge, skill, experience, education, ot training) (SKEET skeet skeet) (c) The expert possess reasonable probability regarding his opinion. (ii) Three permissible data sources (a) Expert's personal knowledge (like as a treating physician) (b) Other evidence in the trial record (other testimony, exhibits) that are made known to the expert in a hypothetical question (has to be in evidence that's in the record by end of trial) (c) Facts outside the record if they're of a type reasonably relied upon by experts in that particular field when forming opinions (so the facts themselves can be INADMISSIBLE) (iii) Federal judge's gatekeeper role (a) TRAP - can methods be TESTED, RATE of error, ACCEPTANCE by experts in the same discipline, (iv) An expert may render an opinion as to the ultimate issue in the case BUT in a criminal case where the defendant's mental state is an element of the crime/defense, the FRE prohibits an expert from giving an opinion as to whether the accused had that mental state. (v) An expert may be CX-ed concerning statements contained in any publication that is established as

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(v) An expert may be CX-ed concerning statements contained in any publication that is established as reliable authority by either the their testimony or another expert testimony or by judicial notice. (a) These texts/treatises can be used to impeach experts and also as substantive evidence subject to the following limitations (1) An expert must be on the stand when an excerpt is read from a treatise; and (2) The relevant portion is read into evidence but is not received as an exhibit. D. CROSS-EXAMINATION 1. CX of adverse witnesses is a matter of right in every trial where there's a disputed issue of fact, but the scope of CX is frequently a matter of judicial discretion. 2. Scope of CX (i) CX is generally limited to (a) Scope of direct examination, including all reasonable inferences that may be drawn from it AND (b) Testing the credibility of the witness (ii) The CX-er is generally bound by the answers of the witness to questions concerning collateral matters. Generally CANNOT REFUTE the response with extrinsic evidence but certain recognized matters of impeachment - bias, interest, convictions - may be developed by extrinsic evidence because they're sufficiently important. Up to the judge. E. CREDIBILITY (impeachment) 1. Impeachment = casting doubt on the veracity of the witness (i) Generally a party may not bolster or accredit the testimony of her witness until they've been impeached, except you CAN prove the witness made a timely complaint or a prior statement of identification. (ii) A witness may be impeached by any party, including the party calling her. (a) THESE ARE COMMON WRONG ANSWERS: notion that you can't impeach your own witness unless they're adverse, hostile, required by law, or surprise. Can impeach ANY witness!!!! 2. Impeachment Methods - CX and Extrinsic Evidence (i) Can impeach in CX or extrinsic evidence = putting other witnesses on the stand who will introduce facts discrediting the testimony. (ii) Certain grounds for impeachment require that a foundation be laid during CX before EE can be introduced: (a) Prior inconsistent statements. CX or EE - generally foundation required. Witness must be given some opportunity to explain or deny the prior inconsistent statement. (1) Exception: prior inconsistent statements by hearsay declarants can be used despite the lack of foundation; also FRE says can dispense with foundation requirements when justice would require, like the witness is unavailable (2) Usually prior inconsistent statements are hearsay and only admissible for impeachment, but if the statement was made under oath, can come in as substantive evidence of the facts in it. (b) Bias or interest. CX or EE - with foundation. Evidence that a witness is biased or has an interest in the outcome of a suit tends to show a witness has a motive to lie. (1) Before a witness can be impeached by EE of bias/interest, he must FIRST be ASKED about the facts that show bias or interest on CX. (2) Watch for facts indicating that the foundation requirement for EE of bias/interest have been fulfilled because relevant evidence that is otherwise inadmissible (past arrests, liability insurance) CAN come in for impeachment purposes if the foundation's been laid. (c) Conviction of crime. CX or EE - no foundation required. Can impeach by proof of CONVICTION (not arrest or indictment) for certain crimes. Pending appeal has no effect. (1) A prior conviction can be shown either in CX or by introducing a record of the judgment; no foundation is necessary! (2) Types of crime I. Any felony or misdemeanor requiring an act of dishonesty or false statements. Court has no discretion to bar impeachment by these crimes. II. For F/M not involving dishonesty, the court has discretion to exclude IF: A. If it's to impeach a criminal defendant court can exclude if the prosecutor hasn't shown the conviction's probative value outweighs its prejudicial effect B. For all other witnesses the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect. (3) Remote, Juvenile, and Constitutionally-Defective Convictions are NOT admissible. I. If more than 10 years have passed since whichever is greater of (date of conviction or date of release from confinement), generally too remote to be inadmissible. II. A constitutionally-defective conviction is invalid for all purposes, including impeachment. (4) Effect of Pardon I. A conviction may not be used to impeach a witness if the witness has been pardoned

