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Barkai Evidence Fall 2012 INTRODUCTION

FRE 103 - Rulings on Evidence - if objecting, cant just say objection; have to say objection, relevance - make offer of proof if objection overruled, or just make statement indicating that it will become relevant soon - but no objection necessary for plain error FRE 104 - Preliminary Questions - court decides whether something comes in w/o regard to other rules of evidence (except privilege) - need enough evidence to support a finding of a condition of a fact for relevance to be established - Normally, jury decide facts and judges decide issues of law. A. Questions of admissibility generally (determined by the ct.) B. Relevancy conditioned on fact C. Hearing of jury (admissibility of confessions, and when justice requires outside hearing of jury) D. Testimony by accused E. Weight and credibility (this rule does not limit weight and credibility evidence) determined by jury Notes on FRE/HRE 104(a): where admissibility of evidence depends upon a factual finding, judges make the factual determination under theory that it is too hard for juries to erase from their mind the tainted statement. Thus, under this rule, preliminary questions of fact as conditions precedent to admissibility, existence of privilege or competency are decided solely by the Judge who uses a preponderance standard: has proponent shown by preponderance that there is sufficient evidence that W was competent. Qualification of a person to be a W is matter for ct., personal knowledge is a mixed question for judge and jury under 104(b). Notes on 104(c) Hearings on admissibility of confessions shall be conducted outside the hearing of jury! When the decision against admissibility would allow the jury to hear prejudicial evidence, the hearing should be outside the presence of the jury. Cts have discretion in other cases. FRE 105 - Limited Admissibility - e.g., certain evidence can be split to apply to only one + not another H/FRE 1101 Applicability Of Rules, does NOT apply to: - Grand Jury, Sentencing, issuance of warrants, bail hearings, extradition proceedings, prelim hearings, questioning under Rule 104, Conflicting Civil Rule APPLIES TO: Civil Actions, Criminal proceedings, contempt actions (except summary type), privileges at all stages. HRE 1102 (no FRE counterpart) Ct. shall instruct the jury regarding law applicable to the facts of the case, but shall not comment upon the evidence. It shall also inform the jury that they are the exclusive judges of all questions of fact and the credibility of Wes. Order of Examination of Wes: 1. Direct examination (may not use leading questions) 2. Cross examinat ion (leading questions permitted) 3. Re-direct (limited to rebutting points made on cross examination) 4. Re-cross (limited to rebutting the effect of re-direct) HARROWing Basic Approach/Checklist for Introduction of Evidence H Hearsay (R 800s) A Authentication (R (900s) R Relevance (R 401) logically R Relevance (R 403) legally OW Original Writings (Best Evidence Rule) (R 1000s)

All Relevant evidence is admissible. 401, 402. Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. 401. Relevant Evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, has a tendency to confuse the issues, mislead the jury, is a waste of time, unduly delay trial, or is a needless presentation of cumulative evidence. 403. This is discretionary but favors admissibility.

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State v. Jaeger: (rule 401) Evidence that has even the slightest probative value is relevant under the definition in rule 401. The standard for determining whether evidence is relevant is very low. State v. Arlt: (rule 401, 403) evidence that tried to lick his blood off his shirt was relevant to indicate s consciousness of his actions and his attempts to get rid of evidence that might link him to a crime. Any prejudicial effect was outweighed by the relevancy of the testimony. State v. Johnson Negligent Homicide, Peacock testified that she saw a small yellow vehicle pass her a few minutes before the accident and proceed to make three to four quick lane changes in traffic. Ct. Held that the manner in which s car was driven was a relevant factor for the jury to consider and allowed Peacocks testimony. The evidence was illustrative of the manner in which was driving prior to the accident. State v. Kupihea shot and Killed Howard Kalai. Ct. Held that The amt. of cash concealed on Kalais person had no tendancy to affect the probability of that belief or its reasonablenes, especially where Kupihea admitted that he was unaware of the concealed cash at the time, it was thus ruled irrelevant. State v. Alston To determine relevancy, one must look to the substantive law that governs the parties dispute. State v. Klafta (Gruesome pictures) Klafta, a 16 month old infant, was found with maggots eating her. The issue is whether the judge should have excluded some or all of the evidence (maggot infestation of her vaginal area was most prejudicial) because of the danger of unfair prejudice or because it was needless presentation of cumulative evidence. The ct. held that the jury was entitled to know Klaftas condition by the persons who found her, by doctors who examined her, and by an expert on entomology to explain the time-range and how the maggot infestation developed. The ct. also stated that it is possible to conceive of a case where so much cumulative evidence is admitted that its total prejudicial affect demonstrates an abuse of discretion by the trial judge, but this is not such a case. State v. Edwards (Gruesome pictures) photographs of decedents limbs, sexual parts, face, and entire nude body were admissible. Ct. held: The possibility of prejudice is in itself insignificant; it is the danger of prejudice substantially outweighing the probative value of the proffered evidence that is determinative on the issue of whether the photographs should be admitted. Otherwise it would have to be said that the more gruesome the crime, the greater the difficulty of the prosecution in proving its case In other words, the fact that a photograph may be considered gruesome does not necessarily render the photograph inadmissible. State v. Molina (Gruesome pictures) Although photograph showing the head of the deceased w/ a twelve-cm sutured incision from a craniectomy may be inherently gruesome or shocking, it is admissible if it aids or clarifies the testimony of a medical W. McCormick v. State (Gruesome pictures) gruesome crimes result in gruesome pictures. Old Chief v. United States (prior conviction) held that the introduction of evidence of a prior conviction is inadmissible under FRE 403 in a case involving possession of a firearm by a person with a prior felony conviction where the has offered to stipulate to that element of the crime. Note FRE is silent as to similar happenings however, FRE 402s general requirement that evidence be relevant means that federal cts can and should exclude prior episodes that are not sufficiently similar to the present episode. United States v. Noriega (FRE 403) (Confusion of issues) the probative value of the proffered material was outweighed substantially by the confusion of issues its admission would have caused (would have unduly shifted the focus of the trial from allegations of drug trafficking to matters of geo-political intrigue). Kaeo v. Davis Ct. held that Evidence of drivers drinking was relevant and material as it had a tendency to establish his negligence as the proximate cause of the harm that befell the plaintiff. And although he was NOT intoxicated in a penal sense, a jury could infer four beers to be sufficient to impair his capacity to perceive the dangers with clarity and to make decisions with prudence, and to operate a vehicle with the skill and caution required by law. Evidence of other similar accidents or occurrences may be relevant circumstantially to show a defective or dangerous condition, notice thereof or causation on the occasion in question. Before evidence of previous accidents may be admitted on the issue of whether or not the condition as it existed was in fact a dangerous one, it must first be shown [by proponent] that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question. When the purpose of the offered evidence is to show notice, the required similarity in circumstances is considerably less than that demanded when the object is to show a defective or dangerous condition or causation. Yet, even when sufficient similarity is shown, the admission of evidence of prior similar accidents is still within the discretion of a trial ct.. State v. McNeely - [ McNeely was convicted of aggravated murder. A fellow jail inmate, THompson, testified at trial about statement McNeely made to him.] (inability to identitify) Ct. held that despite Thompson's inability to identify at trial, the trial ct. determined that a reasonable juror could find that was the person with whom Thompson had spoken in jail. Thompson's inability to identify at trial went to the weight the jury might give to his testimony, not to its admissibility. The evidence is admitted as the judge determines whether the foundation evidence is sufficient for the jury reasonably to find that the condition on which relevance depends has been fulfilled. People v. Collins (Probability evidence) Appeals ct. ruled trial ct. in error for admitting probability evidence as there was no showing that the factors were independent of each other and the jury would be tempted to accord disproportionate weight to the resulting figure, instead of concentrating on the critical issue. Modern trend is towards increased acceptance of probability evidence, when a careful scientific and mathematical basis for it is laid. (e.g. paternity testing to show probability of fatherhood) I. Ct. can insist that less prejudicial evidence be used that would prove the same point evidentiary alternatives. Adv. Comm. note to FRE 403

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Exclusion of gruesome photos (large, color photos can cause prejudice), UNLESS necessary to convey to jury the details of how the brought about the Vs death. 2. Exclusion of evidence showing that a criminal has been convicted of crimes in the past similar to the one with which he is now charged unfair prejudice 3. In the case of surprise evidence, the proper remedy would be a continuance II. Trial cts have wide discretion in balancing probative value against the prejudice, confusion, or waste of time 1. Smart Judges will Admit the evidence under 401, then Exclude the evidence under 403 because it is Less likely to be overruled on appeal (trial judge has considerable discretion) and because the standard for review is abuse of discretion for 403 decisions (v. right / wrong test for 401 decisions in HI) III. HRE/FRE RULES: A. RULE 401 DEFINITION OF RELEVANT EVIDENCE (tendency to make fact more probable or less probable than it would be without the evidence) B. RULE 402 RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE (all relevant evidence is admissible, except as excluded by the rules) C. RULE 403 EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME, MISLEADING THE JURY (Relevant evidence can be excluded if its probative value substantially outweighed by prejudice, confusion, waste of time (aka legal relevancy)) D. RULE 105 LIMITED ADMISSIBILITY (When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the ct., upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly). E. Keep in mind exclusionary Rules 407 (subsequent remedial measures) and 408 (settlement discussions). 1.

Modern approach is to let everyone testify, and Wes are presumed competent (can still impeach his/her credibility but not prevent from testifying). H/FRE 601. Nobody is too young or too old. Felons cant serve as jurors but they can testify. Insane persons can be qualified. When serious questions are raised about mental capacity (sanity or comprehension), cts MAY allow the matter to be explored on voir dire, outside jurys presence. Drug or alcohol use at time of observation is allowed to impeach, and if on it at time of testimony, it will be delayed. (under fed approach, intoxicated and under the influence of drugs too) will not be prevented from testifying if judge is convinced that he/she has relevant first hand knowledge and understands obligation to tell the truth. (insanity and youth can be used to impeach credibility if there was evidence that the defect impaired the accuracy of the observation, recall, or narration) Competency of a W shall be determined in accordance with State law Persons w/ an interest in the outcome of the case can be used to impeach credibility, but cannot be used to prevent him from testifying entirely Mental deficiency (e.g. retardation or insanity) or immaturity will affect only the weight to be given to the testimony, not its admissibility. HRE/FRE RULE 606 DIFFERENCES juror CANNOT testify in trial where she is sitting as a juror; upon inquiry into validity of verdict. Jurors MAY report learning about media reports or visiting scene, outside influence include threats or bribery attempts. Jurors MAY testify that another juror lied or provided misinformation during voir dire. In HI, challenge on juror misconduct is okay. Communications between judge and jury okay. HRE 606 juror MAY NOT testify concerning the effect of anything upon the jurors or any other jurors mind or emotions or concerning the jurors mental processes. FRE 606 juror MAY NOT testify as to any matter or statement occurring during the course of the jurys deliberations or to the effect of anything upon that or any other jurors mind or emotions, EXCEPT that a juror MAY testify on the question whether extraneous prejudicial information was improperly brought to the jurys attention or whether any outside influence was improperly brought to bear upon any juror. I. Two grounds for finding a W incompetent are: A. FRE 602 Lack of personal knowledge of the matter (exception, expert testimony under Rule 703) Just say he saw it (doesnt need to be believable) Pretty low standard B. FRE 603 - W will not solemnly promise to tell the truth by oath or affirmation

II. Hypnosis and Truth Serum: A. most cts reject statements made under hypnosis (live testimony refreshed through hypnosis is split) (judges worry about unreliability, confabulation, suggestion) B. W can testify to recollections she had prior to the hypnotic session C. hypnosis may generate leads that an investigator can follow up on D. but a who has been hypnotized is allowed to testify in his own defense

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Hypnotized Wes pose problems due to fear of confabulated facts. Leads generated by hypnosis and evidence derived will presumably be admissible no matter how dim a view the jurisdiction takes of the reliability of hypnosis, since derivative evidence will have to have its own foundation. Criminal s right to testify: Where himself has been hypnotized, the trial cts ability to restrict hypnosis-influenced testimony may impair the s constitutional right to testify in his own defense. E.g. judge may limit s testimony to matters remembered and stated before hypnosis. (exception, s testimony corroborated by other evidence is allowable). Rock v. Arkansas, (hypnosis) (cant exclude all posthypnosis testimony in a murder case) Wholesale inadmissibility of a 's testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollections.... Arkansas' per se rule excluding all post-hypnosis testimony infringes impermissibly on the right of a to testify on his own behalf. State v. Moreno, [Hypnotized W (rape V)] Ct. held that the V was incompetent to testify as to all matters dealt with in the hypnotherapy sessions. Ct. adopted rule that a W may testify as to matters which can be shown to have been recollected, by that W, prior to hypnosis. III. HRE/FRE rules A. RULE 601 GENERAL RULE OF COMPETENCY B. RULE 602 LACK OF PERSONAL KNOWLEDGE (FRE only, subj to 703) C. RULE 603 OATH OR AFFIRMATION D. HRE 603.1 DISQUALIFICATIONS (NO FRE counterpart) D. RULE 604 INTERPRETERS (have to take oath) E. RULE 605 COMPETENCY OF JUDGE AS W (judge cant testify) F. HRE/FRE RULE 606 (Different) COMPETENCY OF JUROR AS W State v. Furutani (Juror misconduct) [juror voted to convict only because she was pressured to do so by other jurors who wanted to go home for the weekend and because of comments by other jurors re s failure to testify] Ct. held that juror misconduct during deliberations deprived of a trial by twelve fair and impartial jurors was not clearly erroneous and granted s motion for new trial. State v. Yamada (Juror misconduct) SCt. held that juror's misconduct [sleeping during defense counsels closing argument] was not prejudicial and that the trial ct. abused its discretion in granting a new trial. IV. HAWAII RULE 603.1 DISQUALIFICATIONS (No FRE counterpart) A. W is disqualified if: 1. incapable of expressing oneself so as to be understood, either directly or through interpretation by one who can understand the person, or 2. incapable of understanding the duty of a W to tell the truth State v. Kelekolio, [ was convicted of sexual assault in second degree and kidnapping; W not competent] Where issues of W competence is reasonably called into question, court should conduct an independent competence inquiry. Found an inadequate showing of competency for the following reasons: (1) when asked whether lying was good or bad, the complainant responded, Good; (2) the complainant was unable to identify , who was present in ct., although she repeatedly referred to him in her testimony by name; and (3) the complainant did not appear to understand the meaning of terms (i.e., rape and kidnap) that she employed in her testimony. the question of testimonial competency must be determined on a case by case basis. Ct. held, that trial ct. committed plain error in failing to engage in an independent inquiry and make an express finding as to whether the complainant was competent to testify before allowing her substantive testimony to be exposed to the jury. HRPC - RULE 3.7 OF PROFESSIONAL CONDUCT (prohibits lawyers from testifying if he is the advocate must excuse himself from case) Lawyer should always go with someone when doing an interview to avoid this rule. Bring a buddy. A lawyer should not accept employment in litigation if the lawyer should be a W in the case. Note on FRE/HRE 605 No evidence rule disqualifies lawyers from testifying, even in cases they try. HRPC Rule 3.5(e)(4) When can a lawyer Contact Jurors? A lawyer SHALL NOT, after dismissal of the jury in a case with which the lawyer is connected, communicate with a juror regarding the trial EXCEPT: upon leave of the ct., lawyer may ask and respond to questions from jurors about the trial, provided that the lawyer does so in a manner that is not calculated to harass or embarrass any juror and does not seek to influence the juror's actions in future jury service in any particular case; and a lawyer who believes there are grounds for legal challenge to a verdict may conduct an in-ct. examination of jurors or former jurors to determine whether the verdict is subject to challenge (motion must be made in 10 days after judgment or good cause shown). NOTES: The possibility of jury harassment requires the oversight of the judge, but where the purpose of the requested interview is to educate the lawyer and the jury, the value of respectful debriefing in such that leave for respectful post-trial debriefing should be freely granted. Subdivision (e)(4)(i) presumes that discharged jurors are free to decline participation in such post-trial debriefings. Subdivision (e)(4)(ii) is designed to enforce the policies of holding jury thought processes inviolable and protecting the privacy of

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jurors. Thus, to avoid juror harassment by unscrupulous lawyers and lawyers on fishing expeditions, an attorney seeking to challenge a verdict due to jury irregularity must (i) show good cause for a belief that grounds for a challenge exist, (ii) obtain leave of the ct. to question a juror or jurors and, if the motion to examine the jury is granted, (iii) conduct the examination in ct. and under conditions set by the judge. Dead Mans Statute (none in HI and Fed): prevents the survivor from testifying at all about the transaction between him and the decedent. I.e. if P claimed that D made an oral agreement w/ him, and D is dead, P will have to come up with some evidence other than his own testimony, or be thrown out of ct.; he will not be permitted to testify at the trial as to the alleged oral agreement. More Liberal: an increasing number of states permit the survivor to testify, but equalize his advantage by allowing the decedents estate to introduce hearsay statements made by the decedent or other evidence that would otherwise be inadmissible. Federal Rules: NO federal Dead Mans Statute. However, if the federal suit is brought in diversity, and the state whose substantive law applies has a Dead Mans Statute, the federal ct. is required by FRE 601 to honor the state Dead Mans Statute. Dead Man Acts make parties incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.


Leading questions only permitted on cross-examination (freq. begin w/ didnt or werent), or on direct where the W is hostile. Rule 611(c) Cross-examination limited to matters testified to on direct, plus matters involving W credibility. 611(b) Refreshing recollection item may be shown to W to jog memory, but may not be admitted into evidence No bolstering of W testimony unless W has already been impeached (so a prior consistent statement may only be brought in if the other side has charged that the W trial testimony is the product of improper influence or motive, or is a recent fabrication). Marsh lawyers cant use personal pronouns in saying what they think about the case. Watch for Self-Incrimination W invokes 5th amendment against self-incrimination. Often when W takes the 5th, what should the trial judge do? Answer: Strike Ws direct testimony. Results in striking all testimony because it prevendts from exercising 6th amend. Confrontation Clause rights.

I. Direct Examination A. Direct examination when lawyer calls W there are two ways to question a W: a. Ask specific questions about the facts (+ exerts tight control over W, - suggest leading) b. Ask general questions eliciting a narrative from the W (+ no danger of being led, - W may blurt out inadmissible evidence [ct rem is to order inadmissible portion of testimony stricken and explain to W what kinds of statements he should not make]) B. Examiner may not ask leading questions on direct, EXCEPT: 1. Unfriendly / hostile W (biased to opposing party, relative, demeanor, deliberately uncooperative) 2. Preliminary matters (matters not really in dispute) 3. Suggests a subject matter rather than the desired answer (introduces new topic) 4. Refresh memory of forgetful W (memory jogging questions) 5. W has handicap that makes it difficult for her to respond to non-leading questions (young, trouble speaking English, unintelligent, timid) II. Cross Examination (watch scope) A. Limits on the scope of cross-examination: 1. Scope of Direct Rule: Cross-examination limited to matters testified to on direct 2. Questions relevant to W credibility allowed on cross 3. Trial ct. has discretion to allow other questions on cross-examination (and also discretion to prohibit leading questions as to these new matters) 4. Same transaction or statement: cross-examiner may bring out facts that relate to the same transaction, conversation, or statement that was the subject of direct examination Minority wide open rule: allows cross-examiner to inquire about any subject relevant to issues in the entire case. Minority middle ground rule: allows cross examiner to ask about any subject so long as its not part of examiners own claims or affirmative defenses. III. Redirect and Recross A. Redirect after cross, party calling W can question him again on redirect 1. Redirect limited to aspects of W testimony that were first brought out during cross examination (giving W opportunity to explain facts or statements that came out on cross). 2. Trial judge has broad discretion as to what to allow on redirect (if direct examiner honestly overlooked some important issue on direct, trial judge may allow it on redirect)

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B. Recross after redirect, cross examiner can recross 1. Recross limited to matters newly brought up in the redirect IV. Refreshing Recollection and Other Techniques (need not be admissible or authenticated) A. Refreshing recollection (present recollection refreshed) showing W a statement, picture, or ANY other item (sound, gesture, song, scent) to trigger a memory; the item cannot be brought in as evidence; the item does not need to be authenticated. RULE 612. Only applies when W cannot remember the answer w/o the item (anything can be used, writing or thing). 1. Distinguish from past recollection recorded, where W is shown a writing that he has prepared or authenticated, and that was made shortly after an event (this writing becomes evidence) 2. Four limits on use of present recollection refreshed: a. W memory must be, or seem to be, exhausted by regular direct or cross before memory can be refreshed b.. trial judge may control manner in which refreshment takes place i. requiring questioner to show a good-faith factual basis for refreshment ii. limiting the specificity with which the question is asked, so that not too much detail is exposed to the jury from the mouth of the examiner rather than the W iii. requiring that the question be asked outside the presence of the jury iv. making sure the W is in fact testifying from her own memory once refreshed, and not merely reading from a document used for refreshment c. W must SAY that her memory is in fact refreshed (and testimony must seem to be truly refreshed) d. questioners adversary is entitled to inspect the refreshing item 3. The adversary of the examiner using refreshment of recollection has the right to inspect, and in some instances, introduce, the refreshing item. 4. Does opposing counsel have the right to see the item and use it for cross examination of the W? a. If writing is consulted at trial or DURING testimony, the non-calling party gets 3 rights: i. right to inspect document ii. right to cross examine the W based on the document iii. right to introduce into evidence portions of documents that relate to testimony of the W b. If writing is consulted BEFORE trial, the opposing party does not have right to inspect it, cross examine based on it, or to introduce it (trial cts discretion) B. Argumentative and Misleading Questions (Rule 614) 1. Argumentative and Misleading questions are not allowed 2. Argumentative question designed to induce the W to affirm counsels interpretation of the evidence; trial judge has discretion to allow argumentative question on cross examination. 3. Misleading assumes as true a fact that is either not in evidence or is in dispute; trick question. V. Examination by Ct. A. Trial judge allowed to call her own Wes, and to question any W 1. Either side allowed to question W as if in cross examination 2. Decision whether to call a W is left to the judges discretion 3. Most states do not permit judge to comment on the evidence in jury trials (judge must be careful in questioning Wes so as not to seem one-sided) VI. Rules A. RULE 611 MODE AND ORDER OF INTERROGATION AND PRESENTATION 1. Control by Ct. 2. Scope of cross examination (limited to subject matter of direct examination) 3. Leading questions (only allowed on cross, or when W is hostile) B. RULE 612 WRITING USED TO REFRESH MEMORY C. RULE 614 CALLING AND INTERROGATION OF W BY CT. 1. Calling by Ct. (judge may call Wes) 2. Interrogation by Ct. (judge may interrogate Wes) 3. Objections (objections to calling of Wes or to interrogations by judge may be made at the time or at the next available opportunity when jury is not present) D. HRE/FRE RULE 615 DIFFFERENCE EXCLUSION OF WES (purpose to prevent shaping of testimony) 1. HRE/FRE 615 W must leave ct.room while another W is testifying, except: a. party who is a natural person b. officer or employee of a party that is not a natural person designated as its representative by its attorney c. person whose presence is shown by party to be essential to the presentation of the partys cause FRE 615 all the same except, adds (d) d. person authorized by statute to be present

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HAWAII RULE 616 TELEVISED TESTIMONY OF CHILD (Not in FRE) In abuse/sex offense involving a child less than 18, the ct. may order that the testimony be taken in a room other than the ct.room and be televised to the ct., the accused and the trier of fact. The ct. MUST find that requiring the child to testify in the physical presence of the accused would likely result in: (1) serious emotional distress to the child; and (2) substantial impairment of the childs ability to communicate. During this procedure, the attorneys for the parties shall have the right to be present with the child and full direct and crossexamination shall be available as a matter of right. See Maryland v. Craig.


