From EvidenceWypadki

Contents 1 Table of Contents 2 CHAPTER 7: RELEVANCY 2.1 Rules 2.2 Illustration of Relevancy Rules: Evidence of Financial Worth 2.3 Special Application of Rule 403 3 CHAPTER 8: FORMALIZED APPLICATIONS OF THE RELEVANCY CONCEPT 3.1 Rules 3.2 Other Happenings 3.3 Personality Traits of Individuals in Civil Cases 3.4 Personality Traits and Behavior Patterns in Criminal Cases 3.4.1 Character of the Accused – 1st exception – FRE 404(a)(1) 3.4.2 Character of the Victim – 2nd exception– FRE 404(a)(2) 3.4.3 Character of the Victim – FRE 412 3.4.4 Other Acts Evidence: FRE 404(b) 3.4.5 Intersection of Relevancy and Ancillary Policy Considerations 4 CHAPTER 15: PRIVILEGE 4.1 Rules 4.2 Policy 4.3 Illustration of Privilege Rules: Husband-Wife 4.4 Illustration of Privilege Rules: Attorney-Client and "Work Product" Privilege 4.5 Additional Privileges: 1st Amendment & Physician-Patient Privilege 5 CHAPTER 12: TESTIMONIAL EVIDENCE 5.1 Rules 5.2 Competency of Witnesses 5.3 Elicitation of Testimony 5.4 Rules 5.5 Cases 5.6 Credibility: Bolstering, Impeachment, AND Rehabilitation 5.6.1 1. Bolstering the credibility of your own witness before any attack on it 5.6.2 2. Impeaching the credibility of other witnesses--WHO MAY IMPEACH 5.6.3 3. Impeachment: Bias 5.6.4 4. Impeachment: Mental or Sensory Capacity 5.6.5 5. Impeachment: Untruthful Character, FRE 608(a) 5.6.6 6. Impeachment: Conviction of Crime, FRE 609I 5.6.7 Cases 5.6.8 7. Impeachment: Untruthful Conduct, FRE 608(b) 5.6.9 8. Impeachment: Specific Contradiction 5.6.10 9. Impeachment: Prior Inconsistent Statements, FRE 613 5.6.11 10. Impeachment: Learned Treatise 5.6.12 11. Rehabilitating the credibility of your witness after cross-examination or impeachment 5.7 Lay Witnesses 5.8 Expert Testimony 6 CHAPTER 13: THE HEARSAY RULE 6.1 Rules 6.2 Definition and Rationale Statements for the Truth of the Matter Asserted 6.3 Other Statments that are not Hearsay 6.3.1 Prior Statements of Witnesses 6.3.2 Admission of the Party Opponent 6.4 Confrontation 7 CHAPTER 14: EXCEPTIONS TO THE HEARSAY RULE 7.1 Section A. Present Sense Impressions and Excited Utterances 7.2 Section B. Existing Mental, Emotional, or Physical Condition 7.3 Section C. Statements for Purpose of Medical Diagnosis or Treatment 7.4 Section D. Recorded Recollection 7.5 Section E. Records of Regularly Conducted Activity 7.6 Section F. Public Records and Reports 7.7 Section G. Unavailability. 7.8 Section H. Former Testimony 7.9 Section I. Dying Declarations 7.10 Section L. Catchall or Residual Exception 8 CHAPTER 10: REAL AND DEMONSTRATIVE EVIDENCE 8.1 Rules 8.2 Elements 8.3 Chain of Custody 8.4 Photographic Evidence 9 CHAPTER 11: WRITINGS AND RELATED MATTERS 9.1 Rules 9.2 Authentication 9.3 Proof of Contents (The "Best Evidence" Rule) 10 CHAPTER 1: LIMITATIONS OF THE ADVERSARY SYSTEM 11 CHAPTER 2: CHARACTERISTICS OF THE ADVERSARY SYSTEM 11.1 The Roles of Judge and Jury 11.2 Party Responsibility 11.2.1 Objections 11.2.2 Offers of Proof 11.2.3 Appeals 11.2.4 Limited Admissibility 11.2.5 Non-jury Trials 11.3 Vocabulary to Know 12 CHAPTER 9: JUDICIAL NOTICE 13 CHAPTER 4: BURDEN OF PROOF 13.1 Burden of Going Forward 13.2 Burden of Persuasion 14 CHAPTER 5: PRESUMPTIONS 15 CHAPTER 6: THE ORDER OF PROOF

Table of Contents

• CHAPTER 7: RELEVANCY
• CHAPTER 8: FORMALIZED APPLICATIONS OF THE RELEVANCY CONCEPT
• CHAPTER 15: PRIVILEGE
• CHAPTER 12: TESTIMONIAL EVIDENCE
• CHAPTER 13: THE HEARSAY RULE
• CHAPTER 14: EXCEPTIONS TO THE HEARSAY RULE
• CHAPTER 10: REAL AND DEMONSTRATIVE EVIDENCE
• CHAPTER 11: WRITINGS AND RELATED MATTERS
• CHAPTER 1: LIMITATIONS OF THE ADVERSARY SYSTEM
• CHAPTER 2: CHARACTERISTICS OF THE ADVERSARY SYSTEM
• CHAPTER 9: JUDICIAL NOTICE
• CHAPTER 4: BURDEN OF PROOF
• CHAPTER 5: PRESUMPTIONS
• CHAPTER 6: THE ORDER OF PROOF

CHAPTER 7: RELEVANCY

Rules

FRE 401 Definition of “Relevant Evidence. ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of [material] consequence to the determination of the action more probable than it would be without the evidence.

• Broad definition; essentially evidence that is directed at proving or disproving a legal element.
• Doesn’t have to be material, it just has to make the fact more probable
• Compare Materiality – propositions of ultimate fact properly provable in a case under the pleadings and substantive law.
  • Evidence that is immaterial can get in - i.e., 5 items of immaterial evidence could add up to material evidence
• The evidence that is tending to be proven as relevant must have been claimed in the pleadings.

FRE 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the U.S. Constitution, by Act of Congress, by these rules, or by other rules prescribed by the SC pursuant to statutory authority. Evidence which is not relevant is not admissible.

FRE 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Although relevant, evidence may be (permissive) excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

• Probative Value - if evidence tends to disprove or prove a proposition, and if that proposition is provable in a case, or if it forms a further link in a chain of proof of which the final proposition is provable in the case, then that offered item of evidence has probative value.

Illustration of Relevancy Rules: Evidence of Financial Worth

City of Cleveland v. Peter Kiewit Sons’ Co.

• FACTS: Dock 34 wasn’t being used anymore because it had deteriorated; Kiewit rented a portion of it while doing dike construction under a Corps of Engineers contract; after Kiewit surrendered possession, portions of the dock collapsed – including only a small section of the area leased to Kiewit. City made continuing references to (1) size of the Δ company, (2) insurance policy in the K (only if a 3rd party is injured), and (3) Δ being an out-of-state co.
• ISSUE: Prejudicial conduct by the city’s attorney? YES
• RULE: Evidence as to the poverty or wealth of a party to an action is inadmissible [as irrelevant] in a negligence action.
• HOLDING: Jury was prejudiced by financial inferences and incorrect insurance inferences – i.e. the Δ was NOT covered to pay the city for the damage, they were only covered in regards to injuries to 3rd parties. New trial for BOTH liability and damages.

Plumb v. Curtis

• FACTS: π Plumb supplied materials for three houses which were ordered by Δ's agent Simeon Plumb and the Δ admitted responsibility for them = No Problem
  • π furnished materials for another 5 houses also on Simeon’s order and the defendant denied liability = Problem
  • at trial the π was allowed, over objection, to testify that Simeon Plumb had no property as far as he knew
• ISSUE: Relevancy of π’s financial worth? YES
• RULE: Evidence should be admitted if it is conducive in any reasonable degree to establish the probability or improbability of the fact in controversy.
• HOLDING: π’s testimony, taken in connection with the other evidence already in the case, fairly tended to throw light on the matter in controversy, and was properly received.

State v. Mathis (local insurance man was beat up, shot, and burned in his vehicle)

• RULE: ***Evidence that an accused person is poor is generally excluded when offered to prove motive for a crime involving financial gain.
  • Is the fact that Mathis worked for his father material to whether he killed the insurance man?
    • No - it's a collateral issue at most - showing he knew the insurance man, had seen him before - but it does not make it more or less likely that he committed the crime itself
• ALT RULE: Likely admissible if he D was jobless one day and then the next day buys a diamond ring = relevant to show a change in situation
• POLICY: “Undoubtedly a lack of money is logically connected with a crime involving financial gain. The trouble is that it would prove too much against too many. (p228)
• HOLDING: State’s rebuttal evidence was NOT germane (relevant?) to the case.

Hall v. Montgomery Ward & Co.

• FACTS: mentally handicapped maintenance man interrogated for “borrowing” Δ’s cleaning supplies for his other jobs; Δ threatened him with jail, and when π came out of the interrogation, Δ had a confession from π and a list of all the alleged stolen items.
• EV (1) π testified regarding the pitifully small amount of property possessed by himself and his wife → showing he didn’t have the stolen property
• EV (2) Wards balance sheet of nearly $2B
• RULE: Δ’s pecuniary condition may be shown when π asks smart money
• HOLDING: ***Balance sheet was admissible b/c jury needs to know the extent of the Δ’s holdings in order to know how to punish Δ.
  • Compensatory Damage = balance sheet not relevant
  • Exemplay/Punitive Damages/Smart Money = balance sheet relevant

Reed v. General Motors Corp.

• FACTS: π pulled over b/c she suffered from cramps; turned on emergency lights; Δ1 was chasing his buddy (Δ2) doing about 90; Δ struck πs’ car injuring them; insurance companies are also Δ’s. The jury was told that Δ who struck the car had little to no insurance coverage, and Δ who did not hit the car had lots of insurance coverage, so it awarded damages accordingly.
• OLD RULE: Inability to pay doctrine – LA courts permitted a Δ to try to mitigate the damages (NOT the liability) that might be assessed against him by introducing evidence of his poverty and inability to pay a large verdict.
• POLICY: We don’t need to bankrupt the poor
• RULE: FRE 411 – Liability Insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
• HOLDING: Evidence of liability insurance is inadmissible requiring a new trial. The insurance was not relevant to the case because whether or not the Δs had coverage did not show that either Δ should be held liable.

Special Application of Rule 403

Old Chief v. U.S.

• FACTS: Δ convicted of use of firearm by a felon; π offered to stipulate to the fact of a prior conviction, an element of the crime with which he was charged; prosecution resisted the stipulation, arguing that it had the right to present its case in any manner it chose
• Δ = didn’t want any evidence in regard’s to the assault affect his right to be convicted with proof BARD by a jury
• Admitting evidence of the assault would be unfairly prejudicial
• ISSUE: Unfair prejudice under rule 403? YES
• RULE: Rule 403 allows the defendant to stipulate to prior convictions in order to avoid the unfair prejudice that would result from the prosecution introducing the facts of that prior crime into evidence during the later prosecution.
• GENERAL RULE: the prosecution is generally entitled to prove its case in the manner it sees fit "the story"
  • “‘Unfair prejudice’ within [the] context [of FRE 403] means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, and emotional one”
• HOLDING: J. Souter. Where the prior conviction is an element of the crime charged, evidence of a defendant's prior conviction may not be admitted if the defendant is willing to concede to the fact of the conviction.
• STANDARD/Balancing Test
  • (1) ISLAND: Is there a danger of unfair prejudice?
    • weigh its own probative value AND unfairly prejudicial risk as the sole reference points in deciding whether the danger SUBSTANTIALLY outwighs the value (and therefore whether the evidence should be excluded); or
  • (2) CONTEXT: same process as ISLAND but determined not as just one peice of evidence. This court would decide whether the particular item of evidence raised a danger of unfair prejudice...and THEN, evaluate the degrees of probative value and unfair prejudice not only for the item in question, but for any actually available substitutes as well, in regards to all the evidence.
  • THEREFORE: what counts as rule 403 "probative value" of an item of evidence as distinct from its Rule 401 "relevance" may be caluculated by comparing evidentiary alternatives.
    • HERE: stating the admitted element is all that is required and doesn't leave any gaps in the story. The only exception to that would be if State was trying to use the named offense as a coherent narrative of his thoughts and action in perpetrating the offense for which he is currently being tried.

CHAPTER 8: FORMALIZED APPLICATIONS OF THE RELEVANCY CONCEPT

Rules

FRE 404(a): Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

• 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:
  • 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;
  • Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a 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;
  • Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.

FRE 405: Under 405(a), inquiry is permitted on cross-examination of character witnesses with regard to relevant specific instances of conduct.

• Where the character witness’s testimony has been about reputation, questions on cross-examination should be phrased in terms of whether the witness “has heard” of a specific instance of conduct.

FRE 406: Habit; Routine Practice.

• Evidence 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.

Other Happenings

City of Bloomington v. Legg

• FACTS: drinking fountain for horses that had a lip which formed a hook; π was driving a team of horses; one horse hooked the bridle and trampled Δ to death
• ISSUE: Admission of evidence in re pre-existing danger? YES
• RULE: (decided before FRE) “The rule is clear, that to render evidence of similar accidents, resulting from the same cause, competent, it must appear, or the evidence must reasonably tend to show that the instrument or agency was…substantially the same condition”
• ALT: If 404(b) were around, it would also be admissible b/c city had knowledge
• HOLDING/RULE: **Evidence is competent and relevant because
  • (1) Evidence of Dangerous Condition – it tended to show what the actual condition was likely to be and
  • (2) Evidence of Notice – it tended to how that the city had notice
    • Notice → presumption of knowledge → existence of diligence
  • (3) it tended to show that there was no change of condition
• NOTE: DEGREE OF SIMILARITY: the circumstances required can depend on purpose the evidence is offered. (EX. strict similarity likely required where evidence is offered to show dangerousness of the condition; a lesser showing of similarity may be required where evidence is offered to show notice.

FRE 404(b) Other Crimes, Wrongs or Acts. – *Criminal and Civil* – Evidence of other crimes, wrongs, or acts (not just criminal) 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
• “My Other Inkling Precludes Proceeding Knowingly Into A Morass”

Jones v. Pak-Mor Manufacturing Co. (defective design products liability suit of a garbage machine that injured P)

• OLD RULE: Absence of prior accidents were per se inadmissible.
  • Reasons for this rule: (1) jurors could get distracted; (2) litigants should be protected against surprise; (3) juros might be misled or prejudiced by such evidence.
• NEW RULE: FRE – 401, 402, 403. Trial Court has discretion under 403 to admit evidence of safety history concerning both the existence and nonexistence of prior accidents, provided that the proponent establishes the necessary predicate for the evidence.
  • POLICY: this rule encourages manufacturers to get information and fix problems when they become aware of them.
• STANDARD: FRE
  • (1) Is this relevant evidence? Rule 401, 402 (if irrelevant it is inadmissible)
    • HOLDING: evidence of safety history is clearly relevant in the case
  • (2) Balancing the probative value and undue prejudice Rule 403
    • What weighs in determination of 403 (should it be excluded based on prejudice)
      • Negative Evidence Problem: witnesses who testify to not seeing either b/c they are not there or there have been no prior accidents, issues arise. Witnessess could be limitless so P has no way to counterargue, whereas Positive Evidence shows that a similar accident HAS been caused by similar situation and is an easier proof to meet.
      • Nature of the Danger: (EX. hole in sidewalk), a lack of prior accidents could be as much a proof that the first person to fall in was the first to walk over it.
        • If you want to use the inference that a product is save you must show that if there HAD BEEN prior accidents, the witness probably would have known about them (quality assurance, government standards, insurance company/no claims).
  • HOLDING: need to have more than just the president testify no accident has ever occurred.
• Note: this would be an entirely situation if was a manufacturing defect rather than a design defect. The rule does not apply to a manufacturing flaw - safety history would have been completely irrelevant.

Redfield v. IA State Highway Comm’n (π purchased land; state brought condemnation action for most of it to build a highway entrance)

• ISSUE: Admissibility of price paid for other similar properties? YES
• HOLDING/RULE: “Evidence of the sale price of other real property is admissible upon the issue of the value of other property where the conditions are similar to those at issue.”
  • Similar – does not mean identical, but having a resemblance
  • Size, use, location, and character of the land, time, mode and nature of the sale all have a bearing on the admissibility

Carpenter v. Kurn (wrongful death suit stemming from a train accident)

• Δ assign error to testimony by π’s witness in re to re-enacting the accident
• RULE/TEST: Test was not a difference of condition sufficient to warrant the exclusion of the evidence.
• Quality of evidence is to be weighed by the jury
• HOLDING: Test = admissible

Foster v. Agri-Chem, Inc.

• FACTS: Δ sold π fertilizer; Δ agreed not to apply more than 50 lbs per acre; π alleges Δ applied 64 lbs./acre resulting in less yield; Δ argues that π was contributorily negligent;
• ISSUE: Admissibility of out-of-courtroom experiments? YES
• GENERAL RULE: An experiment is admissible if the experiment is performed under conditions substantially similar to those existing in the case being tried
• HOLDING: Tests here had no relation to any lawsuit (NOT an experiment-for-trial), were for the sole purpose of obtaining scientific knowledge = less bias/taint = greater latitude for admittance, and there was evidence that the conditions were similar - so the test gets in.

Personality Traits of Individuals in Civil Cases

Rumbaugh v. McCormick (2 π’s alleged injuries to each of their sheep by Δ’s dog)

• ISSUE: Relevance of propensity? YES
• RULE: FRE 404(a) does not apply to animals – propensity evidence regarding animals is always allowed
• HOLDING: propensity evidence regarding animals is no less relevant than it is in humans
• 401: Propensity evidence of the dog, in fact, it is much more probative/relevant because a dog acts on instinct and so its propensity is much more likely; than a human, who presumably applies deeper reason
• 403: No risk of unfair prejudice b/c a dog

Beach v. Richtmyer – there was a collision between a truck driven and owned by Richtmyer and a car owned by Carpenter and driven by Harris (Harris is Carpenter’s driver. Harris’ passengers – Mrs. Smith, Mr. and Mrs. Beach (sister) and Ethel Morrison (mother). So Beach sues.

• PH: at trial the issue was whether Harris had permission to have the car and Carpenter argues he doesn’t
  • to contradict this evidence, evidence of Harris’ good character was presented through credible witnesses (sheriff, bank manager, etc.)
• ISSUE: Relevant? No
• RULE: (before FRE) In a civil action, evidence of character is inadmissible as a probative fact to show that a party did or did not do an act which is subject of the issue.
  • You can introduce evidence of character to rebut challenges to the character
  • here the evidence wasn’t really rebutting anything, was cumulative and took the case way off course
• HOLDING: Evidence should have been excluded b/c the credibility of Harris had not been impeached.

FRE 404(a) Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.

• (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 ↓:
  • there is no exception under (1) or (2) to this rule in civil cases
• Exceptions (all apply in criminal law; just (3) in civil law)
  • (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.
  • (2) 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 preosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
  • (3) Character of witenss - evidence of the character of a witness, as provided in rules 607, 608, and 609.

Schafer v. Time, Inc. – 405(a)

• FACTS: Time ran a story about the Pan Am disaster and it implicated a man named David Lovejoy, whom they said was a double agent, but his name was really Michael Schafer
• PH: Schafer appeals questioning the admissibility of some of his prior convictions (not paying child support, alimony)
• ISSUE: Admission of character evidence? YES
• GENERAL RULE: FRE 405(a)
• RULE: FRE 405(b) – only in cases in which a person’s character is “an essential element of a charge, claim or defense” may a party offer evidence of specific instances of conduct
  • Essential element = alters the rights and liabilities of the parties under the substantive law
• HOLDING: In a defamation case, you have to prove damage to reputation, and you have to have a starting point from which to evaluate it.

It is rare that character is an essential element – Examples:

• (1) child custody and adoption
• (2) defamation (libel or slander)
• (3) criminal seduction (this is the only criminal cause of action where character is an essential element and it is rarely ever prosecution)
• (4) negligent entrustment
• (5) damages in wrongful death – not liability, just damages

FRE 405(a) Methods of Proving Character.