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I. A conviction may not be used to impeach a witness if the witness has been pardoned AND: A. The pardon is BASED ON INNOCENCE, OR B. The person pardoned hasn't been convicted of a subsequent felony (d) Specific instances of misconduct (bad acts). CX ONLY. Subject to the discretion of the trial judge, a witness can be CX-ed about a specific bad act only if the act is probative of TRUTHFULNESS. Question must be asked in good faith. (1) Extrinsic evidence of prior BAD ACTS to prove misconduct is NOT permitted. A specific act of misconduct offered to attack truthfulness can be elicited ONLY on CX. (2) Remember that an ARREST ALONE is NOT A BAD ACT. So it's okay to ask if I ever embezzled money from my employer, but not okay to ask if I was ever arrested for embezzlement. (e) Opinion or reputation evidence of truthfulness. EE - no foundation. Can impeach by showing a witness has a reputation for untruthfulness. Can include evidence of reputation in business circles as well as in the community in which the witness resides. FRE allows a witness to give an opinion as to truthfulness. (f) Sensory deficiencies. CX or EE - no foundation. Show that the witness's faculties were so impaired that it's doubtful that he could have perceived those facts. Can also be impeached by showing the witness had no knowledge of the facts to which he testified. 3. No Impeachment on Collateral Matters! If a witness says something that's not directly relevant to the issue, can't impeach by EE or with prior inconsistent statements! 4. Impeachment of Hearsay Declarant. Can attack/support hearsay evidence that gets in as if the declarant had testified as a witness. (i) Don't need to give the declarant the opportunity to explain/deny a prior inconsistent statement! (ii) The party the HS is offered against can call with declarant and CX them! 5. Rehabilitation (i) A witness who has been impeached can be rehabilitated by: (a) Explaining/clarifying facts on redirect. (b) When veracity has been attack, can call other witnesses to testify as to truthfulness. (c) Normally cannot rehabilitate by showing a prior consistent statement BUT if the witness's testimony has been attacked by an express OR implied charge that the witness is lying or exaggerating because of some motive, a prior consistent statement IS admissible to rebut AND the prior statement is SUBSTANTIVE evidence of the truth of its contents whether it was made under oath or not. F. OBJECTIONS, EXCEPTIONS, OFFERS OF PROOF 1. Objections (i) Not necessary for a party to "except" from a trial ruling in order to preserve the issue for appeal in most states. (ii) Should make objections after the question but before an answer if the answer calls for inadmissible information, otherwise as soon as an answer calls for inadmissible info, move to strike. (a) At a deposition: (1) objections to a form of a question or to a testimonial privilege should be made WHEN THE QUESTION IS ASKED OR ELSE IT IS WAIVED. (2) objections based on the substance of a question or answer may be postponed until the deposition is offered into evidence at trial. (b) Failure to object is deemed as a waiver of any ground for objection. So if you don't object, OTHERWISE INADMISSIBLE evidence WILL BE ADMITTED!!! (iii) Specificity of objections (a) A sustained general objection (one that doesn't state the grounds for objection) will be upheld on appeal if there's any ground for the objection. (b) An overruled general objection will be upheld on appeal unless the evidence wasn't admissible under any circumstance for any purpose!! (c) A sustained specific objection (states the ground for objection) will be upheld on appeal only if the ground states was correct OR if the evidence excluded wasn't competent and couldn't be made competent. (iv) Opening the door: If you introduce evidence on a particular subject, you assert its relevance and cannot complain if the other party offers evidence on the same subject. (v) Context. If PART of a conversation, act, or writing is introduced into evidence, the other party can require the proponent to introduce ANY other part that ought in fairness be considered. (vi) The examining counsel can move to strike a non-responsive answer but the opposing counsel can NOT. 2. An offer of proof may be made that discloses the nature, purpose, and admissibility of rejected evidence in order to preserve the evidence for review on appeal. Can be made by witness testimony, lawyer's narration, or marked tangible evidence. G. TESTIMONIAL PRIVILEGE 1. Testimonial privileges permit one to refuse to disclose and prohibit others from disclosing certain confidential