Before a tangible item can be admitted, the Proponent of physical evidence is generally required to prove its authenticity. Rule 901 requires that the foundational requirement of authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The next question is whether the item requires authentication or is it self authenticating? I. Rule 901 REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION A. Generally, physical evidence (mainly documents) must be authenticated. 1. Before a tangible item can be admitted, it must be a showing that the item is what its proponent claims it to be. a. Real Evidence: - e.g. actual ransom demand letter, actual knife used in murder. If offered as real evidence, a chain of custody must be established for that item. Each person who handled the item, and what that person did with it. To authenticate: must show that it is readily identifiable (unique or one of a kind) or prove the chain of custody (prove that real object used in event). b. Demonstrative: e.g. maps, diagrams, models, summaries. To authenticate: must show that object fairly represents or illustrates what is claimed. 2. Notes on Chain of Custody: Fungible (easily replaceable) items are drugs, and other items not readily identifiable. Establishing the chain of custody is essential to show that the substance analyzed was the substance seized from the . The substance itself is not vital evidence. (Parallel with gun possession) Therefore proof of chain of custody after analysis until introduction into evidence is not required absent a specific allegation of tampering. It is not necessary to negate all possibilities of tampering. It is sufficient to establish that it is reasonably certain that no tampering took place with any doubt going to the weight of the evidence. Break in chain goes to weight and not admissibility. B. Direct v. Circumstantial evidence: Direct evidence, when properly authenticated, will almost always be admitted. Circumstantial evidence, trial judge generally has broader discretion to conclude that waste of time, confusion, or mild prejudice out weigh the items probative value. C. Illustrations Requiring Authentication/Identification: 1. Testimony of W with knowledge [Thats it!] 2. Nonexpert opinion on handwriting [can be identified with Familiarity] NOT acquired FOR PURPOSES OF THE LITIGATION. 3. Comparison by trier or expert W [Comparison w/authenticated specimens] 4. Distinctive characteristic and the like [in conjunction w/ circumstances] Appearances, contents, substance, internal patterns, or other distinctive characteristics (initials on item/reply letter doctrine) 5. Voice identification [by hearing at ANY TIME] 6. Telephone conversations [outgoing calls can self-authenticate, incoming calls cannot] by (a) Circumstances: Self-identification George Speaking, or familiarity w/ voice. (b) business outgoing call is to a listed no. for business and conversation related to business reasonably transacted over the phone For incoming calls need self-identification and prior familiarity w/ voice. 7. Public records or reports [must know chain of custody] 8. Ancient documents or data compilation requires that document/compilation be 20 years old, found in natural custody, and unsuspicious. [CL is 30 years] 9. Process or system [x-rays or video camera in store] 10. Methods provided by statute or rule C. AUTHENTICATION NOT NECESSARY if: 1. Admission: Proponent has served on the opponent a written request for admission, and the opponent has granted this. 2. Stipulation: Parties have jointly stipulated to the genuiness of a particular document or object.

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II. HRE/FRE Rule 902 DIFFERENCES SELF-AUTHENTICATION Self-authenticating means that no W necessary to introduce document. Self-authentication only goes to authentication issue, the document may still be inadmissible on hearsay, privilege or best evidence rule. Opposing party as in all authentication contexts can still offer proof that document is not genuine. Certificate must say document is true and correct. Reluctance to let original document leave premises so certified copies of public records is most common method. FRE Adds certified foreign and domestic records or regularly conducted activity.

A. Authentication NOT Required for: (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 inscriptions and the like, (8) acknowledged documents, (9) commercial paper and related Documents, (10) presumptions under Acts of Congress, FRE 902 adds: (11) certified domestic records of regularly conducted activity, (12) certified foreign records of regularly conducted activity NOT Self Authenticating: Letterhead, monograms, affidavits, and other self-identifying statements (but may be admissible in context of the circumstances. E.g. letterhead bearing husbands monogram found among wifes papers) VI. Ways to Avoid Authenticity: process usually wastes a lot of time given how seldom a document is other than what it purports to be. Therefore, modern cts. Have developed several ways in which the proponent of evidence may avoid the need to authenticate it. 1. Request for admission: If unreasonably refuses to make the admission, a statute usually makes him liable for s expenses in proving authenticity. 2. Stipulation: parties may jointly stipulate to the genuineness of a particular document, object, or fact. III. HRE/FRE rules A. RULE 901 Requirement of Authentication/identification B. RULE 902 Self-Authentication C. RULE 903 SUBSCRIBING W TESTIMONY UNNECESSARY State v. Sequin, (photograph) the trial ct. excluded an aerial photograph of an area around a cockfighting pit taken 6 months later b/c the photograph did not fairly depict the area as it looked 6 months earlier. Apparently the W could not identify the cockfighting pit or the dirt pathway b/c of the overgrowth. Also important, was that the trial ct. had allowed another diagram of the area to be admitted. State v. Vance (Chain of custody) Rule is that a foundation must be laid connecting the exhibit with the and showing the continuous whereabouts of the exhibit from the time it came into the possession of the police until it was laboratory tested. After chemical analysis, however, the substance itself is not vital evidence. ... Therefore, proof of chain of custody of the substance during the period AFTER ANALYSIS until introduction into evidence at trial is NOT REQUIRED absent a specific allegation of tampering. Bruther v. General Electric (Chain of Custody) Held that any discrepancies in the chain of custody go to the weight of the evidence, not its admissibility. Consequently, it is the jury, and not the Ct., which must evaluate the significance of Plaintiff's inability to account for the bulb following the accident.... United States v. Casto (Chain of Custody) Any question as to the authenticity of the evidence is decided by the jury. Thus, a break in the chain of custody affects only the weight and not the admissibility of the evidence. United States v. Grant (Failure to establish Chain of Custody not fatal) The government's failure to establish a chain of custody from the moment the substance was seized to the time it was subjected to laboratory analysis makes this less likely, and thus casts some doubt on the admissibility of the chemist's testimony. However, Grant did not object to the chemist's testimony at trial and does not assert here that the testimony should have been excluded. Even if Grant had pursued this argument, we doubt it would be successful, given the broad discretion afforded district cts in making relevancy determinations. United States v. Simpson, (Writing Authentication) conviction for receiving child pornography on the ground that a computer printout of the alleged Internet chat room exchange between and an FBI agent should not have been admitted on the ground it was not authenticated by a showing it was in 's handwriting or voice. Evidence found (collectively) sufficient to maintain conviction: printout of the chat room discussion, the individual using the identity Stavron gave Detective Rehman his name as B. Simpson and his correct street address. The discussion and subsequent e-mail exchanges indicated an e-mail address which belonged to Simpson. And the pages found near the computer in Simpson's home and s own exibit contain a notation of the name, street address, e-mail address, and telephone number that FBI agent gave to the individual in the chat room. Based on this evidence, the exhibit was properly authenticated and admitted as evidence. State v. Konohia (Voice Authentication) was convicted of attempted manslaughter, criminal property damage and unauthorized entry into a motor vehicle. Held that: (1) recording of a 911 call made by V was admissible evidence, and (2) admission of the recording did not violate 's confrontation rights. Ct. found that there was sufficient evidence to authenticate the recording and

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establish its admissibility. Dispatcher testified that she received a call from an Erik Coral-Sands, that the recording equipment was working properly, that the State's exhibit was an accurate recording of Coral-Sands' 911 call, and that the 911 dispatcher verified that the female voice on the recording was her voice. Evidence identifying Coral-Sands' voice was also introduced. Both Coral-Sands and Lamotte testified that Coral-Sands called 911 while he was being chased by Konohia's car. Coral-Sands described certain statements he made during the 911 call that are audible on the recording. Coral-Sands can also be heard on the recording identifying himself by name to the 911 dispatcher. Lamotte testified that the recording accurately reflected what had transpired after Coral-Sands called 911, including everything that happened in the van. The additional voices of Lamotte, Konohia, Randall, and Boniface were identified on the recording. Pioneer Mill Company v. Dow (Uncertified/unsworn) Documents that are plainly inadmissible in evidence and are unsworn, and/or uncertified cannot be considered upon a summary judgment motion. Furthermore, unless counsel wishes to relinquish his or her role as advocate and become a W in the case, an affidavit of counsel swearing to the truth and accuracy of exhibits does not authenticate exhibits not sworn to or uncertified by the preparer or custodian of those exhibits.


BER applies to writings, recordings, and photographs when the parties seek to prove the contents of the writing and do not have independent or personal knowledge of the contents. To do so, the parties seeking to prove the contents must produce either: the original, a duplicate [unless issue of authenticity, or unfair, or a satisfactory explanation as to the absence of original. Judge has broad discretion in deciding whether this rule even applies. Oral testimony OK when fair (need excuse under FRE 1004: [1] accidentally lost / destroyed, [2] cant subpoena, [3] opponent has it, [4] collateral matters). If the original is unavailable, secondary evidence will be admissible to determine the originals contents (notes, copies, and oral testimony). The Policy is to prevent fraud or mistake. + + I. valid BER objection: based on what I read in dox, I would say (knows facts only from dox) no BER problem: from my observation of event, I would say (knows facts independent of dox) Best Evidence Rule: A. If the testimony is about a DOCUMENT and its TERMS are in issue the proponent must EITHER 1. Produce the ORGINAL (1002) or a DUPLICATE 2. or EXCUSE THE production of the original (1004) AND offer admissible secondary evidence B. If accuracy matters (not collateral), we PREFER the original when proving the contents, but we will take oral testimony if it is fair to do so. C. Policy: to prevent fraud or mistake D. Common situations where B.E.R. very likely to apply (a writing has a legally operative effect) 1. Suit against insurer. wants to show that it sent notice of cancellation to . s testimony, I sent a notice of cancellation wont suffice; the notice must be produced if available. 2. Prosecution of movie company for obscenity. Testimony about what the film shows wont suffice; the film itself must be produced. (Under the FRE, films & photos are covered by the B.E.R.) 3. Libel suit. The allegedly libelous document must be produced; testimony about what the document said wont suffice E. Common traps B.E.R. isnt triggered merely b/c a writing happens to contains the same info as being proven. If W independently has same personal knowledge of a fact as reflected in the document, Ws testimony can be used instead of the document. Always check whether collateral writings exception applies. If minor issue, then even if W is testifying about what a writing said, B.E.R. doesnt apply. o When contents of writing are being used for impeaching W credibility its usually collateral. B.E.R. only applies where original is available or unavailability due to proponents bad faith Duplicates usually okay under FRE 1003 unless genuine question about the originals authenticity or admitting the copy would be unfair.

II. Approach to the Best Evidence Rule A. Ask Does BER apply? B. Where Does W Know Facts From? 1. Only the document Valid B.E.R. Objection 2. Facts independent of the document NO B.E.R. Problem (see p.68(B)) C. A Way Of Looking at The Best Evidence Rule: 1) If the testimony is about a DOCUMENT 2) and its TERMS are in issue 3) the proponent must EITHER produce the ORIGINAL DOC writing, photo, movie, video, sound recording

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(1002) Or a DUPLICATE (1003) 4) or EXCUSE the production of the original (1004) Unless (1003) - There is a Question of authenticity - Unfair (partial) EXCUSES - accident lost/destroyed (unless bad faith by pro) - cant subpoena/obtain - Original w/ opponent (was put on notice) - collateral (not closely related to the issue) No preferences Usually Oral Testimony

AND the admissible secondary evidence

III. HRE/FRE Rules DIFFERENCE A. FRE RULE 1001 DEFINITIONS 1. Writings and recordings 2. Photographs 3. Original 4. Duplicate HRE RULE 1001 adds 5. 5. Public record. B. RULE 1002 REQUIREMENT OF ORIGINAL (if acceptable excuse for not producing original, secondary evidence is admissible) C. RULE 1003 ADMISSIBILITY OF DUPLICATES D. RULE 1004 ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS (originals not required, when:) 1. Originals lost or destroyed (unless in bad faith) 2. Original not obtainable (e.g. no jurisdiction) 3. Original in possession of opponent (put on notice and party does not produce) 4. Collateral matters (not closely related to a controlling issue) E. FRE RULE 1005 PUBLIC RECORDS (narrower than HRE) HRE RULE 1005 public record defined as any document in public custody F. RULE 1006 SUMMARIES (when records are VOLUMINOUS) G. RULE 1007 TESTIMONY OR WRITTEN ADMISSION OF PARTY H. RULE 1008 FUNCTIONS OF CT. AND JURY


I. Impeachment: shows flaws in W rather than in the testimony Notes: hardly ever destroys case II. 5 common techniques for impeaching a W: A. Character: general character, especially character for truthtelling may be attacked in several ways: 1. Convictions R 609 show that he has previously been convicted of one or more crimes 2. Prior Bad Acts (of untruthfulness) R 608(b) major difference btw F/HRE (ON FINAL!) Show that he has previously committed bad acts that have not led to a criminal conviction. 3. Reputation Re: Show that he has a bad reputation (usually for not telling truth) R 608(a) B. Bias H 609.1 (no FRE rules) bias is NEVER collateral W is biased in favor or against a side, because of family relationship financial interest, or other ulterior motive. C. Prior Inconsistent Statement (w/current testimony) R 613 show that on a prior occasion, he made a statement that is inconsistent w/ his present testimony. D. Sensory or mental defect (no rules) [psychotic, hard of hearing, etc.] show that W suffers from a sensory or mental defect. A Ws sensory or mental defect is never deemed to be collateral. The rule barring extrinsic evidence on a collateral issue does NOT APPLY to impeachment by sensory or mental defect. Defect in sensory or mental capacity is shown if it: (1) affects ability of W to observe and understand at the time of the event (bad eyesight/hearing), or (2) affects memory ability of W to recount the events at trial (failing memory) Perception and memory may be affected by mental illness or use of drugs/alcohol at time of events Impaired capacity does not usually affect competency but is relevant to assess testimony No H/FRE rule, but cross and use of extrinsic evidence is allowed in ct.s discretion. E. Contradictory Facts (no rules) [by second W contradicting first] Examiner can always attack intrinsically (ask w anything having reasonable tendency to disprove truthfulness or accuracy); Except limitations on prior convictions

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IMPEACHMENT BY PRIOR CRIMINAL CONVICTIONS HRE/FRE 609 FRE 609 in a nutshell: Any W, including the , may be impeached for any crime involving dishonesty and false statement. Any W, excluding , may be impeached if conviction is a felony, unless 403 (prejudice substantially outweighs probative value). may be impeached if conviction is a felony and probative value outweighs the prejudicial effect. So when applying FRE 609, look for: Conviction for crime punishable by death or imprisonment in excess of one year, Conviction for crime involving false statement or dishonesty, 10 years passed since the conviction, Probative value outweighs prejudice in prior conviction of an accused, Prejudice substantially outweighs probative value in prior conviction of W (not the accused) HRE 609 in a nutshell ( wears a halo): can never be impeached by a prior conviction (unless has a big mouth or a dumb lawyer and this only applies to dishonesty or false statement) DONT call character W in criminal case if is testifying! For any W, convictions going to dishonesty can be admitted as long as they meet the 403 test (prejudice substantially outweighs the probative value). HRE 609.1 - Rationale: if the matter is admitted, then extrinsic evidence is unnecessary. No federal counterpart rule. Factors For Evaluating Admissibility of Prior Conviction Nature of prior crime: Recency or remoteness, Similarity to charged crime, Extent and nature of s record, Importance of s testimony, Importance of credibility issues. The more the prior crime reflects adversely on dishonesty or integrity, the more its probative worth. Crimes such as theft, receiving stolen property are more probative. Less probative: drug offenses, crimes involving violence. The older the crime, the less probative. The more similar the prior is to the current offense, the greater the danger of prejudice to D. An isolated conviction on Ds record carries less weight than a pattern of behavior. If Ds version is important, and admission of prior may persuade D not to testify, judge may exclude prior. When credibility b/w V and D matters much, judge more prone to let in prior. I. Previous conviction of crime use of prior crimes for substantive purpose of showing that the has a propensity to commit crimes, and therefore probably committed the presently-charged crime, is NOT allowed. 4 steps to FRE 609: 1. is the impeaching material evidence a criminal conviction re (1) a crime punishable by death or imprisionment in excess of one year; or (2) a crime that required the prosecution to prove false statement or dishonesty as an element (regardless of length of actual or possible sentence)? a. if yes, go to 2 b. if no, the material must come in as an unconvicted bad act under FRE 608. 2. is the material a conviction for a crime that required the prosecution to prove dishonesty or false statement as an element, i.e, a crimen falsi? (Qualify: embezzlement, perjury, submitting false tax returns) (Do not qualify: robbery, assault, murder) a. if yest, go to 3 b. if no, go to 4 3. Crimen falsi have more than 10 years elapsed since the date of conviction or of the release of W from confinement imposed for that conviction? (use later date) FRE 609(b). a. if yes, conviction is inadmissible, unless (a) the ct. determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs it s prejudicial effect; and (b) the proponent gives the adverse party advance written notice. FRE 609(b). b. if no, conviction is admissible. R 403 balancing test does not apply so no matter how little probative value the judge thinks the conviction has, and no matter how prejudicial, the judge must allow it. 4. Non-crimen falsi is the W also the accused in a criminal case? a. if yes, go to 6 b. if no, go to 5 5 [w IS NOT THE ACCUSED] is the convictions probative value substantially outweighed by the danger of unfair prejudice? (apply balanceing test of FRE403. FRE 609(a)(1). a. if yes, the conviction is inadmissible. b. if no, the conviction is admissible. (still req. to apply 10 year rule, described in step 3). 6. [W is the Accused] is the convictions probative value outweighed by its prejudicial effect? a. if yes, the conviction is inadmissible. b. if no, the conviction is admissible. (stll req. to apply 10 year rule described in step 3).

II. RULES A. RULE 607 WHO MAY IMPEACH (any party may attack credibility of W) B. HRE/FRE RULE 609 DIFFFERENCE Impeachment By Evidence Of Conviction Of Crime 1. HRE 609 ( wears Halo) a. General Rule When attacking credibility of a W, evidence that the W has been convicted of a crime is inadmissible, except when the crime is one involving dishonesty. In criminal case where takes the stand, shall not be questioned or evidence introduced as to whether the has been convicted of a crime, for the sole purpose of

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attacking credibility, unless the has oneself introduced testimony for the purpose of establishing the s credibility as a W, in which case the shall be treated as any other W as provided in this rule. b. Effect of Pardon evidence of conviction NOT ADMISSIBLE if the conviction has been the subject of a pardon. c. Juvenile convictions evidence of juvenile convictions is ADMISSIBLE to the same extent as are criminal convictions under subsection (a). (not in civil cases) d. Pendency of appeal pendency of appeal does not render evidence of conviction inadmissible. Evidence of pendency of appeal is admissible. FRE 609 a. General Rule (1) When attacking credibility of W, evidence that W 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 W was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the ct. determines that the probative value outweighs prejudicial effect to the accused; AND (2) evidence that ANY W has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. b. Time Limit Evidence of conviction NOT admissible if more than 10 years (difficult to get in) has elapsed since date of conviction or release of W from confinement imposed for that conviction, whichever date is later, unless in the interest of justice, probative value of the conviction substantially outweighs prejudicial effect. Evidence of more than 10 year old conviction not admissible unless proponent gives adverse party sufficient advance written notice of intent to use such evidence so that adverse party can contest use of the evidence. The older the conviction, the less probative value it has. c. Effect of Pardon, Annulment, or Certificate of Rehabilitation evidence of conviction NOT ADMISSIBLE if (1) subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure on finding of rehabilitation, AND person has not been convicted of subsequent crime punishable by death or imprisonment in excess of one year, OR (2) conviction subject of pardon, annulment, or other equivalent procedure based on finding of innocence. d. Juvenile Adjudications juvenile adjudications not admissible. However, admissible in criminal case against W other than the accused if conviction of the offense would be admissible to attack the credibility of an adult AND the ct. is satisfied that admission is necessary for fair determination of issue of guilt or innocence. e. Pendency of Appeal does not render evidence inadmissible. Evidence of pendency of appeal admissible. f. in Limine motions: before a who has prior convictions decides whether to testify, he will want to know whether these convictions can be introduced against him. Thus he will often as judge for a ruling before he takes the stand.


III. Conviction involving dishonesty or false statement = crimen falsi : can be admitted even if only a misdemeanor. By contrast, non-crimen falsi can only be admitted it the judge conducts a balancing, and concludes that the convictions probative value outweights its prejudicial effect (where W is accused ) or substanitially outweighs its prejudicial effect (where W is not accused). A. Crimen Falsi - Involves misrepresentation, deceit, untruthfulness, or falsification bearing upon accuseds propensity to testify truthfully. E.g. embezzlement, perjury, submitting false tax returns, false statement, criminal fraud, taking property by false pretenses, counterfeiting, forgery (most cts say theft crimes like shoplifting, robbery, and receiving stolen goods are not crimen falsi) B. Most cts can look at underlying facts to determine whether a particular crime was a crimen falsi C. Must be admitted (as long as its not too old), w/o any balancing of probative value against prejudice D. 10 year limit applies, unless probative value substantially outweighs prejudice E. NOT crimen falsi (where dishonesty or false statement is NOT involved; no deception): murder, rape, assault and battery, drug offenses, prostitution, driving while intoxicated, resisting arrest, shoplifting, robbery, receiving stolen goods. IV. Other issues under FRE 609: A. Prior conviction can be introduced by: opposing lawyer asking W to admit the conviction during cross, or cross examiner may introduce certified copy of prior judgment B. Most cts disallow detailed descriptions of the underlying acts. C. Cts usually allow the impeached W to give short statement explaining circumstances of prior conviction. D. Conviction need not be from the same jurisdiction as the present case. E. Effect of Pardon: If pardon based on rehabilitation, conviction cant be used to impeach as long as W hasnt been convicted of a subsequent felony If pardon based on innocence, conviction can never be used to impeach

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F. Juvenile adjudications not admissible; however, it can be used in a criminal case against a W other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and admission of the evidence is necessary for fair determination of the issue of guilt or innocence. (So juvenile adjudications never admissible in civil cases) G. Pendency of appeal can be admitted, but it does not make the conviction inadmissible. H. Conviction based on pleas of nolo contendere are probably admissible - The must testify and be impeached to preserve the issue for appeal. Luce v. U.S. 469 U.S. 38, 1984. - If the introduces his own prior conviction on direct to "remove the sting," (minimize weakness) then he has waived for appeal the issue of improper impeachment. U.S. v. Ohler 120 S.Ct. 370 (1999) IMPEACHMENT BY PRIOR BAD ACTS HRE/FRE 608 (NOTE 608(b) DIFFERENCE) HRE 608(b) Intrinsic impeachment on Cross IS allowed, and in ct.s discretion extrinsic evidence (any evidence other than the persons word) MAY be allowed to show that the person is lying. FRE 608(b) Intrinsic Cross impeachment on Cross, in ct.s discretion, MAY be allowed. Extrinsic evidence is NOT allowed. Cant call a second W to present evidence that the W had committed the conduct related to untruthfulness that he denied on cross (even if you have proof that W lied under oath). youre stuck with the answer even if you have proof. Intrinsic Impeachment While W on the stand and asked about prior bad acts related to untrufulness such as lying, cheating, filing false application, and other such acts. Extrinsic Impeachment While W on the stand, calling a second withness to present evidence that W on stand had committed the conduct related to untruthfulness that he denied on cross. I. Prior Bad Acts past misconduct that has not led to a conviction A. You cant bring in evidence of truthfulness UNTIL the credibility of that W has been attacked. B. Once youve attacked a W as being untruthful, then the other side can bring in evidence that the W has been truthful. C. Once you have an attack on a W, and youre allowed to bring in evidence of truthfulness, you can ask W questions regarding awareness of incident. D. If they say theyre unaware, thats as far as you can go under the FREyoure stuck with the answer. But under HRE, you can show the person is lying by bringing in extrinsic evidence of the prior bad act. E. Example: you ask the W, isnt it true you lied on your college application?; the W says no.