• (a) Reputation or opinion. In ALL cases in which evidence 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 in to relevant specific instances of conduct
• so this rule applies if character evidence is admissible under 404 – this then tells you how it applies

MO-KS-TX R.R. v. McFerrin

• FACTS: π’s spouse killed by train; the widow brought wrongful death action and wanted to introduce evidence that her husband always stopped at the tracks
• Minority RULE: No eyewitness = habit can be introduced
• HOLDING: Habit evidence should not be admitted where there is an eyewitness to the accident, even though the eyewitness be an employee of the opposite party
• NOTE – Majority RULE: FRE 406 Habit; Routine Practice. 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.
• GENERAL RULE: Habit evidence is generally admissible
  • BUT SEE: Character evidence generally INadmissible
  • So to allow this into evidence you have to establish that there is a habit = lay a foundation

Reyes v. MO-Pacific R.R. – habit of individual – π hit by train, π says he wasn’t drunk but was knocked out by an assailant, RR wants to introduce evidence of prior public intoxication

• ISSUE: Character or Habit?
• RULE: 404 – character evidence is inadmissible for purpose of proving that the person acted in conformity with his character on particular occasion (based on the assumption that that such evidence of slight probative value but VERY PREJUDICIAL
  • CHARACTER: description of one’s disposition in respect to a general trait (honesty, temperance, peacefulness)
    • ANALYSIS: (1) examine purposes evidence is proffered. (A) show that the person acted in accordance with character on a given occasion, then (B) inadmissible unless it falls into one of the exceptions.
      • HERE: evidence was only to show the trait of drinking in excess and that he acted in conformity the night of the accident by becoming intoxicated and is therefore inadmissible under 404.
• 406 – **THRESHOLD QUESTION – when behavior may become so consistent as to rise to the level of habit, “adequacy of sampling and uniformity in response”
  • HABIT: One’s regular response to a repeated, specific situation. (considered to be highly probable and superior to character evidence because it yeilds greater consistency).
    • HERE: court found that four priors over 3.5 yrs insufficent regularity to rise to level of habit so in this example was inadmissible under 406 also.
• HOLDING: Inadmissible under rule 404(a) b/c it’s character evidence that doesn’t rise to the level of habit described in 406.
  • Habit is better than character evidence b/c it’s more often admissible
• ANALYSIS: **If you want it admissible, argue habit. If you want it inadmissible, argue character.

CHARACTER vs. HABIT

• Character: General description of one’s disposition
  • High risk of prejudice
  • Low probative value: even though you have a character to act one way, it’s not dispositive
  • Precluded by FRE 404
• Habit:
  • Greater probative value: it’s almost like an automatic response
  • Admissible under FRE 406

Eaton v. Bass – FRE 406; habit of organization – wrongful death action in which defendant was charged with operating a truck with defective brakes

• RULE: Businesses can have habits as well
• Court gives more credence to business habits b/c there’s more rules and procedures involved, and an organization does not have character
• ALT: Policy handbook can help prove a routine business practice
• HOLDING: the admission of this evidence was upheld because it was probative of whether there was an inspection of the truck – whether or not it was inspected is still a question for the jury

NOTE: Routine Business Practice – usually shows how a document is processed

Personality Traits and Behavior Patterns in Criminal Cases

Character of the Accused – 1st exception – FRE 404(a)(1)

State v. Rennenberg – criminal: where the exceptions apply – ΔH and ΔW convicted of grand larceny and complicity; worker heard register bell ring, say Δ facing register, and register was short $250

• Ph: At trial, Δ testified (opened door) to her character was ↓ admissible
  • Testimony elicited by prosecutor = involvement in narcotics, part of a methadone program
• GENERAL RULE: Evidence of past addiction is prejudicial ≠ admissible
• RULE: Prosecutor’s right to rebut = If Δ puts his prior conduct into issue by testifying as to his own past good behavior, he may be cross-examined as to specific acts of misconduct unrelated to the crime charged.
• Admissibility of evidence of prior drug addiction can be considered on at least 2 distinctly different grounds:
  • (1) it relates to the witness’ credibility
    • HOLDING: Not admissible b/c there is no proof before the court connecting addiction to a lack of veracity.
    • RULE: Courts should only allow
  • (2) it is an unrelated act of misconduct, admissible to contradict character evidence
    • HOLDING: Evidence was properly admitted

U.S. v. Castillo

• RULE: the prosecution cannot trick the Δ on cross to open the door; Δ must have opened the door before cross??
• FRE 404(a)(1) Character of the Accused. THIS IS AN EXCEPTION “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;”
  • If Δ offers character evidence of himself or of the V’s character, then the prosecution can offer evidence to rebut that
    • the criminal Δ has more at stake and it is worth the time to go through it
    • Prosecution can’t bring in evidence of accused character first

Edgington v. U.S. – 404(a)(1)

• FACTS: Δ was found guilty of making a false deposition to aid in the pension claim for his mother; the Δ wanted to offer character evidence to prove that he has truth and veracity
• HOLDING: This was admissible character evidence.
  • The character of truth was helpful because the charge was perjury – so whether or not he is truthful is a pertinent trait – whether or not he lied under oath
  • The method the witness was going to use was to testify on the reputation of the Δ
• RULE: FRE 404(a)(1) See↑ . FRE limit character evidence to traits pertinent to the crime in question.
  • “it may that an established reputation for good character, that is relevant to the issue, would alone create reasonble doubt, although without it, the other evidence would be convincing."
    • FRE and common LAW: both limit character evidence to traits pertinent to the crime in question. This pertinence requirement is particularly significant when the prosecution seeks to rebut the accused's evidence of good character (evidence on truch and veracity did not open the door for questions in regard to the use of maryJ).

FRE 405(a) Methods of Proving Character. (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.”

• this is general and not specific instances

Reputation: this is the testimony of one witness as to the opinion of a community on an individual’s character, the witness must demonstrate familiarity with the community within which the individual exists, must have knowledge about what other people think of the accused. (ASK): what length of relationship gives a good understanding by the testifying party? does the community and geographical location determine a different reputation than some other place? Opinion: this is a personal assessment of an individual’s character, the witness must demonstrate some familiarity with the individual on which to base the opinion, requires a personal relationship (how witness knows then and for how long).

• This is essentially an objective fact about a D and is thus subject to reasonably limited cross-examination.
• A community can consist of such things as a workplace, school, church, or other organizational setting.

Broyles v. Commonwealth – FRE 405(b)

• FACTS: Δ is appealing a conviction of murder and a life sentence based on improper cross-examination. The reputation evidence was that the Δ had a reputation for peace and quietude. On cross the prosecution asked the witnesses whether they had heard reports of the Δ’s drunk driving conditions.
• Δ argues that
  • (1) these prior offenses did not rebut the evidence of peace and quietude
  • (2) b/c the traits didn’t relate to murder crime
  • (3) reputation can’t be rebutted by specific acts
• the defense offered evidence of reputation
• the prosecution on rebuttal asked the witnesses their awareness of specific acts
• RULE: FRE 405(a) – On cross-x, inquiry is allowed into relevant specific instances of the person’s conduct
• HOLDING: So the defense gets to use reputation and opinion but on cross the prosecution can get it in as a specific act on cross (even if it isn’t an essential element of the claim)
• ISSUE: whether one who is guilty of drunk driving, reckless driving, and disorderly conduct thereby evinces a trait of character inconsistent with a good reputation for peace and quietude
• GENERAL RULE: where the Δ introduces evidence of his good reputation, the witness so testifying may be asked on cross-examination whether he has heard reports of particular acts of misconduct by the Δ.
  • You open the door wide when you examine regarding reputation/opinion of peace and quietude
• HOLDING (1) & (2): Peace and quietude implies that he obeyed the law and this evidence does rebut that.
  • PROCEDURAL NOTES:
    • When a D introduces evidence of good reputation, wtiness may then be asked on cross-x whether they've heard reports of particular acts of misconduct.
      • if an objection is made to limit the effect of this line of questioning, the court is required to instruct jury that it can only be used for testing the accuracy and credibility of the witness' testimony and not as substantive evidence of D's guilt.
        • ALSO: the inquiry may only be about the acts of misconduct that have some relation to the particular trait of character with D has put in issue.
        • ASLO: State may not deliberately inject the issue of previous acts of misconduct by D without some basis for her questions (do not use guilt assuming hypos...(ex, would conviction of drug trafficking have affected your hiring him?").

Character of the Victim – 2nd exception– FRE 404(a)(2)

Evans v. U.S. – victim’s characters (criminal cases only) – Evans was convicted of second-degree murder;

• FACTS: She testified it was self-defense and she was attacked while walking home alone. Witnesses testified that they saw her walking home with others (not the same people). The people who were accompanying the Δ were never located. The evidence which was excluded was from the victim’s wife saying that the man was ill mentally and could have acted to attack a victim on the street. Δ appeals the exclusion of the evidence.
• HOLDING: Evidence should come in – the evidence excluded contained a pertinent trait which went to this defense (when the victim was drinking, he could be belligerent)
• FRE 404(a)(2) applies only in criminal cases
• (2) 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 (1) offered by an accused/Δ, or (2) by the prosecution to rebut the same, or (can rebut by (i) on cross of the witness that said the accused had good character; or (ii) by other witnesses – but then can’t bring in the specific instance of conduct) (3) 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.
• the evidence comes in subject to 412’s limitation and subject to rebuttal by the prosecution
• Exception – in a homicide case, the peacefulness of the victim may be offered to rebut the evidence that the victim was the first aggressor (if the defense opens the door)
  • ALSO NOTE: 404(a)(1) allows prosecuter to introduce evidence of the accused character if the accused offers evidence of the victim's character.

Character of the Victim – FRE 412

Doe v. U.S. – rape committed on an army base

• PH: lower court allowed the defense to subpoena witnesses who said they knew about the V’s past sexual behavior in re (1) specific instances of conduct, and (2) reputation
• This was all pre-trial, as required by 412:
  • so the defense gave the government notice
  • the court conducted a pre-trial hearing to determine whether that would be allowed
• TC determined 7 pieces of evidence were admissible
• RULE: FRE 412 - Anytime in a rape case, the Δ alleges consent, (b)(1)(B) exception applies
• HOLDING:
  • 1-5 were admissible b/c they dealt with reputation according 412(a)
    • reputation for prior sexual conduct not relevant indication of the V’s likelihood to consent – it doesn’t impune V’s ability to consent or not consent in any other situation
  • 6-7 were inadmissible under 412(b)(1)(b) – if you assume that the content of these telephone calls goes in some way to make her consent relevant
  • Notice Requirement – there was no notice to the victim of this hearing – which is required under 412(c)
    • victim got no notice, wasn’t invited to the hearing and had to sue the court to get it sealed
• Court said it would also permit the testimony of the men with whom black talked
• Mens rea/intent is element of rape.
• SO this rule is almost wholly ineffective in shielding anything as long as consent is at issue = all of this comes in as going to his state of mind at the time Mens Rea – The Back Door is Wide Open
  • admitted because it show’s the accused’s state of mind (Δ’s perception of the V NOT the V’s sexual reputation = mens rea)
  • so make the Mens Rea argument and not the propensity argument and you will get this evidence in

FRE 412(a) – Rape Shield Law – Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged…(Exceptions to 412 are in 412(b))

• (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules (relevant and not hearsay)
  • (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
  • (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused…
  • (C) violation of constitutional rights if evidence excluded

FRE 412(b)

• (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
  • (A) Evidence of a specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
  • (B) Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
  • (C) Evidence the exclusion of which would violate the constitutional rights of the Δ.
• (2) (403 test) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.

FRE 412(c) – Procedural Requirements

• (1) A party intending to offer evidence under subdivision (b) must –
  • (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court for good cause requires a different time for filing during trial; and
  • (B) serve the motion on all parties and notify the alleged victim or when appropriate, the alleged victim’s guardian or representative
• (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise

U.S. v. Azure – Δ convicted of carnal knowledge of a female under the age of 16

• FACTS: Δ = at trial he tried to bring evidence that the 10 year old girl had relations with another young boy and that could be the source of lacerations on the vaginal wall which was testified by the medical experts as caused by the kind of force that no 10 year old could consent to
  • Δ = TC2 erred in excluding evidence of the V’s past sexual behavior under 412(a)(1)(A)
  • Δ = alternatively argues that the evidence of past sexual behavior should’ve been allowed to impeach the V
• HOLDING/RULE: impeaching the V is not a recognized exception by 412
• GENERAL RULE: 412 – evidence of V’s past sexual behavior is not admissible except in certain narrow situations.
• HOLDING: The evidence isn’t allowed here because:
  • V suffered injury sufficient to trigger (b)(2)(A)’s exception

Other Acts Evidence: FRE 404(b)

U.S. v. Robinson - FRE 404(b)

• FACTS: Δ convicted of robbing two banks in a 10 day span. Plead guilty to second robbery and contested first robbery. Δ argues that evidence related to second robbery (things used for both crimes and that he fled from police) should be excluded.
• ISSUE: Was evidence related to the second robbery admissible under 404b?
• RULE: Court's 4 prong test for evidence of other crimes, wrongs or acts:
  • (1) The evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged;
  • (2) The evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue;
  • (3) The evidence is sufficient to support a jury finding that the defendant committed the similar act;
  • (4) The evidence has probative value that is not substantially outweighed by the danger of unfair prejudice (relevant under FRE 403).
• HOLDING: The evidence is admissible b/c the two crimes were related enough to show modus operandi and the evidence of flight was probative rather than prejudicial b/c it demonstrated Δ's guilty state of mind and completes the gov't story.

U.S. v. Hernandez - FRE 404(b)

• FACTS: Hernandez was convicted of conspiracy to distribute and to possess with intent to distribute cocaine in Washington, D.C. During trial, a previous co-worker of the Defendant's who worked with her in New York offered testimony for the prosecution that she told him she knew a special recipe for cooking crack and used it to sell in New York. Defendant argues this should not have been admitted as a prior act.
• ISSUE: Was the testimony relevant to this issue under 404(b)? NO
• RULE: Court applied a 3 prong test for admissibility of other crimes, wrongs, or acts:
  • (1) The evidence must be relevant to an issue other than character;
  • (2) The evidence must be necessary; and
  • (3) The evidence must be reliable.
• HOLDING: The evidence is inadmissible because it is not relevant to demonstrate an intent to commit a conspiracy in Washington, D.C., there is only a slight relationship between this testimony and the charged acts, and the reliability of the testimony does not create enough of a compelling argument for its admission.

U.S. v. Woods - FRE 404(b)

• FACTS: Woods's adoptive son died from cyanosis and respiratory difficulty. Woods's was put on trial for murder, and the prosecution offered medical testimony that the child had died by smothering and that seven other children in her care had died similarly.
• ISSUE: Whether evidence of other offenses can be offered in a criminal trial if relevant for any purpose other than to show a propensity or disposition to commit the crime (unless it can be excluded due to unfair prejudice)?
• HOLDING: The evidence can be offered.
• RULE: Generally, evidence of past criminal acts is inadmissible to show that the D committed the crime of which he is accused.
  • However, if the past acts appear to show that D engaged in a common scheme or plan or scheme including the crime in questions, or if the past acts show a signature of D, the evidence is admissible.

Intersection of Relevancy and Ancillary Policy Considerations

Rule 407: Subsequent Remedial Measures.

• When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a 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.

In re Air Crash Disaster

• FACTS: NW was found liable to the Ps of a plane crash. NW appealed its claims for contribution and indemnity from McDonnell Douglas b/c NW was not allowed to introduce evidence of a subsequent remedial measure to show that MDD was culpable.
• ISSUE: Does FRE 407 exclude evid. of subsequent remedial measures taken by D to prove culpability of co-D? Yes
• RULE: The rule exclude evidence of subsequent remedial measures including a change in policy and excludes evidence hat would make the event in question less likely to occur.

Rule 408: Compromise and Offers to Compromise.

• Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
  • furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and
  • conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforecement authority.
• Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice negating a contention of undue delay and proving an effort to obstruct a criminal investigation or prosecution.

Policy of 408 (from McInnis):

• The rule illustrates Congress' desire to promote a public policy favoring the compormise and settlement of claims by insulating potential litigants from later being penalized in court for their attempts to first resolve their dispute out of court.
• Such evidence is of questionalble relevance on the issue of liability or the value of a claim, since settlement may well reflect a desire for peaceful dispute resolution, rather than the litigants' perceptions of the strength or weakness of their relative positions.

McInnis v. A.M.F., Inc.

• FACTS: McInnis was riding a motorcycle when she was hit by Poirier, which resulted in the almost complete severance of her limb. McInnis believed a large portion of the injury was caused by the shattering on the clutch housing of the motorcycle and brought suit against the Defendant for negligent design. Prior to trial, McInnis had settled with Poirier, and the Defendant wanted to introduce this evidence to demonstrate a lack of liability.
• ISSUE: Could the Defendant introduce evidence of the prior settlement with Poirier? NO
• RULE: Application of FRE 408 which bars the admission of settlement to prove liability or the validity of a claim.

Affiliated Manufacturers, Inc. v. Aluminum Co. of America

• FACTS: AMI and Alcoa had an agreement that AMI would design and fabricate a handling system. AMI submitted to Alcoa invoices for work not included in the contract, and as a result, memoranda, letters, and meeting notes were drafted to settle the dispute.
• ISSUE: Should the above-listed items be admissible? NO
• RULE: Rule 408 is applicable to an actual dispute, or at least an apparent difference of view between the parties concerning the validity or amount of claim; therefore, the evidence of negotiations should not be admitted.

Rule 409: Payment of Medical and Similar Expenses.

• 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.

Rule 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements.

• Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
  • a plea of guilty which was later withdrawn;
  • a plea of nolo contendere;
  • any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
  • any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
• However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

CHAPTER 15: PRIVILEGE

Rules

FRE 501 General Rule. Except as otherwise req'd by the Constitution of the US or provided by Act of Congress or in rules prescribed by the Supreme Ct pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of common law as they may be interpreted by the courts of the US 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.

• Essentially privilege is determined by common law and state law, not FRE.

FRE 502 Attorney-client privilege and work product; limitations on waiver. The following provisions, in the circumstances set out, to disclose of a communication or information covered by A-C privilege or W-P protection. '(a)Federal proceeding disclosure.'When a disclosure is made in a Federal proceeding, the waiver extends to undisclosed communication or information only if:

• (1) The waiver is intentional;
• (2) The disclosed and undisclosed communication or info concerns the same subject matter; and
• (3) They ought in fairness be considered together.

'(b) Inadvertent disclosure.' When made in a Federal proceeding, the disclosure does not operate as a waiver in a Federal or State proceeding if:

• (1) The disclosure is inadvertent;
• (2) The holder of the privilege took reasonable steps to prevent disclosure; and
• (3) The holder promptly took reasonable steps to rectify the errors, including Following FRCivP 26(b)(5)(B).

'(c)Disclosure made in a State proceeding.' When the disclosure is made in a State proceeding, and is not the subject of a State-court order concerning the waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:

• (1) would not be a waiver under this rule if it had been made in a Federal Proceeding; or
• (2) is not a waiver under the law of the State where the disclosure occurred.

'(d)Controlling effect of a court order.' A Federal court may order the privilege or protection not waived, in which event the disclosure is not a waiver in any other Federal or State proceeding. '(e)Controlling effect of a party agreement.' An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. '(f)Controlling effect of this rule.'This rule applies to State proceedings and to Federal proceedings, in the circumstances set out in the rule. And not withstanding Rule 501, this rule applies even if State law provides the rule of decision. '(g) Definitions.'

• (1) Attorney-Client Privilege: The protection that applicable law provides for confidential A-C communications.
• (2) Work-Product Protection: The protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

Policy

Utilitarian

• As articulated by Judge Lynch:
  • Nondisclosure of confidential communications is imposed to protect the reliance interest of the communicant, with an assent of the communicant.
  • Reliance interest is protected b/c such protection will encourage certain communications.
  • Such encouragement is desirable b/c the communications are necessary for the mainteneance of certain relationships.
  • Socially desirable to foster the protected relationship b/c other beneficial results are achieved, such as the promotion of justice, public health, and social stability.
  • These goals promote a well-organized, peaceful society, which in turn is considered necessary for human survival.

Privacy

• As articulated by Prof. Black:
  • The elimination of the marital privilege would encourage a spouse to either lie or be found in contempt of court.
  • Eliminating physician-client privilege would force a doctor to reveal who he has treated and encourage the ethical doctor to evade such a requirement.

Humanistic

• As articulated by Prof. Imwinkelried:
  • Emphasizes autonomy.
  • Emphasizes the creation of privacy enclaves to enable a citizen to make more intelligent, independent life preference choices.