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1. Testimonial privileges permit one to refuse to disclose and prohibit others from disclosing certain confidential information in judicial proceedings. 2. FRE has no specific privilege provisions. Privilege in federal courts is governed by common law principles. Federal courts recognize only (i) attorney-client privilege, (ii) spousal communication privilege, and (iii) psychotherapist privilege. (iv) In DIVERSITY cases, state privilege law applies! 3. Generally, (i) Privilege is personal to the holder and can only be asserted BY the holder. Sometimes the person with whom the confidence was shared can assert the privilege on the holder's behalf. (ii) To be privileged, a communication must be shown or presumed to have been made in confidence. Absent negligence, even an eavesdropper is barred from testifying. (iii) The counsel for the parties and the judge may not comment on a claim of privilege. (iv) Privileged is waived by: (a) Failure to claim the privilege (b) Voluntary disclosure of the privileged matter by the privilege holder (not eavesdropping!) (c) Contractual provision waiving in advance the right to claim a privilege 4. Attorney-Client Privilege (i) Communication between an attorney and a client made during professional consultation. Client must be seeking the professional services of the attorney at the time of the communication. Disclosures made before the attorney accepts/declines the case ARE covered by the privilege. (a) Statements made by corporate officials/employees to an attorney are protected if the employees were authorized by the corporation to make such statements. (ii) To be protected, the communication must be confidential - not intended to be disclosed to third parties, otherwise communications made in the known presence and hearing of a stranger are NOT privileged. (a) BUT representatives of the attorney or client can be present without destroying the privilege. (b) BUT communications made to 3rd party agents (secretaries, messengers, accountants) ARE confidential and covered by the privilege if they were necessary to transmit the information between the attorney and client. (1) Ex: communication between a client and a doctor during an examination made at the attorney's request. Doctor/patient privilege might not apply because no treatment may be contemplated BUT attorney/client privilege will apply as long as the doctor isn't called as an expert. (iii) No privilege where the attorney acts for both parties to a transaction but the privilege can be claimed in a suit between either or both of the two parties vs. a third person. (iv) The privilege applies indefinitely, even after the client's death. (v) Three big exceptions to attorney-client privilege: (a) No privileges if the attorney's services were sought to aid in the planning/commission of something the client should have known was a crime or fraud. (b) When communication is relevant to an issue between parties claiming through the same dead client (c) For communication relevant to an issue of breach of duty in a dispute between the attorney and the client. (vi) Attorney work product - Although documents prepared by an attorney for his own use in a case are NOT protected by PRIVILEGE, they are not subject to discovery except in cases of necessity. (vii) Waiver (a) The client is the holder of the privilege and the client alone can waive it. The attorney's authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence. (b) The holder's failure to claim the privilege or failure to object when the privileged testimony is offered WAIVES the privilege. (c) Voluntary disclosure of privileged material waives the privilege or work product protection only with respect to the disclosed material. The waiver doesn't extend to undisclosed privileged material unless: (1) The waiver was intentional, (2) Both the disclosed and undisclosed material concern the same subject matter, and (3) Fairness dictates all the material should be considered together to avoid a misleading presentation of evidence (d) If the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error, no waiver. 5. Psychotherapist/Social Worker-Client Privilege (i) SCOTUS recognizes federal privilege for communications between a psychiatrist/psychologist/social worker and their client.

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6.

7.

8.

9. 10.

11.