II. FREs restrictions on use of prior bad acts for impeachment: A. May not be proved through extrinsic evidence (i.e., testimony by other Wes, documents); B. Only those prior bad acts that are probative of truthfulness or untruthfulness may be brought up only goes to untruthful acts C. Judge has discretion whether to allow prior bad acts that bear on truthfulness D. Cross examiner must have good faith basis for asking about the prior bad act E. Accused does not waive privilege against self incrimination w/respect to prior bad acts by taking the stand F. Questioner MAY NOT ask the W questions about the W prior arrests on cross. Arrests, as well as the filing of charges or indictments, ARE NOT proper subjects for impeachment G. Extrinsic evidence can be used for other purposes (to show bias, mental or sensory incapacity, or inconsistent statement), as long as its not used to show bad character for truthfulness III. RULE 608 EVIDENCE OF CHARACTER AND CONDUCT OF W (a) Opinion and reputation evidence of character (b) Specific instances of conduct - Any W may have his or credibility attacked by specific instances of conduct (fraud, falsehood, deceit that suggest that W is untruthful. The credibility of a W may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence MUST REFER ONLY to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the W for truthfulness has been attacked by opinion or reputation evidence or otherwise. Like a prior conviction, a Ws prior misconduct that has NOT led to a conviction MAY BE used to impeach a Ws credibility. 3 ways to show that a W has a untruthful character: prior conviction, testimony by a second W who gives opinion or reputation testimony that the principal W is untruthful (or truthful that a W has been impeached) and , by prior bad acts showing dishonesty. Cross Examination of Character W:

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A character W, like all Ws, is subject to cross-examination and impeachment. Character W may be questioned about specific instances of conduct of principal W that bears on principal Ws truthfulness. If character W does not know or has not heard about the bad acts, then inference is character W lacks personal knowledge about principal W. Character W may also have own credibility attacked. Untruthful Character: Bad Acts Any W may be asked about specific instances of conduct that suggest Ws untruthfulness Inquiry must be limited to acts bearing on truthfulness (fraud, falsehood or deception) Focus is on conduct, not arrest/conviction. Questioner must have a good faith basis to ask. Judge may bar questions under Rule 403. Under FRE if W denies, no extrinsic evidence. Michelson v. U.S., Use of Arrests, Cant ask a fact or character W about his/her own prior arrests (Frequently unreliable). However, per 608(b), you can ask a character W about prior arrests of the fact W whom the character W is testifying about e.g. Are you aware that the was arrested 29 years ago for .? IMPEACHMENT BY OPINION AND REPUTATION REGARDING CHARACTER HRE/FRE 608(a) FRE 608 - only for evaluating truthfulness, generally deals w/ witness on stand (as opposed to 404, which is used when witness not on stand), no bolstering testimony unless attacked, can be attacked through another W, prior convictions, slashing cross-exam, inconsistent statements (not just in one instance, but generally), or otherwise in FRE, atty must take answer (no extrinsic ev except for prior conviction); HRE more liberal in allowing extrinsic evidence. I. Opponent can offer testimony from a second W that the first W has a bad character for truthfulness if: A. Opinion or reputation: W2 must testify to W1s poor reputation for truthfulness, or testify that in W2s opinion, W1 is of untruthful character (cant testify about general character). B. Specific instances of untruthful conduct by the first W is not allowed under FRE. However, specific instances are allowed on cross-examination to show that first W is a truthful person (as long as no extrinsic evidence comes in).

IMPEACHMENT FOR BIAS HRE 609.1 (NO SPECIFIC FRE) I. Bias (interest, Motive) is NEVER collateral!!! A. Cts allow extrinsic proof that the W is biased. B. Types of bias: Friendly feeling (personal relationship, business relationship), Hostility, Self interest (W may have interest in the outcome), Membership in group, paid expert, plea agreement, etc.. C. Questioner must first ask W on cross (or extrinsic evidence not allowed) about the alleged bias; only if he denies it may the extrinsic evidence be used (you must first give opportunity to explain or deny) 1. If the W says no to the bias, you can bring in extrinsic evidence as long as on cross-examination, the matter is brought to the attention of the W AND the W is afforded an opportunity to explain or deny the matter. D. NO FRE but Federal judge has discretion to require that a foundation be laid before the extrinsic evidence is introduced (chance to deny or explain).

II. HAWAII RULE 609.1 EVIDENCE OF BIAS, INTEREST, OR MOTIVE (a) General rule credibility of W may be attacked by evidence of bias, interest, or motive (b) Extrinsic evidence of bias, interest, or motive not admissible unless on cross examination, the matter is brought to the W attention and the W is afforded an opportunity to explain or deny the matter Rationale (1) gives W a fair opportunity to explain statements which tend to show bias, (2) such cross lends expediency to trials, for if the facts showing bias are admitted by the W, the introduction of Extrinsic evidence becomes unnecessary. IMPEACHMENT BY SENSORY OR MENTAL DEFECTS (NO SPECIFIC RULES) I. A. B. C. D. E. W can be impeached by showing that his capacity to observe, remember, or narrate events correctly has been impaired. Ws sensory or Mental Defect is NEVER COLLATERAL and EXTRINSIC EVIDENCE IS ALLOWED. Sensory defect impaired ability to observe the events in question Mental defect - impaired ability to remember events or narrate them Drugs + alcohol W may be impeached by showing she was drunk/high at the time of the events she purported to W Psychiatric testimony this type of testimony to impeach is frowned upon Impeachment by sensory or mental defect can be proved by extrinsic evidence

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NO IMPEACHMENT ON RELIGIOUS BELIEFS HRE/FRE 610 I. RULE 610 RELIGIOUS BELIEFS OR OPINIONS (you cant impeach a W credibility for any reason relating to his religious beliefs or opinions) Evidence of the beliefs or opinions of a W on matters of religion is NOT ADMISSIBLE for the purpose of showing that by reason of their nature the Ws credibility is impaired or enhanced. However, you can ask if they work /attend a partys church ( goes to bias) Thus, a persons religious views, or absence of a religion cannot be used to show that since the W does not believe in God, the W is not believable.

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS HRE/FRE 613 HRE/ FRE 613 DIFFERENCE: HRE/FRE allows Examiner to impeach the W w/o having to show the W the document before the impeachment. HRE 613(b) Extrinsic evidence of PIS NOT admissible unless on direct or cross, a foundation is laid by: (1) statement brought to attention of W, and (2) W has been asked whether the W made the statement. (more efficient) HRE 613(c) (Rehabilitation) PCS only admitted after some attack on PIC, bias/motive, memory (NO FRE counterpart). - FRE says you can bring in the extrinsic evidence without laying a foundation, only requires that W be given an opportunity to explain or deny at any point in the trial. (advantage is that collusive Ws can be examined before disclosure of a joint PIS, Disadvantage is that W must be available ). I. Look for a W testifying on the stand who is making a statement that is inconsistent w/some prior statement made by that same . In general, the cross-examiner may impeach W by using the Prior Inconsistent Statements (PIS). A. Requirements: 1. MUST be inconsistent 2. With the testimony at trial B. Prior inconsistent statement NOT used for substantive purposesONLY for impeachment. C. GENERAL RULE: Evidence of prior inconsistent statement is admissible. D. Two limits on use of PIS for impeachment: (apply only where the W is not a party) 1. Foundation must be laid before the PIS may be introduced for impeachment (W must be given chance to deny or explain the inconsistency) 2. If the PIS involves ONLY a collateral matter, the statement MAY NOT be proven by extrinsic evidence. E. If the W is a party, PIS is substantively admissible as an admission. F. FEDERAL RULES allow foundation to be made either before or after the impeachment (time, place, and person to whom it was made). 1. So under FRE, attacking party can decline to mention any inconsistency while cross examining W, wait until W leaves the stand, and then put on extrinsic evidence of W PIS. BUT, if W becomes unavailable after testifying (and cant be recalled to explain or deny), the attacking party will lose the chance to use the extrinsic evidence. But trial judge has discretion to dispense with the chance to deny or explain requirement. G. In the case of a contradictory writing, the prior written statement need not be shown to the W before or during examination (unless opposing counsel requests it). H. If W admits to PIS, thats all cross-examiner needs. But if W denies having made earlier statement, examiner can prove the prior statement by extrinsic evidence (testimony of another W, prior writing).

II. Two limits on using extrinsic evidence: A. Inconsistency must be material B. Extrinsic proof not allowed if statement involves only collateral matter; statement must deal w/either: o Facts relevant to the issues in the case, or o Facts which are themselves provable by extrinsic evidence to discredit the W (such as bias) Intrinsic Extrinsic


Collateral Matter Rule

Intrinsic can ask about anything on cross (intrinsic)

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o IF deny Intrinsic Evidence, then must pass Collateral Matter Rule in order to present Extrinsic Evidence to disprove the W (Rule 608(b)).

III. Judge can use 403 balancing (exclude evidence if confusing, prejudicial, or a waste of time) if she thinks the jury will use the PIS as substantive evidence as well as for impeachment.

IMPEACHMENT BY CONTRADICTION; THE COLLATERAL ISSUE RULE (NO SPECIFIC RULE) I. Impeachment of W by contradiction occurs where evidence offered that contradicts Ws testimony in the case. II. Four ways to impeach by contradiction: A. Attacking party may use cross to get W to concede that she was wrong in her direct testimony B. Attacking party may use other previously introduced testimony or physical evidence during cross to show that W has lied or is mistaken C. W has previously made statements inconsistent with W trial testimony (PIS) D. Introducing new evidence (testimony by second W or physical evidence such as a document) showing that W story is not correct. If prosecution has rested, and W introduces new evidence, prosecution is permitted to rebut W testimony by calling second W. III. Some impeachment evidence must be excluded, such as sexual history of rape V IV. Collateral issue Rule the rule against extrinsic evidence on collateral issue A. Material issue in the case B. If the extrinsic evidence could be used for impeachment even in the absence of contradiction, it may be used to show the contradiction C. FRE doesnt contain an explicit collateral issue rule, but the result is the same. D. Collateral issue rule applies to: Ban on showing that W has made PIS as to a collateral issue Ban on using extrinsic evidence to show prior bad acts by the W Direct contradiction of testimony E. Collateral issues include: Prior bad acts that did not lead to conviction PIS with trial testimony if the contradiction does not relate to a main issue in the case F. Issues that are NOT collateral: Prior criminal convictions Bad character for truthfulness W bias W sensory or mental defects G. Collateral issue rule bars use of physical evidence and testimony to impeach by contradiction H. The collateral issue rule is NOT a ban on impeachment on collateral issuesits only a ban on using extrinsic evidence to impeach on collateral issues. I. Limiting instruction: only consider the fact on the issue of credibilitynot substantively. REHABILITATING THE IMPEACHED W I. Once a W credibility has been attacked, it may be rehabilitated by the non-attacking party. A. Rehabilitation repairing the credibility of ones W B. The rehabilitative evidence MUST respond as directly as possible to the theory of the impeaching evidence. C. Evidence that W has good character for truthfulness will come in when: 1. W is attacked by evidence that he has a bad reputation for truthfulness 2. That a second W has a bad opinion of the first W truthfulness 3. That the W has been convicted of a crime 4. That he has committed a prior bad act D. But evidence of good reputation for truthfulness will NOT be allowed when the attack is merely on the W testimony in the present case. E. PIS may be rebutted by showing good character for truth. F. Evidence that W has made a prior consistent statement (PCS) will come in when: 1. There has been an express or implied charge that the W trial testimony is a recent fabrication or the product of improper influence or motive

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Proponent must show that the use of a PIS amounts to an express or implied claim that the W has recently made up his trial testimony, or is lying because of improper influence or ulterior motives 3. Proponent must show that the prior consistent statement was made before the alleged motive to fabricate or improper influence arose before motive to lie G. But evidence of PCS will not be allowed when the W general character has been attacked. 1. A PCS is not hearsay 2. Not until adversary opens the door by making charges of PIS can the PCS be used; exception to this rule is when calling party anticipates attack by bringing out impeaching facts at the outset in a way that minimizes impeaching impact (drawing the sting) II. Rule Against Bolstering Ones W: lawyer may not offer evidence supporting his W credibility, UNLESS that credibility has first been attacked by the other side. A. Two exceptions to the rule against bolstering: 1. If W has made prior out-of-ct. identification, cts will allow that fact into evidence if identifying W is in ct. and available for cross examination 2. Where W is a crime V, cts will allow evidence that W made a fresh complaint promptly following the crime, where the crime is one that is likely to be known only to the criminal and the V III. FRE 801(d)(1)(B) applies only to statements made before the alleged recent fabrication or improper influence or motive came into existence. 2.

HEARSAY is a statement other than one made by the declarant while testifying at the (present) trial or hearing offered in evidence to prove the truth of the matter asserted. I. Introduction A. Hearsay can be oral or written Statement is: an oral/written assertion, nonverbal conduct of a person if intended to be an assertion Assertion: a positive declaration, a statement of a fact intended to substitute for words. The intent of the of the declarant is crucial. E.g. pointing to a person in a photo. NOT an Assertion: a question, an exclamation, a command. Out of this court means: outside of present trial or hearing, testimony made at another hearing is still hearsay. E.g. Preliminary hearing, grand jury, hearing on a motion. B. Elements: 1. Statement or assertive conduct (intended as assertion) only humans (not animals or machines) a. Examples of statement or assertive conduct oral or written assertion (hearsay) nonverbal conduct, but only if it is intended by the person as an assertion (hearsay) silence is sometimes allowed, sometimes not o absence of complaints are allowed (not hearsay) o silence in face of accusation is usually not allowed because its hearsay, but it will come in under one of the exceptions (admissions) o Statements implied from conduct is hearsay (e.g. captain inspected ship and took family offered to show ship was seaworthy). b. Not statement or assertive conduct Verbal and nonverbal conduct that is not intended as an assertion is not hearsay Assertions inferred from other assertions are not hearsay Assertions inferred from nonassertive conduct are not hearsay Circumstantial evidence about nature of place or item, existence of relationship between people, or nature of an activity, is not hearsay 2. Not Truth of Matter Asserted Verbal act (operative fact that gives rise to legal consequences contract, defamation) is not offered for truth of the matter asserted Verbal parts of acts (where physical act is ambiguous, but words that accompany it resolve the ambiguity) are not hearsay If statement is offered to show its effect on the listener (to show that listener was put on notice, had certain knowledge, had certain emotion), it is not hearsay Statements introduced to show state of mind of declarant (knowledge, sanity, fear) - Hillman

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Reputation evidence, but only when its used to prove that a particular person had knowledge of a particular fact (cannot be used to prove truth of matter asserted), is not hearsay Opinion surveys are usually not hearsay (as long as its reliable) Impeachment use of an out-of-ct. statement is not hearsay (e.g., PIS) II. HEARSAY ISSUES A. Dangers of hearsay (SPAM) 1. S Sincerity (truth) did declarant try to trick or lie to the other person? 2. P Perception did W misperceive event? 3. A Articulation did the declarant misspeak? 4. M Memory does W accurately remember event? B. cCRUD = what were trying to do (how we test SPAM) 1. contemporaneous (like to cross-exam at time they made statement) 2. CROSS Examination 3. Under OATH 4. Observe DEMEANOR C. Just Remember: If you are afraid of SPAM, you test it best by using cCRUD H(earsay) is less reliable than cCRUD, But it is better to take H exceptions at trial than to take no E(vidence). (We will make mistakes in deciding cases if we dont use the H. D. Miscellaneous Issues with Hearsay 1. Multiple hearsay not allowed, unless EACH declaration falls within some exception 2. Hearsay rule applies only to statements made by human beings (machines and animals dont count) 3. When using data produced from a machine, you have to lay proper foundation: Device was scientifically accepted as accurate Device was properly calibrated and maintained Person using the device was properly trained Even a Ws own out-of-court statement can still be hearsay. E. EXCEPTIONS to the Hearsay Rule: Admissions FRE 801(d)(2)/HRE 803(a)(1-5) different H/FRE approaches (but same result) Then Existing Mental, Emotional, or Physical Condition H/FRE 803(b)(3) Statements for Purposes of Medical Diagnosis or Treatment H/FRE 803(b)(4) Excited Utterances H/FRE 803(b)(2) Present Sense Impressions H/FRE 803(b)(1) Past Recollection Recorded FRE 803(b)(5)/HRE 802.1(4), H/FRE 612 Business Records H/FRE 803(b)(6-7) Public Records H/FRE 803(b)(8) Former Testimony (requires unavailability of declarant to testify) H/FRE 804(a) & 804(b)(1) Dying Declaration (requires unavailability of declarant to testify) H/FRE 804(b)(2) Declarations Against Interest (requires unavailability of declarant to testify) H/FRE 804(b)(3) Prior Statements of Available Wes: - FRE 801(d)(1)/HRE 802.1(1-3) o Prior inconsistent statement HRE 802.1(1) o Prior consistent statement HRE 802.1(2) o Prior identification HRE 802.1(3) Catchall exception HRE 803(24)/FRE 807 F. NOT HEARSAY 1. Non-verbal conduct that is not intended as an assertion is not hearsay 2. PIS not hearsay if W made it while testifying under oath in a previous proceeding or deposition. 3. PCS not hearsay where theres a charge of recent fabrication or improper influence (does not have to be made under oath or in a proceeding). 4. EyeW identification is not hearsay, provided the person who makes the ID is a W at trial. 5. Admissions by a party-opponent are not hearsay.

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Verbal Acts Verbal parts of acts Effect on the Listener/ hearer/Readers knowledge Knowledge or Declarants state of mind Questions Orders or instructions If you pay me $100, I will fix your car. Here is the money back that you loaned me last year. I Accept your offer, He is a liar, Want to have sex for money? You can borrow this. This is a gift. Your brakes might be bad, Dr we are missing a sponge, your wife had sex with V, you will suffer forever. I need to get my brakes checked What time is it? Keep your jacket on. Words not offered to prove truth, but to show that a contract was reached (legal consequence). Words are non-hearsay when the words are used to define the act. The words give legal effect to the act that the act was a loan repayment. If words offered to show the listener or reader was put on notice (negligence cases) behaved reasonably in self defense case to show that D acted reasonably. Other party is entitled to a limiting instruction that the evidence may be used only for the limited purpose that it is offered and not substantively.

PRIOR STATEMENTS BY WITNESS FRE 801(d)(1) AND HEARSAY EXCEPTION HRE 802.1 Lack of Memory W: FRE v. HRE The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement - FRE Rule 801(d)(1) The declarant is subject to cross-examination concerning the subject matter of the declarant's statement HRE Rule 802.1 In U.S. v. Owens, U.S.S.Ct. held as long as W can be asked about prior i.d., it is non-hearsay, even if W has total lack of memory of incident. In HI, W must be able to testify as to subject matter of statement (capable of testifying about underlying events described in statement). State v. Canady, 80 Hawai`i 469 (App. 1996) All prior inconsistent statements are non-hearsay if used soley to impeach. As long as the declarant testifies, any witness can describe the identification. I. W must be available A. Unlike in Rule 804 where the declarant must be unavailable B. Prior statements are used here to prove the truth of the matter (substantive use) C. The W must be testifying, subject to cross examination D. Collateral Matter Rule Applies (also Contradictory Facts & HRE 608(b) Prior Bad Acts) II. HRE trusts prior statements more than FRE (more liberal then FRE) A. Prior Inconsistent Statements (PIS) HRE 802.1(1) If not for substantive purposes, then can use for impeachment purposes 1. Federal Rules: a. PIS admissible if: i. Inconsistent with testimony ii. Given under oath iii. In a prior proceeding or deposition iv. Must comply with 613(b) opposing party must have opportunity to cross examine W [no need to have had cross examination or even opportunity to cross examineso grand jury testimony is admissible] b. Three scenarios under FRE: i. If W concedes having made prior statement, but says it was wrong, and tells a different story now, then the PIS is substantively admissible ii. If W denies ever having made the prior statement, but theres independent evidence that the statement was made, and the W now tells a story which is inconsistent with prior statement, then the PIS is not admissible iii. If W admits making PIS, but claims that now he doesnt remember the underlying facts, then the result depends on whether the judge believes the W is being truthful in his assertion that he cannot remember o if judge believes W is being truthful, then statement not admissible o if judge believes W is being untruthful, then statement admissible c. Only the inconsistent parts of the testimony will be let in (Ortiz) not the entire testimony. 2. Under HRE, PIS must be: a. Under oath, OR

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Reduced to writing and signed or otherwise adopted or approved by the declarant, OR Recorded in substantially verbatim fashion by stenographic, mechanical, electrical or other means contemporaneously with the making of the statement B. Prior Consistent Statements (PCS) HRE 802.1(2) rarely tested 1. Under FRE, PCS is substantively admissible if: a. Consistent with testimony b. Must be offered to rebut express or implied charge against the declarant of recent fabrication or improper influence or motive (PCS must have been made BEFORE the fabrication or improper influence or motive came into existence) 2. Under HRE, PCS can be brought in 3 different ways: a. If inconsistent statement brought in, then you can bring in a consistent statement b. W testimony recently fabricated or influenced by bias or other improper motive (statement must be made BEFORE bias, fabrication, etc.) c. W credibility attacked at trial by imputation of inaccurate memory, and consistent statement made when event was recent and W memory fresh C. Prior Identification HRE 802.1(3) 1. Under FRE, Identification requires: a. Identification of a person made after perceiving the person b. The identifier testifies at trial c. Identifier is available for cross examination (even if declarant has total lack of memory of event giving rise to the identification) [no need to make under oath; no need to make in prior proceeding] 2. Common scenario: person cant ID now b/c guy looks different. Can admit evidence to show that W picked guy out before in line up. D. Subject of Cross-Examination 1. FRE: subject to cross examination concerning the statement 2. HRE: subject to cross examination concerning the subject matter of the declarants statement II. Rules A. FRE 801(d)(1) PRIOR STATEMENT BY W B. HRE 802.1 HEARSAY EXCEPTION; PRIOR STATEMENTS BY WES (1) Inconsistent Statement (2) Consistent Statement (3) Prior Identification PAST RECOLLECTION RECORDED HRE 802.1(14)/FRE 803(5) REQUIRES DECLARANT AVAILABLE I. Requires Declarant (Wrote Memo) to Testify 99% Of the time, an exception to the authors rule is grand jury testimony. State v. Sua. A. Elements: 1. Memorandum or record (Best Evidence Rule applies original copy) any scrap of paper 2. W must have first hand knowledge If writer is recording another persons declaration, required knowledge missing (i.e. police officer) 3. Must have been made when fresh in the W memory 4. W has insufficient memory now 5. W has to be able to testify that it was accurate when made 6. Can only be read into evidence only (no exhibit) B. Rationale: memory problems avoided by requirement of timely record, necessity results from exhausted memory & untrustworthiness somewhat safeguarded by opportunity to cross-examine declarant. C. Important Points & Related Issues 1. Applies only where the person who made the entry (or some person who approved the entry at the time it was made) is available to testify about the making of the entry. 2. If the person has made a record of the event, and theyre testifying and cant remember, then you can use the record. But W must read it into testimony it cannot be introduced into evidence. 3. NOT admissible as exhibit, unless Opponent introduces it. 4. If one person has first hand knowledge, and second person records it, then both must testify (UNLESS first person reviewed what second person wrote down); W at trial doesnt have to be the person who made the record; all that is required is that the W have approved or adopted the record, after it was made, as being an accurate reflection of his knowledge. 5. Distinguish from: b. c.