Illustration of Privilege Rules: Husband-Wife

Trammel v. US (U.S. Sup Ct)

• FACTS: Defendant and his wife were alleged co-conspirators, along with multiple others, in an effort to distribute drugs. The wife acted in cooperation with the government to receive more lenient treatment, and the government intended to all her as an adverse witness during her husband's trial. The husband, however, asserted the husband-wife privilege.
• ISSUE: Was the testimony of the wife admissible? YES
• RULE: The husband-wife privilege does not include acts observed by a spouse during the marriage or any communications made in the presence of a third party.
• HOLDING: Overrules Hawkins which held spousal testimony against another spouse is barred unless both consent.
  • The existing rule should be modified:
  • The witness spouse alone has a privilege to refuse to testify adversely
  • The witness may be neither compelled to testify nor foreclosed from testifying.
• POLICY:
  • Historically, an accused was not permitted to testify on his own behalf and husband and wife were considered one
  • Modern justification is that it encourages the harmony and sanctity of the marriage relationship.
  • This case: the modification of the rule furthers public interest in marital harmony w/out unduly burdening legitimate law enforcement needs.

US v. Estes

• FACTS: ∆ disclosed his crime to his ex-wife prior to their marital break-up. The ex-wife testified against ∆ and ∆ was convicted. ∆ challenged the admissibility of such testimony, claiming that the communication between ∆ and his ex-wife was protected by the spousal privilege.
• ISSUE: Are communications between spouses regarding past crimes protected by the privilege? Yes.
• RULE: FRE 504 - An individual has a privilege to refuse to testify and to prevent the individual's spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage.
• HOLDING: The court held that it was an error to admit the ex-wife's testimony due to the spousal privilege and that the judgment of conviction was reversed and remanded for a new trial.

Exceptions to the rule:

• When one spouse commits crime against the other
• Includes crime against spouse’s property
• Crimes against children of either spouse

Remember: 2 separate privileges

• Spousal Testimony
• Confidential Communications

Illustration of Privilege Rules: Attorney-Client and "Work Product" Privilege

Denver Tramway Co. v. Ownes

• FACTS: Owens (P) had a talk with C.V. Mead, an attorney, without paying or agreeing to pay any retainer fee. Owens never consulted with Mead previously. Mead was called as a witness and refused to disclose the communication, claiming that the communication was privileged.
• ISSUE: Is any communications between an attorney and one who consults with an attorney with the view to obtaining professional advice or assistance with that attorney's consent to allow such consultation privileged? Yes.
• RULE: The attorney-client privilege turns on the client's consulting an attorney in their professional capacity, with the intention to seek legal advice or assistance.
• HOLDING: In order to establish professional employment, it is not necessary to have a prior relationship with the attorney, nor have paid the attorney for the consultation.

Swidler & Berlin v. US

• FACTS: Hamilton (attorney) had discussion with Foster about possibly being retained by him. During that converstation, Foster as if and Hamilton stated that their communications would be confidential. Foster committed suicide.
• PH: Star subpoenaed notes from the conversation, but Hamilton refused to give them over. The district court upheld Hamilton's decision. The appeals court ruled against Hamilton.
• ISSUE: Does the attorney-client privilege remain in tacked after the death of the client?
• RULE: The attorney-client privilege extends past death.
• HOLDING: Communcations between a client and a lawyer are protected by a-c privilege even after the client has died.

Upjohn v. US

• FACTS: Upjohn claimed the IRS not entitled to production of its questionaires to and interviews of Upjohn's employees concerning illegal payments made by Upjohn. Claimed they were privileged communcations and an attorney's work product.
• ISSUE: Whether attorney-client privilege for corporations turns on whether the employee making the communications was responsible for directing corp's actions? No
• RULE: In a case of a corp claiming privilege, the control group test does not govern. Whether a communication is privileged will be determined on a case-by-case basis.
  • control group test = grants a-c priv. to only those communications made by employees responsible for directing the corp's actions in response to legal advice.

State v. Pratt

• FACTS: Pratt was thinking about killing herself. Instead, she shot her husband. After wondering around for over 24 hours, she went to the police station, told them what happened, and was arrested. Psychologist for defense decided she wasn't crazy and testified for the prosecution.
• ISSUE: Was a privilege violated when a psychiatrist was permitted to testify at the insistence of the prosecution? Yes
• RULE:
  • A-C Priv. bars disclosure w/o consent of the client of all communications that pass in confidence btw client and attorney during the course of professional employment.
  • In criminal cases, communications made by D to an expert in order to equip expert w/ info necessary to provide D’s attorney w/ tools to aid him in giving client legal advice are w/in the scope of A-C Priv.

Henke v. Iowa Home Mut. Cas. Co.

• FACTS: Iowa Home Mut. refused to produce various communications concerning two previously tried cases.
• ISSUE: Whether correspondence, reports, and communications are confidential and priv. btw insurer and attorney employed by it? No
• RULE: When 2+ parties consult an attorney for their mutual benefit, the testimony as to the communications btw the parties/attorney as to that transaction is not privileged in an action btw such parties or reps
• HOLDING: P and D were originally represented by the same law firm. Therefore, the documents are not privileged between the parties.

US v. Kendrick

• FACTS: At a post-conviction competency hearing, D claimed his trial counsel's testimony should have been excluded on the basis of a-c priv. His counsel had testified as to D's competency to stand trial.
• ISSUE: Whether the subject of the testimony was unrelated to the substance of a-c communications? No
• RULE: A-C priv. protects communications made in confidence to an attorney. It does not protect things normally observable by anyone, such as competency.
  • Substance of communications is priv.
  • Excluded from the privilege is/are:
    • Fact that they communicated
    • D’s characteristics
    • Objective observations – demeanor and attitude
• HOLDING: Attorney's testimony was properly received. Remanded for inquiry into D's medical history.

In re Grand Jury Investigation No. 83-2-35

• FACTS: Attorney refused to identify client by name claiming a-c priv.
• ISSUE: Whether the a-c priv. prevents compelled identification of client?
• RULE: The identity of a client is not w/in the protective ambit of the A-C Priv.
  • Exceptions
    • When the name of client is material only for the purpose of showing an acknowledgment of guilt on the part of such client of the offense which services were sought (“legal advice” exception)
      • May be defected though a pf showing that legal representation was secured in furtherance of present/continuing illegality
    • Where disclosure of identity would be tantamount to disclosing otherwise protected confidential communication
    • When disclosure of identity would provide the “last link” of evid.
• HOLDING: Attorney did not meet his burden in demonstrating the applicability of the exception (through a request for in camera review of the evid.).

In re Sealed Case

• FACTS: Corp refused to produced subpoenaed documents on the basis of a-c priv.
• ISSUE: Whether the child must have made or received an otherwise privileged communication w/ the intent to further an unlawful or fraudulent act and carry out the act in order for the crime-fraud exception to apply?
• RULE: Yes. In order for the crime-fraud exception to apply: (1) the client must have made/received otherwise privileged communication with the intent to further an unlawful/fraudulent act, and (2) the client must have carried out the crime or fraud.
• HOLDING: Conditions not met in this case. A court cannot infer that the corp was consulting the GC with the intention of committing a crime.

Additional Privileges: 1st Amendment & Physician-Patient Privilege

In the Matter of Myron Farber

• FACTS: Farber was a reporter for the NY Times who was cited for contempt after refusing to disclose investigative docs.
• ISSUE: Whether reporters are constitutionally privileged to withhold duly subpoenaed docs?
• RULE: The First Amend affords no privilege to a newsperson to refuse to appear before a grand jury and testify as to relevant info he possesses.
  • the 6th Amend and NJ constitution afford a D in a criminal case the right to compel attendance of witnesses and the production of docs and evidence that may help prepare his defense.
  • the constitutional provisions above override any state shield laws that protect against disclosure of confidential sources of info
• HOLDING: If the witness was properly summoned, then he must testify. Here, he was.

Jaffee v. Redmond

• FACTS: A police officer (Redmond) shot a man, and then participated in counseling sessions. In a civil action brought by the victim's estate, Redmond wanted to keep these information/notes from these sessions confidential.
• ISSUE: Whether confidential communications between a psychothapist and patients are protected from compelled disclosure?
• RULE: They are protected under FRE 501 which authorizes fed cts to define new privileges by interpreting common law principles in light of reason and experience.
• HOLDING: Notes do not need to be turned over. The mental health of the public depends on the confidentiality between patients and psychotherapists, and the evidentiary benefit of denying a privilege would be minimal because patients would refrain from speaking about possible litigation.

CHAPTER 12: TESTIMONIAL EVIDENCE

Rules

FRE 601: General Rule of Competency. Every person is competent to be a witness except as otherwise provided in the rules. However, in civil actions and proceedings, w 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 w State law.

FRE 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.

FRE 603: Oath or Affirmation. Before testifying, every witness shall be required to declare that the witness will be testifying truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness' mind w the duty to do so.

FRE 604: Interpreters. An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.

Weaknesses in testimonial proof:

• Perception
• Memory
• Narration
• Sincerity

Competency of Witnesses

Washington v. Texas

• FACTS: D convicted of murder and wanted to introduce a co-D who was convicted of the same murder. Trial ct said Co-D can testify for state, but not for D (b/c Co-D wants to held D by lying) . 6th A violation (Compulsory Process to obtain witnesses for their case)
• ISSUE: Whether a D has a 6th A right to have a witness who was charged in the same crime testify as a witness?
• RULE:  : Co-conspirator can testify for either side, as long as competent. Competent = physical/mental ability to testify as to events at issue in the trial
• HOLDING: J. Warren incorporated compulsory process part of 6th A. Jury can determine credibility

Gordon v. Idaho -(Oath Requirement)

• FACTS: D held in contempt for refusing to swear under oath or make a solemn affirmation b/c it was against his religion. D claims his 1st A rights were violated (free exercise of religion). D was willing to state: "I understand that I must tell the truth. I agree to testify under penalty of perjury. I understand that if I testify falsely I may be subject to criminal prosecution."
• ISSUE: Are a D's constitutional rights violated when he is not allowed to testify b/c he refuses to swear under oath or make a solemn affirmation, when he is willing to indicate in another way that he will tell the truth?
• RULE: FRE 603 Oath or Affirmation. “Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation, administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.”
• HELD: Ct. highlights the advisory committee notes to rule 603- Rule designed to flexible. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required.

Evans v. State -(child testimony)

• FACTS: murder at apt. Δ challenged allowing a 4 year old child to testify; rather than always having an answer, she sometimes didn’t have anything to say; she also said I don’t remember; She knew the D as “scary eyes” and "Little Ray." D argues Adriana's testimony is likely contaminated by her mother and that Adriana was not competent to testify.
• ISSUE: Should a child's testimony be excluded on the basis that she is a child and therefore incompetent?
• RULE: Case by case / Child by child → Competent = “if (s)he is able to receive just impressions and relate them truthfully.” STANDARD= 1) must know the difference between the truth and the lie = must know that there is a consequence to lying; 2) have to be able to perceive events around them; 3) be able to communicate the events clearly. FACTORS: 1) ability to receive and communicate info.; 2) the spontaneity of statements; 3) indications of coaching; 4) ability to remember; 5) distinguish between truth and falsehood; (6) likelihood of improbable or incoherent testimony. PRACTICE: avoid tainting child-W: don’t react to show which answer you are looking for, encourage narrative testimony, kid tone/language, question them away from parents, tell others not to coach.
• HELD: Ct. found the child was competent = met all 3 requirements.

United States v. Snyder -(child witness)

• FACTS: child witness – Δ was convicted of charges related to child porn
• ISSUE: Does trial court need to have psychological examination done to conclude a child is competent to testify?
• RULE: Children are presumed to be competent to testify. 18 USC § 3509. Accordingly, a competency examination regarding a child may be conducted only if the ct determines on the record, that a compelling reason exist.
• HOLDING: The trial ct did not abuse its discretion when it found the child to be competent w/o the help of the psychological testing.

United States v. Rouse -(child testimony via closed circuit tv)

• FACTS: Child victims became emotionally unable to testify when they appeared in front of their uncles, and trial court made the determination that the children could testify via closed circuit tv.
• ISSUE: Whether the use of closed circuit tv is permissible. YES
• RULE: Where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the D, for fear of the D, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit the use of a procedure which preserves the essence of effective communication.

Closed Circuit Television (18 USC 3509b)

• The court may order that the testimony of the child be taken by closed circuit television
• Reasons that this may be done
  • The child is unable to testify b/c of fear.
  • There is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying
  • The child suffers a mental or other infirmity

Byndom v. State -(Competency / Ability to Communicate)

• FACTS: Byndom raped a woman who had cerebral palsy and mental retardation and lived with his girlfriend. She was allowed to testify at trial. She could communicate "yes" or "no" with gestures and facial expressions. She could answer questions on computer. Byndom challenged her competency as a witness because of her ability to communicate.
• ISSUE: Was she competent?
• RULE: Yes. She was able to communicate. The court focused on her ability to communicate thoughts, impressions, feelings, and beliefs.

United States v. Heinlein

• FACTS: D questioned a witness's competency because the witness was drinking at the time he witnessed the stabbing. Witness had chronic mental depletion because of alcoholism.
• ISSUE: Was he competent to testify?
• RULE: The court said that no error was committed by allowing him to testify.

Elicitation of Testimony

Rules

FRE 611: Mode and Order of Interrogation and Presentation.

• Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
• Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
• Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinary leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

FRE 612: Writing Used to Refresh Memory. Except as otherwise provided in criminal proceedings by section 3500 of title 18, US Code, if a witness uses a writing to refresh a memory for the purpose of testifying, either

• while testifying, or
• before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-exaamine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remained to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

FRE 615: Exclusion of Witness. At the request of a party the court has order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

Cases

United States v. Rhyne

• FACTS: Witnesses were sequestered. Gov't presented a witness (Davis) who testified about a drug deal between D and Alexander. The D testified. Then Alexander testified about issues Davis discussed. Gov't objected to testimony. The lower court excluded the testimony.
• ISSUE: Whether the lower court properly excluded the witness's testimony.
• RULE: No. FRE 615: Attorneys are an exception to the rule and cannot be excluded.
• HOLDING: FRE 615 does not apply to attorneys. It does not prevent communications between attorneys and witnesses. In addition, D has the right to competent representation which means that the attorney must be allowed to prepare witnesses.

Northern Pacific R.R. v. Charless

• FACTS: Charless (employee of Norther) sued for job injuries. He stated his testimony in a narrative form.
• ISSUE: Whether it is the duty of counsel objecting to testimony given in narrative form to object to the matter and move to strike it out (bringing it to the court's attention). Yes.
• RULE: It is within the court's discretion to allow a witness to testify in narrative form. If a witness states irrelevant, immaterial, incompetent, or hearsay matters, counsel has a duty to object to the testimony, call it to the court's attention, and make a motion to strike.
• HOLDING: No error here. Affirmed.

US v. Clinical Leasing Serv., Inc.

• FACTS: Court terminated the testimony of a D because the defense counsel used leading questions.
• ISSUE: Whether the court can terminate direct testimony by sustaining an objection without explanation. Yes.
• RULE: It is within the court's discretion. The termination was adequately explained because it was in response to an objection by the gov't as to the use of leading questions.
• HOLDING: Affirmed.

US v. Brown

• FACTS: Leading questions were asked of a hostile witness. Brown was convicted of stealing 16 birds.
• ISSUE: Whether the decision to permit the use of leading questions is left to the trial judge. Yes, it is in the judge's discretion.
• RULE: The use of leading questions must be left to the discretion of the trial judge who sees the witnesses and can make the determination. Leading questions may be used in the direct examination of a hostile witness.
• HOLDING: Affirmed.

Ward v. Morr Tranfer & Storage Co.

• FACTS: Ward alleged that Morr had wrongfully converted her household goods. She used a list that she had made of the goods she stored to refresh her memory when testifying.
• ISSUE: Whether a writing may be used to refresh the recollection of a witness. Yes.
• RULE: A writing may be used to refresh the memory of a witness.
• HOLDING: Reversed and remanded on other grounds.

Winters v. Winters

• FACTS: A couple was getting a divorce, and the husband had fired a private investigator to follow his wife. During the investigator's testimony, he referred to a collection of notes to refresh his memory. When the Plaintiff sought to have these notes in preparation for cross-examination, the district court denied the request.
• ISSUE: Whether the Plaintiff should have had the opportunity to review the notes. YES -- FRE 612
• RULE: The law is now well settled that where a witness while he is on the stand uses any paper or memoranda to refresh his memory in giving his testimony, the opposing side, upon proper demand, has a right to see and examine that paper memoranda and to use the same in cross-examination of the witness.
• HOLDING: The Plaintiff shoudl have been permitted to examine the notes.

6 steps to Refreshing Recollection

• Determine if memory can be refreshed w/out directly asking witness.
• Confirm by Asking witness.
• Let witness read document
• Take document away from witness
• Ask witness if document refreshes memory
• Ask witness the original question s/he could not answer.

Credibility: Bolstering, Impeachment, AND Rehabilitation

1. Bolstering the credibility of your own witness before any attack on it

United States v. Thornton

• FACTS: Three Defendants were convicted for conspiracy to distribute cocaine. Defendants appealed alleging that the lower court erroneously allowed the introduction into evidence of the Government's proffer letters to cooperating witnesses.

• ISSUE: Was the credibility of the witnesses impermissibly bolstered by the admission of proffer letters and plea agreements?

• RULE: Two types of vouching are forbidden:
  • A prosecutor may not express her personal belief in the truthfulness of a witness
  • Prosecutor may not imply that facts not before the jury lend a witness credibility.

• HOLDING: The lower court judge was found to have clearly stated to the jury that the proffer letters and plea agreements not admitted to enhance the credibility of the witnesses and provided limiting jury instruction regarding the credibility of the witnesses. It was at the lower court's discretion to allow the evidence to be entered in. The evidence was entered properly and in light of overwhelming evidence that would render an erroneous admission harmless. Since the Defendants said in that opening that they planned to impeach.

2. Impeaching the credibility of other witnesses--WHO MAY IMPEACH

FRE 607: Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling the witness.

State v. Green

• FACTS: Defendant Green was convicted of burglary. Green denied he was involved with the burglary, and that it had been undertaken by his two companions. The State called Green's companions Gaither to testify that Green was involved in the burglary. However, when on the stand Gaither denied Green's involvement. The State then proceeded to impeach Gaither (their own witness)
• ISSUE: Can a party Impeach his own witness? Yes.
• RULE: A party may Impeach his own witness when there is a genuine surprise or hostility.
• HOLDING: The State could impeach Gaither because, without warning, Gaither proceeded to contradicted an earlier, detailed statement of the crime he made about Green's involvement in the crime.

United States v. Webster

• FACTS: D convicted of aiding and abetting bank robbery. Gov’t called a co-D as W they knew would give a prior inconsistent statement, so that they could impeach the W by bringing in inadmissible documents.
• ISSUE: Can you impeach a W for prior inconsistent statements?
• RULE: Impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible. FRE 607: The credibility of a witness may be attacked by any party, including the party calling the witness.
• HOLDING: Allowed here, b/c no subterfuge.

3. Impeachment: Bias

Alford v. United States (mail fraud case)

• FACTS: on x-examination, D sought to impeach W, when the prosecutor had asked every other W, expect this one, where they had lived. D counsel was trying to rule out bias b/c W had strong motivation to lie in favor of govt to get deal.
• ISSUE: Is it permissible on x-examination to examine a W's character for truthfulness?
• RULE: Can always examine for character for truthfulness on x-exam.
• HOLDING: Yes, permissible on x-exam to examine W's character for truthfulness.

4. Impeachment: Mental or Sensory Capacity

United States v. Heinlein

• FACTS: Heinlein and two other Ds were convicted of felony-murder and assault w/ intent to commit rape. The court denied a motion to subject a key witness to a psychiatric examination.
• ISSUE: Whether the decision to order a psychiatric evaluation of a witness is left to the discretion of the trial court. Yes.
• RULE: The competency of a witness to testify is a question of law for the trial court. The decision to order a psychiatric evaluation to help determine the competency of a witness is left to the discretion of the trial judge in light of the facts of the case.
• HOLDING: Affirmed.

5. Impeachment: Untruthful Character, FRE 608(a)

FRE 608(a): Evidence of Character and Conduct of Witness.

• • 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 is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

State v. Baker

• FACTS: Baker was convicted of child molestation. Baker contended that the trial court improperly excluded evidence which demonstrated the witness's poor reputation for truth and veracity.
• ISSUE: Whether the credibility of a witness may be impeached by evidence of his/her reputation for truth and veracity in the community. Yes.
• RULE: To impeach a witness's credibility one presents evidence of the witness's reputation for truth and veracity in the community. In order for a witness to be able to testify to this, a foundation should be laid which demonstrates on what the witness bases this knowledge.
• HOLDING: Reversed and remanded.

6. Impeachment: Conviction of Crime, FRE 609I

FRE 609: Impeachment by Evidence of Conviction of Crime.

