Pucillo Evidence Fall 2013

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Evidence Fall 2013 Pucillo ISBN 978-1-60930-060-9
I.
Course Overview
Fisher pp. 1-6 (up to section on Tanner v. United States: Historical Prelude)
What is evidence Something that tends to prove or disprove an alleged fact Forms of evidence physical evidence, documents, testimony Why limit evidence avoid letting too much in Could confuse judge or jury Could make the proceedings go on forever Course is about restricting evidence what comes in, what doesn't Where did restrictions come from before federal rules of evidence? Common law rules developed by judges o Evidence principles came from this Federal rules organize the law in a code Is it necessary to understand the rules if you are not a trial lawyer? Even if you never see a court room you need to know evidence: o Criminal indictment o Civil complaint o Both instruments allege facts o Facts are assumed to be true o Discovery to find the evidence o Plaintiff has to prove all elements through evidence o Defense will try to show there was not enough evidence for a reasonable fact finder and move for summary judgment Trial because there are genuine issues of material fact Stages of trial: Execute stipulation o Why pick your battles Motions in limine o Motion to exclude evidence Could mess up other parties strategy, change whether trial happens If jury hears it they probably will be affected by it Jury selection Opening statements o Present alleged facts, evidence o Nothing gets in evidence Evidence presentation o Witnesses Direct examination Cross examination Redirect o Place in evidence Evidentiary record Closing Argument Summation o Key difference from open permitted to render an opinion as to your evidence and other sides evidence
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Verdict o Loser will argue evidence should not have been let in
II. Relevance
A. General Principles of Relevance: Probativeness and Materiality
Fed. R. Evid. 401, 402 Fisher pp. 22-34 Every evidentiary determination works thru 401 and 402, must always be relevant to be admitted Probativeness also referred to as logical relevance, relevance o 401(a) Probativeness Prong o So much depends upon the fact you are trying to prove o What is the fact that the offering party is trying to prove? o Very same piece of evidence may be admissible for one purpose and inadmissible for another Judge will not always go through the formal steps every time Will look for a connection between the evidence and the fact Materiality only need to know the fact, don't really need to know what the evidence is to make a determination of materiality o 401(b) Materiality Prong o Dont need to know what the item of evidence is o Just need to know what the fact is
Rule 401: Test for Relevant Evidence o Evidence is relevant if: a) it has any tendency to make a fact more or less probable than it would be without the evidence; and b) the fact is of consequence in determining the action. Rule 401 notes - The test for relevant evidence Defines what is relevant and what is not o Any tendency Probativeness Don't be fooled by the word probable Considering the evidence o Fact is of consequence Materiality Just considering the law
Probativeness Problem 1.1: Ms. Z asks Show me the body. When the police arrest her husband for murder. Indicates that she knows that there is an issue as to the location of the body, which indicates that she likely discussed it with her husband, which shows that he may have discussed the body with his wife. The police did not have a body. Goes to prove the fact that the husband is guilty of murder.
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Problem 1.2: Ehle to Mills: I will falsely implicate On cross-examination prosecutor asks if Mills and are part of secret organizations that lies and kills. May be something to gain by lying (less time in prison, money), so testimony may be biased. It is probative because it ultimately makes it more likely that is guilty. Much less probable, in light of Mills testimony, that is guilty. Once the bias is established, it is much more probable that is guilty. Would be admissible because it is relevant and probative as to guilt. Problem 1.3: Go ahead doc, Hook me up Spoke firmly and unhesitatingly when taking polygraph. Evidence of his statement has some tendency to show that he committed the murder. It shows that he has nothing to hide and if he committed the murder, he would have something to hide. Client may know that he is safe no matter what happens. Materiality Problem 1.4: Did not know that crime she committed was punishable by more than one year, and she was convicted of it, so she could be convicted under the statute that made it unlawful for person convicted of such crime to transport firearm across state lines while transporting interstate commerce. Knowledge is not material because it does not matter because there is no knowledge element in the statute. Problem 1.5: Drinking while shot person. Law provides that voluntary intoxication cannot be taken into consideration. Evidence of his blood alcohol level is not material because state law takes voluntary intoxication out of the purpose when trying to prove that an action was purposely or knowingly. United States v. James pg. 29 Nature of the case: Appeal from conviction for aiding and abetting manslaughter. Fact Summary: was convicted of aiding and abetting her daughter in the manslaughter of s boyfriend. The