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a. 6. Present Memory Refreshed where memo actually jogs recollection & is not used as substantive evidence (i.e. cannot read) b. Business Record (H/FRE 803(6-7)) where memo made in ordinary course of business Look to Reliability of Ultimate Source of Information

II. Rules A. FRE 803(5) RECORDED RECOLLECTION B. HRE 802.1(4) PAST RECOLLECTION RECORDED C. RULE 612 WRITING USED TO REFRESH MEMORY (present recollection refreshed) D. H/FRE 803(6-7) BUSINESS RECORD ADMISSIONS FRE 801(d)(2)/HRE 803(a)(1-5) Different Approaches btw/HRE & FRE (but same result) Admissions are an attack by the opponent using the other partys own statement against her (not to be confused w/ declarations against interest). types: (1) direct, (2) adoptive, (3) authorized, (4) vicarious (employees), (5) co-conspirator. Personal knowledge not required by party making admission, unavailability not requirement, opinion / conclusion is admissible, w/drawn guilty plea not admission, silence admissible if innocent would normally deny under circumstances (mustve heard + understood),. In a criminal case, silence cant be used against you after Miranda warning. In FRE Admissions are NOT hearsay. They can only be offered against the party who said it. In HRE Admissions are hearsay EXCEPTIONS I. General Rule: a partys words or acts may be offered as evidence against him; Rationale is that you said it, so you explain it. A. Offered AGAINST A party 1. the partys own statement - NOT third person (even closely linked) unless principal-agent relationship 2. manifested adoption or belief [silence] (police) 3. authorized ... to make 4. Employee (agent/servant) - WITHIN the SCOPE of ... employment; made DURING ... the relationship 5. co-conspirator - DURING the course, IN FURTHERANCE of the conspiracy B. Admissions vs. Declarations Against Interest 1. Admission declarant availability is not an issue; need not be against the declarants interest at the time it was made; MUST be made by a party (or representative) and must be admitted against him. 2. Declaration Against Interest Rule 804 only applies where declarant is unavailable as a W; must be against the declarants interest at time it was made; applies to statements offered in evidence by party who made them & statements made by 3rd persons. Rule of thumb: If used against the party who made it, always treat the statement as an admission. If used by the party who made it, or if made by a non-party, the statement cant be an admission, and will have to be a declaration against interest (if anything). C. Miscellaneous Issues 1. Statement made in a pleadings is treated as an admission. 2. Nonassertive conduct is admissible for admissions 3. Same out-of-ct. statement may sometimes be admissible both as a Prior Inconsistent Statement for impeachment purposes and as an Admission for substantive purposes. 4. Factual Admissions made while offering to pay medical bills are admissible 5. Factual Admissions made in the course of settlement negotiations are NOT admissible. D. Adoptive admissions can occur in written communication (i.e. failure to reply to letter), the inquiry is: 1. whether the statement was such that, under the circumstances, an innocent would normally be induced to respond, and; 2. whether there are sufficient foundational facts from which the jury could infer that the heard, understood, and acquiesced in the statement. a. Examples where Silence is unreasonable (so adoption applies): i. A accused of Murder or some other heinous crime; ii. A is accused of mislabeling his products; iii. A is told, You know thats your signature while being shown a contract. F. Judge decides whether to admit the evidence, and jury decides whether an adoption occurred G. Admission by Deceased in Wrongful Death Action HRE 803(a)(3) 1. A statement by the deceased, offered against the in an action for the wrongful death of the deceased. 2. Rationale: The in a wrongful death action stands in reality so completely on the right of the deceased person that such persons admissions should be admitted against the even though the is technically asserting an independent right H. Admission by Predecessor in Interest HRE 803(a)(4)

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1. When an interest in any property by a party to a CIVIL action requires a determination of right exists or existed in the declarant, the statement is admissible against that party. Privity between declarant and a party renders a declaration of the former admissible against the latter. (e.g. adverse possession?) I. Admission by Predecessor in Litigation HRE 803(a)(5) 1. This rule refers specifically to breach of duty in order to admit statements of a declarant whose breach of duty is in issue without regard to whether that breach gives rise to a liability of the party against whom the statements are offered or merely defeats a right being asserted by that party. II. Criminal Context A. Criminal statements can be introduced UNLESS there is a Miranda Bar!!! If criminal is silent while in custody, this is not an adoption (but if hes silent in other contexts, this could be an adoption). B. Right to Remain Silent - Custody 1. Constitutional privileges (5th Amend. right to remain silent) can trump admissibility of admissions. Depends on circumstances. If custody situation, then not admissible. But if not custody situation, then admissible (i.e. only talking to police officer) Definitely a clear line!! 2. However, even if not in custody, then questionable b/c if knows hes talking to police officer, might assume that thinks he has right to remain silent (depends on the judge) Depends on circumstances C. Criminal Conspiracy - Very difficult for govt. to prove conspiracy. A person is guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a crime: 1. He AGREES with one or more person that they or one or more of them will engage in or solicit the conduct or will cause or solicit the result specified by the definition of a conspiracy. 2. Requires an OVERT ACT III. Representative Admission: A. Explicitly authorized admission 1. Corporation announcements to publci 2. Agent authorized to speak to 3rd persons 3. Agents communication to the principal B. Vicarious admissions by agents 1. Arises out of transaction within agents authority 2. Matter within the scope of the agency or employment, made during existence of the relationship C. Co-conspirators; Federal Rule makes clear that you can use the statement as only ONE factor to prove that the person was authorized, was an agent, or was a co-conspirator (but it is not ALONE sufficient you need some other corroborating evidence) 1. Statements are generally personal. 2. Statement by one co-conspirator admissible against other co-conspirators (must be made by member of the same conspiracy) 3. Statement must be made during course of conspiracy (statements made after conspiracy endedsuch as during the arrest are admissible ONLY AGAINST DECLARANT, not against other members; if conspirator leaves, his statements can be used against others, but others statements thereafter cannot be used against him; if conspirator comes in the middle, he has adopted earlier statements by co-conspirators) 4. Statement must be made in furtherance of conspiracy (advancing conspiracys objectives) 5. You dont have to be charged with conspiracy for this admission to come in. 6. Judge determines existence of the conspiracy (there must be other corroborating evidence) 7. There needs to be some independent proof that the conspiracy really existed D. Parties in Privity with each other (real estate, contract, personal property) statements made by one will be admissible as admissions against another. IV. FRE 801(d)(2) VS. HRE 803(a) A. FEDERAL RULE 801(d)(2) ADMISSION BY PARTY-OPPONENT (5 categories partys own statement, adoption, authorized person, scope of agency or employment, and co-conspirators) B. HAWAII RULE 803(a) ADMISSSIONS (2 categories Admission by party-opponent, and Vicarious admission but these categories are the same as FRE) C. RULE 410 INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS (not admissible: withdrawn guilty plea, plea of nolo contendere) PRESENT SENSE IMPRESSIONS & EXCITED UTTERANCES 803(1-3) I. Present Sense Impressions HRE/FRE 803(1) (Availability immaterial) statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. A. Requirements: 1. Immediacy No material time may pass between event and declarants statement about it

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2. Description Declarant must have perceived the event rather than learning about it from newspaper 3. Statement may express an opinion 4. No requirement that the statement be corroborated B. If stuck btw/PSI & Excited Utterance, try to move to Excited Utterance b/c it is broader. PSS requires that very little time must elapse btw/even & statement. However, PSS may relate to a non-startling event and non-stressful event (look for routine & non-starting at time)! C. If statement about his current physical condition (especially about pain), then both PSS & statement of physical condition under 803(3). II. Excited Utterance H/FRE 803(2) (Availability immaterial) statement made under influence of startling event relating to starting event while under stress of excitement caused by starting event. Rationale: excitement & stress preclude fabrication. Broader than PSI! A. Two requirements: 1. Startling Event Event giving rise to statement must be sufficiently startling to eliminate declarants capacity to reflect before speaking; and 2. Still Under Effect Statement made while declarant is still under the influence of the startling event Some time may pass, UNLIKE Present Sense Impression B. No excited utterance if: 1. Long period of time has passed between startling event and statement Rule of Thumb half hour admitted, hour or more excluded (except where delays in time for reflection like shock, memory loss or other medical condition) 2. Statement is self-serving: Even where time interval is short, if circumstances show person DID have time to reflect C. Excited utterance must relate to the startling event or condition (but no need to explain or refer to event) III. RULE 803 HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL (1) Present Sense Impression (e.g. interrupted phone calls) (2) Excited Utterances (e.g. for exam purposes, any statement starting w/ oh my god and ending w/ an exclamation point) MENTAL, EMOTIONAL, OR PHYSICAL CONDITION, MEDICAL DIAGNOSIS OR TREATMENT, HEARSAY WITHIN HEARSAY H/FRE 803(3-4), 805, 806 A statement of declarants then existing (present tense statement) state of mind, emotion, sensation, or physical condition are NOT excluded by the hearsay rule, but it does not include a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to the execution, revocation, identification, or terms of declarants will (b/c usually, the declarant is not available). Under Hillmon, State of mind is admissible to show that the declarant acted in conformity with his expressed declaration (pastpointing statements disallowed under Shepard). Statements of intent by a declarant are admissible only to prove his future conduct, NOT the future conduct of another person. The state of mind testimony MUST also be relevant to the issues in the case. Four Categories of Statements: (1)Statement of present state of mind, when state of mind is in issue, (2) Statement of present state of mind to prove subsequent conduct (intent, plan or design), (3) Statement of present physical condition (pain and bodily health), (4) Statement of testator in will cases. Statements of emotion and physical condition usually has current relevance. Statement of Intent and Mental condition is rarely relevant at time statement was made. Most relevant in past (but only acceptable for will cases) often relevant in future. I. OTP Physical State H/FRE 803(3-4) Statements that purport to state or describe declarants physical sensations or condition A. Present Physical State H/FRE 803(3) statement purporting to describe any present physical sensation or condition is admissible to prove the existence of that physical state. Includes statements of present pain made to any person. No memory or perception problems; tends to be necessary. 1. Statement MUST BE spontaneous (mainly an attempt to prevent the manufacture of evidence) Generally, the mere fact that the statement refers to the declarants present condition will suffice to meet the spontaneity requirement unless there are reasons to suspect evidence is manufactured. E.g. X is in a car accident, in which his car is hit by a famous and wealthy person, D. X does not consult a doctor, but within earshot says, shortly after the accident, Oh, my neck. I think I have whiplash, maybe I can sue. A judge might hold that the surrounding circumstancwes indictate that this statement might be a self-serving attempt to manufacture evidence; and dismiss it because it lacked spontaneity. 2. Must relate to present condition 3. Then existing mental, emotional, or physical conditions (but not precise medical conditionthis wont come in because uninformed opinion) Probably also come in as a Present Sense Impression. Statements to laypersons:

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E.g. X says to W, Im feeling terrible chest pains even though not a doctor, admitted because it is about present bodily condition or symptoms. E.g. X says to W, I had terrible chest pains yesterday, the exception does not apply if W were a lay person, and not a physician because it is about a past bodily condition or symptom. Statements allowed under this rule will generally be about pain. A statement by declarant to a non-doctor that reports identifying the precise medical condition will probably be excluded on grounds that it is an uninformed opinion or made without firsthand knowledge. E.g. my leg must be broken probably not allowed because it is an uninformed opinion or made w/o firsthand knowledge. B. Former Physical State Only for purposes of medical treatment or diagnosis! H/FRE 803(4) statement purporting to describe a medical history including past pain, symptom , or sensation, or inception or general character of the external source made to the doctor, not by the doctor! 1. Statement must be made in connection with treatment or pertinent to diagnosis Patient says ladder collapsed & Patient fell admissible to prove cause of accident I was on my bicycle & D ran a stop light & knocked me to ground. part about stop light inadmissible b/c not reasonable pertinent to the diagnosis; rest of statement probably admissible 2. Statement can be about past pain or past symptoms, as well as present condition 3. Self-serving statements will come in if made in connection with procuring treatment 4. Statements that relate to the cause of the pain, condition, or symptoms will be admitted, as long as theyre reasonably pertinent to diagnosis and treatment 5. Statements by 3rd persons will be admitted (like if the patient is unconscious) 6. Statements made to hospital attendants, ambulance drivers, or nurses will be admitted 7. Even a physician consulted for sole purpose of testifying at trial will be able to testify on these matters! Statements made to a treating physician relating to bodily condition, made to a physician in connection with treatment are generally admissible. Consequences: 1. Past symptoms admissable: statements do not need to be in connection w/ present bodily condition if made to a physician in connection w/ treatment. 2. Self serving statements admissible: as long as made to a physician in connection with treatment. 3. Causation statements relating to cause of pain, symptoms, or other condition admissible if they seem reasonably related to treatment. II. OTP: Mental State that is In Issue H/FRE 803(3) statements which purport to directly and explicitly state or describe declarants mental or emotional condition. Not circumstantial to declarants state of mind. A. Present Mental State statement purporting to reveal ANY presently held intent, belief, attitude, emotion or feeling is admissible to prove the true existence of that mental state. Rationale: no memory or perception problems. Admissibility turns on relevance. 1. Proof of Subsequent Conduct Hillman Doctrine Statements which tend to prove a plan, design, or intention of declarant are admissible to prove that the plan, design, or intention of declarant was carried out by declarant. (Relevance req. must still be satisfied. E.g. A statement that he plans to Kill B the next day might be held by judge to be probative of whether A did in fact kill B the next day. Statement as to whether Bs unexplained death three years later was caused by A would probably be held to be irrelevant as remoteness in time is simply too great. a. Statements evincing an intent to perform an act, even when offered to show that the act probably took place, do not require proof of the declarants unavailability b. Allow statements of intention to engage in some action w/another to support inference that that action was done w/the other & to support inference that the other did the action with the declarant o There must be independent, corroborative evidence that the declarant actually participated in the activity, or that the other person actually participated 2. Proof of Joint Conduct Most cts admit a statement of A that she intends to do something with B as Evidence that both A & B did it. [some cts require independent E corroborating conduct of B] Split of authority on this (rare, but important cases b/c all declarants are dead) B. Former Mental State statement of memory or belief is not admissible to prove the fact remembered or believed unless it relates to relevant facts concerning the declarants will. III. FRE/HRE 805 Hearsay within Hearsay is NOT excluded if each statement is an exception to Hearsay. A. He said that she said or Repeating a statement by another Declarant 1. Hospital Report: The patient reported to me that he was injured Signed X (NOT hearsay, falls within an exception) 2. Police Report: A W said that the white car ran the red light. Signed (NOT hearsay, falls within an exception) B. Treat each statement separately.

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IV. FRE/HRE 807 - Catchall V. Rules A. FRE 803(3)/HRE 803(b)(3) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION B. FRE 803(4)/HRE 803(b)(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT C. RULE 805 D. RULE 806 State v Exum. (state of mind) For admission under Rule 803(3), the state of mind testimony MUST also be relevant to the issues in the case. Here, the Vs state of mind during each of the three conversations at issue is relevant because it relates to her relationship with immediately preceding her death. See State v. Scott (It is well established that a murder V's statements falling within the state of mind exception to the hearsay rule are highly relevant to show the status of the V's relationship to the .). Comm v. Laich. - 's former girlfriend's state of mind regarding her relationship with was irrelevant in prosecution for first degree murder of girlfriend and her paramour, in light of 's claim that he committed crimes in heat of passion, and thus, testimony that girlfriend stated to witness that told V that if ever caught V with another man, he would kill them both was not admissible under state of mind hearsay exception; in light of 's claim that he was provoked to kill Vs, it was his state mind, rather than girlfriend's, that was at issue. Mutual Life Ins. Co. v. Hillmon (state of mind re intent) In the Hillmon case, Most courts will REQUIRE independent corroborative evidence EITHER that declarant actually participated in the activity OR that the third person actually participated. Factors in determining admissibility: (1) strength of independent evidence that third person participated in the activity; and (2) extent to which declarant would only have particpated in the activity with the cooperation of third person. (In Pheaster case, boy would not have gone to the parking lot for any other reason.) The letters in question were competent as evidence that he had the intention of going, and of going with H, which made it more probable both that he did go and that he went with H than if there had been no proof of such intention. It is intended, that the Rule be construed to limit the doctrine of [Hillmon] so as to render statements of intent by a declarant ADMISSIBLE ONLY to prove his future conduct, NOT the future conduct of another person. Shepard v. United States - The ruling in [Hillmon] marks the high water line beyond which courts have been unwilling to go. The state of mind exception to the hearsay rule DOES NOT APPLY to statements of memory or belief about past actions or events. This is true whether the past action was by the declarant (I believe I went to the store yesterday) or by another (I believe that Dr. Shepard has poisoned me.) BUSINESS (RCA) & PUBLIC RECORDS H/FRE 803(6-8) AVAILABILITY OF DECLARANT IMMATERIAL The Availability of the declarant is immaterial. The Rule also applies to Schools, churches, and hospitals even though they are not necessarily profit-making entities. To prove the record, the sponsoring W does not need personal knowledge of the contents of the entry or circumstances in which it wsa made. W only needs knowledge of the procedures under which the records were created. Thus the Sponsoring W need not have been employed business or a custodian at the time the record was made. Alternative method for establishing foundation are, certification and statute permitting certification (self authentication, req. written certification and notice). Analysis: 1. Elements (KRAP), 2. Trustworthy, 3. Hearsay w/in Hearsay (H/FRE 805) CANNOT use Business or Public Record in Criminal Case b/c constitutional provision for Confrontation! No difference between HRE/FRE (language of statute differs, however, case interpretation is the same). Absence of Entry If a regularly kept business record would otherwise qualify, it may usually be admitted to show that a particular entry is absent, if such an entry would normally have been made had a particular event occurred (billing records do not indicate payment by customer) and a Qualified W testifies it would have been made had a particular event occurred and that a diligent search failed to disclose the presence of the record. NOT ADMISSIBLE - W told officer a few hours after accident that D ran the red light. This is put in the duly prepared police report and P offers it at trial. The officer would NOT BE ABLE to testify to Ws statement. W has no duty to provide information. ADMISSIBLE - D says to officer at scene, I ran the red light. P offers report at trial. Admissible. Ds statement is an Admission. I. Business Records H/FRE 803(6) A. Elements (KRAP): A WRITING (including electronic data) 1. Kept in the course of a regularly conducted business activity 2. It was the Regular practice of that business activity to make 3. Made At or near the time of the event 4. Made by, or from information transmitted by, a person with knowledge of the event and a duty to report (Personal knowledge) B. Business (broad) = business, institution, association, profession, occupation (profit or nonprofit)

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C. Person who originally supplies information = the person who experienced first hand can record it, or tell someone else who then records it Oral reports probably wouldnt come in to the business records exception. D. Made in regular course of business = regular practice (does not need to be frequent or routine) Self-serving business record made in anticipation of litigation not likely in (i.e. accident report) Untrustworthy business record not likely to come in (i.e. no duty to report W statement) o However, admissible if fall w/in another exception (i.e. admission if in business record & bad for the business). E. Ct.s Discretion to Exclude: If business record contains an opinion, ct. has discretion to exclude it (doesnt have to). Ct. also has discretion to exclude if self-serving or untrustworthy. F. Foundation: 1. prove by calling in a custodian who knows about the record keeping process to testify to the four requirements, OR business record can just be certified without any testimony by a foundation W (2000 Amendment to FRE 803(6)) certification must comply with Rule 902(11) self-authentication or 902(12). 2. Computer printouts generally admitted as long as proper foundation is laid (concerning equipment, programming, data entry, controls, security) G. Absence of Entry H/FRE 803(7) Absence of an event in a business record is allowed in as evidence of the non-occurrence of that event if the matter was the kind that was regularly reported, unless it is untrustworthy. (in fact, it may not be hearsay at all because theres no assertion) H. Multiples Hearsay: Can be a problem, must analyze layer by layer (H/FRE 805) If business record quotes a statement made by someone outside of the business, and record is offered to show the truth of that statement, the statement itself must fall w/in some hearsay exception. But if record quotes a statement by one working in the business, no multiple hearsay problem exists I. Typical Business Record Scenarios 1. Hospital records generally admitted as business record (with some exceptions) 2. Johnson v. Lutz TP Statement 3. Palmer v. Hoffman RR Accident (not admissible b/c self-serving) II. Official Written Statements (Public Records and Reports) H/FRE 803(8) Rationale: special trustworthiness is derived from fact that statement was made by or to a public employee with duty to accurately record and no apparent motive to falsify; necessity results from likelihood that declarant will have no independent memory of contents. Police report might be both public record & business record (if used against criminal , then probably WONT allow to come in as either a public record or business record). Records include reports, statements, or date compilations (including electronic data) in any form. Public records (especially investigative reports) must be trustworthy in order to be admissible. Multiple hearsay problem: o report by one government agent to another is ADMISSIBLE o statements by those without a duty to talk are INADMISSIBLE Public records can be brought in without any testimony at all, if a certification procedure is used. Usually applies only to writtenNOT ORALreports. Government reports relevant to: accidents, antitrust, plane crash, job discrimination Lack of Trustworthiness Provision (Four Factors): 1. Timeliness of the Investigation 2. Investigators special skill or experience 3. Was a hearing held? 4. Possible bias when reports are prepared with a view of possible litigation (Palmer v. Hoffman) A. Record of Public Activity (1) written statement (2) of a public employee or agency (3) concerning the activities of the public office or agency. H/FRE 803(8)(A). B. Record of Observation (1) written statement (2) of a public ee or agency (3) concerning observations made (4) while carryout a duty imposed by law (5) as to matters which there was a duty to report (6) except that in criminal case, records of observations by law officers are NOT ADMISSIBLE. H/FRE 803(8)(B). 1. Criminal Cases Cannot be used by anyone. However, routine, non-adversarial observations that happen to appear in police records will NOT BE EXCLUDED in criminal cases. 2. Opinions, evaluations, and conclusions in the investigative report are admissible, as long as the report is based on factual statements. However, if part of the report contains legal conclusions, NOT ADMISSIBLE. 3. Who is Person presenting Matters Observed?