General rule. For the purpose of attacking the character for truthfulness of a witness

• Evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
• Evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Time limit

• Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Effect of pardon, annulment, or certificate of rehabilitation

• Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Juvenile adjudications

• Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied taht admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Pendency of appeal

• The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Cases

United States v. Alexander

• FACTS: Hicks, Alexander, Harrington, and Harris were convicted of conspiracy to commit robbery. Hicks testified that he was in the area of the robberies but did not participate in them. Prosecutor questioned Hicks about his prior convictions. Appealed. Hicks argued that evidence of his prior convictions should have been excluded at the trial.
• ISSUE: Whether evidence of prior felony convictions is admissible to attack the credibility of a witness. Yes.
• RULE: Evidence of prior felony convictions is admissible to attack the credibility of that witness. The court must determine that the probative value of the evidence outweighs its prejudicial effect.

Balancing of Probative value vs. Prejudicial Impact (5 factors from Alexander)

• The impeachment value of the prior crime
• The point in time of conviction and the D’s subsequent history
• The similarity between the past crime and the charged crime
• The importance of the D’s testimony, and
• The centrality of the D’s credibility

Altobello v. Borden Confectionary Products, Inc.

• FACTS: Altobello sued Borden for firing him because of his age. Altobello argued that Borden should not have been able to impeach his credibility by questioning him about his conviction for tampering with electric meters.
• ISSUE: Whether a witness can be impeached by proof of a conviction if the offense involved untruthfulness. Yes.
• RULE: FRE 609(a)(2) - a witness can be impeached by proof that he was convicted of a crime which involved dishonesty or a false statement.
• HOLDING: Affirmed.

7. Impeachment: Untruthful Conduct, FRE 608(b)

• FRE 608(b)--Evidence of Character and Conduct of Witness.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.

State v. Morgan (untruthful conduct)

• FACTS: D was charged with murder. He contended that he acted in self-defense and that the victim charged at him. The gov’t presented evidence of Morgan’s violent behavior on two prior occasions. D was convicted. On appeal, he contends that the evidence of specific prior acts of violence was inadmissible to prove his veracity.
• ISSUE: Whether past incidents of violent behavior are probative of a person’s veracity. No. Therefore, they are not admissible.
• RULE: Past specific behavior can be used to prove or disprove veracity only if the conduct is probative of credibility. Only acts which involve instances of untruthfulness are admissible. Violent acts are not probative of truthfulness.
• HOLDING: Harmless error. Affirmed.

8. Impeachment: Specific Contradiction

U.S. v. Opager

• FACTS: D sold cocaine to three buyers, two of which were law enforcement officers. The third person was a gov’t informant. D was convicted by a jury of knowingly possessing cocaine with the intent to distribute and distributing. At trial, D - entrapment defense – pressured into selling cocaine by informant and officers. The informant testified that D had a predisposition to sell – she had used and sold before when they worked together. D wanted to offer business records that showed that the two of them did not work together at the time so he couldn’t have known that info. Ct refused to admit records.
• ISSUE: Whether extrinsic evidence of a witness’s conduct is admissible to contradict that witness’s testimony on a material issue? Yes.
• RULE: FRE 608(b) excludes extrinsic evidence in limited instances where the evidence is introduced to show a witness’s general character for truthfulness. Here, the evidence was introduced to disprove a material fact to D’s defense, not about the witness’s character.

9. Impeachment: Prior Inconsistent Statements, FRE 613

• FRE 613 - Prior Statements of Witnesses
  • (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 by a witness. Extrinsic evidnece of a prior inconsisent statement by a witness is not admissible unless the witness is afforded an opportuinty 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.

Cent. Mut. Ins. Co.

• FACTS: P sued D to recover proceeds from it as the insurer on a jewelry floater policy. P claimed that 4 pieces of jewelry he owned disappeared. D offered inconsistent statements of P into evidence – sworn statement, signed statement, deposition testimony. Trial court refused offers. Ct held in favor of P. D appealed – ct improperly refused prior inconsistent statements.
• ISSUE: Whether a witness may be impeached by the used of prior contradictory statements? Yes.
• RULE: When a witness has testified to facts which are material in a case, it is provable by way of impeachment that he has previously made statements relating to the same facts which are inconsistent. Inconsistency raises doubts as to truthfulness.
• HOLDING: Trial court erred in refusing to admit prior statements of P. Reversed and remanded.

U.S. v. Hudson

• FACTS: D prosecuted for conspiracy to possess with intent to distribute cocaine. D’s witness testified that a witness who testified against D expressed the desire to see him “get what he deserved.” Before that he had stated that he thought D would never have committed the crime. The statement was not admitted by the judge for purposes of impeachment by prior inconsistent statement. D was convicted and appealed.
• ISSUE: Whether a witness can be impeached by prior inconsistent statement when a proper foundation was not laid pursuant to FRE 613(b). Yes.
• RULE: The statement should have been admitted. FRE 613(b) requires a witness to be afforded an opportunity to explain or deny an earlier statement before being impeached. Here, this was not done, but there is no time sequence that the witness needs to be given the opportunity to explain.
• HOLDING: Reversed and remanded.

10. Impeachment: Learned Treatise

Freshwater v. Scheidt

• FACTS: P had a surgery performed by D. During the operation, D perforated her bowl which caused her additional pain, hospitalizations, and additional surgeries. During cross-ex at trial, P tried to impeach D’s medical expert using a medical treatise. Ct refused to allow it. Judgment rendered for D. P appealed.
• ISSUE: Whether sections of a learned treatise may be used to impeach an expert witness? Yes.
• RULE: A learned treatise can be used to impeach an expert whether or not the expert is familiar with the text. A treatise can be used if the expert relied upon it in forming his/her opinion.
• HOLDING: Reversed and remanded.

11. Rehabilitating the credibility of your witness after cross-examination or impeachment

Rehabilitation - involves an attempt to support the credibility of a witness after impeachement. Also referred to as re-direct examination.

Rodriquez v. State

• FACTS:D was found guilty of aggravated assault for sexually assaulting a child. The mother, Cathalina, walked in on D assaulting the child. D denied assaulting the child and claimmed that Cathalina only charged him with the assault because he had seen her the day before in a compromising position with a man. The State was permitted, over objection, to prove that Cathalina had a good reputation for truth and veracity in the community.
• ISSUE:whether the State could bolster Cathalina's reputation for truthfulness after it had been claimed that she had a bad motive.
• RULE:where there is no evidence to impeach the testimony of a witness except contradictory evidence, it is not permissible to bolster the testimony of the witness by proof of her good reputation for truth and veracity.
• HOLDING: The rule did not apply here because where an attack is made upon the veracity of a witness, such as where it has been attempted to show that the witness is testifying under corrupt motives or fabricated testimony, it is proper to permit testimony that the witness has a good reputation for truth and veracity. The State's bolstering was allowed.

U.S. v. Plante

• FACTS:D appealed the cross-examiniation of his witness, Kedian, who admitted to a mail fraud conviction on direct examination. On cross-exam, the government was allowed to ask about the details of the offense over objection.
• ISSUE: whether the government should have been allowed to ask about the details of the conviction.
• RULE:the opponent should not be allowed to develop the details of the offense
• HOLDING:the court still found no prejudice because it was only a witness and not the D himself. Also, the details of Kedian's offense seemed low on a scale of what a jury would normally consider mail fraud to constitute, and so there was no threat to the evaluation of his testimony.

Bradford v. State

• FACTS:D was convicted of manslaughter in the first degree. At trial, four witness testified - 3 for the State and 1 for D. All witnesses testified that they were eyewitnesses. Trammell was the witness for D, and his testimony was in direct conflict with the testimony of the other 3 witnesses. On direct exam, Trammell's testimony corroborated D's testimony about the evidence leading up to the shooting and the fact that the shooting was in self-defense. On cross-exam, the State asked Trammell if he had previously told Troy Tate that he had not been at the scene of the crime. Trammell stated that he had told Tate this. D's attorney attempted to rehabilitate by asking questions about Tate - he was trying to establish that Trammell was afraid of Tate and that's why he told Tate he was not at the scene. The State objected, and this was sustained.
• ISSUE:whether D's attorney should have been allowed to rehabilitate Trammell by asking questions about Tate.
• RULE:the impeached witness may always try to explain away the effect of supposed inconsitency by relating whatever circumstances that would naturally remove it.
• HOLDING:the rehabilitation should have ben allowed because the denial of it could have been the reason for D's conviction.

Lay Witnesses

Firsthand Knowledge - FRE 602

• FRE 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.

Kemp v. Balboa

• FACTS: Kemp was a prisoner who filed a Section 1983 claim, accusing a prison guild of confiscating his epilepsy meds, which resulting in injurious epileptic fits. Jury found for prisoner, but only gave $1 in nominal damages. Kemp challenges the award as based on inadmissible evidence. The evidence at issue is the testimony of LPN Vicki Maness. Maness testified that Kemp had failed to pick up his meds from the prison infirmary on numerous occasions. This testimony was based solely on Maness's review of Kemp's file, and she had no personal knowledge of this. Kemp moved to strike her testimony, which was denied.
• ISSUE:should the testimony have been stricken?
• RULE:FRE 602: 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.
• HOLDING: It was an error to allow Maness's testimony because it might have lead the jury to conclude that it was Kemp's own indifference that lead to his seizures, rather than Balboa's confiscation of the meds.

Opinion Rule - FRE 701

• FRE 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, (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.

Parker v. Hoefer

• FACTS:P brought an action for alienation of affection of her husband and criminal conversation. D is the "other woman." P testified that her husband's appearance was abnormal, he was exhausted, he smelled as though he'd been drinking and he looked haggard. D objected to P's opinion testimony and conclusions of how the husband looked and acted. D also objected to the similar testimony of Mr. and Mrs. Titsworth, who were long time friends of P and her husband.
• ISSUE: was P's opinion testimony allowable?
• GENERAL RULE: witnesses are to state facts and not give their inferences or opinions
  • EXCEPTION: where the facts are of such character as to be incapable of being presented with their proper force to anyone but the observer himself, he is allowed to a certain extent to add his conclusion, judgment, or opinion so as to enable the triers of fact to draw a correct or intelligent conclusion.
• HOLDING:the court affirmed the allowance of P's testimonhy.

Krueger v. State Farm Mut. Auto. Ins. Co

• FACTS: Krueger's husband was killed when he was hit by a car. At trial, Castelli, who was at the scene of the accident, testified. On this appeal, Krueger argues it was an error to sustain D's objection to her counsel's question, "After you saw Mr. Krueger start to run, did the operator of the car have enough time to stop?"
• ISSUE:should Castelli have been allowed to answer the question?
• RULE:FRE 701
• HOLDING:Court affirms because (1)although it appears Castelli's opinion might have been rationally related based on his perceptions, it would not have been helpful to a clear understanding of his testimony or determining a fact issue; (2) the rule is designed to give trial courts lots of discretion regarding admissibility of lay opinion; and (3) even if the exclusion of Castelli's testimony was error, P was not prejudiced.

Rupert v. People

• FACTS:Rupert was charged with kidnapping. He first plead not guilty by reason of insanity. Upon trial on the insanity issue, the jury found Rupert sane. Rupert then entered a general plea of not guilty. The trial court (without a jury) found Rupert guilty. Rupert appeals, claiming it was an error during the insanity trial for the court to permit Durham, a lay witness, to express an opinion about Rupert's sanity.
• RULE: a nonexpert witness may never, in response to purely hypothetical questions stating facts, give an opinion on the question of sanity.
  • EXCEPTION: if the person can show adequate means of becoming acquainted with the person whose mental condition is at issue, after detailing the facts and circumstances concerning his acquaintance and the acts, conduct, and conversation upon which his conclusion is based, that person may give his opinion on the question of sanity. See FRE 701.
• HOLDING:The court found that Durham satisfied the rule.

Expert Testimony

• The difference between lay witness testimony and expert testimony: the lay witness is using his opinion as a composite expression of his observations otherwise difficult to state, whereas the expert is expressing his scientific knowledge through his opinions.

Subject Matter Requirement - FRE 702

• FRE 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 and data, (3) 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.

Toy v. MacKintosh

• FACTS:P sued D for negligence, claiming D allowed a tooth to fall into P's throat during a tooth extraction procedure. Immediately after the extraction, P developed a cough, pain in his side, and other symptoms. 9 weeks after the operation, P coughed up a tooth which he produced in evidence. P claims his symptoms subsided after coughing up the tooth. P has no other evidence that his symptoms were caused by the tooth. D offered expert testimony which showed that is was entirely consistent with the standard of care if a tooth was inhaled by P during the operation. D also offered four medical experts' testimony that P's condition had nothing to do with his tooth. D requested the court to instruct the jury that there was no evidence to find that P's condition was caused by the tooth. THis was denied.
• ISSUE:should the jury have been so instructed?
• RULE:FRE 702 - need expert testimony to establish standard of care and causation
• HOLDING:The jury should have been instructed that P did not provide evidence to support the claim that his condition was caused by D's allegedly negligent act.

People v. Kelly

• FACTS:D was convicted of extortion for some threatening phone calls he made to Terry Waskin. The police recorded two such calls, and obtained a tape recording with D's voice. The police sent these two tapes to Nash, a Lieutenant of the Michigan State Police, for spectrographic analysis. Nash concluded the voices on the two tapes were the same person. Nash testified at trial that among those who were familar with and used voice identification analysis, the technique was considered reliable.
• ISSUE:whether the voiceprint techniques had reached the requisite degree of general acceptance in the sicnetifi community.
• RULE:Frye v. United States. The thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. The determination of the reliability of the evolving technique lies with the members of the scientific community from wshich the new method emerges.
• HOLDING:The People failed to prove the reliability of the voiceprint evidence.

Daubert v. Merrell Dow Pharmaceuticals, Inc.

• FACTS:Ps are mothers who ingested Benedectin during their pregnancy, and their children were born with serious birth defects. D marketed Bendectin. D submitted the testimony of Dr. Lamm to support its summary judgment motion. Lamm testified that he had reviewed all the literature on Bendectin and human birth defects, and he concluded that use of Bendectin in the first trimester had not been shown to be a risk factor for birth defects. Ps also presented testimony of 8 of their own expert witnesses. These experts concluded that Bendectin can cause birth defects, and based this upon "in vitro" (test tube) and live animal studies that found a link between Bendectin and birth defects.
• ISSUE:whether Ps' evidence of test tube studies and live animal studies was admissible.
• RULE:FRE 702 supersedes the Frye test. When assessing expert scientific testimony, the trial judge must determine whether the epert is proposing to testify to scientific knowledge and whether that knowledge is relevant and reliable.
  • Reliability factors:
    • Whether the theory or technique can be and has been tested
    • Whether the theory or technique has been subjected to peer review and publication
    • The known or potential rate of error
    • General acceptance by the relevant scientific community
• HOLDING: Judgment vacated and remanded.
  • Summary:
    • General acceptance is not a necessary precondition to admissibility
    • FRE 702 assigns the judge the task of ensuring expert testimony is both relevant and reliable.
    • Evidence based upon scientifically valid principles will satisfy those demands.
  • On remand, the 9th Circuit again excluded Ps' evidence, this time on the grounds that the research had been conducted in anticipation of litigation, which undercut is validity.

Relevancy Approach: 3rd test

• Any relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion.
• Particularly, its probative value may be overborne by the familiar dangers of prejudicing or misleading the jury, unfair surprise and undue consumption of time.

General Elec. Co. v Joiner

• Established the standard of review for scientific evidence to be abuse of discretion
• There was a real causation issue in this case that did not exist in Daubert. This case was about how much PCBS an electrician was exposed to in his life and if the exposure caused his lung cancer.

Kumho Tire Co. v. Carmichael

• FACTS: While Carmichael was driving his minivan, a tire blew out, and he brought suit against the tire's maker and distributor. During trial, Carmichael had an expert witness testify about the tire failure. His testimony pertained to certain features of tire technology and a four factor test to determine if a defect was present. Defendants sought to exclude the testimony and the district court granted it, holding it did not meet the reliability standard.
• ISSUE: Whether the presented expert testimony was reliable. No
• RULE: FRE 702 imposes a special obligation upon a trial judge to "ensure that any and all scientific testimony is not only relevant, but is reliable."
• HOLDING: (1) The testimony is inadmissible because there is a lack of support for the expert's methodologies. (2) FRE 702 applies not just scientists, but other experts as well, and a trial court may consider one or more of the specific factors that Daubert mentions.
• NOTE: Advisory Committee Note to FRE 702 lists a number of additional reliability factors:
  • Research conducted independent of litigation
  • Unjustifiable extrapolation from accepted premise to unfounded conclusion
  • Adequate accounting for obvious alternative explanations
  • Whether expert was as careful as she would have been in professional practice
  • Whether the field of expertise is known to reach reliable results

United States v. Hines

• FACTS: Hines was charged with robbing a bank, and the government's principal evidence consisted of eyewitness identification by the teller and a handwriting analysis of the robbery note. During the trial, the government introduced the handwriting analysis and the expert testified about the similarities of the robbery note and sample from the Defendant and gave her ultimate conclusion that Defendant was the author of the notes. During the eyewitness identification evidence, the Defendant offered an expert that gave the drawbacks of eyewitness identification. The trial court admitted all of this evidence.
• ISSUE: Whether the Daubert analysis extends to handwriting analysis and eyewitness identification.
• RULE: Daubert must be used to assess any expert evidence, regardless of whether the science is considered old or new.
• HOLDING: The handwriting analyst was allowed to state the similarities between the two samples, but not draw an ultimate conclusion as to the author of the samples. The defense was allowed to present their expert with regard to eyewitness identification because it enhanced the information being giving to the jury in order to understand all sides of the eyewitness debate.

Qualification Requirement

Elcock v. Kmart Corp.

• FACTS:P slipped and fell at a Kmart & sued for personal injuries. P was awarded $650K by a jury. Kmart concedes liability & recognizes P suffered some harm, but it challenges several evidentiary rules that go to proving her damages and argues the award was excessive.
• ISSUE:Dr. Copemann - vocational rehabilitation expert who testified on P's behalf - whether he was qualified
• RULE:FRE 702. Qualification Requirement: before an expert may offer an opinion pursuant to Rule 702, he must first be qualified by virtue of specialized expertise . . .at a minimum, a proffered expert witness . . . must possess skill or knowledge greater than the average layman.
• HOLDING:Dr. Copemann was qualified as an expert because he had experience helping drug adidicts return to employment, his degree was in a related field, he testified that he kept up to date with the relevant literature, and he had attended conferences about vocational rehabilitation.

Wheeling Pittsburgh Steel Corp v. Beelman River Terminals

• FACTS: Wheeling brought a breach of bailment contract action against Beelman for 3,000 tons of Wheeling's steel that had been stored in Beelman's warehouse during a flood.
• ISSUE: the testimony of Dr. Curtis, a hydrologist. He testified repeatedly about what specific efforts and specific levels of protection are consistent with good warehouse practice - was this improper?
• RULE: FRE 702
• HOLDING: It was an error to allow Curtis to testify beyond the scope of his expertise and his inadmissible opinions prejudiced Wheeling. Cursit had experience regarding matters of flood risk managment, but lacked knowledge, employment or other practical personal experiences to testify specifically about safe warehouse practices.

Basis of Expert Opinion - FRE 703 & 705

• Expert Opinion Basis
  • 1. Personal Knowledge
  • 2. Record Facts
    • (a) hypothetical question
    • (b) modified hypothetical question
  • 3. Non-record facts (if reasonable reliance)

• FRE 703 - Bases of Opinion Testimony by Experts. 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 opnion 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.

• FRE 705 - Disclosure of Facts or Data Underlying Expert Opinion. The expert may testify in terms of opinion or inference and give reasons therefor without first testifying as to the underlying facts or data, unless the court requires otherwise. The experet may in any event be required to disclose the underlying facts or data on cross-examination.

Iconco v. Jensen Construction Co.

• FACTS:Iconco and Jensen both bid on a small-business "set aside" construction. Jensen was the low bid and got the contract. Iconco was 2nd lowest bid and brought suit, claiming Jensen falsely certified that it was a small business under federal law and was awarded the contract based on this. Colonel Johnson - the contracting officer for the Army Corp of Engineers, was asked a hypothetical question by Iconco at trial. The question basically described Iconco - second lowest bidder, the bid was reasonable, second lowest bidder could obtain a performance bond and had sucessfully complete similar contracts, had ten years of experience, and met the requirements of the pre-award survey. Johnson was asked if this bidder would have been given the contract. Johnson said yes.
• ISSUE: the hypothetical question asked of Colonel Johnson
• RULE: The form of the question must be left largley to the discretion of the trial court. The question need not include all the facts, but should be in a form that does not mislead the jury. The question should include only the facts that are supported by the evidence and only the basic facts needed to be assumed in the hypothesis.
• HOLDING:the hypothetical question to Colonel Johnson satisfied the rule.