worker and their client. (ii) In addition to federal courts, almost all states recognize a privilege for this. (iii) Works basically the same as attorney/client privilege. Spousal Privilege (i) Two types (a) Spousal Immunity (criminal only) (1) If invoked, a married person whose spouse is a CRIMINAL DEFENDANT cannot be called as a witness by the prosecution. (2) A married person cannot be compelled to testify against his spouse in any CRIMINAL proceeding regardless whether the spouse is a defendant. Basically covers all testimony where one spouse speaks against another. But can testify if you want to!! (3) Must be a valid marriage for the privilege to apply. (4) Privilege lasts only during the marriage. Does NOT survive the marriage. (b) Privilege for confidential marital communication (criminal and civil) (1) In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged but the marital relationship must exist WHEN the communication WAS MADE. (2) Both spouses have to agree in order to break the confidence. (3) Divorce doesn't terminate the privilege but communications after divorce are not privileged. I. So survives the end of a marriage - anything within the marriage is protected unless the privilege is broken. II. Even if the marriage was annulled, there's privilege so long as they thought they were married, even though annulment legally makes the marriage disappear. (4) The communication must be made in reliance on the intimacy of the marital relationship (which means must be confidential) (ii) Neither type of spousal privilege applies in (a) actions between the spouses, (b) in cases involving crimes against a testifying spouse (where spouse is the victim) (c) In cases involving crimes against either spouse's children Physician-Patient Privilege (i) The physician-patient privilege belongs to the PATIENT and he can decide to claim/waive it. Confidential communications between a patient and his doctor are privilege so long as (a) A professional relationship exists (b) The info is acquired while attending the patient in the course of treatment (not just for trial) (c) The information is necessary for treatment. Non-medical information is NOT privileged. (ii) The privilege does not apply when (a) The patient puts his physical condition at issue (b) The physician's assistance was sought to aid commission of a crime or tort (c) The communication is relevant to a breach of duty issue in a dispute between the physician and the patient (d) The patient contracts to waive the privilege (like in a life insurance policy) (e) It is a federal case applying federal privilege law - no doctor/patient privilege!!! (iii) In some states, doctor/patient privilege applies in both civil/criminal, some just civil, some just misdemeanors, some only not in homicide cases. Privilege Against Self-Incrimination (i) 5th A says you can't be compelled to testify against yourself. (ii) Any witness compelled to appear in a civil/criminal proceeding can refuse to give an answer that ties the witness to the commission of a crime. Clergy or Accountant Privilege (i) For statements made to a member of the clergy / accountant. Like attorney/client. Professional Journalist Privilege (i) No constitutional right for a professional journalist to protect his source of information. Any privilege here must come from a state statute. Governmental Privileges (i) General privilege that attaches to certain communications made by or to public officials. Official information is defined as info not open to the public, relating to internal affairs, can apply to low-level communications made by or to officials, like a judge's communications to his law clerk. (ii) A governmental entity generally has a privilege to refuse to disclose the identity of a person who has furnished to a LEO information purporting to reveal the commission of a crime (tips) (a) Privilege can be claimed by a government representative, including prosecutor. (b) No privilege exists if the identity of the informer/his interest in the subject matter of his communication ahs been voluntarily disclosed by the holder of the privilege or if the informer appears as a witness in the case. (iii) If the government chooses not to disclose and informer's identity and there's a reasonable probability

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(iii) If the government chooses not to disclose and informer's identity and there's a reasonable probability that the informer could provide testimony necessary to a fair determination of guilt/innocence, the accused/judge can motion to dismiss the proceedings!! H. EXCLUSION AND SEQUESTRATION OF WITNESSES 1. If a party asks/on her own motion, the trial judge will order a witness excluded from the courtroom so they can't hear the testimony of other witnesses. 2. FRE prohibits the exclusion of: (i) A party or a designated officer or employee of a party (ii) A person whose presence is essential to the presentation of a part's case, or (iii) A person who is statutorily authorized to be present VII. THE HEARSAY RULE A. FRE: hearsay = a statement, other than one made by the declarant while testifying at the trial/hearing, offered in evidence to prove the truth of the matter asserted. 1. statement = an oral or written assertion or non-verbal conduct intended as an assertion (like a head nod) 2. offered to prove the truth of the matter = if an out-of-court statement is introduced for any purpose other than to prove the truth of the matter asserted, there's no need to cross-examine the declarant, so the statement IS NOT HEARSAY. (i) These out-of-court statements are NOT HEARSAY: (a) Verbal acts or legally operative facts (word of contract, defamatory words, bribery, cancellation, permission) (b) Offered to show their effect on the hearer/reader (ex: to prove notice in a negligence case) (c) Offered as circumstantial evidence of the declarant's state of mind (evidence of insanity, knowledge). (1) Don't confuse with statements that reflect directly on state of mind in order to establish intent this is hearsay but comes in under an exception. (ii) Ask if we care if the declarant's telling the truth when trying to figure out if something's hearsay. 3. Non-human declarants no such thing as animal or machine hearsay, the declarant must be a person. B. "NON-HEARSAY" STATEMENTS 1. Witness's Prior Statements (i) FRE says prior statements by a witness ARE NOT hearsay if (a) It's INCONSISTENT with the declarant's in-court testimony (1) If not oath, it is STILL HEARSAY, can ONLY be used to IMPEACH (2) IF given orally and UNDER OATH at a prior proceeding CAN BE USED AS SUBSTANTIVE EVIDENCE as well as to impeach! Includes depositions. (b) It IS CONSISTENT with the declarant's in-court testimony and is OFFERED TO REBUT a charge that the witness is LYING/EXAGGERATING because of some motive and the prior consistent statement was made before the motive to lie emerged. (c) It's an IDENTIFICATION of a person made after perceiving them (doesn't have to be visual perception) 2. Admissions by Party-Opponent (i) Admission = statement or act that amounts to prior acknowledgement by one of the parties of one of the relevant facts. Admissions by a party opponent are NOT HEARSAY under the FRE. (a) To be an admission, doesn't have to have been against the declarant's interest when made and can be in the form of an opinion. (b) The admission can be predicated on hearsay itself, personal knowledge is not required. (ii) Interesting types of admissions: (a) Judicial and extrajudicial admissions: (1) formal judicial admissions (pleadings, stipulations, etc) are conclusive. (2) Informal judicial admissions (made under testimony) can be explained I. A formal judicial admission that is withdrawn in one proceeding can become an informal admission (statements in original answer are admissible though superseded by amendment). II. But a withdrawn guilty plea is NOT admissible against a defendant in any proceeding. (3) Extrajudicial admissions (evidentiary) are not conclusive and can be explained I. A formal judicial admission in one proceeding can become an extrajudicial/evidentiary admission in another proceeding (like a plea of guilty in traffic violation civil case on same facts) (b) Adoptive admissions (1) A party can make an admission by expressly or impliedly adopting or acquiescing in the statement of another (2) Silence may be considered an implied admission. Requires: I. The party heard and understood the statement II. The party was physically/mentally capable of denying; and III. A reasonable person would have denied the accusation.