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If Police, 803(8)(B) will NOT take police officers report in criminal trial If Criminalist, split of opinion (Oates) must argue If Calibrator, then yes (Ofa) C. Report of Findings (1) written statement (2) of a public employee or agency of factual findings or conclusions (3) resulting from an investigation or inquiry within the employees or agencys legal duties (4) unless the sources of information on other circumstances indicate a lack of trustworthiness (5) except that such reports are not admissible against a criminal . H/FRE 803(8)(C). 1. Criminal Cases Cannot be used by government; Can be used by . 2. Civil Cases Can be used by anyone. D. Absence of Record or Entry (1) evidence that matter is not included in a public record is (2) admissible to prove the nonoccurrence or non-existence of a matter of which record is regularly made and preserved (3) if a certification is offered, or if testimony is produced to show that a diligent search failed to disclose the record or entry . H/FRE 803(10). III. Rules A. RULE 803(6) RECORDS OF REGULARLY CONDUCTED ACTIVITY B. RULE 803(7) ABSENCE OF ENTRY IN RECORDS KEPT IN ACCORDANCE WITH THE PROVISION OF PARAGRAPH (6) B. RULE 803(8) PUBLIC RECORDS AND REPORTS C. FRE 803(6) vs. HRE 803(6) 1. FRE 803(6) requires personal knowledge & regular practice, but HRE 803(6) does not 2. FRE 803(6) allows certification, whereas HRE 803(6) only allows custodian testimony 3. FRE 803(6) applies to business, whereas HRE 803(6) is not so limited 4. FRE 803(6) and HRE 803(6) are similar in that they both include: course of regularly conducted activity (business activity in FRE) near the time of the event custodian testimony (not required in FRE if certification) requirement of trustworthiness of the record Palmer v. Hoffman: accident report not admitted because accident report prepared by railroad was not in the regular course of its business. Better ruling would have been to exclude it on the self-serving untrustworthy grounds. In Palmer v. Hoffman *** [t]he report was prepared for use in litigating, not railroading. MISCELLANEOUS 803 (9-23) EXCEPTIONS - CATCHALL I. Rules A. RULE 803(9) RECORDS OF VITAL STATISTICS B. RULE 803(10) ABSENCE OF PUBLIC RECORD OR ENTRY C. RULE 803(11) RECORDS OF RELIGIOUS ORGANIZATIONS D. RULE 803(12) MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES E. RULE 803(13) FAMILY RECORDS F. RULE 803(14) RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY G. RULE 803(15) STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY H. RULE 803(16) STATEMENTS IN ANCIENT DOCUMENTS I. RULE 803(17) MARKET REPORTS, COMMERCIAL PUBLICATIONS (Stock Price + Phone books) J. RULE 803(18) LEARNED TREATISES K. RULE 803(21) REPUTATION AS TO CHARACTER L. RULE 803(22) JUDGMENT OF PREVIOUS CONVICTION M. RULE 803(23) JUDGMENT AS TO PERSONAL, FAMILY, OR GENERAL HISTORY II. RULE 803(18) LEARNED TREATISES A. Published treatises, journals, articles, periodicals, etc. (subjects of history, medicine, or other science or art) B. You can impeach the expert by showing what other authorities have said in learned treatises. C. Learned treatise can be used on direct and on cross D. Statements can come in for their truth E. Learned Treatises must be established as reliable authority: 1. by testimony or admission of testifying Expert W [on stand] (even hostile one) 2. by the testimony of another expert, or 3. by judicial notice [unlikely]

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When the expert is testifying, ask if, is this a reliable treatise in the field? It comes in as testimony, but it DOES NOT come in as exhibits. III. RULE 803(16) STATEMENTS IN ANCIENT DOCUMENTS A. If document is more than 20 years old, its reliable Document must be at least 20 years old, with no suspicion as to its authenticity, and found in a place where it would likely be authentic, and the writer of the document must have first hand knowledge of its subject matter. IV. RULE 803(22) JUDGMENT OF PREVIOUS CONVICTION A. When person is convicted in criminal case, & you want to use that conviction in a civil case Rule 803(22) B. Youre not using conviction to prove the guy was convicted youre trying to prove the essential facts underlying the conviction (example, negligent homicide; civil suit for wrongful death they dont want to prove the facts all over again) C. This allows you to just use the conviction to show the facts for the civil case D. Limitations: It has to be a criminal felony conviction You cant use a no contest plea or acquittal You can only use it in a civil arena Evidence of a final judgment after trial or upon a plea of guilty of a felony crime is admissible to prove any fact essential to sustain the judgment. Doesnt apply when based on a no contest plea. Often used when plaintiff in civil suit uses conviction to prove a fact relevant to civil case. Conviction of third party cant be used against Deft in a criminal case, except for impeachment. Conviction is admissible even if on appeal. Criminal felony convictions are admissible in a subsequent civil or criminal case to prove essential facts of the prior crime. However, the PROSECUTORcan't use a conviction of someone other than the defendant AGAINST the defendant. V. Record of Vital Statistics H/FRE 803(9) (1) written statements (2) of births, fetal deaths or marriages if (3) the report was made to a public official (4) pursuant to requirements of law. VI. Records of Religious Organizations (churches) H/FRE 803(11-12) (1) written statement (2) issued by a clergyman, public official or other person (3) authorized by law or the practices of a religion to perform a marriage or religious ceremony (4) indicating that such ceremony was performed (5) if the certificate was issued at the time of the act or within a reasonable time thereafter. VII. Records of Documents Affecting Property H/FRE 803(14) (1) record of public office (2) relating to the existence, content, execution or delivery of a document (3) which affects an interest in property (not just land) if (4) such record is kept pursuant to statutory authority. A. May prove content of document as well as fact of execution or delivery.


I. Unavailability of the declarant required in order to use the following exceptions: A. Former testimony (testimony given in a prior proceeding) B. Dying declaration (statement made while declarant believed his death was impending) C. Statements against interest (statements which were against the declarants interest when made) D. Pedigree (statements concerning either the declarants or his relatives personal or family history E. Forfeiture by wrongdoing (statements offered against a party that has engaged inor acquiesced inwrongdoing that was intended to, and did, procure the unavailability of the declarant as a W)

II. Unavailability Definition(s) H/FRE 804(a) PRIMA: A. If person exercises a Privilege from testifying, then they are unavailable B. If person Refuses to testify (despite an order of the ct. to do so), then they are unavailable C. If person has physical Illness or death, then they are unavailable D. If person has no Memory of the subject matter, then they are unavailable E. If person is Absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance by process or other reasonable means; unable to subpoena F. A declarant is NOT unavailable as a W if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the W from attending or testifying III. Under FRE, to avoid Confrontation Clause issues, government must show: A. W is beyond that states own process, and

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B. It made a good faith effort to procure the W presence by means other than process, OR that such efforts would have been very unlikely to succeed C. You can now subpoena someone who is outside the state HRE, in civil cases, witness may be unavailable if on another island and proponent demonstrates that procuring attendance of declarant would work undue financial hardship, considering the personal circumstances of the proponent ant the amount in controversy in case. In criminal cases the determination of unavailability of a declarant raises constl issues. FORMER TESTIMONY H/FRE 804(b)(1) Difference btw/HRE & FRE Prior testimony can be offered against the same party. It must be under oath, an earlier trial, hearing or deposition, same case, or similar issues, opportunity to cross (not Grand Jury), or developed the Testitmony on direct. FRE requires the Same Party or predecessor too. HRE: different parties ok, but similar interest & motive are necessary. I. Definition Testimony given as a W at another proceeding A. Elements 1. Declarant must be unavailable Prosecutor has special heavy burden 2. Testimony MUST be given under oath 3. In a hearing (trial, preliminary hearing, grand jury proceeding, etc.) OR a deposition during a proceeding (it cant be just a statement to the police (confession or interrogation) or an affidavit) 4. The same party against whom the testimony is now offered (civil case predecessor in interest) a. FRE: same party or predecessor in interest b. HRE: different parties ok, but similar interests necessary c. HRE is broader and does not restrict to same party in criminal or to a predecessor in civil. 5. Had the opportunity & similar incentive (same or similar issues, same or similar stakes, same or similar parties) to examine (usually cross examine) the declarant in the prior proceeding or deposition B. Not limited to transcripts of the hearingfirst hand observer may orally testify C. So you cant use testimony given in a grand jury against the because did not have opportunity to cross examine in that situation D. If wants to use grand jury testimony against the government, he must show similar motive E. Common Distractor: No Cross-Examination in prior proceeding. Irrelevant so long as had opportunity & similar incentive to cross-examine; the fact he didnt take that opportunity doesnt block the former testimony exception from applying. F. You can preserve your objection at the deposition, and judge will decide at trial whether the deposition statement should come in.

II. Rules A. RULE 804(b)(1) FORMER TESTIMONY B. RULE 804(a) DEFINITION OF UNAVAILABILITY DYING DECLARATIONS H/FRE 804(b)(2) Difference between HRE & FRE Dying Declarations require that declarantis UNAVAILABLE and MUST believe death is imminent hours or perhaps a few days. Death is not required, just BELIEF that death is impending. Statement must relate to causes or circumstances of impending death. Judge must make a preliminary factual determination that the declarant beleived his death was imminent. FRE allows dying declaration only in prosecution for homicide or in a civil action or proceeding (cannot be used in non-homicide criminal cases. HRE 804(b)(2) allows it in all types of cases. I. Definition Look for declarant that is badly injured or very sick at the time of the declaration. A. Requirements: 1. Declarant believed that death was imminent, actual death not required. 2. Statement must relate to cause or circumstances of threatened death 3. Personal knowledge, not opinion or speculation 4. Type of Case Difference btw/HRE & FRE a. FRE 804(b)(2) allows dying declaration only in prosecution for homicide or in a civil action or proceeding (cannot be used in non-homicide criminal cases) b. HRE 804(b)(2) allows it in all types of cases 3. Unavailability

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Although this exception requires unavailability, it can be for reason other than death. B. Other Issues 1. Dying declarations can be used on the s behalf 2. Judges discretion to allow declarants opinion 3. Judge decides whether to allow it in, and jury gives it weight II. Rules A. RULE 804(b)(2) STATEMENT UNDER BELIEF OF IMPENDING DEATH Rationale: Declarant would be unwilling to go to his maker w/ a lie on his lips. But the person would have to be unavailable if the person survives. If Declarant is shot in the back, then his statement that X shot him, may be exculded if it can be shown that he ddnt know who shot him. Statements such as Im a goner, or wounds so severe, must have known, or statemtnst made to her by others, especially doctors, Declarant need not be victim of crime (e.g. D shoots H and W, both die, W makes dying declaration D did this to us) Opinions that are part of dying declaration usually okay, but if too speculative the statement may be excluded. DECLARATIONS AGAINST INTEREST H/FRE 804(b)(3) A statement which was at the time of its making so far contrary to the 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 declarants 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. I. Definition Look for declarant to be either a non-party or a party who wants to use his own statement. (If declarant is party against whom the statement is to be used, apply Admissions). A. Requirements: 1. UNAVAILABLE DECLARANT H/FRE 804(a) 2. Statement (can be written or oral) Against the persons pecuniary (financial) or proprietary interest Declaration against penal interest (subjecting one to criminal liability) allowed under FRE (but you must show corroborating evidence indicating trustworthiness of statement when offered to exculpate the accused) The non-self-inculpatory part of a DAI will be excluded 3. Against interest when made 4. Reasonable person would not make it unless true (declarant knew at time hindsight doesnt count) Reasonable person test: reasonable person in the declarants position would NOT have made the statement unless believing it to be true; reasonable person has degree of awareness that declarant had; if a reasonable person in declarants position would NOT have realized, say, that the statement could expose himself to criminal liability, the statement would NOT be adissible. B. CRIMINAL context: problem of exculpation (2 situations) & Confrontation Clause 1. wants to use it to exculpate himself (statement wont come in unless you have independent corroborating evidence that clearly indicates trustworthiness of the statement) 2. Government wants to use out-of-c t. statement against interest of a third person and use it against the (inculpate) constitutional problems if the is under arrest, how much can a statement be against their interest? Theyre only going to try to improve their situation. If statement, I did a little part of this, but did a big part of it Ct. said you can only look at each individual statement thats against the declarants interest (otherwise it wont be admitted) C. FRE doesnt require corroboration of inculpating statements (where prosecution uses third partys declaration against penal interest that has the effect of inculpating the accused) D. Cts reluctant to use self-serving or blame-shifting statements (i.e. Declarant confesses & implicates another to minimize his own culpability or curry favor) E. Declaration Against Interest v. Admission Declaration against interest (declarant is not a party) vs. Admission (declarant is a party)



I. Statement of Personal or Family History 804(b)(4)

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A. You CAN introduce statements concerning declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. B. You CAN introduce statements of the foregoing matters of another person, if the declarant is related to the other person OR intimately associated with the others family, that theyre likely to have accurate information about that persons family history. Forfeiture by Wrongdoing HRE 804(b)(7)/FRE 804(b)(6) A. You can allow hearsay statements offered against a party that has engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declarant as a W FRE 804(b)(6) Only need to show by preponderance of evidence that the party intentionally committed wrongdoing HRE omits engaged or acquiesced in wrongdoing that was intended to and did B. Types of wrongdoing: 1. Bribery, Murder, Threats C. Requirements: 1. DECLARANT UNAVAILABLE 2. Statement offered against the party that engaged in or acquiesced to the wrongdoing 3. Must be shown by preponderance of the evidence 4. You dont have to show that the statement is reliable Statement of Recent Perception (NO FRE counterpart) HRE 804(b)(5) Similar to present sense impression (play-by-play) A. Requirements: 1. DECLARANT UNAVAILABLE 2. No litigation motive surrounding the statement (e.g. before action began) 3. Describes an event recently perceived (personal knowledge) 4. Statement made in good faith 5. Made while the declarants recollection was clear Statement by Child (only in Hawaii Rule) HRE 804(b)(6) A. Requirements: 1. Child under 16 when statement was made 2. Statement describes act of sexual contact, sexual penetration, or physical violence performed with or against the child by another 3. Time, content, and circumstances of the statement provide strong assurances of trustworthiness with respect to appropriate facts, such as: Age and mental condition of declarant, spontaneity and absence of suggestion, appropriateness of language and terminology of the statement, given the childs age, lack of motive to fabricate, time interval between the event and the statement, and the reasons therefore, whether or not the statement was recorded, and the time, circumstances, and method of recording 4. The intent of this exception is for the situation where the child has become unavailable through inability to remember or communicated. The rule was designed to be consistent with Justice OConnors opinion in Idaho v. Wright. 5. If admitted, statement may be read, but not received as an exhibit unless offered by an adverse party. Residual (Catch All) Exception FRE 807 A. Anything that doesnt fit into a hearsay exception & its reliable & you need it, can try to get it here. (Hew & Durry) 2 most important things to watch out for: 1. Statement must have circumstantial guarantees of trustworthiness. 2. Statement must be more probative on the point for which it is offered than any other reasonably available evidence. Therefore, be on the look-out for the catchall when the DECLARANT IS UNAVAILABLE (though unavailability is not a strict requirement) B. Requirements: (ct. determines) 1. Equivalent circumstantial guarantees of trustworthiness, based on: whether statement was made under oath Time lapse between event and statement declarants motive for telling the truth whether declarant had first hand knowledge whether the statement is written or oral is statement corroborated (Idaho v. Wright) whether declarant is available at trial for cross examination whether declarant recanted or reaffirmed the statement Grand Jury & Child Wes (Crawford) 2. Statement is offered as evidence of a material fact





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Statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts 4. General purposes of these rules and the interests of justice will best be served by admission of the statement into evidence 5. You have to give the other party advanced notice that youre going to use the exception C. WHEN ITS USED: Near Miss Situation: where the statement is close to coming within a hearsay exception, but doesnt quite, the statement has been admitted under the residual exception 1. Grand jury testimony (common, but Crawford should end that. Some cts. Allow in child abuse cases) 2. Handwritten notes by an observer 3. Oral statement 4. W was intimidated first point out H/FRE 804(b)(6) which makes statement admissible b/c declarants unavailability was procured by s intentional wrongdoing. VI. Rules A. HRE 803(b)(24) OTHER EXCEPTIONS (availability of declarant immaterial) B. HRE 804(b)(4) STATEMENT OF PERSONAL OR FAMILY HISTORY C. HRE 804(b)(5) STATEMENT OF RECENT PERCEPTION D. HRE 804(b)(6) STATEMENT BY CHILD E. HRE 804(b)(7) OTHER EXCEPTIONS (declarant unavailable) F. HRE 804(b)(8) RESIDUAL EXCEPTION (declarant unavailable) F. FRE 807 RESIDUAL EXCEPTION (HRE counterpart in 803 and 804(b)(8)) 3.

When a hearsay declarant is NOT PRESENT for cross-examination at a CRIMINAL TRIAL, the Confrontation Clause normally requires a showing that he is UNAVAILABLE. Even then, his statement is ADMISSIBLE ONLY if it bears adequate "indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. I. Sixth Amendment Confrontation Clause: criminal s right to confront the W against her A. Constitutional requirement that accused should enjoy the right to be confronted by W against him. 1. Right to hear the W, Right to cross examine the W B. Basic principles of Confrontation Clause: 1. Only applied in criminal cases where the prosecutor offers an out-of-ct. statement 2. If the declarant testifies and is cross-examined, then the confrontation clause is satisfied Hawaii Exception: if W completely forgets, then this violates confrontation clause 3. If the declarant doesnt testify, and the statement falls within the admissions exception, then theres no confrontation clause problem C. Two part test: (not to violate the confrontation clause) 1. Declarant is unavailable (show good faith effort to get the person to testify in ct.) 2. Reliable statement a. Firmly rooted exception (widely accepted / been around a long time) b. Particularized guarantees of trustworthiness D. FRE no longer requires unavailability, but HRE requires it. E. Confrontation clause is still good in: 1. Declarations against interest, Prior testimony 2. Most likely Scenario Co- / accomplice cases where statement of co- also implicates the (John and I killed Bill jury cant separate the two statements) a. As confession (taken when A in custody, & implicating B) is used against B at Bs trial, & A wont take stand b/c he pleads 5th. Here, use of As confession certainly violates Bs rights. b. A & B are tried together. If the same jury hears As confession implicating B (and A doesnt take the stand), then Bs Confrontation Clause rights are violated even if the prosecution only purports to be offering the confession against A. F. Rape Shield Laws: history of alleged rape V cannot come in except as required by the constitution G. Child Abuse cases: some state laws provide that child V does not have to look at in the face H. Maryland v. Cray: you cant put up a screen between the and the W (Hawaii, however, allows you to take W in a different room if theres a special circumstanceyou have to look at the facts of the case) II. Sixth Amendment Compulsory Clause: criminal s right to obtain W in her favor

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A. 6th Amendment: compulsory process clause (obtaining W in favor of at trialyou have to make an individual assessment by looking at the facts of the case) III. What hearsay does the confrontation clause allow? Hearsay in civil cases, hearsay against the prosecution, hearsay from a declarant who testifies, hearsay with indicia of reliability, particularized guarantees of trustworthiness, or firmly rooted hearsay exception (roberts test). NOT TESTIMONIAL when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. (off-hand remarks, casual remark to acquaintance, business records, statements in furtherance of a conspiracy) TESTIMONIAL if objectively viewed, the primary, if not sole, purpose of the investigation was to investigate a possible crime. Thus, wifes statements were testimonial. (prior testimony at a former trial, Preliminary hearing or functional equivalent, affidavits, depositions, confessions, statements made under circumstances that would lead the reasonable W to believe that the statements would be available for use at a later trial, statements to police officers in the course of interrogations, grand jury, plea allocution showing existence of a conspiracy, 911 calls, excited utterances to police officers, statements to family and friends, domestic violence & child sex, police field investigations) Two Ways to Analyze Crawford Is the statement testimonial? Is my witness available? NO, then NO Crawford Analysis conducted If YES, then NO Crawford analysis is conducted YES, then: NO, then is the statement testimonial? W must testify (then other admissible hearsay may be If not Testimonial, then NO Crawford analysis is conducted introduced), or (Continue on to Roberts test) W must be unavailable and have been subjected to crossIf Testimonial, then there must be shown: examination at a prior time UNLESS forfeited or waived right of Confrontation W is legally available and was subjected to cross-examination at a prior hearing Note: Reliability or trustworthiness of the prior statement is not UNLESS forfeited or waived right of Confrontation an issue under Crawford Note: Reliability or trustworthiness of the prior statement is not an issue under Crawford U.S. v. Davis (911 call ADMITTED) 911 call by a woman that her former boyfriend had beaten her and just fled the scene. She did not testify at trial or earlier & the recording was admitted. US. v. Hammon (statements to police ADMITTED) involved a wifes statements to police who initially told them nothing was wrong, but when interviewed separately, she gave statement and signed an affidavit that husband assaulted her. Wife DIDNT testify at trial or earlier and statements were admitted. Whorton v. Bockting Crawford is not retroactive, In both Davis and Whorton, the Court stated that they had overruled Roberts. It is unclear if they overruled situations involving non-testimonial hearsay. Some Courts (HAWAII) seem to suggest not, still choosing to apply the Roberts indicia of reliability to non-testimonial hearsay. Melendez-Diaz v. Mass (Test Results are testimonial) The certificate of analysis containing the results of the drug test, offered as evidence in the trial of , Melendez-Diaz, was held to be a testimonial statement for the purposes of the Confrontation Clause. The Court further held that laboratory analysts are accusatory W within the meaning of the Sixth Amendment. The result of this holding is that laboratory analysts MUST be produced by the prosecution and subject to cross at trial in order to conform with Confrontation Clause requirements. Crawford Holding - (What is testimonial?) Testimonial statements of W who are not subject to cross examination at trial may be admitted ONLY when the declarant is UNAVAILABLE AND the has had a prior opportunity to cross-examine. Whats happening (present) vs. What happened (past): if still in progress, NOT testimonial. E.g. 911 call, if perp left premises, the answers to operators questions ARE testimonial. State v. Fields [cross examination sufficient] V claimed memory loss as to her prior statement on direct examination by the prosecution and claimed that she could not even remember the incident in question. On cross, however, she willingly and informatively responded to virtually all of the questions posed by Fields' counsel. ... Given the foregoing, we do not think that Fields' opportunity for cross-examination was insufficient." Ohio v. Roberts (Hawaii Follows Roberts! Applied to nontestimonial statements in criminal cases not under FED confrontation clause; and to ruling re unavailabiility) 1. If trying to admit Former Testimony, requires UNAVAILBILITY. Govt must produce declarant at trial, or demonstrate declarant is truly unavailable.

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2. 3. If trying to admit Co-conspirator statements, Excited utterance, statement for medical diagnosis or treantment, unavailability is not required. Statement must have indicia of reliability. If statement falls within a firmly rooted hearsay exception, it thereby has indicia of reliability. If not within a firmly rooted exception, it needs particularized guarantee of trustworthiness. Firmly Rooted: Dying declaration, prior testimony, co-conspirator statements, excited utterance, statements for medical diagnosis, business records. NOT Firmly Rooted: Residual exception, Statement against penal interest.