Thomas v. Metz

• FACTS:Metz performed surgery on Thomas. Thomas brought a malpractice action, and the jury returned a vertict for Thomas. Metz appealed, arguing the trial court erred in admitting the testimony of Thomas's expert witnesses because these witnesses improperly based their testimony on Thomas's apparent discovery deposition and previous opinions by other doctors.
• ISSUE:whether Thomas's experts' testimony was properly admitted
• RULE:It is common practice for a prospective witness, in preparing himself to express an experet opinion, to pursue pretrial studies and investigations of one kind or another. Frequently, the information so gained is hearsay or double hearsay, insofar as the trier of facts is concerned. This, however, does not necessarily stand in the way of receiving such expert testimony into evidence.
• HOLDING:the testimony of Thomas's experts was properly admitted. There was evidence that these experts relied on several sources of information in making their opinion, and the couurt could not find any prejudicial error.

Ultimate Issue Rule - FRE 704

• FRE 704 - Opinion on Ultimate Issue. (a) Except as otherwise provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissilbe is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (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.

Carr v. Radkey

• FACTS:Hewlett made a will, and after her death, there was a dispute about whether she was competent when she wrote the will. The State presented Dr. Hoerster, an expert in mental illness, as a witness. He was told that Hewlett had been taken to a rest home, she had periods of depression and excitment, and showed no emotion when she was informed that her brother died. Dr. Hoerster was read the will, and then was asked if Hewlett had sufficient ability to understand the business in which she was engaged, the effects of her acts in making the will, if she knew what she was doing, and if she knew the property she owned. Dr. Hoester was not allowed to answer.
• ISSUE:should Hoerster have been allowed to answer the question
• RULE:A witness may not be asked whether a person had the mental capacity to make and publish a will because this invovles a legal definition and a legal test. The witness may be asked whether the testator knew or had the capacity to know the objects of his bounty, the nature of the transaction in which he was engaged, the nature and extent of his estate, and similar questions.
• HOLDING:the question here should have been allowed.

Right to Expert Assistance

Ake v. Oklahoma

• RULE: When a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue, if the defendant cannot otherwise afford one.

Impeachment: Learned Treatise

Freshwater v. Scheidt

• FACTS: The plaintiff Freshwater sued her surgeon, Scheidt, for medical malpractice during a gallbladder operation. Shortly after surgery, Freshwater had noticeable swelling and abdominal pain. She was transported to another hospital, where surgery was performed to repair a perforation to her small bowel, which had occurred during the original surgery. During the trial, Freshwater’s attorney tried to impeach Scheidt’s medical expert, Zucker, by using learned medical treatises.
• ISSUE: Can statements from learned treatises be used to impeach the testimony of an expert witness?
• RULE: Statements form learned treatises may be used to impeach the testimony of an expert witness.
• HOLDING: Yes. A learned treatise can be use to impeach a testifying expert by establishing (1) that the expert is wither unaware of the test or unfamiliar with its contents or (2) the expert has relied upon the treatise in forming their opinion or the expert has acknowledged the authoritative nature of the treatise. Here, the expert conceded the authoritative nature of the medical literature and he has relied on the treatise to come up with opinions in everyday practice.

CHAPTER 13: THE HEARSAY RULE

Rules

• FRE 801--Definitions
  • The following definitions apply under this article:
    • Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person to be an assertion.
    • Declarant. A "declarant" is a person who makes a statement.
    • Hearsay. "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.
• FRE 802--Hearsay Rule
  • 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.

Definition and Rationale Statements for the Truth of the Matter Asserted

Moore v. United States

• FACTS: Defendant Moore was convicted of possession of heroin with intent to distribute. During the trial, the prosecution and the court expressly relied on the hearsay declaration of an informant.
• ISSUE: Can hearsay evidence normally be admitted or relied on in determining a defendant’s guilt
• RULE: Unless it falls within an exception to the hearsay rule, hearsay evidence is not admissible and cannot be relied on in determining a defendant’s innocence or guilt.
• HOLDING: No. The trial judge expressly relied on the inadmissible evidence in finding Morre guilty.

Tribe, Triangular Hearsay

• A (action or utterance) --> (1) Ambiguity and (2) Insincerity --> B (belief of actor responsible for A) --> (3) Erroneous memory and (4) Faulty perception --> C (conclusion to which B points)

Silver v. New York Cent. R.R.

• FACTS: Plaintiff, Silver, alleged that an ailment she had was made worse by the low temperature on the New York Central railroad car. Silver was a passenger on a train from Boston to Cincinnati. During a connection in Cleveland, the car temperature lowered, due to the cold weather, and Silver began suffering from the effects of her circulatory disease. During the trial, the porter was not allowed to give evidence that eleven other passengers in the car made no complaint to him about the temperature.
• ISSUE: Does the hearsay rule prevent evidence of the lack of complaints to show the lack of a defect?
• RULE: Evidence of no complaints is too remote to show a lack of defect unless there is evidence of similar circumstances of the persons not complaining and that they had an opportunity to complain.
• HOLDING: No. Absence of others' complaints should have been admitted if their circumstances were substantially the same as the plaintiff.

Player v. Thompson

• FACTS: Plaintiff would like to introduce evidence that Defendant was present at the car inspection where the inspector would not pass the car because it had bad tires.
• ISSUE: Whether this information can be admitted. YES
• RULE: This type of statement can be introduced to demonstrate knowledge on the part of the Defendant, as the statement can be used to demonstrate state of mind or intent.
• HOLDING: Admissible because it demonstrated knowledge of the driver of the bad tires.

United States v. Gibson

• FACTS:During the trial, witnesses testified about conversations they had with Defendant’s, Gibson, salesmen. Gibson had incorporated a business dealing with fast food franchises, named GMI. GMI would make promises of certain business services during their sale pitches. However, GMI did not provide certain promised business services, Gibson spent GMI money in Las Vegas, and Gibson had instructed GMI personnel to convey false information to complaining investors.
• ISSUE: Are out-of-court statements which are not offered for their truth hearsay?
• RULE: Out-of-court statements not offered for their truth are not hearsay.
• HOLDING: No. The Government offered the testimony to prove the representations were made, not that the statements were not hearsay and were admissible.

Categories of Non-Hearsay (b/c not offered for the truth of the matter asserted)

• Effect on the listener
• Verbal acts

Loetsch v. NYC Omnibus Corp

• FACTS: Wrongful death action; husband is suing someone for the wrongful death of wife and defense is that there was a terrible marriage and so he has lost nothing; wife wanted to bring in her husband’s will to show that status of the relationship – she was going to leave him $1 (“cruelty and indifference”). Lower ct considered it hearsay and did not admit the will.
• ISSUE: Is the will offered for the truth of the matter asserted or state of mind and thus not hearsay?
• RULE: Statements offered as truth or falsity are hearsay
• HOLDING: Will admissible. Will was offered for state of mind, not hearsay. What the will shows, whether true or false, is compelling evidence of her feelings toward her husband. The point is she couldn't stand her husband.
• POLICY: If hearsay is allowed there is a high(er) risk of inaccuracy; but if it is not offered to prove the truth of the matter asserted, the risk of the inaccuracy is much smaller.

US v. Zenni (answers, what is a statement?, implied assertion)

• FACTS: illegal bookmaking case; the FBI has SW and is searching the D’s residence. While searching the phone rings multiple times and someone on the other end gives instructions for placing a bet; search warrant was for illegal bookmaking
• ISSUE: Is an implied assertion considered hearsay under FRE?
• RULE: Non-Assertive Conduct does not equal a statement and is THUS non-hearsay
• HOLDING: Evidence allowed bc the placing of a bet by the caller was NOT a statement/assertion, it was non-assertive conduct, so it is not hearsay. Rather, the caller was acting on an assumption. Under FRE 801a2, an out of ct statement is admissible to show implied assertion b/c only statements intended to be assertions are excluded. Advisory Committee Notes = “the definition of statement assumes importance because the term is used in the definition of hearsay in the subdivision (c). The effect of the definition of statement is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless it is intended to be one.”
• POLICY: Risk of Insincerity with Non-Assertive Conduct- *with non-assertive conduct there is little risk of lying – you aren’t intending to communicate a message to anyone. “A man does not lie to himself. Put otherwise, if in doing what he does a man has no intention of asserting the existence or non-existence of a fact, it would appear that the trustworthiness of evidence of this conduct is the same whether he is an egregious liar or a paragon of veracity.
• NOTE: Hearsay Analysis (1) Does it meet the definition of hearsay under 801(c)...(a) Is it a statement? (advisory committee note, it is the intention that controls whether it is a statement); (b) Is it offered for the truth of the matter?

IF yes to both...(2) Are their exceptions to the hearsay rules that apply?

Headley v. Tilghman (question is NOT hearsay)

• FACTS: Δ charged with possession of narcotics with intent to distribute and conspiracy to distribute narcotics; a caller calls and asks if the person is “up, ready and can they come by. Expert testifies that those in the drug trade usually use code in case of wire taps
• RULE: Question not communicated to assert any fact is not hearsay b/c it cannot be offered to prove the truth of the matter asserted
• HOLDING: the question doesn’t assert anything, it is a question so there can be no assertion

US v. Summers (question disguised as assertion is still hearsay)

• FACTS: Thomas was convicted of bank robbery and aiding and abetting conspiracy to commit bank robbery; accomplice asks police, “How did you get here so fast?”
• ISSUE: Whether Muhammad's question "[h]ow did you get here so fast" was hearsay?
• RULE: An assertion in the form of a question is hearsay. The party challenging the statement must prove it was intended as an assertion. The ct will look at each individual statement to determine if it was an assertion.
• HOLDING: Question was found to be an assertion bc it was communicative of his guilt. Hard to prove intent when dealing with a phone call from an unnamed caller.

Other Statments that are not Hearsay

Prior Statements of Witnesses

FRE 801(d) Statements which are NOT hearsay. A statement is not hearsay if— (1) Prior statement by witness. The declarant (witness) testifies at the trial or hearing and is subject to cross-X concerning the [out-of-court] statement, and the statement is

• ONLY 3 examples where testimony of the declarant herself, as the witness, is admissible as non-hearsay
• (A) Prior inconsistent statement of the declarant. 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, or
• (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or
  • not offering statement to prove that statement is true but offering it to rebut a charge of recent fabrication
  • if the motive to lie existed from the beginning, then you can’t get a statement in – which is the fact pattern of Tome (but remember you may still get it in for purposes of impeachment)
• (C) one of identification of a person made after perceiving the person; or

2 approaches to Rule 801d1A: Prior statements of the witness.

• Orthodox view:
  • Prior inconsistent statements are admissible to impeach, but not admissible to establish truth of matters
  • Reliability of prior inconsistent statement rests on the credit of the declarant, who was not
    • Under oath
    • Subject to cross examination, or
    • In the presence of the trier, when the statement was made.
• Modern view: accepts at probative value only those prior inconsistent statements given under oath in instances where a record of the statement is likely to be available.

Commonwealth v. Daye – 801(d)(1)(A) – prior INconsistent statements –

• FACTS: a witness denied making a pre-trial photo id and a statement made to the grant jury identifying the gunman and denied that he knew what the shooter looked like (a grand jury is ex parte)
• ISSUE: Admissibility of the statement by police officer who was present at grand jury,
• RULE: Probative Value
• RULE: Two Approaches on this Issue:
  • Modern Approach – prior inconsistent statements under oath are admissible as probative (substantive evidence) p. 751-52
    • It can be offered for the truth of the matter asserted
      • prior inconsistent statements
      • where record is likely to be available
    • BUT not where the witness says they don’t remember
  • The approach adopted by FRE 801(d)(1)(A) “accepts at probative value only those prior inconsistent statements given under oath in instances where a record of the statement is likely to be available…. [A]t least where the witness at trial does not disclaim memory of the circumstances under which the prior statement was made, the reliability of the statement can be tested notwithstanding the witness’s recantation”
  • “the pragmatic argument that juries cannot, and perhaps should not be expected to discriminate between impeachment and probative use of a prior inconsistent statement, and that formally conferring probative status to such statements does no more than legitimize current practice.
  • Orthodox Approach – limited to impeachment purposes only
    • if you admit the prior statement as probative, juries will accept it as being more reliable even if it not = so this approach would limit it to impeachment purposes only
• RULE: 801(d)(1)(A) 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
• HOLDING: Statement was admissible as non-hearsay b/c

Tome v. U.S. – 801(d)(1)(B) – prior CONsistent statements –

• FACTS: Δ charged with sexual abuse. At trial defense argued that sexual abuse allegation was actually a plan concocted by the mother. To refute the claim the prosecution called six witnesses, including the Victim, who heard the statements made by the child who testified that her father had abused her. TC = these statements were admitted by the trial court. After a break in the proceedings, the V was more reluctant to respond
• ISSUE: Whether or not you can bring in a prior consistent statement made after the motive to fabricate would come into existence?
  • the child is on the stand for two days of cross – day one is answering all questions and after a break and meeting with the prosecutor then the second day was evasive
  • so any statement made before the break, could be used as non-hearsay and admissible, had the defense argued that the child was tainted after the meeting with the prosecutor
• RULE: CL Rule – required the statement be made before the motive to fabricate
  • b/c if the statement is not made before the motive was formed, opposing counsel can’t rebut the challenge that there was a recent fabrication
  • in order to prove it was not made up because of the motive to fabricate, you have to prove the statement existed before the motive to fabricate
• RULE/HOLDING: Court infers a temporal requirement in the FRE 801(d)(1)(B) that’s not in the plain language of the rule
  • required the statement be made before the motive to fabricate
  • Prior consistent statement has to be made before the motive to fabricate was formed

Consistent statements [admissible] --> Motive to Lie Asserted --> Consistent statements [inadmissible] --> Trial

U.S. v. Lewis

• FACTS: witness was unable to identify Δ at trial, but evidence is introduced that she identified the Δ earlier from a photographic line-up pre-trial
• RULE: Even though the inconsistent statement was offered for the truth of the matter asserted, FRE 801(d)(1)(C) says it isn’t hearsay.
• “Congress has recognized, as do most trial judges, that the identification in the courtroom is a formality that offers little in the way of reliability and much in the way of suggestibility. The experienced trial judge gives much greater credence to the out-of-court identification made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him.”
• HOLDING: Court allows the statement = it’s not hearsay b/c her recollection was much more fresh at the time of the original ID
• The original ID was not maid under oath ≠ subject to 801(d)(1)(A)

Admission of the Party Opponent

FRE 801(d)(2) Statements which are not hearsay. 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 or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. THe contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Olson v. Hodges., (Iowa, 1945)

• FACTS: Olson, Plaintiff, sued Hodges, Defendant, for personal injuries duo to an automobile accident. Olson had been a passenger in an automobile driven by Hodges. The vehicle had skidded out of control and crashed into a bridge bannister. During the trial, Hodges introduced a written statement that had been signed by Olson 9 days after the accident. This statement indicated that Hodges had been exercising due care while driving the vehicle. It included statements such as “Hodges was a good, careful driver” “[Hodges] had not been driving fast or carelessly” and “[w]e were all sober…[n]either of us were intoxicated.” Olson contended that a stranger interviewed him and that he didn’t remember the interview; due to the painkillers. The trial court ruled that the written statement could only be considered on the credibility of Olson.
• ISSUE: Are admissions made by a party opponent subject to the rule against hearsay?
• RULE: Admissions made by a party opponent are not subject to the rule against hearsay. (You cannot issue your own admission, it must be issued by your opponent. CL Standard: Requirements to be admissible as opposing party admissions: (1)Inconsistent w/ opposing party's general theory (here the theory was that the D was driving recklessly); (2)Must be offered by the opposing party (this prevents the party from making a lot of self-serving statements prior to trial and then using them to help their own case)
• HOLDING: No. Because the evidence was a deliberate statement signed by Olson, it was admissible as substantive evidence against Olson.

U.S. v. McKeon

• FACTS: McKeon, Defendant, was accused of illegal exportation of firearms, and conspiracy. McKeon had two mistrials. On the third trial, McKeon's lawyer made certain factual assertions substantively different from the factual assertion made in the opening statement of the second trial.
• ISSUE: Can an opening statement made by a defendant’s attorney in a prior trial be used as an admission in a later trial?
• RULE: Yes. It is a natural progression of the general rule that an attorney’s statements have a binding effect with the four corners of a single trial. As long as the inconsistent opening statements go to facts, and not arguments, it can be admitted.
• HOLDING: An opening statement by a defendant’s attorney in a prior trial may be used as an admission in a later trial.

Mahlandt v. Wild Canid Survival & Reasearch Center, Inc..

• FACTS: Mr. Poos, Defendant, and Director of the research center, kept a wolf, named Sophie. Sophie was chained in a fenced pen. In the same neighborhood lived Daniel Mahlandt, Plaintiff, who was almost 4. Somehow, Daniel wound up in the wolf’s pen. (there was a debate between the wolf dragging him under and Daniel just climbing under the fence) The defense won. During the trial the judge did not allow into evidence two statements made by Mr. Poo (a note and a verbal conversation with the president of the Center), which basically said that the wolf had bit the child. The trial court also did not let into the case minutes from the Center’s meeting dealing with the Mahlandt’s issue.
• ISSUE: Is it necessary to show that the agent had personal knowledge of the facts underlining his statement for a statement made by an agent within the scope of his employment to be admissible under FRE 801(d)(2)(D)?
• RULE: FRE. 801(d)(2)(D) makes statements made by agents within the scope of their employment admissible and there is no implied requirement that the declarant have personal knowledge of the facts underlying his statement.
• HOLDING: Yes. The trial court should have let the 2 statements made by Mr. Poo into evidence because there was no requirement that he have personal knowledge of the facts underlying his statements (see below). However, there was no requirement to let into evidence the minutes of the meeting and the trial judge made the right decision under FRE 403 not to allow them in.

Wilson v. City of Pine Bluff

• FACTS: Wilson, Defendant, was convicted of criminal trespass. Police responded to an emergency call. When they arrived they found a woman and Wilson in the house. The woman kept telling Wilson to leave and the police informed him multiple times that he would need to leave or be arrested for criminal trespassing. There was no testimony that showed Wilson ever claimed possessory or ownership right to the premises.
• ISSUE: Can an alleged trespasser’s failure to deny that he has no interest in the subject property act as an admission of assertions of such a lack of interest?
• RULE: An alleged trespasser’s failure to deny that he has no interest in the subject property may act as an admission of assertions of such a lack of interest.
• HOLDING: Silence may act as an adoptive admission of a statement. For this to occur, it must be shown that
  • 1)The statement must have been heard by the party against whom it is offered
  • 2)It must have been understood by him
  • 3)The subject matter must have been within his personal knowledge
  • 4)He must have been physically and psychologically able to speak
  • 5)The speaker or his relationship to the party or event must be such as to reasonably expect a denial
  • 6)The statement itself must be such that, if untrue under the circumstances, it would have been denied.

United States v. Cornett

• FACTS: Cornett and his girlfriend Galloway were convicted of conspiracy to distribute cocaine. Cornett's girlfriend Galloway supposedly was helping Cornett count large quantities of money related to drug transactions. To support this conclusion, the government had a CI tape a conversation with Boutte (former girlfriend of Cornette). The conversation covered mainly irrelevant topics, but Boutte mentions that Galloway has a relationship with Cornett. The trial court allowed in the tape and Galloway was subsequently convicted.
• ISSUE: Is the tape admissible under 801 (d)(2)(e)
• RULE: Rule 801(d)(2)(e) requires that the statement be in furtherance of the conspiracy and not mere idle chatter.
• HELD: No, the tape is not admissible. Reversed and remanded. It must be shown:
  • 1)The statement was not in furtherance of the conspiracy. The court saw the conversation as "mere idle chatter." The Court likens this case to "Urbanik" where weightlifters discussed the conspiracy and then went to work out. While working out, they implicated another person. This was not in furtherance of the conspiacy.

Blecha v. People

• FACTS: While in jail, Daniel Shettler was supposedly killed by three men(Blecha, Younger and Green). Bates claims he witnessed the murder. Bates also claims that Younger told him to keep his mouth shut. Younger was later acquitted. The trial court allowed the evidence of Bates claiming that Younger told him to keep quiet.
• ISSUE: Is Younger's statement to Bates admissible under 801(d)(2)(e)?
• HELD: The statement is not admissible but it was harmless error, so Blecha is still guilty.
• REASONING: Covering up the body is not in furtherance of the conspiracy. The murder had already been completed.