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III. A reasonable person would have denied the accusation. IV. BUT silence in the face of POLICE accusations in a CRIMINAL case will almost never be considered an admission of a crime. (c) Vicarious admissions (1) Admissions of a party can't come in against co-parties just because they happen to be joined as parties. (2) The statements of a person authorized to speak on a party's behalf (like a press agent) can be admitted against the party as an admission (3) The statements of a party's agent within the scope of her agency made while the agency relationship exists are NOT HEARSAY and so are admissible against the principal. (4) If a partnership is shown to exist, an admission of a partner about matters within the scope of the partnership business is binding on co-partners. (5) Admissions of co-conspirators are admissible when: I. a conspirator II. to a third party III. in furtherance of a conspiracy to commit a crime/civil wrong IV. at a time when the declarant was participating in the conspiracy. (6) In most STATE COURTS, admissions of joint tenants are admissible against the other and admissions of a former owner of real property made while she had title are admissible against those claiming under her (grantees, heirs, etc.) I. The FRE doesn't consider these admissions but they might come in under a hearsay exception (7) Before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of the declarant's relationship with the party against whom the statement is offered. I. In making this determination, the court must consider the contents but the statement alone is not sufficient to establish the required relationship. C. HEARSAY EXCEPTIONS - declarant's availability immaterial 1. Present State of Mind (i) A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition IS admissible. The comment should be made concurrently with the sense impression. (ii) Admissible when (a) if the state of mind is directly in issue (b) Declarations of intent offered to show subsequent acts of the defendant - admitted as circumstantial
evidence tending to show the intent was carried out

2.

3.

4.

5.

(c) Statements of memory or belief is usually not admissible to prove the truth of the fact remembered/believed except as to certain facts about the declarant's will. Excited Utterances (i) An out-of-court statement relating to a startling event made while under excitement from the event (before the declarant had time to reflect on it) is admissible. (a) The declaration must concern the immediate facts of the startling occurrence (ii) The time element is the most important factor. Present Sense Impressions (i) Comments made concurrently with the sense impression of an event that is not necessarily exciting can be admissible because little time for calculated misstatements and the contemporaneous nature of the statement makes it reliable. Declarations of Physical Condition (i) Statements about present bodily condition are admissible. Even if not made to a physician. (ii) Statements about past bodily condition only admissible if to assist in the diagnosis or treatment or the condition. Can be made to any medical personnel to help diagnose or treat. Even declarations about the cause or source of the condition are admissible IF PERTINENT TO DIAGNOSIS/TREATMENT. (a) CONTRARY to the majority view, declarations of past physical condition made to doctor who is exclusively employed to testify ARE ADMISSIBLE under the FRE. Business Records (i) Any writing or record made as a memorandum of any act/transaction IS ADMISSIBLE AS PROOF of that act/transaction. FRE + modern rules: (a) Business = every association, profession, occupation, calling of any kind, for profit OR NOT (b) Entry must be in the regular course of business = must be customary to make the type of entry involved. Self-serving accident reports used primarily for litigation are usually inadmissible! (c) Entry must be made near the time of the event/transaction (d) Author must have had personal knowledge or must be within the knowledge of someone with a DUTY TO TRANSMIT the matters TO the entrant. (1) While police reports containing the statements of witnesses might qualify as business records under some circumstances, generally witnesses or parties are NOT under a business

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6.