United States v. Inadi, clarified that under Roberts, unavailability only is required when the challenged statement was prior testimony. White v. Illinois (Child sex assault) Statements of a child V to mother, babysitter & police officer were admitted as spontaneous declarations; Statements to emergency room nurse & doctor were admitted as statements for the purpose of medical treatment. The case involved sexual assault of a 4-year-old child by the mothers male friend. Basically, the childs screams woke up the babysitter. Babysitter went to childs room, and saw leaving the room. Babysitter asked the child what happened, child told her about the improper touching. 30 minutes later, the mother comes home. She questions the child, who relates a sexual assault. Mother calls the police. Police officer arrives within a few minutes and questions the child. Again, the child recounts the assault. 4 hours after the babysitter heard the scream, the child was taken to the hospital. There, she was examined by an ER nurse and then a doctor. In response to their questioning, the child again recounted the events. The child did not testify at trial and the state sought to introduce the childs hearsay statements to the babysitter, the mother, the officer, the nurse and the doctor.


CHARACTER EVIDENCE GENERALLY H/FRE 404, 405 Difference btw/HRE & FRE In general, evidence of a persons character (or a trait of character) is not admissible to prove that the person acted in conformity with that character on a given occasion. H/FRE 404(a). That kind of guy does that kind of thing is NOT allowed! H/FRE 404(a). NOT ADMISSABLE to offer evidence of character that a party is careful or careless if your trying to infer that the party drove carefully or carelessly on a particular occasion. ADMISSIBLE, in a wrongful death case, to offer evidence of the deceaseds poor character in an effort to prove that the damages suffered by the survivors are not so great. EXCEPTION, MERCY RULE: majority of cts allow only for criminal cases. Cts. Show criminal Mercy and allow the to start using character evidence in trial by proving the bad character of the V or good character of the criminal . HRE (in minority), allows Mercy rule (HRE 404(a)) in civil cases where the central issue is criminal in nature. (applicable to civil assault and battery) HRE 609.1 requires that impeaching material, on cross-examination, be brought to the attention of the W being impeached as a precondition to the proffer of extrinsic evidence. FRE has no counterpart and is governed by federal common law that is divided on the issue. Hawaii allows specific acts when its a question of first aggressor. Considerations: distinguish between character-as-circumstantial-evidence (presumption is against admissibility) from character-inissue (generally rare, but when an issue it is likely permitted, e.g., action for defamation). In civil cases circumstantial evidence of character is generally NOT admissible (e.g. in a negligence action, P tries to show that D had a character trait of carelessness, this evidence is inadmissible.) A few cts allow it where the claim involves a quasi criminal act. Generally admissible in a civil case if character is directly in issue. HI adopted rule where the issue is essentially criminal in nature, then the rule may be invoked. The Meyer decision MAY NOT still be good law, especially in light of the federal advisory note, which states that the amendment is consistent with the original intent of the Rule which was to prohibit circumstantial use of character evidence in civil cases, even where closely related to criminal charges. Circumstantial use of character is allowed in criminal cases because of the interest in protecting s freedom. W credibility is always at issue. Credibility includes character for truthfulness (proved by reputation, opinion, or specific acts) as well as impeachment by prior inconsistent statements and bias. FRE has no rule for Bias and continues to be ruled by federal common law. II. Exceptions: A. Element of Case: A persons character (or, at least, a persons prior crimes or bad acts) can be used to show not that he acted in conformity on the present occasion, but that some element of the case is satisfied. e.g. if charged w/ defrauding an elderly homeowner in a scam, and claims he didnt intend to defraud, evidence that he defrauded others in the same way likely admissible to show intent or lack of mistake. B. Proof of s Good Character: A (1) criminal (2) may show evidence of a (good) (3) pertinent trait of his own character. Must be reputation or opinion, not specific acts. FRE 405(a). e.g. if is charged with assault, he can show hes generally peaceful). The prosecution may then rebut (but not initiate) by showing the s bad character trait. H/FRE 404(a)(1).

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Character evidence not usually presented in criminal trial because it puts character in issue. Allows prosectution to open door to discuss prior convictions, arrests, rumors, etc. Prosecution allowed to ask about specific instances. C. Vs Traits 404(a)(2): A criminal may generally show evidence of a pertinent character trait of the V (not by specific past acts though)(showing sex behavior of rape Vs is severely restricted). 1. Most applicable where is claiming self-defense (nearly all cts allow to introduce evidence of the Vs reputation for violence/aggression to show that was aware of Vs reputation at the time of the episode) : a. Vs reputation for unprovoked violence, or his violent character, may be used establish a reasonable person in s position would have believed himself to be under attack b. However, Vs reputation for violence (like other circumstantial evidence of character), must be proved by testimony about Vs reputation or by Ws opinion of Vs character, not by specific past acts of violence by V. Rule 405(a). c. Hawaii allows specific acts when its a question of first aggressor 2. But showing sexual behavior of rape Vs is severely restricted (see below Sexual Assault & Child Molestation) III. How to prove character H/FRE 405(a) A. Reputation or opinion (not specific acts); on cross examination, inquiry is allowed into relevant specific instances of conduct. Reputation: Generally allowed provided that W testify as to s reputation in any type of community w/ which has a substantial connection (traditionally had to be from community which lived) and must date from a time reasonably close to the date on which the conduct in question occurred (reputation before charges against him were publicized). W does not need to know the . Opinion: W must be shown to know sufficiently well that the W opinion about the s character is worth listening to. B. Specific instances of conduct are admissible when character or a trait of character is an essential element of a charge, claim, or defense: 1. Examples: Motive, Opportunity, Preparation, Common Plan or Scheme, Knowledge, Identity Some Other Dude Did It, MODUS OPERANDI (HI only not in Federal) notice requirements different 2. No conviction necessaryeven an acquittal can come in! just has to have been accused. 3. Provides that specific instances of conduct can be a topic for cross of a character W who has testified about reputation and opinion. Rule 404(b) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Other-Crimes Evidence may NOT be introduced to SHOW ACTION IN CONFORMITY WITH CHARACTER.. OCE MAY BE USED to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (can also use to show that a 3rd person other than committed crime). Requires that prosecution in a criminal case give advance notice of other crimes evidence (prior convictions, prior prosecutions, acquittals, esp. in episodes where was never prosecuted). e.g. of other-crimes evidence (OCE) that have been admitted: 1. Context: OCE may be admitted to place the crime in context, by describing other events or conduct that were part of the same transaction (telling the story of how the event unfolded). 2. Larger plan: OCE may be used to prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part. (tends to related to intent, motive, identity, or other actual element of the crime charged). 3. Preparation: OCE may be used to show preparation for the crime charged (can go to s state of mind). 4. Identity by showing signature: (Hawaii only) OCE may be used to show that other crimes are so similar in method to the crime charged that they all bear his signature. To be admitted, must be a denial by accused and proof of identity (so very similar that there is a substantial probability of identity. Evidence of other crimes IS ADMISSIBLE (still conditional to FRE 104(b)) to prove (A MOPI KIPI): (1) Absence of Accident/Mistake (intent) (2) Motive (identity and intent) (3) Opportunity (identity) (4) Preparation (intent) (5) Intent (intent) (6) Knowledge (intent) (7) Identity (identity) (8) Plan (intent and sometimes identity) (9) Integral part of crime Once admitted, party against whom it is being admitted is entitled to a Rule 105 limiting instruction (also subject to 403 balancing and 404(b) notice. If W being crossed, denies that incidents took place, extrinsic evidence of proof of the happening of the incidents is not permissible. Rebuttal by prosecution: Once has opened the door by showing evidence of s good character, prosecution may rebut w/ opinion, reputation, and specific acts evidence on cross-examination of s character W. 1.

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In Practice, Frequently litigated: every trial lawyer knows the general rule of no other-crimes evidence to prove character and action in conformity therewith. Thus, a litigator who wants to introduce other-crimes evidence will almost always try to convince judge that the evidence is being offered for some OTHER PURPOSE than character-to-prove-action-in-conformity-therewith. If against admitting OCE, request a limiting instruction to guide jury re the purpose for which the evidence may be used (if denied by judge, may lead to reversible error) (Probably useless as studies indicate that limiting instructions are useless w/ re to instructing jury on how to use the evidence). Might also want to introduce good character evidence for (allowed by all cts) (must be relevant to the crime charged). But be careful because youll allow rebuttal by prosecution to challenge that evidence. Always ask what position is taking: I didn't do it (identity is key issue); I did it but I didnt mean to (intent is an issue) Risks involved with other crimes evidence: (1) jury will convict because D is a "bad person" jury will give excessive weight to the other crimes evidence But H/FRE Rule 403 considerations still apply IV. Rules A. RULE 404 CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES (H/FRE 404(b) applies to civil and criminal cases) B. RULE 405 METHODS OF PROVING CHARACTER (a) Reputation or Opinion (not mutually exclusive, testimony as to reputation or opinion; on cross examination, inquiry is allowed into relevant specific instances of conduct) (b) Specific Instances of Conduct (mostly prohibited; where character is an essential element of a charge, claim, or defense, specific instances of persons conduct is allowed) Michelson v. United States use of a character W opens a wide door to cross about prior acts unrelated to the subject of the lawsuit, but that are relevant to testing the character W knowledge of person who is being testified about. E.g. if you are such an expert on the s character for trufhfulness, did you know that the has filed a false application or even did you know tht has been accused of cheating on a college exam? (subject to exclusion after 403 balancing) Meyer v. City and county of honolulu - [2] In the analogous homicide situation, where the contention is that the decedent was the aggressor, we have noted that "[T]here is no substantial reason against evidencing the character (of a deceased V) by particular instances of violent or quarrelsome conduct. The same considerations would apply in civil assault and battery cases. Such evidence may be admissible where the issue is the identity of the original aggressor. State v. Castro (HRE 403, 404(b))- The Ct. conclude that the CT. ERRED (abuse of discretion) WHEN IT (1) admitted Evidence of Michael Castro's earlier acts of violence and aggression on grounds that it was probative of several matters of consequence in the determination of the case and the probative value substantially outweighed the danger of unfair prejudice. The trial ct.'s allowance on the prosecution's case in chief of evidence likely "to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge[,]" Michelson v. United States. State v. Kekona, was convicted of attempted murder in the second degree, On appeal the ct. held that:(1) evidence of V's prior abuses of 's CURRENT girlfriend was relevant and admissible;(2) 's failure to provide reasonable notice in advance of trial of the evidence of the prior abuse did not preclude from introducing that evidence; State v. Pond, HRE 404(b) (Notice Requirement) by . Background: was convicted of abuse of family or household member and interference with reporting an emergency or crime. appealed. The ICA affirmed. Holdings: (1) notice requirement in rule governing admissibility of evidence of other crimes, wrongs, or acts did not per se violate 's constitutional right to cross-examine W; [404(b)] (2) trial ct. did not abuse its discretion in declining to excuse pretrial notice on good cause shown of evidence that complainant had previously smacked (ADMITTED); (3) was NOT required to give reasonable notice of his intent to crossexamine complainant about her marijuana use on night allegedly attacked her as prerequisite to cross-examining her on this issue;(4) trial ct.'s preclusion of 's cross-examination of complainant as to her marijuana use on night allegedly attacked her was reversible error; and Vacated and remanded. State v. Steger R 404(b) factors. In ruling on whether to admit evidence under HRE Rule 404(b), the trial ct. must consider a variety of factors. (State v. Robinson) These include: the strength of the evidence as to the commission of the other bad acts, the similarities between the [other] bad acts [and the charged crime], the time that has elapsed between the [other] bad acts [and the charged crime], the need for the evidence, the efficacy of alternate proof, and the degree to which the evidence will probably rouse the jury to overmastering hostility.... Finally, the evidence of Steger's other drug activities WAS NOT LIKELY to rouse the jury to overmastering hostility. State v. Robinson. Indeed, Steger himself injected his prior involvement with drugs into the trial by characterizing himself as a heavy methamphetamine user. Steger employed this strategy to explain how he could be present in an apartment filled with drugs and yet not be responsible for the distribution quantities of crystal methamphetamine and Ecstasy found in the apartment. Steger's trial strategy significantly diminished the risk that any unfair prejudice resulted from Cruz's testimony regarding Steger's other drug activities. We conclude that the probative value of Cruz's testimony regarding Steger's other drug

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activities was not substantially outweighed by the danger of unfair prejudice. The circuit ct. did not abuse its discretion in permitting Cruz's testimony...Affirmed. State v. Fetelee, Held that the res gestae doctrine is no longer viable and shall not be used or recognized as an independent basis for the admission of evidence. SEXUAL ASSAULT & CHILD MOLESTATION H/FRE 412, FRE 413-415 I. Sexual Assault H/FRE 412 (main area in which civil-suit portions of 412 come into play) A. Anytime is charged with sexual assault, cannot point to Vs sexual nature or history through reputation or opinion evidence; INADMISSIBLE evidence includes: Sexual disposition, Other sexual behavior B. Exceptions: 1. Specific instances of sexual behavior by alleged V to prove that another person was the source of semen or injury 2. If defense is consent (i.e. former lovers) then prior sexual conduct of that w/V admissible 3. Pattern of conduct (prosecutor can bring in evidence that has engaged in other sexual acts between that V and that ) 4. Constitutional exception (exclusion of evidence would violate s constitutional right) 5. Civil cases (Vs sexual behavior and predisposition is admissible if probative value substantially outweighs prejudicial effect; if V puts in evidence of her reputation, then it can come in only in civil cases) C. Rule 412 applies to civil and criminal cases II. Child Molestation FRE 413, 414, 415 (NOT in Hawaii) A. If youre charged with sexual assault or child molestation, then government can introduce evidence of prior sexual assault or child molestation to show propensity, even if committed the act 14 years ago. B. Evidence of past offenses of sexual assault or child molestation is admissible in a civil case stemming from sexual assault or child molestation. C. Hawaii has refused to adopt these three rules because its pure and simple propensity evidence. III. Rules A. H/FRE 412 SEX OFFENSE CASES; RELEVANCE OF ALLEGED VS PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION B. FEDERAL RULES ONLY: (not in Hawaii Rules) 1. FRE 413 EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES 2. FRE 414 EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES 3. FRE 415 EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL ASSAULT OR CHILD MOLESTATION (if the person did it once before, he probably did it this time too) 1995 He did it again amendments: (413,414,415)These rules were enacted by Congress as part of a politically charged crime bill and did not go through the usual rulemaking process. The rules were opposed by the Judicial Conference and the ABA House of Delegates. Also the rules do not refer to FRE Rule 404 but they effectively amend it sub silencio PRIOR ACTS can be unreported, unprosecuted and unconvicted crimes or even acquitted acts. No time limit on offenses and no Rule 609 balancing. So if D committed a sex assault 20 years earlier, pros may introduce it and argue that since D raped before, it means that hes extra likely to have committed the present rape. Pure propensity evidence. Not trying new case on facts, trying D on his character. Govt must disclose its intention to use such evidence 15 days before even without a request and Rule 403 was intended to apply to admissibility of such evidence according to some cts of appeals. Rule does not seem to prevent hearsay evidence to prove other act FRE provoked strong opposition from judicial conference (unanimity highly unusual with judges, lawyers and academics) the organized bar (ABA delegates). Few states have adopted. Rule conflicts with general policy of Rule 404(a) which allows such evidence in three situations and Rule 404(b) which prohibits it altogether. HI has rejected adopting it. FRE 412. Sex Offense Cases: FRE exception to the shield in civil cases is broad and vague. Applies to all civil cases and past sexual behavior is admissible if it is otherwise admissible and 403 is satisfied. HIs approach in civil cases is different. In any civil action alleging conduct constituting a sexual offense or sexual harassment, evidence of specific instances of plaintiffs sexual conduct is not admissible by the D to prove consent by the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium and if the P introduces evidence relating to the Ps sexual conduct, the D may XX the W and offer relevant evidence limited specifically to the rebuttal of the evidence introduced. The preclusion does not apply where the past sexual conduct is alleged to have been with the D. HRE not sealed and while a V has right to be present in HRE and is given notice, V is not specifically afforded the right to be heard. Former lovers, Friends, Date-rape, Spouse are persons that consent may be raised. As to confrontation, evidence of other sexual behavior is admissible when exclusion violate Defts constitutional right to confrontation and to due process. In Calbero, D had right to cross when V said that she had never been in that position before. State v. Calbero (R 412) Due process allows the introduction of evidence relevant to the issue being tried. Whether or not the complaining W had had past sexual experience was relevant only to the extent the State, by eliciting her answer "I [had] never been in

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that situation before," had injected her past experience into the trial. But her alleged boasting of her past sexual experiences to appellant (if the jurors believe it occurred), while parked in his car at the beach could be construed by reasonable jurors to be an invitation to sexual advances, and, coupled with her failure to object, by either words, or actions, to those advances, to constitute consent. The issue being tried here was consent, and the complaining W statements as to her past sexual experience, in the context made, clearly were relevant to that issue and, consequently, should have been ADMITTED. HABIT & CUSTOM H/FRE 406 I. Habit & Routine practice of an organization are relevant (subject to 403 balancing) A. Must look at modifiers during exam Words like: frequently or usually is not enough to establish habit. However: always is good for habit (actions done almost unconsciously, pavlovs dog, stopping at stop signs, wearing a seat belt, informed consent warnings, mailing letters, habit of having a few drinks before driving home from work. B. RULE 406 habit of a person or routine practice of an organization, whether corroborated or not and regardless of the presence of eye W, is relevant to prove that the conduct of a person or organization on a particular occasion was in conformity with the habit or routine practice. Evidence of habit/custom IS ADMISSIBLE to show action in conformity Reasoning: a pattern of continuous activity increases the likelihood that the custom was followed on the particular occasion C. Three factors: 1. Specificity the more specific, the more likely it is to be deemed a habit. Probably not general descriptions of behavior (i.e. dangerous driver = not specific) 2. Regularity the more regular the behavior, the more likely it is to be found a habit. 2 sub-aspects: a. How Often Done fact specific (i.e. every day, a couple of times, etc.) b. Uniformity of Response not very many instances where situation arose & habit was not followed 3. Unreflective Behavior the more unreflective or semi-automatic the behavior, the more likely it is to be a habit. not dispositive (i.e. docs habit of informing of risks of surgery) a. The more semi-automatic it is, and the less you think about it, the more likely its habit Character v. habit - Always stopping at a railroad crossing, would likely be habit and would be admissible to show that he stopped at the crossing that day. But Vs general carefulness will be found to be a character trait, NOT a habit, and will not be admissible to show that he probably behaved carefully at the time and place of the fatal railroad crossing. As to regularity: if you do something 95% per cent of the time versus 55% percent of the time, the higher the ration, the more likely to be held as a HABIT. As to unreflective behavior: using a left hand signal is probably a HABIT because it is semi-automatic, while going to church every Sunday requires conscious thought and volition. Narrower than character evidence. D. HABIT is most often offered in civil negligence cases, but it could also be offered in a criminal trial E. Not admissible To Show Propensity: has run many stop signs in the past, thus he ran the stop sign in this case. Admissable habit: runs THIS PARTICULAR stop sign every day. F. Conduct That May Be Habit: wearing a seat belt, drinking on the job, manner of crossing a particular street, how a doctor informs patients of risks, keeping a cooler of beer in a truck, manner of approaching a railroad crossing, routine practice of a bar to serve drunks, reacting with extreme violence to the police (??), Mailing a letter, Inspecting vehicles, Giving sales receipts, Cleaning up every day (slip & fall cases), Informing patients of risks (written forms too), Failure to file tax returns [JB questions this], A military bases practice of using base facilities to make authorized retirement gifts, Insurance companys agents routinely waived written policy conditions. G. Business Practices: All cts and the H/FRE allow evidence of the routine practice of an organization to show that practice was followed on a particular occasion. A business may prove a particular letter was mailed by showing that its routine practice was to place all letters in an outgoing mail box, and letter in question was put there. State v. Okuda, R 406 Because of the volume and passage of time, although the W could not recall specific handling of the 8 tickets, the trial ct. permitted testimony about the handling of other tickets in general as evidence of habit and routine practice under HRE 406. claims error because (1) the State failed to lay an adequate foundation to establish that the W testimony constituted evidence of habit, and (2) the evidence admitted under the guise of habit was really evidence of prior bad acts "to prove the character of to show that he acted in conformity therewith." HRE Rule 404(b). Ct. held that the trial ct. did not err in admitting the questioned evidence pursuant to HRE Rule 406 and that the trial ct. did not abuse its discretion in holding that the foundation was adequate in allowing testimony of habit, custom, and routine procedure. Moreover, the admitted evidence was relevant. OTHER RELEVANCY EXCLUSIONS H/FRE 407-411 HRE 407 (favors ) vs. FRE 407 (favors ) difference FRE does NOT allow evidence of subsequent measures to prove product defect, a defect in a products design, or a need for a warning or instruction. HRE allows evidence of subsequent measures to prove dangerous defect in products liability cases. Both, allow evidence of subsequent measures when offered to prove ownership, control, or feasibility of precautionary measures, if controverted, or impeached. I. Similar Happenings

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A. Prior similar events (automobile accidents, slip-and-fall) can be used to prove elements of negligence (e.g., existence of condition), but you cant use it to prove negligence itself. B. You have to show that the prior incident had very similar conditions C. In civil case, defense can show absence of accidents to show that was not on notice, or that there was no dangerous condition (if no prior accident, can show that conditions havent changed; if there was a prior accident, can show that she was not given notice of it); plaintiff will want to show records of prior accidents. D. Rule 403 you can exclude similar happenings by saying its going to mislead the jury. II. Subsequent Remedial Measures H/FRE 407 Difference btw/HI (favors ) & Fed. (favors ) A. Evidence that has taken subsequent remedial measures is inadmissible to prove s negligence. 1. Remedial measure is one that wouldve made something less likely to happen changing a warning or changing the design (only excluded in FRE) 2. After injury or harm allegedly caused by an event, evidence of measures taken that wouldve made the injury or harm less likely to occur is inadmissible. Examples of remedial measures: Subsequent repairs, Removal of dangerous conditions, Design change, Firing or disciplining the employee, Change in rules, policies, or procedures (lower speed limit), New warning signs or modified warnings, New chemical formula. Examples of what is not a remedial measure: Tests and post-accident reports, Remedial measures by a non-party, Return to exact conditions before the accident, Changes made solely in response to government regulations. B. Policy: exclude evidence because you dont want to discourage repairs (e.g. slip and fall case, repairs) C. Requirements: 1. Repair must occur AFTER the event D. Exception: exclusion of evidence not required when offered to prove something other than negligence: 1. Ownership, a. Look for fact pattern where responsibility for instrumentality is in dispute, yet the fixes item. b. Ownership issues especially likely in tenant landlord scenario. 2. Control, 3. Feasibility of precautionary measures, 4. Bias or prejudice of a W a. W is an investigator for insurance company called by , may show W is biased E. HI Rule favors s like HRE 609 Impeachment by Prior Conviction 1. Hawaii Evidence of subsequent measures to prove dangerous defect in products liability cases is admissible! (unlike the FRE) 2. In Hawaii, only evidence of remedial measures to prove negligence or culpable conduct is inadmissible. Committee Note to FRE 407: Evidence of subsequent remedial measures is excluded as proof of an admission of fault. The ground for exclusion rests on social policy of encouraging people to take steps in furtherance of added safety. Evidence offered to impeach a W or to rebut a claim by an opposing party is not excluded under the rule. III. Liability Insurance H/FRE 411 A. Policy: insurance company does not want evidence of liability insurance admitted. B. 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. C. Exception: exclusion of evidence not required when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a W D. When rule applies, it overcomes the more general rule allowing admissions despite hearsay rule. NOTE on Rule 411: Evidence that a person carried or did not carry liability insurance is never admissible on the issue of whether he acted negligently. But for other purposes, it may be admissible. Suppose after the accident, that D denies ownership of the car. Insurance policy could be admitted to prove ownership. The fact that W, a W for D in a trot suit, works for Ds liability insurance company could be admitted to show bias on Ws part. IV. Compromise and Offers to Compromise (Settlement Offers) H/FRE 408 A. Policy: to encourage frankness & honesty in mediation; almost every case goes through some form of mediation B. Rule is BIG & applies to: 1. Compromise 2. Offers to Compromise 3. Mediation Proceedings 4. Offers of Settlement C. Requirements: 1. There must be a dispute (about liability or amount of claim) 2. Statements have to be in pursuit of settlement D. Offers to compromise are protected, and all statements during compromise are protected!