Confrontation

California v. Green

• FACTS: CA Sup Ct held prior statements of a witness that weren’t subject to cross couldn’t be introduced without violating the confrontation clause
• ISSUE: Whether confrontation clause requires exclusion of prior statement of a witness
• HOLDING: No, in circumstances below
• RULE: Confrontation Clause doesn’t require excluding from evidence the prior statements of a witness who concedes making the statements and who may be asked to defend or otherwise explain the inconsistency between prior and present version of the events (opening self to cross)
• Policy: Confrontation, purposes
  • Insures witness will give statements under oath, impressing him w/ seriousness of matter, guarding against lies
  • Forces witness to submit to cross
  • Permits jury to observe demeanor of witness in making statement/assess credibility

Ohio v. Roberts

• FACTS: Roberts was charged w/ check forgery and possession of stolen credit cards from Isaacs. At prelim hearing, D called Isaac’s daughter as witness, daughter said she knew D and had let him stay at her home, but didn’t give him checks and cards with permission to use. Daughter didn’t appear at trial, so P used transcript of her testimony at trial.
• ISSUE: Whether allowing transcript into evidence violated D’s confrontation right
• HOLDING: No, P showed declarant was unavailable
• RULE: Confrontation clause has two separate ways to restrict the range of admissible hearsay:
  • Necessity: b/c of preference for face-to-face accusation, the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against he defendant.
  • Reliability: after unavailability is shown, then only hearsay marked with trustworthiness is admitted
  • Litmus test of unavailability: a witness is not unavailable for purposes of the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.

Crawford v. Washington

• FACTS: D stabbed man who allegedly tried to rape wife, wife gave tape-recorded statement to police about incident, P used recording at trial.
• ISSUE: Whether use of recorded statement violated the confrontation clause
• HOLDING: Yes, since D didn’t have opportunity to cross declarant
• RULE: Testimonial statements of witness absent from trial are admitted only where declarant is unavailable and when D has prior opportunity to cross.
  • Testimonial statements cannot be used at trial unless:
    • Unavailability
    • Prior opportunity to cross-examine
  • Prior testimony:
    • Preliminary hearing
    • Before a grand jury
    • At a former trial, or
    • Police interrogation

Davis v. WA and Hammon v. IN

• FACTS: Davis
  • • 911 during domestic disturbance
    • Operator asked questions to get info about incident so could assist caller
    • At trial, ct admitted recording of 911 call
  • Hammon
    • Police responded to reported domestic disturbance
    • When arrived, no disturbance going on
    • Police asked questions to investigate what happened
    • Wife wrote statement about husband’s attack
    • Wife didn’t appear at trial, so cop allowed to testify as to what wife told him at scene
• ISSUE: Whether statements made to law enforcement during 911 call or at crime scene are testimonial and subject to requirements of confrontation clause
• HOLDING: **Davis: 911 call was nontestimonial and properly admitted
  • Hammon: Wife’s statements were testimonial and improperly admitted
• RULE: Testimonial Statements
  • 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
  • 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.
• Note: If D obtains absence of a witness by wrongdoing, D forfeits constitutional right to confrontation

Melendez-Diaz (discussed in class)

• Answers questions remaining after Crawford by specifying statements that are considered testimonial
• The Court found that certificates of forensic analysis are testimonial and that the prosecution could not prove its case with out-of-court affidavits.
• The case gives defendants the right to cross-examine the analysts who produced crime reports - including breath test operators, drug analysts, and other crime scene analysts.

CHAPTER 14: EXCEPTIONS TO THE HEARSAY RULE

Section A. Present Sense Impressions and Excited Utterances

FRE 803(1)-(2) Hearsay Exception; Availability of Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant

• (1) A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, immediately thereafter. (A statement by the declarant explaining what’s happening)
• (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or conduct
  • RULE: (1) event has to be startling, (2) statement has to be made while the repercussions of that startling event are felt
  • e.g. in a car accident (may make in emergency room, when husband arrives, in two years after waking up from coma)
  • different from present sense impression and allows more time b/c you can continue to be under the stress of excitement for a little bit longer = maybe in shock

Present Sense Impression = a present sense impression is an out-of-court statement which describes or explains an occurrence or condition made at the time the declarant was perceiving the occurrence or condition, or immediately thereafter

• General Rule = it must be made within fifteen minutes or less of the incident

U.S. v. Cain

• FACTS: D was convicted of stealing a car; Cain escaped from an LA state prison and a truck was reported missing. Trooper was allowed to testify in the lower court about unidentified trucker chatter which said two white shirtless men abandoned the truck on the bridge
• ISSUE: Whether this information was an exception under FRE 803(1) – Present Sense Impression.
• Rule Description(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, immediately thereafter. Timing is important – must be immediately thereafter, in order to maintain guarantees of trustworthiness (no time to fabricate or make something up)
• HOLDING: 15 minutes is too long = it’s no longer a present sense impression
• POLICY: Guarantee of trustworthiness = spontaneity guarantees that an alternative story isn’t made up (you need some time to come up with a good lie)

Excited Utterance = an excited utterance is a spontaneous out-of-court statement which relates to a startling event and which is made while the declarant is under the stress or excitement caused by the event

• Excited utterance is more expansive than the present sense impression, as the temporal limitation of the present sense impression is absent for the excited utterance.

Miller v. Keating

• FACTS: contributory negligence claim; car accident; one rear ended another car after it was rear-ended; someone claimed they heard that someone else said “he cut in front of me.” The person that made the claim was not available.
• ISSUES:
  • Whether the statement by the unknown declarant should have been admitted under 803(2) as an excited utterance
  • Whether the excited utterance exception may ever authorize the admission of a statement by an anonymous declarant
• HOLDING:
  • No, unknown declarant's statement should not have been admitted here
  • Yes, statements by unidentified declarant may be admitted if meet four requirements below
• STANDARD: 4 Elements of Excited Utterance:
  • (1) a startling event
  • (2) a statement relating to the circumstances of the startling event
  • (3) a declarant who has had the opportunity to personally observe the startling event and
  • (4) a statement made before there has been time to reflect and fabricate
• RULE: FRE 803(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or conduct
• POLICY: Guarantee of trustworthiness = spontaneity guarantees that an alternative story isn’t made up. As long as the declarant is remains under the stress of excitement, it will fall under the exception.
• HOLDING: If witness expresses the tone of their excitement in their statement the court will see that it is excited utterance

e.g. “Oh no, I just got hit by that other car.”

Section B. Existing Mental, Emotional, or Physical Condition

Existing mental or emotional condition = an out-of-court statement which sets forth the declarant’s present state of mind or present emotional condition is admissible as an exception to the hearsay rule

FRE 803(3) Hearsay Exceptions; Availability of Declarant Immaterial:

• 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.
• Can be used to prove present intention, future intention, but NOT past actions

Wilkinson v. Service

• FACTS:CL/pre-FRE 803(3)– Wilkinson was the daughter of decedent and was contesting his will in that he was not of sound mind when he wrote it.
• ISSUE: statements of attorney – saying that her husband told her father to stay away from her, when he should have been paying attention to her he was chasing whiskey and fast women (letter written by son-in-law).
• RULE: Declarations of the testator are competent to show the state of his mind but not to prove the facts stated
• HOLDING: Court allowed testimony because “Whatever is material to prove the state of a person’s mind or what is passing in it, and what were his intentions, may be shown by his declarations and statements. The truth or falsity of such statements is of no consequence. They are to be used only as showing the condition of his mind.”
• POLICY: Statement isn’t being admitted to show the truth of the statement but to show what is going on in a person’s mind.

Mutual Life Ins. Co. v. Hillman

• FACTS:CL/pre-FRE 803(3)– Hillman has insurance policy; He goes on trip; Somebody dies; Insurance argues that the guy who died is Walters; Hillman's wife argues that the guy who died is Hillman (she wants to collect life insurance). There were letters written by Walters that the insurance company is trying to admit that show that Walters may have died.
• ISSUE: Are the letters admissible? YES
• RULE: you can introduce hearsay of an intention to act a certain way in the future to prove they actually acted that way
• HOLDING: Court allowed this: “A man’s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written…. The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention of that time is as direct evidence of the fact, as his own testimony that he then had that intention would be.”

U.S. v. Day

• FACTS: Day was indicted for murder. Moments before Greg Williams was killed, he gave a slip of paper with the names "Beanny and Eric 635-3135" to a witness. Williams also told the witness to give the slip of paper to the police if he didn't return the next day. Williams was indicating he was going to get killed by Day and co-defendant.
• ISSUE: Is the slip of paper and statement admissible under FRE 803(3)
• HELD: The paper itself is admissible but the statement is inadmissible.
• RULE: FRE 803(3) Hearsay Exceptions; Availability of Declarant Immaterial. not excluded by the hearsay rule = 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 related to the execution, revocation, identification, or term’s of declarant’s will
  • This rule does NOT include statements of PAST intentions/memory
• POLICY: “The state of mind exception to the hearsay rule allows the admission of the extrajudicial statements to show the state of mind of the declarant at that time if that is the issue in the case. It also allows such statements to show a future intent of the declarant to perform an act if the occurrence of that act is at issue (acceptance of previous case).”

Section C. Statements for Purpose of Medical Diagnosis or Treatment

FRE 803(4) Hearsay Exceptions; Availability of Declarant Immaterial: The following are NOT excluded by the hearsay rule, even though the declarant is available as a witness:

• (4) 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.
  • doesn’t say anything about who the statement has to be made to
• A statement to a parent or guardian is allowed because the minor can’t get the medical treatment without them
• Advisory Cmte. Notes: Statements of fault are NOT admissible = Must be related to diagnosis or seeking treatment
• Is this doctor really making a diagnosis, or is the doctor just preparing herself to be an expert at trial = a case that wouldn’t be made for the purpose of medical diagnosis or treatment

U.S. v. Ironshell

• FACTS: man convicted of assault with intent to commit rape; doctor repeated the answers a nine-year old victim gave to him when he asked what happened. Final argument: doctor was an expert. He could be qualified as an expert but he would have to be thus qualified in order to testify in this manner. BUT he does not need to be qualified in this expert to testify in this way. He is testifying as a lay witness – he is a fact witness and is not looking at the case in hindsight (testifying as to the material facts of the case)
• POLICY: Guarantees of Trustworthiness
  • (1) there is a strong motive for the patient to be truthful to the doctor b/c accurate and effective treatment depends on it
  • (2) a fact reliable for a doctor to rely on for diagnosis is reliable enough as a hearsay exception
• RULE: FRE 803(4) Two part test for the exception to apply:
  • (1) Is the declarant’s motive consistent with the purpose of the rule
  • (2) Is it reasonable for the physician to rely on the information in diagnosis or treatment
• statements of fault are not reasonable for the physician to rely on and are therefore not covered
• HOLDING: Here, the patient testified as to what happened BUT NOT who did it

Section D. Recorded Recollection

FRE 803(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 the 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.

Two different scenarios:

• (1) Statements used to Refresh Recollection:
  • this is not evidence in and of itself
  • the witness can read it to themselves, then put it down and answer your question
  • you cannot introduce
• (2) Hearsay exception for Recorded Recollection:
  • you don’t have those limitations

NOTE: You want to try the hearsay exception first and then the refresh recollection

U.S. v. Felix-Jerez

• FACTS: man accused of walking away from prison camp; during interrogation, the Δ answered through an interpreter that he had a plan to escape prior to when he did and decided not to go back after he drank two six packs of beer; the prison guard who did the translating had no recollection and no notes; the interrogator, a US Marshall, had notes which he used to prepare a statement; Δ didn’t see the statement. Prosecutor examined the interrogator and elicited that the notes which came from him were accurate but he never asked whether the officer had a recollection.
• ISSUE: Memory loss is a necessary element? Yes
  • the prosecution forgot to ask one question, if the interrogator remembered
  • the subject of the report is admissible it is not the statement (if you try to read from the writing, that is an out-of-court statement)
  • answers come in under party-opponent = not hearsay
• RULE: FRE 803(5) Recorded recollection.
  • (1) 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,
    • Need to have insufficient recollection
  • (2) 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.
    • Must have personal knowledge to adopt it, though
  • (3) 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.
• HOLDING: Ct. said the statement should not have been admitted for lack of memory
  • No demonstration that the Marshall had memory loss, a necessary pre-requisite to the exception
  • Memory Loss is Required – “before a prior hearsay statement of a witness who is testifying can be admitted into evidence under this exception, it must first be shown that the witness does not now have sufficient recollection as to the matters contained in the statement to enable him to testify fully and accurately regarding them”
• POLICY: Guarantee of Truthfulness: memory at the time is more accurate than at trial

Section E. Records of Regularly Conducted Activity

• FRE 803(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 FRE 902(11), FRE 902(12), or a statute permitting certification, unless the source of information or the method of 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.
• FRE 803(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.

Olesen v. Henningsen – CL exception

• FACTS: car accident; admission of a long-distance telephone ticket of the telephone company (; case was about personal injuries suffered when a wagon was stopped on a highway. Δ = evidence was brought in that a phone call was made at a certain time
• ISSUE: issue was whether the tail lights were required by law (time of day of accident – when was sunset)
• RULE: Anyone qualified to testify about the business practices of the organization can lay the foundation for the business record:
  • Must be regular
  • this is a progression from the old rule which said only a records custodian could authenticate the document
  • under the 2000 amendments to the rules, you don’t have to have someone come in to testify if you have a records custodian certify the records (saves a lot of time)
• POLICY: Guarantee of Truthfulness: businesses keep accurate records to help their businesses function well – here the phone company wanted to keep accurate records to get paid

U.S. v. de Georgia

• FACTS: Δ convicted of stealing a car from Hertz; he confessed in writing; Hertz man produced records that the mustang had not been rented during the time of the theft. Government wanted to show that the car the defendant is accused of stealing wasn’t rented at the time. The other option would be to call in all employees to testify they didn’t rent out the car OR a company which did an inventory in their lot every day.
• RULE: Negative testimony (something doesn’t exist), based upon what regularly-maintained business records do not show, is admissible hearsay as a corollary to the exception that records made in the regular course of business is admissible.
  • Absence of a business record can fall under the business records exception
  • Confession alone does not constitute adequate proof an an element unless its corroborated
• HOLDING: inefficient not to allow the absence of a business record to show something
• POLICY: Guarantee of Truthfulness = the circumstance that they are regularly-maintained records upon which the company relies in conducting its business assures accuracy

Potamkin Cadillac Corp. v. B.R.I. Coverage Corp.

• FACTS: Δ insurance provider defrauded π through a scheme that included charging for insurance coverage that was not provided; Δ’s counter-sued for money owed to them by the π’s; counter-claim was dismissed and Δ’s appeal and say that the history of transactions should have been allowed. Document prepared for use in litigation with a motive to be less than accurate.
• ISSUE: To be admissible as a business record exception to the hearsay rule under Fed. R. Evid. 803, do records have to be kept in the course of a regularly conducted business activity, where it is regular practice of the business activity to make the report?
• Problems with document:
  • (1) Bias
  • (2) Inconsistencies
  • (3) Not timely recorded
• RULE: If you can satisfy the three issues raised in this case, just because it is printed off your computer two days before trial doesn’t mean it won’t come in under this exception
  • (1) no recent manipulation – the way they look at the time
• RULE: FRE 803(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.
• HOLDING: Ct. said the computer-generated document can’t be created in the regular course of business if it was only created in anticipation of litigation

Yates v. Bair Transport, Inc.

• FACTS: parties request a ruling for trial in connection with a Worker’s Comp claim; Problem is that witnesses needed firsthand knowledge to testify (neither the officer nor the doctor’s had this)
• RULE: For the Business Records Exception to Apply
  • (1) Firsthand Knowledge by the person with the
    • Everyone doesn’t need to have firsthand knowledge as long as the police officer does, and that the rest of the chain have ↓
  • (2) Duty to Make the Record
    • Everyone in the change need to have a duty to make the record that would encourage them to be accurate in their work
• HOLDING: the hearsay statement (of the volunteer) contained in the report is no more admissible than the testimony of the police officer on the stand as to the hearsay statement made at the scene of the accident
• RULE: the person with the firsthand knowledge has to have the duty to keep records in the ordinary course of Business
• HOLDING: the witnesses who gave the police the statement had no duty to keep records in the ordinary course of business
  • Witness had personal knowledge but no duty
  • Police Officer had duty but no personal knowledge
• RULE: Under the federal rules you’re not going to get in the police record unless the police officer had firsthand knowledge
  • Some state courts allow police record without the police having
  • But See 803(8) Public Records Exception
• RULE: 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 [FRE 805].

Section F. Public Records and Reports

FRE 803(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.
• RULE: Cannot get in the evidence against a non-government, criminal Δ

Chesapeake & Delaware Canal Co. v. U.S.

• FACTS: The U.S. sued Δ corporation to recover dividends declared in 1873, 1875, and 1876 on the corporation's stock which was held by the Government. Government wanted to admit into evidence some treasury documents which showed a company did not pay its dividends. LC = found admissible because they were public records.
• RULE: FRE 803(8)(A) Public Records Exception. Records, reports statements or data complications in any form of public offices or agencies setting forth (A) the activities of the office of the agency (the above case)
• ISSUE: Do public records constitute an exception to the hearsay rule?
• HOLDING: The books character as public records required as public records required by law to be kept, the official character of their contents, entered under the sanction of public duty, the obvious necessity for regular contemporaneous entries in them, and the reduction to a minimum of motive on the part of public officials and EE’s to either make false entries or to omit proper ones, all unite to make these books admissible as unusually trustworthy wources of evidence.
  • (1) First, because the Government was asserting sovereign or governmental rights it was not subject to either state statutes of limitations or to laches, and the corporation's assignments of error on those grounds were rejected.
  • (2) Second, the admission into evidence of books kept by the Treasury Department, showing no receipt of the dividends, was proper even though they were not certified as copies of public records, because the books were produced directly from the Treasury where they were used as original business records and no certification was required.
• POLICY: Guarantees of Trustworthiness – Public officials don’t have a motive to falsify records

U.S. v. Quezada –

• FACTS: illegal reentry case; Δ = gov’t failed to prove; record. INS official takes the stand and wants to introduce two documents – warrant of deportation and letter from the gov’t informing him of his violation (written in Δ’s native language)
• ISSUE: Question is whether this was an exclusion of 803(8)(B) – in criminal cases, matters observed by police officers and other law enforcement personnel.
• Public records are admissible = b/c public officials can’t be expected to remember all of their ministerial
• POLICY: Guarantee of Truthfulness = Public records under public duty = inherent trustworthiness
• RULE: FRE 803(8)(B) Public records and Reports. Records, reports statements or data complications in any form of public offices or agencies setting forth (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
• HOLDING: Ct. held the exception, and not the exclusion, applied –
  • this is not a part of the adversarial process between law enforcement and the criminal defendant (increased risk of untrustworthiness when there are matters observed by police or other law enforcement personnel)
  • here, the INS agent was filling out he forms after the criminal proceeding – when they are on the plane (already been an arrest, trial, criminal conviction and an order of deportation – WAY PAST THE ARREST STAGE and ADVERSARIAL PROCESS NOT PRESENT = Ministerial duty)

FRE 803(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

• POLICY: Required by law = extra degree of truthfulness

FRE 803(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

• Can use certification that a record does not exists where the record should be kept

FRE 803(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

• POLICY: religious organizations keep accurate records of the occurrences

FRE 803(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

• POLICY: Religion = trustworthy
• Must be certified by person doing ceremony

FRE 803(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

• POLICY: So important to family that they wouldn’t mess it up

FRE 803(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

• POLICY: recorded deed = must be recorded and it’s done through a public office, it affects public property

FRE 803(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

FRE 803(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

• If you can show it’s authentic, it’ll be admissible
• POLICY: 20 years ago, a motive wouldn’t be present for this litigation

FRE 803(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

FRE 803(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

FRE 803(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

FRE 803(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

FRE 803(21) Reputation as to character. Reputation of a person's character among associates or in the community.

FRE 803(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

FRE 803(23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

Section G. Unavailability.