7.

8.

9.

10.

20.

records under some circumstances, generally witnesses or parties are NOT under a business duty to convey information to the police!!!! So a report containing their statements CANNOT QUALIFY AS A BUSINESS RECORD but could be admissible under some other exception (e) Authenticity must be established by a custodian of the record who (1) Testifies that the record is a business record OR (2) Certifies in writing that the record is a business record (ii) Business records can be used to prove the non-occurrence or non-existence of a matter if it was the regular practice of the business to record all such matters. Past Recollection Recorded (i) If the witness's memory can't be revived, a party can introduce a memorandum the witness herself made at/near the time of the event. (ii) Writing itself isn't admissible, but it's read to the jury. Official Records and Other Official Writings (i) Public records and reports (a) Records, reports, statements, or data compilations in any form, of a public office/agency are admissible to the extent that they set forth (1) The activities of the office/agency (2) Matters observed pursuant to a duty imposed by law (EXCLUDING police observations in a criminal case) OR (3) In civil cases and criminal proceedings against the government, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law, unless circumstances (like the info source) indicate lack of trustworthiness) (b) Any hearsay within these reports will be excised unless it falls into another exception. Officer's conclusions and opinions are admissible though. (c) To be admissible, require (1) The writing made by and within scope of duty of the public employee (2) Entry near the time of the event (3) Circumstances indicate trustworthiness (ii) Records of vital statistics (a) Birth, death, marriage records admissible if the report was made to a public office and complied with all requirements (iii) Statements of ABSENCE of public record (a) Evidence in the form of a certification/testimony from the custodian of public records that she has diligently searched and failed to find a record IS ADMISSIBLE to prove that the matter was not recorded AND, INFERENTIALLY that the matter did not occur. (iv) Judgments (a) A certified copy of a judgment is always admissible proof that the judgment's been entered BUT (b) Prior felony convictions are admissible in criminal/civil action to prove any fact that was essential to the prior judgment. FRE is contrary to the majority rule in state courts here. Felony = crimes punishable of greater than one year or death. (1) Admissible for this purpose only against the accused. Against people other than the accused, can only use prior felony convictions for impeachment. (c) Prior misdemeanor convictions are NOT admissible. Anything punishable by 1 yr or less! (d) Prior criminal acquittals are NOT admissible. (e) Prior civil judgments are clearly inadmissible in a subsequent criminal proceeding because of the different standards of proof, and generally inadmissible in a subsequent civil proceeding. Ancient Documents and Documents Affecting Property Interests (i) FRE: statements in any authenticated document 20+ yrs old ARE admissible (ii) Statements in any document affecting an interest in property are admissible regardless of the age of the document Learned Treatises (i) Treatises are admissible as substantive proof under the FRE if: (a) Called to the attention of/relied on by an expert witness AND (b) Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice Reputation (i) Reputation evidence is admissible under a bunch of hearsay exceptions as evidence of: (a) Character (b) Personal/family history (c) Land boundaries (d) A community's general history Family Records (i) Statements of fact concerning personal/family history in family Bibles, jewelry engraving, genealogies, tombstone engravings, etc. are admissible.