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E. You cant immunize an admission, for example, if its used in settlement (statements are protected, but the species of evidence is not protected) 1. Admission of a fact, if it occurs during the course of settlement negotiations, is not admissible 2. BUTif a party admits a certain fact during settlement, the other party can still prove that fact by means independent of the settlement admission if the evidence could be found through discovery or other techniques independent of the settlement negotiations, it may be admitted (rule does not require exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations) F. Proper Questions from Settlement Offers Cant ask Didnt say during settlement negotiations that your brakes were bad? Can ask Werent your brakes bad? I was drunk when I ran over you, so Ill pay $5000 in damages. The collateral admission of fact is not admissible under FRE. FRE Rule 408 prevents the use of statements made during settlement negotiations from being used to impeach. V. Offers to Pay Medical Expenses H/FRE 409 A. 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. B. Narrow (as opposed to 408 Offers to Compromise) does not include facts NOTE: There is no mention of statements in rule. Therefore a related statement of liability in conjunction with an offer or promise to pay is not protected. For example, D says to P: Im paying your medical expenses because if I hadnt been drunk that night, I wouldnt have hit you. The statement is admissible to prove Ds drunkenness but not to prove that D paid the expenses. C. HRE 409.5 Evidence of statements or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule. Examples: Im sorry is excluded Im sorry because I Admit what they are sorry about. VI. Criminal Pleas H/FRE 410 A. A guilty plea that is withdrawn is protected and cannot be used against a in a criminal or civil proceeding later (protects withdrawn pleas and no contest pleas). B. Plea bargaining is also protected under this ruleonly protects plea discussions with the prosecuting attorney (doesnt apply to pleas with police; so shouldnt talk to police officer or anyone else about guilt because these statements not protected) C. Before judge accepts the plea, she wants to know specifics of the crimefactual basis for the crime. s statements of guilt during this process are protected as well! NOTE: Ds offer to plead and statements made in the course of plea negotiations which do not result in a plea of guilty or result in a withdrawn plea are inadmissible to prove that D is guilty or is conscious of guilt. Statements must be made to prosecutor and must be made with the intent to negotiate a plea. The withdraw plea and the plea offer are also not admissible in any later civil case. AC Notes: The purpose of the rule is to permit the unrestrained candor which produces effective plea discussions between the attorney for the government and the defense. The exclusion applies to statements by both prosecutors and defense despite language. Only applies to guilty pleas which are later withdrawn. Sustained guilty pleas are admissible to prove liability or culpability. Nolo pleas can never be used. VII. Rules A. RULE 407 SUBSEQUENT REMEDIAL MEASURES B. RULE 408 COMPROMISE AND OFFERS TO COMPROMISE C. RULE 409 PAYMENT OF MEDICAL AND SIMILAR EXPENSES D. RULE 410 INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS E. RULE 411 LIABILITY INSURANCE Ranches v. City & County of Honolulu Measures (to resurface a beach parks bathroom floors) begun before the plaintiffs slip and fall in the bath house, but not completed until after the fall, are not subsequent remedial measures and are therefore ADMISSIBLE. U.S. v. Mezzanatto An agreement to waive the protections of FRE Rule 410 is valid. Puts pressure on s to avoid taking the stand in their own defense (and saying they are innocent, Mueller book 4.29, n. 33). The prosecution may not introduce into evidence proof of any statement made in the course of plea discussions with an attorney for the prosecuting authority unless there is an agreement to the contrary. State v. Gano - HRE 408, 104, & ADOPTIVE ADMISSIONS, Ct. held that, in a criminal trial, evidence of an accused's offer to pay value to a complainant in an attempt to avoid prosecution is not excludable under HRE 408. In determining whether an accused is attempting to avoid prosecution, the ct. should examine the 's statements and the surrounding circumstances to ascertain the 's objective...Factors relevant to the ct.'s determination include, but are not limited to, whether a civil suit was pending at the time statements were made, whether any reference to criminal prosecution was made, and whether the admission of liability in the civil suit has any probative value as to criminal liability.

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Barkai Evidence Fall 2012 LAY & EXPERT OPINIONS H/FRE 700-706 (COMPARE HRE/FRE 701-703)
Differences between HRE and FRE: HRE Fukusaku 1997. Less stringent standards for technical expertise. FRE Kumho 1999. Daubert to be applied to all expert testimony technical and scientific.Similarities: Both focus on reliability and relevance, but they use slightly different factors. I. Lay Opinions H/FRE 701 A. Lay opinions: be sure it is an opinion, not some other form of evidence (like reputation), such as reputation and Check that statement is made in ct.. Applies to only in ct. statements (otherwise hearsay). 2 additional req. opinion must be (1) rationally based on the perception of the W; and (2) helpful to a clear understanding of the W testimony or the determination of a fact in iissue. 1. Generally, lay opinions are not admissible unless: a. the opinion is rationally based on the perception of the W; and b. the opinion will be helpful to clear understanding of the W testimony or the determination of a fact in issue; c. Collective Facts Rule (Exception to the rule against opinions): If a W has perceived a number of small facts that cannot be easily stated, the W may summarize the collective facts with a short hand rendition (e.g. person seemed tired). Example: is on trial for murder, and raises an insanity defense. W testifies that was in terrible shape, and was mentally and physically ill. Admissible. State v. Garver (1950). d. Modern view on collective facts rule: opinions of laymen should be rejected only when they are superfluous in the sense that they will be of no value to the jury. McC, p. 18. However, if the matter is important, the judge will often require greater specificity. B. Requirements: 1. Lay W must limit testimony to First hand knowledge of the facts underlying the opinion a. Must have sufficient opportunity to perceive elements on which opinion is based, e.g.: W hears screeching sound; cant give testimony about speed of cars. V gets hit by car; cant say hit b/c driver was nuts if no opportunity to see. W must have perceived it himself not learned from it from someone else. b. Distinguished from hearsay: if the W is merely repeating what someone else said, the objection is to hearsay. If the W purports to be stating matters which he personally observed, but is actually repeating statements by others, the objection is to lack of first-hand knowledge. c. H/FRE Rule 602 A W may not testify to a matter unless the W has personal knowledge of the matter. This rule is subject to the provisions of rule 703, relating to opinion testimony by experts. What do we want from typical trial W? concrete report of what she saw, heard, etc. natural style of speech, not forced artificiality. But it is often hard to distuinguish facts from opinions because they occupy regions on a continuum, differing only in degree of specificity. 2. Opinion must be rationally based on the perception of the W and not based on scientific, technical, or other specialized knowledge. Also cannot offer opinions on how the case should be decided and questions of law. 3. Another person would come to the same conclusion 4. Lay opinion should be helpful to understanding evidence or testimony OR helpful in determining a fact in issue C. The more crucial a testimony, the more we want a fact rather than an opinion D. Examples where lay opinions allowed (look for Ws sense impressions, or Ws perceptions of someones or somethings appearance, stated in terms of an opinion but based on common everyday knowledge): 1. Intoxication (that person was drunk) 2. Anger or other emotional or psychological state (that person was mad) 3. Speed of cars (that person was going fast) 4. Appearance of object (size, color) 5. Familiarity with someones handwriting (yesthats her handwriting) 6. Where sound comes from; lighting conditions; color 7. Whether someones acting sane or insane 8. Identification in a videotape or photograph (yesthats a picture of Bob) E. Lay opinions are NOT allowed to show: 1. Whats in someone elses mind (knowledge, intent) 2. What someones feeling 3. Police testimony is not a lay opinion b/c its based on specialized knowledge subject to Rule 702 expert testimony.

NOTE on FRE701: The rule is not intended to change the practice that an owner of a business can give an estimate of projected profits of the business based upon the owners particularized knowledge that the W has by virtue of his or her position in the business.

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Rationally based means that a reasonable person who knows what the W knows might reach the conclusion the W has reached. Based on perception means that the W had personal knowledge of the facts underlying the opinion. Various factors considered in determining whether helpful to a clear understanding of testimony or a fact in issue. The amount of actual matter subsumed in the opinion. Too general will be excluded. The ability or inablity of the W to convey the information in the form of specific facts (apparent age). The extent to which the jury is equally well-positioned to draw the inference. The need for the testimony. Also if testimony goes to heart of case, then the W should be required to give facts. II. Expert Opinions A. Expert testimony is allowed where scientifically, technical, or other specialized knowledge will assist the trier of fact either: (1) understand the evidence, or (2) determine a fact in issue. H/FRE 702. B. Questions to Ask: 1. Is the expert qualified (must be qualified) is she testifying in an area where she has expertise? a. Qualified = knowledge, skill, experience, training, or education (even hobby) as to particular issue testifying about b. Must Establish Foundation demonstrate experts credentials c. Opposing Party May Voir Dire can impeach on cross, challenging credentials (goes to weight). Rule 611(a) allows ct. to exercise control over mode and order of interrogating W. Allows an out of order cross-examination in aid of objection, a voir dire which culminates in an objection. d. Other Party May Stipulate but may continue questioning credentials (helps jury determine how much weight to give expert testimony) e. the testimony must be based upon sufficient facts or data f. the testimony must be the product of reliable principles and methods; and g. the W must have applied these principles and methods reliably to the facts in the case. 2. Will the testimony assist the trier of fact in understanding the testimony? a. Expert testimony helps you understand the EVIDENCE (not understand the V) b. or otherwise = can testify on how something works scientific principle, background info. c. Expert can testify as to possibility of something d. You cannot call in experts on a legal issue its not helpful Experts cannot say, doctor was negligent; Experts cannot tell jury what to do. e. You cannot call in experts on believability of sexual assault Vs you cant pay an expert to be a human lie detector (testimony on whether a W is lying not allowed) C. Under FRE, expert can testify on the ULTIMATE ISSUE in the case, EXCEPT (Rule 704): 1. Mental state or condition of a in a criminal case as to whether a did or did not have the mental state or condition 2. Whether had the mental state (intent) provoked by Hinckley D. Permissible bases for an experts opinion (Rule 703): 1. Facts perceived by expert (experts knowledge & preparation before comes to ct.; expert gets data or facts in ct. by listening in on W; hypothetical questions by which an expert gets her data) 2. Getting evidence outside of ct., but not based on personal knowledge (of a type reasonably relied upon by experts in the field) E. Disclosure of facts or data underlying expert opinion (Rule 705): 1. Expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data (i.e., basis for the opinion) 2. Expert may in any event be required to disclose underlying facts or data on cross examination F. Ct. Appointed Experts (Rule 706): ct. can appoint its own expert; both sides can still call own experts G. Notes: judges often refuse to allow an expert on human memory and perception to testify as to the frequent unreliability of such eyeW identifications. Judges usually resist testimony by experts that purport to help the jury decide whether a particular W is telling the truth. JUDGES HAVE WIDE DISCRETION in determining whether the proposed W passed the requirements and should be allowed to testify as an expert (reversals on appeal are rare on this issue). H. Modern/Federal trend: Removes entirely the req that the experts opinion be based solely upon admissible evidence. If a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. An expert may base an opinion upon clearly inadmissible hearsay, if it is of the type that would be reasonably relied upon by experts in that situation. I. On Cross-Examination: Expert is likely to be more difficult than examining a lay W. The expert is often a professional W and likely loyal to the side that called him. Most importantly, he has spent his career mastering a particular technical specialty, and knows far more about it than the lawyer on cross. STRATEGY: exploit the examiners bias by showing that he is being paid for the other side (similar cases, always aligned oon the same side, e.g. w/ in asbestos cases). Exploit Different assumptions that can be drawn from the factual data on which the opinion is based. Use hypotheticals that vary facts to achieve a desired answer (e.g. Would your conclusion that the s lung cancer was caused by smoking be changed, doctor, if it were assumed that the came into daily contact w/ asbestos during his job as a shipbuilder over a thirty-year period?)Use a treatise, to impeach first must get expert to acknowledge that the text in question is a standard authority in

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the field (allowable under FRE 803(18)). If doctor does not recognize text (cant use unless confirmed by an expert or be of such reliable character that it may be judicially noticed FRE 803(18)), if you happen to have a widely accepted legal directory listing standard medical works, you may judicially notice the treatise, take judicial notice, or judicial notice, the text. Experts may testify on 3 types of information: (1) personal observation, per FRE 703; (2) facts presented to the expert at trial (e.g., a hypothetical question) per FRE 705; (3) Facts introduced to the expert outside the ct.room per FRE 703. Note that second hand data relied upon need not be admissible, if its of a type upon which experts in the field reasonably rely.


Medical malpractice notes: re PERMANENCY OF CONDITION: Permanency is generally restricted to proof by way of medical certainty, or at least probability. Possibility proof is insufficient, and will be excluded as speculative conjecture. When future injuries are sought to be established, a higher level of conviction may be called for than is the case with the initial connective proof. Statements made to physicians for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations are admissible under FRE 803(4). Other cases: re objection to the admission of a report that an expert relied on. Such a REPORT (report under cc if criminal case) should not be allowed to be admitted because it denies one of their constitutional right to confront the W (via cc), and it is a violation of the heresay rule. Recitation of out of ct. hearsay by experts is disapproved in criminal cases. NOTE on FRE 702: This rule was amended in 2000 (compare to old language still part of HI rule). There are five requirments that expert testimony must meet to be admissible. The amendment affirms the trial ct.s role as gatekeeper to exclude unreliable expert testimony and provides some general standards that the trial ct. must use to assess the reliability and helpfulness of proffered expert testimony. In keeping with Kumhos holding that the gatekeeper function applies to all expert testimony not just testimony based in science. Note on HRE Rule 702.1. Cross-Examination of Experts The rule has no counterpart in the FRE. The HRE Commentary justifies this rule as clarifying that an expert may be cross-examined on a treatise that the expert did not rely upon if the expert acknowledges that it is an established authority. The rule seems to be all surplusage and unnecessary. Ct. may strike testimony if it is revealed on cross that the expert lacked an adequate basis for the opinion. NOTE on 703: Expert is allowed to reveal contents of materials on direct: if (1) expert actually relied on material as a basis of opinion, (2) materials are of a type reasonably relied upon by experts in field in forming opinions upon the subject, and (3) materials do not indicate lack of trustworthiness. Tabieros v. Clark. The FRE provides better protection than the counterpart HRE. Disclosure to the jury of inadmissible evidence, even if the expert relied upon it, is probemmatic and potentially quite prejudicial to the other party. R 705 DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, The FRE allows expert to testify to the opinion without testifying to the underlying data, unless the ct. directs otherwise. The HRE says expert may testify to the opinion if the data was provided to the other side. The only time there will be a problem is if the expert are retained during the trial (given the continuing duty to disclose discovery material), and the other side does not have the basis and the factaul basis would have to be disclosed first to ensure that the experts opinion rests on a trustworthy basis III. Scientific Tests and Principles A. Daubert Two-Prong Test: 1. Reliability prong - Evidence must be shown to be scientifically valid (reliable scientific principle) a. If its junk science, it wont come in under Rule 702 2. Relevancy prong - Evidence must fit at least one issue in the case (must be relevant to the task at hand) B. Dauberts 5 factors in determining whether reliable principles and methods: 1. Has the scientific technique or theory been reliably tested? 2. Has it been subject to peer review criticized? 3. Rate of error of this technique? 4. Are there operational standards out there? 5. Has it been generally accepted in the community? (most important factor) 6. Was the technique grown independently of the litigation, or was it developed for the litigation? (Not articulated by SC but by 9th. Independent, more valid.) Note: factor are not exclusive, ct. free to consider other factors, such as #6. None of the factors is necessary to find reliability. C. Judge determines reliability of methodology; Jury determines the reliability. D. Daubert on Remand Three factors judges should consider in evaluating scientific, technical, and specialized knowledge (FRE 702):

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1. Is testimony based upon sufficient facts or data? 2. Is testimony the product of reliable principles and methods? 3. Has W applied principles and methods reliably to the facts of the case? E. HRE did not adopt Daubert, but Hawaii still allows cts to look at Daubert 1. Apply Frye generally accepted standard (by which test or principle cant come in unless its generally accepted by experts in the particular field) F. For inadmissible evidence, you have to show: 1. Reasonably relied upon by experts in the field 2. Balancing test (more probative than prejudicial) IV. Expert Opinion Cases DAUBERT (U.S., 1993) Judges are the gatekeepers and have wide discretion in determining whether the methodology used is reliable. Relevant and reliable test; new techniques have a better chance of getting admitted. (applies only to scientific testimony) Requires judge to insure that proposed expert testimony is reliable. Whether results drawn from a new scientific process have been tested is a key determinant. Another pertinent consideration is whether the theory or technique has been published and thus exposed to the scrutiny of the scientific community. 1. whether a theory or technique can be and has been tested.... 2. whether the theory or technique has been subjected to peer review and publication.... 3. the known or potential rate of error... 4. "general acceptance" can yet have a bearing on the inquiry.... -- other factors have been considered by later cts Extension to Daubert to be applied to all expert testimony. Judge may but need not consider any given specific factor in Daubert. in reviewing a trial ct.'s decision to admit or exclude expert testimony, case was reviewed for abuse of discretion Relevant and reliable / Slightly different factors than Daubert Less stringent re: reliability, determination when dealing w/technical evid. Took Judicial Notice of general acceptance. Need evidence to be relevant and reliable - employing judicial notice of what we believe to be general acceptance of the Widmark formula in the scientific community and by the cts. The prosecution is correct in contending that this ct. has not adopted the Daubert test...and we expressly refrain from doing so Do you have an opinion to a degree of reasonable medical probability as to whether Dr. Robinson's version of where he made the laminotomy notches is correct? Testimony by an expert re Proof causation by probability is sufficient. (If judge excludes testimony, you should make an offer of proof, offer of evidence, or bill of exception) There is no necessity that an expert W' testimony be limited or restricted by labels such as 'certainty,' 'reasonable medical certainty,' 'probability,' 'possibility,' etc its a circumstance to be taken into consideration by the trier of facts.' HRE 702, 704 - Expert on Child Credibility - Expert cannot testify that a child was believable and that she had been abused. (or opine that that another W gave honest testimony about an issue. Maurer) General SYNDROME testimony by N. Kreidman admissible to explain recantation. Improper to use EXPERT to support the CREDIBILITY of the adult V of attempted murder. Rules 703/705 expert testimony revealing inadmissible material for the purpose of either (1) injecting untrustworthy evidence into the trial in order to lend greater authority to the testifying expert's opinion or (2) indirectly

KUMHO (US, 1999) G.E. V. JONER (U.S., 1997) MONTALBO (HAW 1992) FUKUSAKU (HAW, 1997) VLIET (HAW, 2001)




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placing before the jury the purportedly authoritative conclusions of others on the same subject-not otherwise admissible on some independent ground-is improper. Three Questions left open by Daubert: 1. Whats the standard of review on appeal? Abuse of discretion. (G.E. v. Joiner ) 2. Does the trial judge assess the reliability of conclusions? Daubert: The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate. Joiner: [Conclusions and methodology are not entirely distinct from one another. A ct. may conclude that there is simply too great an analytic gap between the data and the opinion offered. 3. Does the reliability test apply to all expert testimony? Yes. (Kumho Tire Co. V. Carmichael) States are divided between Frye and Daubert: As of 2004, about 26 states generally followed Daubert approach While 16 states were staying with Frye-based standards Several major jurisdictions - California, New York and Pennsylvania continue to use Frye.

State v. Montalbo - We therefore "adopt" the Frye test of general acceptance in the relevant scientific community under the reliability prong of the Kim analysis. We hold that a ct. should weigh general acceptance along with the other factors listed below in order to determine, under Hawaii Rules of Evidence (HRE) Rules 702 and 703, whether scientific evidence should be admitted at trial. These factors include whether: 1) the evidence will assist the trier of fact to understand the evidence or to determine a fact in issue; 2) the evidence will add to the common understanding of the jury; 3) the underlying theory is generally accepted as valid; 4) the procedures used are generally accepted as reliable if performed properly; 5) the procedures were applied and conducted properly in the present instance. The ct. should then consider whether admitting such evidence will be more probative than prejudicial. V. Rules A. RULE 701 OPINION TESTIMONY BY LAY WES (Helpful lay opinions, based on personal knowledge, are permitted) B. FRE 701 adds: not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 (this language is not in HRE) C. RULE 702 TESTIMONY BY EXPERTS (Frey, Daubert, Montalbo)(Qualified expert can ASSIST) testimony based on sufficient facts or data, testimony is the product of reliable principles and methods, and W has applied the principles and methods reliably to the facts of the case D. HRE 702 requires: trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert E. RULE 703 BASES OF OPINION TESTIMONY BY EXPERTS (HRE & FRE differ) Facts learned: before coming to ct., by listening to Ws in ct., hypothetical questions in ct.. F. RULE 704 OPINION ON ULTIMATE ISSUE (testimony of opinion or inference on ultimate issue may be allowed). G. FRE 704 (b) (applies to insanity cases and any other ultimate issue relating to a criminal s mental state) adds: BUTno expert opinion on ultimate issue concerning s mental state or condition in a criminal case. (inspired by Hinckley acquittal) Part (b) makes it more difficult for a deft to assert an insanity defense. Expert not permitted to say: was unable to appreciate the wrongfulness of his conduct, due to his mental disease H. RULE 705 DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION (HRE & FRE differ) I. RULE 706 CT. APPOINTED EXPERTS (HRE & FRE differ) VI. Scientific Evidence and Expertise A. Probabilities if introduced, a proper foundation must be laid and presented to the jury. (Collins) 1. MODERN TREND IS TOWARDS INCREASED ACCEPTANCE of probability evidence, when a careful scientific and mathematical basis for it is laid. Cts are willing to accept in paternity (DNA) not only to exclude paternity, but also the probability that he is the father. B. DNA testing ACCEPTED METHOD for tying blood, semen or tissue sample to a particular person. Nearly all cts allow the results of properly performed DNA tests to be introduced in both civil and criminal cases. Cts follow the Daubert standard in determining whether DNA evidence is admissible. A frequently contested issue is whether the particular way the test were performed in the present case, and the way the probability of a random match was computed, are reliable. Some judges have found lab errors

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arent reliable (allowing samples to degrade before testing); other cts have found prosecutions probability estimates are too low (e.g. lab chart does not consider the particular ethinc group to which belongs). C. Speed Detection, Radar most commonly used. Radar CANNOT be used UNLESS the ct. is satisfied both that the general theory behind it is sound and the application of theory to fact in the particular case is reliable under Daubert standard (virtually always satisfied, cts. Usually take judicial notice of radars theoretical reliability). Some cts require prosecution to make a showing that the equipment was accurate when used; other s give the right to challenge accuracy, and treat any showing of inaccuracy as going merely to weight rather than admissibility. D. Intoxication The most important tool is the Brethalyzer which measures the amt. of alcohol in the breath and then estimates the amt. of it in the bloodstream. In most states, it is automatically admissible if a proper foundation is laid (to lay it, the prosecution must produce a W, usually the person who administered the test who can testify that the device was one covered by statute, and was correctly used in the particular case). E. Handwriting and forensic document analysis A few cts. Have applied the daubert standard to the field. F. Voice prints Cts. Are split as to the admissibility (80% misidentification, 40% false positive) H. Neutron Activation Analysis Cts. Generally admitted NAA evidence when a proper foundation is laid. I. Psychology and psychiatry: used to determine mental condition of a criminal (also to determine reliability of eyeW testimony, truthfulness of a sexual assault V). J. Reliability of eyeW testimony are notoriously unreliable. Defense args: (1) W are bad at ID persons of a different race than their own; (2) a W subjective degree of certainty about the correctness of his ID bears no relation to its actual likelihood of being correct: (3) when a W testifies that he recognizes the as the perpetrator, this ID is quite likely to stem not from the W perception at the crime scene, but rather from his ID of the suspect from photos in a line up; or (4) the longer the gap between the perception and the ID, the less likely it is to be correct, yet the more likely the W is to supply lots of convincing (but inadvertently false) details. There is an increased willingness to allow expert testimony about the unreliability of eyeW ID where: (1) the expert confines herself to stating general principles, and does not purport to give an opinion about whether the W in the particular case is accurate; and (2) the expert testimony relates to particular aspect of the case rather than being about the generall fallibility of eyeW ID. (Daubert standard, more likely to accept) K. Polygraph test Affirmed exclusion of polygraph test. Frye.