FRE 804(a)--Definition of unavailability

• "Unavailability as a witness" includes situations in which the declarant--
  • is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
  • persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
  • testifies to a lack of memory of the subject matter of the declarant's statement; or
  • is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
  • is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (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.
• A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence if due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

US v. MacCloskey

• FACTS: Witness gave exculpatory testimony for D, witness later claimed 5 A priv, ct wouldn’t admit testimony at trial since witness was not “unavailable” as required by 804
• ISSUE: Whether ct erred in not admitting prior testimony of key D witness
• HOLDING: Yes, should have admitted witness testimony
• RULE: Witness is unavailable under 804a1 when invokes 5 A privilege and claim is sustained by trial ct

Campbell v. Coleman

• FACTS: Lantern exploded and burned kids, Hayes involved in accident and told others about it, Hayes' deposition taken but he couldn’t be found during trial, testimony of people Hayes talked to was allowed regarding Hayes' statements about accident
• ISSUE: Whether trial ct erred in admitting out of ct statements of witnesses as exceptions to hearsay under 804b3
• HOLDING: Yes, ct shouldn’t have admitted witness testimony
• RULE: Declarant is not unavailable within meaning of 804 if deposition has been taken

Section H. Former Testimony

FRE 804(b)(1)--Hearsay exceptions.

• The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
• (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.

US v. Feldman

• FACTS: D’s were managers in a company, one D gave testimony in one proceeding against other D’s, P used this testimony in later proceeding
• ISSUE: Whether deposition taken in earlier civil proceeding is admissible in a later criminal prosecution
• RULE: Rule 804(b)(1)
  • A transcript of a pre-trial proceeding is admissible generally when the declarant was cross examined during the proceeding.
  • Mere opportunity to cross-examine is not enough, there must also be a perceived need or motivation to cross examine at the time of the deposition.
  • Circumstances which influence motive to develop testimony include:
    • The type of proceeding in which the testimony is given
    • Trial strategy
    • The potential penalties or financial stakes, and
    • The number of issues and parties
• HOLDING: Admission of deposition violated the hearsay rule because:
  • D’s didn’t have notice that other D had flipped
  • D had no reason to know they should have crossed D during his deposition

Section I. Dying Declarations

FRE 804(b)(2)-(3)--Hearsay exceptions.

• The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
• (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
• (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Shepard v. US

• FACTS: Wife was sick but believed would get well, wife told nurse she believed her husband poisoned her
• ISSUE: Whether wife’s statement to nurse should be admitted
• HOLDING: No
• RULE: Declarant must believe death is imminent for statement to be admissible (here, wife thought she was getting better when she made the statement)

NOTE: The standard under the rules is not as strict as the standard in Shepard

• Shepard required "a settled hopeless expectation" that death is near at hand
• Rules require the declarant must believe death is imminent

Haskell v. Siegmund

• FACTS: Employer loaned car to employee, employee hit P, employer now dead but gave statement about incident to insurance agent before death
• ISSUE: Whether employer’s statement before death is admissible
• HOLDING: Yes
• RULE: Statement was admissible since
  • Declarant was unavailable (dead here)
  • Made statement against own interest (financial, ownership, etc)
  • Declaration was of personal knowledge of circumstances in case
  • No proof declarant had a motive to falsify the fact declared

Difference between an admission and statement against interest:

• Statements against interest require that the declarant be unavailable, he or she must have personal knowledge of the matters asserted, and the statement must be against the declarant's interest when made.
• These are not requirements of admissions.
• Admissions must have been made by a party and must be offered by the opposing party, while the statement against interest exception applies to any declarant and may be offered by either party.

Section L. Catchall or Residual Exception

FRE 807--Residual Exception

• 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.

Dallas County v. Commercial Union

• FACTS: Two conflicting stories of why building fell and caused damage, insurance company used old newspaper story (56 yrs old) to bolster their witness opinions
• ISSUE: Is the newspaper story necessary? Is it trustworthy?
• HOLDING: Yes, it is necessary and trustworthy
• RULE:
  • Problem of finding witness alive at time with good memory of event and competent to testify now makes story necessary
  • For trustworthiness, must look to see if sincere and accurate statement would be given without chance of fabrication

Bohler-Uddeholm America, Inc. v. Ellwood Group

• FACTS: Case about disintegration of a joint venture, affidavit from decedent admitted under catchall exception
• ISSUE: Whether affidavit meets rare exception requirement of 807
• HOLDING: Yes
• RULE: Requirements of 807 were met here
  • Was evidence of a material fact
  • More probative on point offered than any other evidence
  • Purpose of fairness and administration of justice of rules served by admitting the affidavit
  • Sufficient notice that it would be used

CHAPTER 10: REAL AND DEMONSTRATIVE EVIDENCE

Rules

FRE 901--Requirement of Authentication or Identification

• (a) General provision: 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. (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or conduct
• (b) 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. Testimony that a matter is what it is claimed to be.
  • (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
  • (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
  • (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
  • (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
  • (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
  • (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
  • (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
  • (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
  • (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Rule 902. Self-authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

• (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
• (2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
• (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
• (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.
• (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
• (6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
• (7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
• (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
• (9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
• (10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.
• (11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:
  • (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
  • (B) was kept in the course of the regularly conducted activity; and
  • (C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

• (12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record:
  • (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
  • (B) was kept in the course of the regularly conducted activity; and
  • (C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Elements

Smith v. Ohio Oil:

• FACTS: Smith suffered injuries worth $50,000 per the jury in the initial trial when an Ohio Oil truck hit him.
• ISSUE: Whether allowing the use of a skeleton was error.
• HELD: No error, the use of the skeleton was relevant, legitimate and helpful. Jgmt: Affirmed the decision of the trial court
• RULE: The use of physical objects before a jury falls into 2 categories: (1) Real evidence & (2) demonstrative evidence.
  • Real Evidence: The production of some object which had a direct part in the incident, and includes the exhibition of injured parts of the body (i.e. gun, knife, mask, bag) Elements:
    • 1) Relevant + 2) Authentic + 3) Same or substantially the same condition to get it in
  • Demonstrative evidence: No probative value in itself, but serves merely as visual aid to the jury in comprehending the verbal testimony of a witness (i.e. timeline, model, map, photograph)
    • 1) Relevance + 2) Authenticity + 3) Must aid the witness in presenting testimony to the trier of fact

Test for proper use of either is:

• Relevant to some issue in the case
• Actually explanatory of something which it is important for the jury to understand.

Foundation for Real Evidence

• Relevance
• Authenticity
• Same or substantially the same condition

Foundation for Demonstrative Evidence

• Relevance
• Authenticity
• Must aid the witness in presenting testimony to the trier of fact

Chain of Custody

Gallagher v. Pequot Spring Water Co. (Conn A/C 1963):

• FACTS: P got sick from grape soda she drank at her wedding which had a foreign substance in it
• ISSUES: Whether the bottle of juice was properly admitted into evidence
• HOLDING: A sufficient foundation had not been laid & the error was prejudicial. Jgmt: New trial.
• RULE: Chain of Custody-It is ordinarily sufficient for the witness having knowledge of the object to identify it.
  • Plaintiff has the burden of proving that the evidence is in the same condition.
  • An object which is more or less readily identifiable by observation & relatively impervious to change or alteration will frequently be admitted without perfect tracing of the chain.
  • A showing sufficient to preclude the possibilities of tampering or unintentional interchange or contamination is frequently said to be necessary to the introduction of more fungible items.

Photographic Evidence

Semet v. Andorra Nurseriers

• FACTS: The plaintiff was injured while working on the installation of a temporary electric line, by falling off a ladder.
• ISSUE: Whether a photograph of the ladder & site taken 52 days after the incident could be entered into evidence.
• HOLDING: The plaintiff's vague knowledge makes it impossible for him to say the picture was accurate. Non-suit Affirmed
• RULE: A photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly & accuratley represents the object or place reproduced as it existed at the time of the accident, or if there is a difference or chage, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the jury.

Clark v. St. Thomas Hospital (reenactment video)

• FACTS: D made video of reenactment of slip and fall accident, court admitted, P objected
• ISSUE: Whether video reenactment was properly admitted
• HOLDING: Yes
• RULE: Witnesses can reenact actions before jury, so okay to allow video doing the same

Commonwealth v. Serge, CGA

• FACTS: H shot and killed W, P used computer-generated animation (CGA) to illustrate theory of crime, D objected
• ISSUE: Whether CGA of P’s theory was admissible
• HOLDING: Yes
• RULE: CGA should be deemed admissible as demonstrative evidence if it:
  • Is properly authenticated pursuant to 901
  • Is relevant pursuant to 401 and 402
  • Has probative value that’s not outweighed by danger of unfair prejudice

Fisher v. State, security tape

• FACTS: Store had camera set up, tapes showed cleaning people stole groceries, tape admitted
• ISSUE: Whether video tape was properly admitted into evidence
• HOLDING: Yes
• RULE: Video is a “silent witness” which speaks for itself, and is substantive evid of what it portrays, independent of a sponsoring witness

Evansville School Corp. v. Price (funeral photo)

• FACTS: Wrongful death of 11 yr old boy, ct allowed P to submit pic of boy in casket to show health, etc.
• ISSUE: Whether photo was relevant to show prior good health, funeral expenses, to prove death
• HOLDING: No
• RULE: Photo must be material and relevant, and must tend to prove or disprove some material fact in issue, left to ct’s discretion

Ensor v. Wilson (in-ct demonstration)

• FACTS: Malpractice suit for premature birth, child suffered brain damage and retardation, used in-ct demonstration between child and special edu therapist
• ISSUE: Whether in-ct demonstration was properly admitted
• HOLDING: Yes
• RULE: Demonstration in ct is permissible to exhibit injuries, in the discretion of the trial ct

McDowell v. Schuette (oral directions/written instructions)

• FACTS: Claims for bad construction of home, judge allowed jury to view the home, gave oral directions to jury before viewing
• ISSUE: Whether instructions should’ve been in writing and given to jury before viewing building
• HOLDING: No
• RULE: Instructions must be given in writing, but not every statement of ct to jury is an instruction within meaning of the rule
  • A view of a premises may be allowed but this view cannot be offered as evidence itself or testimony.
  • It is only meant to be allowed for jurors to get a better understanding of evidence and weigh conflicting testimony.

Geo. C. Christopher & Son, Inc. v. Kansas Paint & Color Co. (jury tests on evidence)

• FACTS: Jury had evidence of paint, foreman scraped paint and discussed results with jury
• ISSUE: Whether jurors may conduct tests on evidence
• HOLDING: Yes
• RULE: An experiment or demonstration is proper when conducted by the jury with exhibits for the purpose of testing the truth of statements made by witnesses or duplicating tests made by witnesses

CHAPTER 11: WRITINGS AND RELATED MATTERS

Rules

FRE 901: Requirement of Authentication or Identification. (a) General provision--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. (b) Illustrations--The following are examples of authentication or identification conforming with requirements of this rule: (1) Testimony of witness with knowledge. (2) Non expert 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.

FRE 902: Self-authentication. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under seal. (2) Domestic public documents not under seal. (3) Foreign public documents. (4) Certified copies of public records. (5) Official publications. (6) Newspapers and periodicals. (7) Trade inspections and the like. (8) Acknowledged documents. (9) Commercial paper and related documents. (10) Presumptions under Acts of Congress. (11) Certified domestic records and regularly conducted activity. (12) Certified Foreign Records of Regularly conducted activity.

Authentication

United States v. Skipper

• FACTS: Trial ct admitted copy of adjudication order without fingerprints or other info proving that Skipper in adjudication was same Skipper on trial here
• ISSUE: Whether the adjudication was sufficiently authenticated
• HOLDING: No
• RULE: Mere similarity in name between D and person in prior conviction alone doesn’t satisfy 901 id requirement

Buckingham Corp. v. Ewing Liquors Co.

• FACTS: P filed a verified complaint that D sold whiskey at price lower than fair trade price, P attached affidavit and letter from P to retailers and page from journal showing P’s letter to retailers
• ISSUE: Whether P adequately proved existence of a fair trade agreement with evidence
• HOLDING: Yes
• RULE: Handwriting may be proved by witness’ show of familiarity with it

United States v. American Radiator & Standard Sanitary Corp. (jury comparison of handwriting)

• FACTS: Group of plumbers accused of violated the Sherman Act (anti-trust violation) by entering into various illegal agreements to discontinue making more expensive fixtures and replace them with lower-priced fixtures. Government offered 2 documents. 1) worksheet entitled "Acid-Resistant Enamel Prices" and 2) 6 pages of undated / unsigned notes. Of the six pages, 4 were authenticated by a secretary.
• ISSUE: To be authenticated, do documents have to have positive, unequivocal identification of the handwriting?
• HOLDING: No, because the ct found some were authenticated, the jury could find the remaining were authenticated.
• RULE: Where documents are admitted for purposes other than handwriting comparison, they may be used by the jury as a standard for handwriting comparison if the handwriting is admitted or proved to be that of the alleged author.
• "The vast weight of authority requires that the trial judge determine ... the genuineness…”
  • Jury and expert can do side by side comparisons, but lay witness cannot.

United States v. Sutton

• FACTS: D convicted of possession of crack cocaine. Pros put forth 2 articles of evidence of a prior conviction, but one was not authenticated; the first one they had fingerprints that matched – so it was authenticated; but in the 2nd one only the names matched- so not authenticated.
• ISSUE: Did the ct err by allowing in unauthenticated evidence?
• HOLDING: Not admissible because similarities in a name does not satisfy Rule 901's identification requirement.
• RULE: FRE 901- 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.

People v. Lynes (voice identification)

• FACTS: Victim saw her attacker, acquired his name, and relayed this information to Detective Longo. Longo went searching for the attacker, Speedy, and found his brother. Longo left his name and a specific instruction for Speedy to call him. Within a couple hours, Longo received a call from a man claiming to be Speedy.
• ISSUE: Was the proof such that a jury could find Speedy was indeed the caller? YES
• HOLDING: Taking the facts and inferences into consideration, based on it being a response call that was made rather promptly, the caller introducing himself as Speedy, and the substance of the conversation, it cannot be said that this was an error.
• RULE: Without more, a mere self-serving state of identity by a caller whose voice is unknown to the listener is not enough to permit it to go in, but the defect need not be fatal where alternative indices of reliability are to be found in surrounding facts and circumstances.

US v. Siddiqui (email)

• FACTS: Siddiqui nominated himself for the Waterman Award and used Yamada and Von Gunten as the nominator and a reference, respectively. After Von Gunten informed the NSF that he did not send a reference letter, an investigation was started. During the investigation, Yamada and Von Gunten received emails from a sender appearing to be Siddiqui and also telephone calls from him. The government sought to introduce the emails into evidence during the trial.
• ISSUE: Whether the emails were authenticated. YES
• HOLDING: Considering the circumstances that the emails were sent from Siddiqui's email address, the sender knew intimate details of the ensuing matter, the emails bore Siddiqui's nickname, and Siddiqui made the same requests during the telephone conversations, the district court did not abuse its discretion in ruling that the documents were adequately authenticated.
• RULE: FRE 901(b)(4)--distinctive characteristics and the like.

Proof of Contents (The "Best Evidence" Rule)

FRE 1002--Requirement of Original. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

FRE 1003--Admissibility of Duplicates. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original

FRE 1004--Admissibility of Other Evidence of Contents.--The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--

• • Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
  • Original not obtainable. No original can be obtained by any available judicial process or procedure; or
  • Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
  • Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

FRE 1006--Summaries. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time or place. The court may order that they be produced in court.

United States v. Duffy

• FACTS: D stole car and transported in interstate commerce, D claimed was just hitchhiker in car, P used evid of suitcase in trunk w/ suitcase w/ D’s name inside
• ISSUE: Whether admission of shirt violated the best evidence rule
• HOLDING: No, admitting shirt didn't violate best evidence rule
• RULE: The best evidence rule only applies to writings material to the case

Best Evidence Rule

• Only applies to a writing
• The terms of which are material to the case
• Requires production of the original writing
• Unless it is unavailable due to the serious fault of the proponent of the evid

Policy for Best Evidence Rule

• Precision in presenting to the court the exact words of the writing are of more than average importance (especially when deeds, wills, or contracts are involved) since a slight variation in words may mean a great difference in rights.
• The risk of inaccuracy in the human process of making a handwritten or typewritten copy of the original.
• The risk of inaccuracy in the human process of orally testifying as to the contents of the writing.
• Aimed at preventing fraud.
• Due to the central position which the written word occupies in the law, the production of the original writing is essential to an accurate determination of the rights of the parties.

Meyers v. United States

• FACTS: Senate committee hearing, counsel testified about what witness said, later transcript of testimony from senatorial hearing allowed
• ISSUE: Whether use of transcript of testimony violated the best evidence rule
• HOLDING: No, use of transcript didn't violate best evidence rule
• RULE: Best evidence rule didn’t apply since terms of testimony weren’t material

State v. Nano

• FACTS: D convicted of theft of calculators, clerk testified the calculators were gone but hadn’t been sold, D argued P should’ve used evidence of sales records instead of using clerk’s testimony
• ISSUE: Whether clerk's testimony violated the best evidence rule
• HOLDING: No, testimony didn't violate best evidence rule
• RULE: Testimony that a record did not contain certain entries is admissible and does not violate the best evidence rule

Wilson v. State

• FACTS: D took paycheck from woman, D tried to flee, P introduced evidence of copy of woman’s check
• ISSUE: Whether original paycheck should’ve been produced
• HOLDING: No, copy of check was fine
• RULE: A copy is allowed without accounting for the original unless authenticity is in issue or if it would be unfair under circumstances to permit use of a duplicate

In practice/for final, think about:

• If one side wants to use a fax, pdf, copy, etc.
• Would use of this at trial violate the best evidence rule?
• Should the original be sought out?

Note on computer information

• Original information is actually binary code
• So untampered-with printout of computer info is accepted as original at trial

United States v. Stephens

• FACTS: D on trial for mail fraud, govt used evidence of charts, D claiming charts didn’t qualify for admission under 1006 and was prejudiced when ct allowed charts in
• ISSUE: Whether charts were demonstrative or real evidence
• HOLDING: Charts are real evidence, are summaries of many writings
• RULE: For summaries to be admitted as real evid, Rule 1006 requires
  • Underlying writings be voluminous, and
  • An in-ct examination of the writings is not convenient

Seiler v. Lucasfilm, Ltd.

• FACTS: Graphic artist claimed he created creatures that were used without permission in Empire Strikes Back, artist got copyright in 1981 but movie released in 1980, artist didn’t have original drawings, etc. of creatures
• ISSUE: Whether reconstruction of original drawings satisfied best evidence rule
• HOLDING: No, reconstruction not allowed here
• RULES:
  • Reconstructions not allowed when originals were lost in bad faith
  • Drawings were writings within meaning of rule 1001

CHAPTER 1: LIMITATIONS OF THE ADVERSARY SYSTEM

House v. Bell (guy convicted of murder, new evidence prove husband did it)

• FACTS: State Habeus Corpus denied. TN S.Ct. denied second petition which contained new evidence information.
• ISSUE: Whether new evidence that calls into question a defendant’s connection to a crime may be admitted even though the new evidence does not conclusively exonerate the defendant. Yes.
• “actual innocence” exception to the 2nd petition.
• HOLDING: No jury could find D guilty beyond a reasonable doubt. New evidence was raised. Evidence suggests husband not D committed murder. Habeus petition may proceed in federal level.

CHAPTER 2: CHARACTERISTICS OF THE ADVERSARY SYSTEM

The Roles of Judge and Jury

FRE 614--Calling and Interrogation of Witnesses by Court.

• Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
• Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
• Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

FRE 104--Preliminary Questions.

• Questions of admissibility generally. 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.
• Relevancy conditioned on fact. 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.
• Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
• Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
• Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Judge vs. Jury

• Judge: legal questions, admissibility determinations
• Jury: factual questions, credibility determinations, weight valuations

US v. Beaty

• FACTS: D’s appealing convictions for drug-related offenses
• ISSUE: Whether judge, by his conduct, deprived D’s of a fair trial
• HOLDING: Yes for one D, no for other D
• RULES:
  • Judge is not a mere moderator, but is the governor of the trial
  • But judge must not abandon proper role and become an advocate
  • Judge’s participation must not reach point where appears clear to jury the ct believes the accused is guilty

Crane v. Kentucky

• FACTS: Clerk at liquor store shot to death, cops arrested D who confessed to many crimes, D moved to suppress confessions because claimed were coerced, ct wouldn’t allow D to explain circumstances of confession
• ISSUE: Whether exclusion of testimony about circumstances of confession violated D’s 6 and 14 a rights
• HOLDING: Yes, ct erred in not allowing testimony
• RULE: 104e, evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility

United States v. Zolin

• FACTS: IRS investigating tax returns of L. Ron Hubbard, wanted documents from other suit, IRS claimed crime-fraud exception applied, dist ct and 9th Cir refused to apply crime-fraud exception
• ISSUE: Whether the applicability of the crime-fraud exception can be resolved by an in camera inspection of the allegedly privileged material
• HOLDING: Yes, in camera inspection should be allowed
• RULE: In camera review may be used to determine whether allegedly privileged atty-client communications fall within the crime-fraud exception (104a does not prohibit in camera review in this instance)

Party Responsibility

Objections

FRE 103(a)(1)--Rulings on Evidence.