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tombstone engravings, etc. are admissible. 21. Market Reports (i) Market reports and other published compilations are admissible if generally used and relied on by the public or people in that particular occupation. D. HEARSAY EXCEPTIONS - only when declarant is unavailable. 1. Five exceptions are contingent on unavailability = the declarant is (i) Exempt from testifying because of privilege (ii) Refuses to testify despite a court order (iii) Testifies to lack of memory on the subject matter of the statement (iv) Is unable to testify due to physical or mental illness or death; or (v) Is absent (beyond the reach of the court's subpoena) and the proponent is unable to procure his attendance by reasonable means. 2. Former Testimony (i) The prior testimony of a now-unavailable witness, given at a hearing/deposition, is admissible only if (a) The testimony was given under oath; (b) The former action involved the same subject matter (the cause of action doesn't have to be identical); (c) The party that statement's offered against (or a party's predecessor-in-interest if civil) was a party in the former action; (d) The party the statement's offered against had an opportunity to develop the declarant's testimony at the prior proceeding (by direct, CX, or redirect examination) (ii) Grand jury proceedings don't allow for CX so grand jury testimony can't come in under this exception BUT remember if there was a prior inconsistent statement given under oath at a grand jury hearing by the witness currently testifying, it can still come in both as impeachment AND substantive evidence. 3. Statements Against Interest. (i) If the statement of a now-unavailable witness was made against that person's pecuniary, proprietary, or penal interest WHEN MADE, that statement as well as collateral facts within that statement ARE ADMISSIBLE under this exception. (a) The declarant must have had personal knowledge of the facts and must have been aware that the statement was against her interest when she made it. (b) Declarant must have had no motive to misrepresent when she made the statement. (ii) Modern trend + FRE: If a criminal defendant wants to admit someone else's confession to committing the crime, need additional evidence corroborating the trustworthiness of the statement. (a) States that don't allow statements against penal interest aren't allowed to exclude the confession of a third party where to do so would deprive the accused of a fair trial. (iii) The exception only covers the against-interest statement, not the complete declaration. 4. Dying Declarations - Statements Under Belief of Impending Death (i) In CIVIL ACTIONS and CRIMINAL HOMICIDE PROSECUTIONS, a statement made by a now-unavailable declarant is admissible IF (a) The declarant believed her death was imminent (but she need not actually die); and (b) The statement concerned the cause or circumstances of what she believed to be the impending death. (ii) The traditional rule limited this to situations where the witness actually died and only for criminal homicide prosecutions, but the FRE rejected this. 5. Statements of Personal or Family History (i) Statements by now-unavailable declarant concerning births, marriages, divorces, relationships, genealogical status, etc. are admissible provided that (a) The declarant is a member of the family in question or intimately associated with it AND (b) The statements are based on the declarant's personal knowledge or knowledge of family reputation 6. Statements Offered Against the Party who Disappeared the Witness! Bad guys!! (i) A statement of a now-unavailable witness is admissible when it's offered against the party who engaged in or acquiesced to wrongdoing that intentionally procured the unavailability. E. RESIDUAL CATCH-ALL EXCEPTION 1. FRE Catch-all exception requires (i) That the hearsay statement possess sufficient circumstantial indicia of trustworthiness (ii) The statement is offered on a material fact AND must be more probative as to that fact than any other evidence which the proponent can reasonably produce (so the interests of justice will be served by its admission) (iii) Notice to the adversary as to the nature of the statement. F. CONSTITUTIONAL ISSUES 1. Because the use of hearsay evidence in a criminal case might violate the Confrontation Clause, even though it might fall into the hearsay exception, prior testimonial evidence is inadmissible against a criminal defendant unless the declarant is unavailable AND the defendant had an opportunity to CX the declarant when the