I. Privileges in General HRE 501, 502 right of an individual not to disclose information about a particular event. Designed to facilitate professional advisory relationships and maintain zones of privacy. All states recognize in some form husband-wife and attorney client privileges. Majority of states recognize privilege for government information and physicial patient, and clergyman-penitent. A minority of jurisdiction recognize journalist-source, parent-child, and accountant-client. In Fed question cases, cts are free to use their own judgment and are not bound by the state in which they sit. States must follow state law on privilege. A. Issue Spotting Sequence: 1. Is there a protected relationship? 2. Was there a communication? 3. Was it confidential? 4. Has the holder asserted the privilege? 5. Was there a waiver? 6. Do any exceptions apply? B. FRE Privileges not listed federal cts use privileges governed by (the states) common law in civil cases. In criminal cases, use own judgment (federal common law). States recognize privileges by statute. B. Privileges apply in ANY proceedingtrial, deposition, administrative hearing C. The privilege belongs to person whose interest or relationship is intended to be fostered by that privilege. D. EXCEPTION TO PRIVLEDGE - A communication is protected even if its intercepted (e.g., through eavesdropping), so long as that interception was not reasonably to be anticipated (took reasonable precaution looked around). Note: In Federal causes of Action, Fed common law of privileges applies. In diversity, use state law of privileges. Federal privilege law always applies in federal criminal proceedings. If it is a civil claim based on federal law, then federal case law will determine existence and extent of privilege. As originally proposed, chapter 5 of the FRE included 13 separate rules, 9 of which defined particular privileges (lawyer/client, etc.). Because it was clear that no agreement could be reached on the rules of privilege, and because this agreement threatened to forestall or prevent the entire rule package, it was determined that the specific privilege rules should be eliminated and a single rule substituted, leaving the law in its current condition to be developed by the cts of the US utilizing the principles of the common law. Following the principles of Erie v. Tompkins, privileges are substantive for Erie purposes and federal cts were required to recognize and apply state privilege law in cases where the claims and defenses are governed by state law (e.g. civil diversity cases and where a state claim has been tacked on to a federal claim). Most privileges are not constitutionally based (privilege against self-incrimination) so states are free to adopt privileges as it wishes and there is much variation. Proposed rule, albeit unadopted, have been quite influential and promoted uniformity in state rules.

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II. Attorney-Client Privilege HRE 503 A. Client has right not to disclose (and the right to prevent his lawyer from disclosing) any confidential communication between the two of them relating to the professional relationship. 1. Other bases for privilege: Code of Professional Responsibility; Work Product Immunity B. Elements of Attorney-Client Privilege: 1. Client (individual or corporation) Privilege belongs to the client survives death (Swidler) Become a client by consulting a lawyer for the purpose of obtaining professional legal services Client can use a representative (accountant, power of attorney) Corporations can only use representatives PRIVILEGE EXISTS even if you havent yet paid a feeas long as communication is made for purpose of facilitating rendition of professional legal services to the client. The privilege must involve the giving of legal advice. 2. Lawyer anyone licensed to practice in ANY state or nation if client reasonably believes the person is a lawyer, then privilege still applies client can contact multiple lawyers about the issue (all of the communications are protected) when lawyer discusses with another lawyer, clerk, paralegal, secretary, then all of these individuals are encompassed under lawyer for purposes of privilege (lawyers representative) 3. Communication oral & written Except: observations by a lawyer of the client that 3rd persons could also make are not privileged C. EXCEPTIONS To the Attorney-Client Privilege: 1. Furtherance of crime or fraud a. Crime or fraud exception only applies where the client knew or should reasonably have known that his contemplated act would be wrongful. 2. Prevention of crime or fraud 3. Claimants through same deceased client 4. Breach of duty by lawyer or client 5. Document attested by lawyer 6. Joint clients 7. Lawyers professional responsibility D. Privilege covers communications; it doesnt cover facts 1. You havent waived the privilege if you tell your friend the FACTS of the case. But you waive it when you tell your friend, I told my lawyer such and such. E. Communication has to be intended to be confidential (if representatives of lawyer are present, its okay) 1. If third parties, such as friends, are present, this constitutes waiver; eavesdroppers do not destroy privilege, as long as you take reasonable measures to keep it confidential) F. Multiple Clients Lawyer Scenarios 1. One lawyer, One client (if lawyer sues client or vice versa, the privilege DOES NOT APPLY) 2. One lawyer, Two clients (if the two clients sue one another, then the privilege DOES NOT APPLY) 2. Two lawyer, Two clients (if the two clients sue one another, then the privilege still APPLIES) G. Corporate Client 1. Prior to 1981 Control Group test Applied only to employees who deal w/corporations lawyer (control positions) 2. Federal Apply Upjohn test (post-1981) more PRIVILEGE: a. Communication to obtain legal advice b. Communication was made at the request of supervisors c. Matters were within the scope of the employees duties d. Communication was treated as confidential 3. Hawaii has a broader rule than the Upjohn test (closer to Control Group test): a. Representative of the client (as long as the person has ability to make decisions based on advice, and person has authority to go to the lawyer) 4. Corporation owns the privilege; so when you have former bosses that left the corporation, the new management makes the decisions and they own the privilege. H. Evidence Given to Lawyer by Client: 1. Lawyer can decline to take, and advise client NOT to destroy 2. Lawyer can hold for a reasonable time and return it to client later (to inspect, or if its stolen property, lawyer must return it to rightful owner)

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If lawyer believes client will destroy or conceal, lawyer must turn item over to the other side (usually prosecution), and must usually have to reveal the source of the evidence (usually to prosecution in criminal case) I. Whats included and not included under the privilege: 1. Pre-existing writings are not included in the privilege (because it hasnt been prepared for the purpose of communicating with the lawyer) 2. Lawyer cannot conceal or destroy physical evidence or documents given to him by the client (other than documents written for purpose of communicating to the lawyer) 3. Lawyer cannot advise client to destroy evidence or escape 4. But if lawyer asks client for a written statement, this is included under the privilege 5. Advice that the lawyer gives is also protected under the privilege 6. Lawyers working as a team remains confidential 7. Lawyers observations are privileged, UNLESS third parties could observe the same thing 8. The fact that an attorney has been hired, and the identity of the client, are NOT PRIVILEGED 9. Privilege DOES NOT APPLY in a will contest 10. Privilege DOES NOT APPLY where theres an attorney-client dispute (malpractice) III. Physician-Patient Privilege HRE 504 (no fed common law, but US SC recognized communications to social workers, psychiatrists and psychologists). A. Patient has right to refuse to disclose a confidential communication made by the client to a physician for the purpose of obtaining treatment or diagnosis 1. Held exclusively by Patient, Doctor cannot assert if Patient doesnt want to 2. Must be related to treatment (expert W no physician patient privilege) C. What the privilege covers and does not cover: 1. Covers testing and records as well as oral communications 2. Fee arrangements are NOT COVERED 3. EXCEPTIONS (No privilege): a. Medical issues are a claim or defense (i.e. you sue for medical malpractice, personal injury suit) b. Examination by order of ct. c. Proceedings for hospitalization (involuntary hospitalization) d. Proceedings against physician B. Includes communications made to a psychotherapist & psychologist (non-M.D.) 1. client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling or psychotherapy with respect to behavioral problems, including substance addiction or abuse. IV. Privilege Against Self-Incrimination 5th Amendment A. Privilege not to testify against yourself (5th Amendment privilege against self-incrimination) B. If plead the 5th, trial judge has discretion to order any earlier testimony by W in the matter stricken from the record, on grounds that it deprives opposing party from meaningful cross-examination. C. If a W is given immunity from prosecution, then she can no longer assert the privilege. D. Privilege applies to testimonial proof, not to physical evidence (thats why DNA testing, handwriting analysis is allowed) E. A few things about procedure: 1. Has to incriminate you as to a crime (or reasonably believe that it does) 2. There must be a danger of prosecution a. Example: no privilege if statute of limitation has run 3. If Prosecution gives you immunity, then theres no privilege a. Prosecution can give it to you even if you dont want it 4. W may refuse to answer any question put to her if it will incriminate her; but W must take the stand and assert the privilege question-by-question 5. Accused in a criminal trial need not take the stand at all F. Hawaii gives protection in civil and criminal context about inferences from invoking privilege. If the prosecutor wants to call someone and thinks hell invoke privilege, then he cant do it in front of the jury. Note: (2 types: transactional [only protects against transaction about which she testifies] and use [only protects against direct or indirect use by prosecution of immunized testimony]).. V. Marital Privilege HRE 505 A. Adverse Testimony Privilege (Spousal Immunity In Criminal Cases Complete Protection) 1. Applies to both communications and acts (observations, appearance, etc.) 2. No intent to be confidential needed 3. Marital Status: Must be married at the time of invoking the privilege (duration = marriage) a. Applies to incidents prior to marriage Federal b. Criminal spouse can marry & get Spousal Immunity Federal 3.

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c. Hawaii has done away with privilege related to incidents prior to marriage Holder of Privilege: a. W-Spouse In federal cts and in Hawaii criminal cases, the testifying spouse (W-spouse) is the holder of the privilege, and chooses whether or not to testify. Trammel & HRE 505. b. In Hawaii, both spouses hold the privilege in all other non-criminal proceedings. c. Until Trammel, general rule (like Confidential Communications) was that both spouses had privilege (rationale was to preserve harmony of the marital relationship) 5. Criminal proceeding only 6. Exception: committing a crime against someone in the house, or against each other, then no privilege B. Confidential communications Protects only communications (applies as long as they were married when communication occurred). 1. Only applies to communications (also gestures but not appearance of spouse) 2. Intended to be confidential (look for presence of third persons i.e. at dinner party, no privilege) 3. Marital Status: Must be married at the time of the communications a. Dont have to be married at the time of invoking the privilege (duration = forever) 4. Holder of Privilege: Both spouses can invoke privilege 5. Applies to criminal and civil cases (but not a suit btw/spouses i.e. divorce) 6. Exception (same): committing a crime against someone in the house, or against each other 4. VI. Rules A.. FRE 501 PRIVILEGES (if federal case, then apply federal common law rules on privilege; if diversity case, use the states law on privilege) B. HRE 501 PRIVILEGES RECOGNIZED ONLY AS PROVIDED (no person has privilege to: (1) refuse to be a W; or (2) refuse to disclose any matter; or (3) refuse to produce any object or writing; or (4) prevent another from being a W or disclosing any matter or producing any object or writing. C. HRE 503 LAWYER-CLIENT PRIVILEGE D. HRE 504 PHYSICIAN-PATIENT PRIVILEGE E. HRE 505 SPOUSAL PRIVILEGE F. HRE 509 PRIVILEGE AGAINST SELF-INCRIMINATION (Right to disclose any matter that may tend to incriminate the person) G. HRE 511 WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE (Waived if the person or the persons predecessor voluntarily discloses or consents to disclose any significant part of the privileged matter rule does not apply if the disclosure itself is a privileged communication). Trammel v. U.S. In FRE criminal trials, a spouse may testify against the other spouse regardless of whether the other spouse consents. HRE 505 W is holder of privilege, either party to confidential marital communication has privilege to refuse to disclose and to prevent any other person from disclosing that communication SPOUSAL PRIVILEGES (only applies when married) Privilege against adverse spousal testimony Applies in criminal proceedings only Exists during marriage and spouses must be married at time of trial, and one must be accused All testimony barred on any topic (some states apply it to statements before marriage but not HRE) Marital Communication Privilege Applies in civil & criminal; nonparty may assert Marital communication protected even if marriage has ended at time of trial, either may assert Neither applies to crimes or torts within a family, Marital communication privilege doesnt apply to suit between spouses or statements made to plan crime Notes: Modern traditional justification for testimonial privilege. Would destroy a marriage to allow state to pit spouse against spouse. Repugnant to make one spouse the instrument of the others doom. Who holds it? Must be waived by def spouse, testifying spouse, or both. Modern traditional justification for spousal confidences. Foster free and open communication Many certainly do not know of rule; no professional there to advise the client-holder Spousal communication is held by both. Protects communications during marriage. Does not protect pre-, post-marital. Does not generally protect observations. Communications must be confidential. Presence of third party destroys privilege. Does not apply to communications for crime.

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Only about of states have the adverse testimony rule, almost ALL the states have marital communication rule. If D is worried about his girlfriend saying something at trial against him, he could under Hawkins rule marry her the day before trial if statements before marriage are covered by that state.


I. Presumption (two facts): A. If you prove the basic fact then you get the benefit of the presumed fact B. Conclusive Presumption presumption is mandatory once you prove the basic fact C. If theres a dispute about the basic fact, it doesnt effect the presumption D. If theres a dispute about the presumed fact, then 2 schools of thought: 1. Bursting Bubble nobody gets the benefit of the presumption (majority/FRE) a. The bubble only bursts when you attack the presumed fact 2. Burden of persuasion switches & person contesting presumption has burden of proof (minority) 3. [Hawaii has BOTH rules303 is bursting bubble and 304 is burden of persuasion switches] E. So in Hawaii: 1. Presumption that mailed letter was received = bursting bubble (303) 2. Presumption that someones dead if not heard from = contesting party has burden of showing by preponderance of the evidence that persons not dead (304)

II. Burden of Production & Persuasion A. Burden of Production (burden of going forward whose responsibility is it to put in the evidence) 1. The side with the burden must make out a prima facie case 2. Affirmative Defense: has burden 3. Regular Defense: government has burden to show that its not so B. Burden of Persuasion (burden of proof how much is required): 1. Preponderance of the evidence (more likely than not about 50% +) 2. Clear and convincing evidence (more than Preponderance of the evidence but less than Proof beyond reasonable doubt) 3. Proof beyond a reasonable doubt (more than Clear and convincing evidence) a. In criminal case, government must prove beyond a reasonable doubt III. Rules A. FEDERAL RULES: 1. FRE 301 PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS & PROCEEDINGS 2. FRE 302 APPLICABILITY OF STATE LAW IN CIVIL ACTIONS & PROCEEDINGS B. HAWAII RULES: 1. HRE 301 DEFINITIONS 2. HRE 302 PRESUMPTIONS IN CIVIL PROCEEDINGS 3. HRE 303 PRESUMPTIONS IMPOSING BURDEN OF PRODUCING EVIDENCE (bursting bubble) 4. HRE 304 PRESUMPTIONS IMPOSING BURDEN OF PROOF (burden of persuasion switches) 5. HRE 305 PRIMA FACIE EVIDENCE 6. HRE 306 PRESUMPTIONS IN CRIMINAL PROCEEDINGS IV. Bursting Bubble vs. Continuing Effect Assume has both: 1) the burden of producing evidence (going forward) & 2) burden of proof (persuasion) BF = Basic Facts: PF = Presumed Facts Thayer Wigmore, "Bursting Bubble, FRE approach Presumptions are for procedural convenience and operate only in the absence of any evidence of the presumed fact. Presumptions shift the burden of production (if you don't produce, you lose) the wall crashes on your head. Morgan McCormick, "Continuing effect" Presumptions should be given greater weight and are created for reasons of policy, not just procedural convenience. Presumptions shift not only the burden of production but the burden of proof as well.

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Mullaney v. Wilbur proof of heat of passion means not acting with malice. Malice was part of the element of murder, which most states do not have. In Patterson v. NY, SCt upheld EMED burden on defense as not requiring as negating an element of murder. At least insanity, self-defense and EMED have been upheld. PRESUMPTIONS & INFERENCES In civil cases, a presumption is a rule of law that if a certain basic fact is established, the presumed fact must be found in absence of evidence rebutting presumed fact (terms mandatory or rebuttable presumption is unnecessary) In criminal cases, presumptions cannot operate to direct a verdict against a deft Inference is a rule of law that if a particular basic fact is established another inferred fact may be found Conclusive or irrebuttable presumption is a rule of law that if basic fact is found, a certain presumed fact must be found. If the opponent introduces counterproof contesting the basic fact, then the presumption applies only if the jury finds the basic fact to be established. When basic facts are established and the presumption applies, the burden of production is satisfied and burden of production shifts. There are differing views as to what the result should be when the party opposing the presumption offers evidence challenging the presumed fact (bursting bubble, Morgan view, and combined approach). The term presumption refers to a relationship between a basic fact (B) and a presumed fact (P). Presumptions in civil cases either have (1) bursting bubble effect; or (2) Morgan: continuing effect Bursting bubble: if B is shown to exist, the burden of production (but not the burden of persuasion) shifts to opponent of presumption. This is called the bursting bubble approach because once opponent discharges production burden that the P does not exist, presumption disappears from the case. Morgan: Presumption shifts burden of production and burden of persuasion. Once Basic Fact shown, opponent must show by preponderance that Presumption fact did not occur. A presumption is established that where a letter has been properly addressed and mailed (the basic fact), the letter will be presumed to have been received by the addressee. In bursting bubble approach, after P establishes B, once D testifies that he did not receive the letter, presumption is gone and the judge does not mention that the presumption exists, and P must show by a preponderance of evidence that D received the letter. It is important to note that for D to have the presumption disappear, she only need prove sufficient evidence to sustain a finding of its nonexistence. Under Morgan view, D would not only have to come forward with evidence that he did not receive it but be able to persuade the jury by a preponderance of evidence that he did not receive it. Civil Cases The FRE adopted the majority bursting bubble approach. Under FRE Rule 301, if a presumption is imposed against a party, that party has a burden to refute P but the burden of persuasion is not shifted. Judge has discretion when the P has been rebutted to tell the jury that it may infer P if B is shown Irrebuttable presumptions in civil cases must meet same constitutional standard of a substantive law -- a rational reason must exist to link B to P. In federal diversity case, the presumption law of the state whose substantive law applies will control. Criminal Cases Constitutionality of a presumption in a criminal case depends on the effect given to the presumption. Permissive presumption (jury is told that it may infer the P if it finds the B) is constitutional, if a fact finder could rationally infer P from B. HRS inference: if you find beyond a reasonable doubt that Deft possessed the drug, you may, but are not required to, infer Deft knew the character and quantity of the drug possessed. Mandatory presumptions shifting the burden of persuasion to D upon an element of a crime is likely to be held as unconstitutional (e.g. consent) Standard HI jury instruction tells jury you may, but you are not required to, infer . . . Compare to affirmative defenses where burden can be shifted (entrapment, EMED)

Adjudicative facts: are those which relate to the particular event. they help explain who did what, when, where, and how, and with what motive and intent. Generally known facts in the community, and facts capable of immediate verification by consulting sources of indisputable accuracy. Also, more likely to be covered by statute than legislative facts. INDUISPUTABLE Legislative facts: are more general facts that do not concern the immediate parties they are facts which the judge considers as part of his law-making function; whether a statute is constitutional, whether a common law principle should be modified; how a statute should be interpreted; as long s the judge believes it to be true. (e.g. that tenants generally are not capable of making structural repairs. CAN BE DISPUTED. Importance: is that judicial notice of adjudicative facts are likely only to take JN if it is indisputable, whereas he may take notice of a legislative fact more liberally (merely more probable than not is usually sufficient). I. Allows ct. to have a fact proven without having to prove it trial judges are conservative about doing this b/c might not be accurate or right. Most often used to complete appellate cts. Reasoning.

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A. B. C. D. E. F. D. E. F. G. Applies to adjudicative facts (also legislative facts & the law) Generally known and easily verifiable Local, common knowledge, verifiable certainties Not subject to reasonable dispute If theres reasonable dispute, the ct. wont take judicial notice of it Discretionary when ct. raises sua sponte Mandatory when requested & have proper information Scientific tests government doesnt want to show how DNA technology works every single time, so ct. will take judicial notice Judicial notice can be taken at any stageeven on appeal (can challenge, even later) 1. In civil case, cant offer contradictory evidence of judicial notice 2. In criminal case, can offer contradictory evidence of judicial notice Effect of judicial notice: 1. Civil case, jury is mandated and MUST find as a conclusive fact 2. Criminal case, jury MAY find the fact as true Ct. is mandated to take judicial notice of the existence of its recordsnot the contents Most cts do NOT take JN of ct. records from other cts but will from their own.

II. Rules A. RULE 201 JUDICIAL NOTICE OF ADJUDICATIVE FACTS (exclusively Adjudicative; no legislative facts/law jd) B. HRE 202 JUDICIAL NOTICE OF LAW (includes JN of law) Civil Shall Notes: You can take JN of a document in a ct. file, but you cannot take JN of the TRUTH of the facts in the document. E.g. Websites: You can take JN of something posted on a website, but you cannot take JN of the TRUTH of the facts on that website. Hawaii Examples of Judicial Notice: Banana trees hold water, Waves will fill a hole dug in the sand on a beach Date of the Kings birthday celebration, Braking distance of a speeding car, The exact time of sunrise, UH basketball game re time, date, and opponent (State v. Hiramoto), Announcement concerning a judges candidacy for public office on a specific date based on photos of news articles (in re Application of Pioneer Mill Co.). HRE 202 (no FRE equivalent) makes it mandatory that Ct. take judicial notice of: Common law, Constitutions & statutes of U.S. jurisdiction, rules of US and Hawaii Supreme Cts, Hawaii Ordinances. Rule makes JN optional for: Federal and State ct. rules and published regulations, prior laws, foreign, international and maritime law.

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