• Effect of erroneous ruling. Error may be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
  • Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears on record, stating the specific ground of objection, if the specific ground was not apparent from the context.

Definitive vs. Conditional Rulings:

• Definitive Ruling: do not invite reconsideration
• Conditional ruling: can renew objection at trial; example is when a judge rules that if a litigant testifies, then the adverse party will be entitled to cross-examine in a certain way.

Wilson v. Williams (objections)

• FACTS: Wilson (prisoner) sued Williams (guard), claiming that Williams beat him up. Wilson sought to to exclude testimony about being an accomplice to the murder of a cop. The Court said that the material could be brought up, so Wilson brought up the issue right away. Williams called Wilson a "cop killer" numerous times.
• ISSUE: Was an objection by Wilson available/necessary when the Judge said the past conviction could be brought up?
• HOLDING: Yes, Wilson should have objected. The Judge allowed the prior conviction to be brought up, but when Williams counsel repeatedly called Wilson a "cop killer", this overstepped the Judge's ruling. Therefore Wilson should have objected. Since Wilson did not object, plain error is the standard, and it is not met in this case.
• RULE: When a Judge allows evidence to be admitted and a party oversteps what should be allowed, the opposing party needs to object. If no objection is raised, then clear error governs.

• Plain Error (FRE 103d): Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
• Harmless Error: even though the court got it wrong, the error was harmless b/c you didn’t object and it didn’t change the outcome
• To overcome harmless error
  • Show a substantial right was affected
  • Have to show that counsel at trial made a specific objection

Williams v. State (objections)

• FACTS: D on trial for bank robbery, had a lawyer but also acted pro se during trial. Witness testified to prior robbery by D, info came up without objection, later in testimony D made general objection.
• ISSUE: Whether the court erred in failing to grant a mistrial after the witness alluded to a prior extraneous offense allegedly committed by D.
• HOLDING: No.
• RULE: Objection must be timely and specific to preserve the error for review, doesn’t matter that D acted pro se.

Offers of Proof

FRE 103(a)(2)--Rulings on Evidence.

• Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
  • Offer of proof. In case the rule is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
  • Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

United States v. Adams (offers of proof)

• FACTS: D found guilty of felon in possession of firearm, govt relied on incriminating statements D made after arrest, D wanted psych to testify about D’s low neurocognitive functioning and dependent personality to raise possibility D wasn’t telling truth to cops
• ISSUE: Whether D made an offer of proof to trial ct adequate to preserve claimed error of excluding psych testimony
• HOLDING: No, appellate court upheld the exclusion of the evidence
• RULES:
  • Proponent of evid must make adequate offer of proof by the following
    • Describe evidence and what it tends to show
    • Identify the grounds for admitting the evidence
  • At least four ways to make an offer of proof
    • Proponent may examine the witness before the court and have answers reported on the record
    • Statement of counsel as to what the testimony would be
    • Statement written by examining counsel describing answers the proposed witness would give if testified
    • Proponent may intro a written statement of witness’s testimony, signed by the witness and offered as part of record
  • Purposes of Offer of Proof
    • It enables the trial judge to make an informed decision based on the substance of the evidence.
    • It creates a clear record that an appellate court can review

Appeals

Ohler v. United States (introduction of evidence, appeals)

• FACTS: D caught driving van with 81 lbs of marijuana, court ruled on motion in limine that prior conviction evidence would be allowed as impeachment evidence if D testified, D testified and admitted prior conviction on direct
• ISSUE: Whether appellate review of an in limine ruling is available in this situation
• HOLDING: No
• RULE: Generally, a party introducing evidence cannot complain on appeal that the evid was erroneously admitted. In other words, D who preemptively introduces evidence of prior conviction on direct may not on appeal claim the admission of such evidence was error.

Limited Admissibility

FRE 105--Limited Admissibility.

• When evidence 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.

Carbo v. United States (limited admissibility)

• FACTS: Conspiracy to control a fighter by pressuring his manager and promoter, D objected to testimony of manager and promoter that reputation of D was as an underworld man and a strong-arm man
• ISSUE: Whether admission of reputation evidence was proper
• HOLDING: Yes
• RULE: Evidence that is admissible for one purpose is not inadmissible because it does not satisfy all the rules of a different purpose. This doctrine is known as the multiple admissibility doctrine.
  • The evidence here was admissible for proving fear in victim, necessary to show fear in victim for extortion.
  • The evidence was not introduced to show D’s character as a “bad man likely to resort to the conduct with which he is charged.”

Sherman v. Burke Contracting (limited admissibility)

• FACTS: P brought suit against D former employer for racial discrimination, P introduced evidence of tape recorded conversation with lateremployer where new boss said P’s former boss said to fire P for complaining to EEOC
• ISSUE: Whether dist ct erred in permitting the recording because portions were inaudible and contents were hearsay
• HOLDING: No
• RULES:
  • D only objected on ground of inaudibility and court found recording adequate, no plain error
  • D didn’t raise hearsay grounds or request limiting instruction, so can’t claim on appeal

Non-jury Trials

Clark v. United States (non-jury trials)

• FACTS: D was a juror on a case where the jury didn’t reach a verdict, D didn’t disclose during voir dire that she knew the accused, during D's trial for contempt evidence of jury deliberations at prior trial was allowed
• ISSUE: Whether evidence of jury deliberations was properly admitted
• HOLDING: Yes
• RULE: The testimony of other jurors was admissible to show the falsity of D’s answers on voir dire

Vocabulary to Know

• motion to strike
• in limine
• plain error
• harmless error
• offer of proof
• drawing the sting
• opening the door
• limited admissibility
• limiting instruction

CHAPTER 9: JUDICIAL NOTICE

FRE 201 - Judicial Notice

• (a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
• (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
• (c) When discretionary. A court may take judicial notice, whether requested or not.
• (d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
• (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
• (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
• (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

State v. Mann, juror conduct

• FACTS: D convicted for child abuse resulting in death, D claimed son fell on screwdriver, D presented evidence from physicist of possibility of this happening, one juror did probability calculations in deliberations to find actual probability
• ISSUE: Whether D is entitled to a new trial based on juror conduct during deliberations
• HOLDING: No
• RULE: Jurors are permitted to take into consideration knowledge and impressions from their own professional and educational experiences in deciding a trial. They must, however, stay within the confines of the evidence that is presented.

State v. Canady, newspaper as source

• FACTS: D convicted of voluntary manslaughter for stabbing death, witness testified incident happened while daylight/could see clearly, D wanted court to take judicial notice of time of sunset and new moon on that date, D supported fact with newspaper report, trial court refused D’s request
• ISSUE: Whether a trial court is required to take judicial notice of time of sunset and phase of moon as reported in newspaper
• HOLDING: No
• RULE: To satisfy 201, need a document of indisputable accuracy, a primary source, to prove fact (newspaper doesn’t satisfy this standard)

Sufficiency of Information Supporting Judicial Notice The court should test "the sufficiency of the data by determining whether the fact put forth for judicial notice is one not subject to reasonable dispute in that it is either

• (1) generally known within the territorial jurisdiction of the trial court or
• (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

State v. Vejvoda

• FACTS: D convicted of drunk driving, D claimed evidence was insufficient to prove correct venue for trial, only testimony regarding venue was from police officer who gave street names but not city or county
• ISSUE: Whether the evidence was sufficient for the court to take judicial notice of location of incident
• HOLDING: No, but harmless error
• RULES: Actual private knowledge of judge (here, that streets were within the city) is not a sufficient ground for taking judicial notice of a fact

Adjudicative Facts vs. Legislative Facts

• Adjudicative: a fact that affects the determination of a controverted issue in litigation (i.e. who did what, where, when, how, and with what motive or intent)
• Legislative: help tribunal to determine the content of the law and policy and to exercise its judgment or discretion in determining what course of action to take

CHAPTER 4: BURDEN OF PROOF

Burden of Going Forward

• One must produce "evidence sufficient to enable a jury, acting reasonably, to find the existence or non-existence of a particular element"
• Legal question
• Punishable by a directed verdict or involuntary nonsuit
• Commonly agreed that a "mere scintilla" of evidence on an essential element will not suffice to support a verdict for the burdened party.

Sanctions for failing to go forward:

• Directed Verdict: asks court to direct the trier of fact to return a verdict in favor of one party
• Judgment Notwithstanding the Verdict: JNOV, asks the court to set aside the jury's verdict and enter judgment for the other party
• Judgment as a Matter of Law: federal law name for both directed verdict and JNOV

Scott v. Hansen, direct evidence

• FACTS: D hit cow with car, passenger injured, witnesses giving inconsistent testimony about accident (cow bounced five feet, later cow bounced 10 feet)
• ISSUE: Whether competent evidence was presented to show D was guilty of recklessness
• HOLDING: No
• RULE: When testimony is so inconsistent with undisputed and established physical facts, the conclusion must be that witnesses were mistaken (reasonableness standard)

US v. Nelson, circumstantial evidence

• FACTS: Two people robbed bank, one in car and other inside, when car chased by cops, driver and passenger fled car separately, passenger had amount of money from robbery, but no witnesses that passenger was in car during robbery
• ISSUE: Whether proof of D’s involvement in robbery was lacking
• HOLDING: No, evidence was sufficient to find D guilty
• RULE: Circumstantial evidence is not necessarily less probative than direct evidence

Smith v. Bell

• FACTS: P had sewage seeping into home, found was caused by phone conduit crushing sewer line, P brought suit against phone company for negligently installing conduit
• ISSUE: Whether P made out his prima facie case
• HOLDING: Yes
• RULE: When a party only has circumstantial evidence, the evidence must be adequate to establish the conclusion sought and must convince the fact-finder
  • Sufficiency of Circumstantial Evidence: the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but there must be evidence upon which its conclusion may be logically based.

Colthurst v. Lake View State Bank

• FACTS: Bank claimed it held a note that D should pay, D said fraud was involved and shouldn’t have to pay
• ISSUE: Whether the lower court correctly directed verdict for P bank
• HOLDING: Yes
• RULE: When D doesn't meet its burden of production, P wins

Burden of Persuasion

• One must persuade the trier of fact that the existence or nonexistence of a particular element:
  • 1) is more probable than not
  • 2) is much more probable than not, or
  • 3) exists or does not exist beyond a resonable doubt
• Question of fact
• May be enforced with jury instructions

Most Common Burdens of Persuasion:

• Preponderance of the evidence: applies in most civil cases, more probable than not
• Clear and convincing evidence: fewer civil cases and in some affirmative defense cases in criminal cases, much more probable than not
• Beyond a reasonable doubt: applies to criminal procedure, freedom from the kind of doubt that would make a person hesitate to act in the more serious and important affairs of his own life

Delaware Coach v. Savage

• FACTS: Collision between trolley and truck, both parties had witnesses saying lights were favorable to them
• ISSUE: Whether equal evidence from both sides means P didn’t meet its burden of persuasion
• HOLDING: Yes
• RULE: Because P didn’t sustain its burden of persuasion by a preponderance of the evidence, judgment must be entered for D
  • In other words, both sides were tied at 50%
  • P's evidence wasn't more than 50% persuasive, so P loses under the preponderance standard

Riley Hill v. Tandy

• FACTS: P brought claim of fraud against D
• ISSUE: Is it allowable to have different standards of persuasion in a case?
• HOLDING: Yes
• RULES: The standard of proof in a civil action for common law deceit or fraud must be "clear and convincing," but general or punitive damages arising out of that deceit or fraud need be proved only by preponderance of the evidence.

Whether the burden of persuasion for deceit is clear and convincing evidence or preponderance of the evidence?

• For deceit, clear and convincing evidence is required (because deceit is more like guilt/crime)
• The elements of deceit must be proven by clear and convince evidence
• But damages from deceit need only be proved by a preponderance of the evidence

In re Winship

• FACTS: 12 yr old boy stole money from woman’s locker
• ISSUE: Whether proof beyond a reasonable doubt is essential during a juvenile proceeding if, were the D charged as an adult, the offense would be a crime
• HOLDING: Yes
• RULE: In juvenile proceedings that would be a crime if an adult was tried, proof beyond a reasonable doubt is required

CHAPTER 5: PRESUMPTIONS

Rules

• Rule 301. Presumptions in General Civil Actions and Proceedings
  • In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

• Rule 302. Applicability of State Law in Civil Actions and Proceedings
  • In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.

McNulty v. Cusack (rear-end collision)

• ISSUE: Whether the showing of a rear-end collision and the circumstances under which it occurred, in absence of an explanation, gives rise to a presumption of negligence so as to authorized a directed verdict OR whether it only gives rise to an inference of negligence sufficient for presentation to the jury.
• HOLDING: An unexplained rear-end collision gives rise to a presumption of negligence.

Mandatory Presumption

• A mandatory presumption (or presumption at law or real presumptions) requires that the jury find a specific element as a matter of law if the opponent fails to offer contrary evidence to “rebut to the contrary”
• Absent a mandatory presumption, the burden of production will not shift to an adversary

Permissive Presumptions

• A permissible presumption or presumption of fact or inference requires the judge to determine that a party has met its burden of going forward with respect to a particular element, but it does not require that the jury find that element to be true as a matter of law
• It guarantees the party’s right to have that element considered by the jury

The Bases of Presumption

• Procedural expedient (unexplained disappearance for 7+ years = death)
• Rule of proof based on comparative availability of material evidence (on trial for acting w/o license, must show had license)
• Conclusion based upon known results of wide human experience (child born during wedlock is product of that marriage)
• Combination of above

O’Brien v. Equitable Life Assur. Soc’y (accidental death for insurance or felony?)

• ISSUE : Whether an unexplained death by violence is presumed to be an accidental death. Yes.
• An unexplained death by violence is alone sufficient to make out a pfc of accidental death.
• P’s burden of going forward is not evidence of the fact presumed – it is a rule of procedure
• It casts upon D the burden of going forward with substantial evidence to the contrary which destroys the procedural presumption on which the P’s pfc depends
• Testimony of Jacksons destroyed any presumption of accidental death
• Rebuttable presumption – P didn’t rebut
• HOLDING: Affirmed

State of Maryland v. Baltimore Transit Co. (bus hit walker)

• ISSUE: Whether a presumption survives even after conflicting evidence has been offered, in cases where an injured person is unavailable because of injuries or death. Yes.
• Presumption survives after conflicting evidence is offered.
• The jury should have been instructed that the presumption prevails and that countervailing evidence was adduced upon the disputed presumption.
• This presumption can only be invoked when injured person in s unavailable. Such incapacitation is a just reason for the existence of this presumption.
• HOLDING: Reversed and remanded.

County Court of Ulster County v. Allen

• ISSUE: Whether the constitutionality of a permissible presumption depends on their being a rational connection btw the basic facts which the prosecution proved and the ultimate fact presumed and on the latter being more likely than not to flow from the former. Yes.
• For a permissible presumption to be constitutional, there must be a rational connection btw the basic facts which the prosecution proved and the ultimate fact presumed.
• HOLDING: Presumption was constitutional. Reversed.

CHAPTER 6: THE ORDER OF PROOF

Rule 611. Mode and Order of Interrogation and Presentation

• (a) Control by court.The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to
  • (1) make the interrogation and presentation effective for the ascertainment of the truth,
  • (2) avoid needless consumption of time, and
  • (3) protect witnesses from harassment or undue embarrassment.
• (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
• (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Liptak v. Security Benefit Ass’n

• HOLDING: The right to open and close is a substantial right coexistent with the burden of proof.
• The right to open and close is not a matter in the discretion of the trial ct, but is a substantial right in the person who must introduce proof to prevent judgment against him

Sequin v. Berg

• FACTS: During the trial, Sequin offered his own testimony and that of his mechanic who repaired the car and then rested. At the conclusion of Berg’s arguments, Seguin then brought in three more witnesses, who were passengers in his car, who offered testimony about how the accident occurred. Berg objected because he argued the witnesses weren’t proper rebuttal testimony. The testimonies were excluded.
• ISSUE: Must a party put in all his evidence before he rests?
• HOLDING: Yes. . A party must exhaust all of his testimony in support of the issue on his side before the proof of his adversary is heard. The defendant should then produce evidence, and finally the evidence in rebuttal is received. The plaintiff cannot put in merely enough evidence to make out a prima facie case and reserve the rest to meet the emergency of later needs. However, he may offer new evidence in rebuttal.
• RULE: A party must put in all his evidence before he rests. However, he may still offer evidence if it tends to impeach or discredit the testimony of any of the defendants.
  • Lesson here is the danger of waiting to bring out your evidence and witnesses.

Duran v. Neff

• FACTS: This case involved a medical malpractice suit. Late in the day for the case, the plaintiff asked the court for a short recess so they could present their expert witness. The court declined and recessed to the next day. The expert witness could not appear the following day the court gave a directed verdict against the plaintiff. The plaintiff appealed and argued that the TJ abused his discretion by not allowing the expert’s testimony late in the first day.
• ISSUE: Must a trial judge be given broad latitude in the control of cases before him, particularly jury case?
• HOLDING: Yes. Here, the judge did not abuse his discretion by refusing to take Duran’s expert’s testimony late on the first day.
• RULE:

Atkinson v. Smith

• FACTS: Atkinson brought suit against Smith for entering his close and cutting down a mill-dam. Smith countered that the location was a branch of the Buctouche River, which was a public navigable river for driving logs and lumber. Smith continued that the public river had been blocked by the mill-dam built across it and he had removed the dam to allow the flow of logs. Smith’s justification was asked during cross-examination of one of Atkinson’s witnesses; this subject had not been mentioned before and his cross-examination was objected by Atkinson. The lower court found for Atkinson
• ISSUE: Is cross-examination limited to the scope of the direct examination?
• HOLDING: Yes. The defendant has no right at trial to inquire into areas constituting a justification for his actions, if they have not been inquired into during the direct examination by opposing counsel. This is so to prevent the impossibility y for judges to decide on the relevancy of questions put by the defendant’s counsel and to prevent counsel from multiplying discussion to almost any extent.
• RULE: a party is not allowed to introduce evidence of its case on cross-examination, only to inquire into those matters already put before the court on direct. (also for impeachment)

Boller v. Cofrances

• FACTS: Boller, Plaintiff, the administrator and wife of Henry Boller, brought a suit for negligence by Cofrances, Defendant, for the car accident that killed Henry Boller and his passenger, Catherine Case. During the trial, Cofrances’ counsel asked Virginia Boller whether she was aware that her husband was having an affair with Mrs. Case. Boller objected to the question under the argument that the question was beyond the scope of the direct examination. The objection was sustained. The court ruled that each parties negligence was 50%. Boller appealed.
• ISSUE: May an opposing party cross-examine a witness on any matter in issue?
• HOLDING: Yes. Because the question was directly related to, and in impeachment of, her testimony on direct examination, the question was within the scope of direct examination. It should be within the sound discretion of the trial judge to determine whether or not questions on cross-examination prevent an orderly and cogent presentation of the evidence.
• RULE:
  • Most states do not follow Wisconsin Ruling,
  • Basic rule is usually limited to direct, with some leeway.

United States v. Lara

• FACTS: D members of the Latin Kings were indicted for racketeering, violent crime, carjacking and other crimes.
• ISSUE: Whether the government went beyond the scope of direct during their cross-examination?
• HOLDING: The questions were properly allowed.
• RULE: Court identifies 2 situations where cross-examination may go beyond issues mentioned on direct:
  • If related to and made relevant by the direct examination.
  • If the matters bear on the witness’ credibility.

Bommer v. Stedelin

• FACTS: Lady leaves her car at parking garage and when she returns, the guy crashes it. D motioned for a DV at the close of P’s evidence arguing that Ps failed to show ownership of the garage. P requested to reopen its case in order to present such testimony and that it could do so w/in the hour recess, but the court denied the request.
• ISSUE: Whether it was an abuse of discretion to refuse to allow additional testimony?
• HOLDING: The denial was an abuse of discretion.
• RULE: The trial court both denied leave to present testimony and granted a motion for directed verdict based upon the absence of that testimony. A trial judge has wide discretion but there was no showing of inconvenience to the court or that the opposing party had been deceived or would be prejudice by the allowance of additional testimony.