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unless the declarant is unavailable AND the defendant had an opportunity to CX the declarant when the statement was made. (i) Statements made in the course of police interrogation (a) If the primary purpose of the police interrogation is to enable the police to help in an ongoing emergency, statements made in the course are non-testimonial. Includes statements made in 911 calls describing circumstances and perpetrator. (b) When the primary purpose is to establish or prove past events that are potentially relevant to a later criminal prosecution, statements are testimonial. Statements can move from non-testimonial TO testimonial. (ii) Affidavits reporting the results of forensic analysis (a) Affidavits that summarize the findings are testimonial and can't be admitted into evidence unless the technician was unavailable AND the defendant had a prior opportunity to CX! (iii) The defendant forfeits right to confront if he disappeared the witness. (iv) Right to physically face the witness (a) 6th amendment violated if physical screen between defendant and alleged child sex abuse victims! (b) But the right isn't absolute, can testify via a one-way closed circuit TV, that can be okay ONLY IF the trial judge makes a specific finding of probable trauma to the kid. (v) Hearsay rules/other rules of exclusion can't be applied if such application would deprive the accused of his right to a fair trial/right to compulsory process. VIII. PROCEDURAL CONSIDERATIONS A. BURDENS OF PROOF 1. Burden of producing evidence (i) The party with the burden of PLEADING usually has the burden of PRODUCING evidence sufficient to make out a prima facie case = create a fact question for the issue for the trier of fact (seems like to survive a motion for summary judgment to me) (ii) Once the party has satisfied that burden, the other side must have enough evidence to rebut. 2. Burden of persuasion (proof) (i) After the parties have both sustained their burden of production, the question becomes if the party with the burden of PERSUASION has satisfied it. (a) Civil cases - usually preponderance of the evidence = more probably true than not true (b) Some civil cases - clear and convincing evidence = high probability (c) Criminal cases - beyond a reasonable doubt B. PRESUMPTIONS 1. Until rebutted, a presumption operates to shift the burden of production to the other party. A presumption DOES NOT shift the burden of PERSUASION! 2. Rebutting a presumption. Happens when the adversary produces some evidence that contradicts the presumed fact. Then the presumption is dead and has no effect. 3. Distinguish true presumptions from inferences and substantive law! (i) Permissible inference = may help the party to meet its burden of production = establish a prima facie case, but it doesn't SHIFT the burden to the adversary. Ex: res ipsa loquitor, the inference that destroyed evidence was unfavorable to the spoilor, etc. (ii) Special considerations for true presumptions in the criminal context (a) The "presumption of innocence" in criminal cases is really just a permissible inference, (b) Judge cannot instruct that a jury MUST find a PRESUMED fact against the accused, must instruct that they may regard the basic facts as sufficient evidence of the presumed fact. (c) If a presumed fact establishes guilt, is an element of the offense, or negates a defense, it must be found proved beyond a reasonable doubt. (iii) Conclusive presumptions can't be rebutted. Ex: a child under 7 can't commit a crime. These are really rules of substantive law. 4. Common rebuttable presumptions (i) Every person is presumed to be legitimate (born to married parents I think) (ii) When cause of death in dispute in civil cases, presumption that it wasn't suicide. (iii) Everyone's presumed sane until the contrary is shown. (iv) If a person is unexplainably absent continuously for seven years, presumed dead. (v) Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or the driver was the owner's agent. (vi) Everyone's presumed chaste and virtuous! (vii) Presumed that people acting in an official office are properly performing their duties (viii) Proof of existence of a condition at a given time raises a presumption that it continued for as long as is usual for things of that nature (ix) A properly addressed and stamped and mailed letter is presumed to have been delivered in the due course of mail. (x) A person is presumed solvent and every debt is presumed collectable. (xi) When there's proof of delivery of goods in good condition to a bailee and the bailee fails to return them

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(xi) When there's proof of delivery of goods in good condition to a bailee and the bailee fails to return them in same condition, presumption of bailee's negligence. (xii) Upon proof of a marriage ceremony, the marriage is presumed valid. 5. Conflicting Presumptions (i) If presumptions conflict, the judge will apply the one that's more supported by logic and policy considerations. 6. Choice of Law Regarding Presumptions in Civil Actions (i) Under the FRE, state law governs the effect of a presumption concerning a fact that is an element of a claim/defense to which Erie says the rule of decision must come from the state. C. RELATIONSHIP OF PARTIES, JUDGE, AND JURY 1. Allocation of Responsibilities (i) Trial judge's primary responsibility is to superintend the trial fairly. (ii) Generally questions of law are for the trial judge to determine and questions of fact are for the jury. 2. Preliminary Determination of Admissibility (i) Most of the time existence of a preliminary fact is an essential condition to the admissibility of proferred evidence. (ii) Preliminary facts decided by the judge: (a) Relevancy of the evidence (b) Ex: facts affecting the competency of evidence; requirements for hearsay exceptions, privileges, expert testimony, mental competence (c) FRE: The trial judge can consider any relevant evidence in making preliminary determinations, even evidence that wouldn't be admissible at trial itself. (1) Most STATES hold that rules of evidence DO APPLY in preliminary question determinations!! Only admissible evidence can be considered!! (d) Whether preliminary questions go to the jury or not are within the trial judge's discretion. (e) The accused can testify on any preliminary matter subjecting herself to testifying at trial. Does NOT waive the privilege against self-incrimination. (f) In federal court, the judge can comment on the weight of evidence. Most state courts do NOT allow this. (g) The judge can call and question witnesses on her own initiative. (h) The judge has an obligation to rule promptly on evidentiary objections and if asked must state grounds for her rulings. (i) Judge will restrict evidence to its proper scope and instruct the jury accordingly. (iii) Jury decides the competency of evidence. (a) Ex: whether agency relationship existed, authenticity of a document, witness credibility, personal knowledge

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