trial judge excluded evidence demonstrating boyfriends violent criminal past and appealed. Issue: Are documentary records are admissible to corroborate testimony and bolster credibility even when the testifying witness being corroborated and bolstered did not know the contents of the records? Yes. Rule: Documentary records are admissible to corroborate testimony and bolster credibility even when the testifying witness being corroborated and bolstered did not know the contents of the records. Analysis: Courts must consider the materiality and probative value of evidence to determine its overall admissibility and relevance to the issue at hand. It is difficult to see how the records in this case would be material to Jamess fear of Ogden when she did not know of the records existence, but the exclusion of the records certainly hindered Jamess credibility. The point to consider is whether Ogdens past acts should be admissible to prove that he was violent enough in this situation to justify the actions of James and her daughter. Holding: James testified to the stories Ogden had told her of his criminal, violent past. The trial judge did not allow the admission of documentary records which would have corroborated Jamess testimony and validated her fears of Ogdens violent nature. James argued she feared she and her daughter were in danger of grievous bodily harm or death from Ogden. The jury may have accepted Jamess self-defense theory if they had been convinced that her knowledge of Ogdens violent nature justified her fears at the time of the shooting. The trial court did not admit the records because James would not have known the contents of the records at the time of the shooting, but only knew what Ogden had told her. Therefore, the
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court reasoned, the jury should only hear what James in fact knew at that time. This is too narrow a holding, however, and the trial court should have admitted the extrinsic documentary records, especially because Jamess defense rested on her credibility. Reversed. Problem 1.6: Violin case full of money. raised case and pointed it at the officer, did he really. If there was no gun, it makes it less likely that he raised the case and pointed it.
B.
Balancing Probative Value against the Danger of Unfair Prejudice

Fed. R. Evid. 403 Fisher pp. 42-49; 54-58; 80-94
Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons o The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Rule 403 Notes may exclude relevant evidence if substantially outweighed o Has already passed 401 & 402 at this point There is some probative value It is not relevant. o Every entry of evidence involves some balancing o May discretionary, grants the court discretion here Can think of as until it isnt substantial anymore Could abuse discretion if really substantial and didnt exclude So substantial it must be excluded at some point Spectrum from Not outweighed = no discretion to exclude Substantially outweighed = discretion REALLY substantially outweighed = have to exclude o May legally becomes shall o Or there is an abuse of discretion o Substantially outweighed a little is not enough The rule assumes that we can weigh them Judges do not actually assign numbers Scale example Significant difference needed No discretion if only outweighed could not exclude it By: Unfair prejudice means jury is led to a conclusion not based on the evidence considering something theyre not supposed to like emotion, punishment, grossing out, pissing off, sympathy etc. o Based on something other than the evidence o Sidetracking the jury o As evidence is being offer judge often gives a limiting instruction to the jury o Focus on unfair here
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Prejudice could apply to any evidence its all prejudicial o This is the primary purpose of the rule that's why it is listed first o Can be either P or D that the evidence prejudices Confusing the issues Misleading the jury Undue delay, waste of time, needlessly presenting cumulative evidence Could be other ways to be substantially outweigh In play with almost every admission of evidence
State v. Bocharski pg. 44 Nature of the case: Appeal from burglary and murder convictions and a capital sentence. Fact Summary: At s trial for murder and burglary, the prosecution introduced several grisly photos of the victims decomposed body and the fatal stab wounds. On appeal, argued that the photos were highly prejudicial, not particularly probative, and should not have been admissible under Ariz. R. Evid. 403. Issue: Is every photograph of a murder victim and manner of death admissible in a murder trial? No. Rule: While gruesome photographs of victims and the manner of death may certainly be relevant in a murder trial, not every photograph is admissible if its purpose is merely to inflame or outrage the jury and prejudice the defense. Analysis: A strong prosecutorial tool is a grisly, gruesome photo of a murder victim. While likely probative to the fact and manner of death, the average juror is still going to be disturbed by pictorial evidence of another human beings pain and death. Then that average juror may look to the person sitting in the defense chair and direct understandable outrage toward that prior to hearing all of the facts of the case. On the other hand, the judicial system relies on the fact that the average juror, while upset or even horrified, will still listen to all of the facts, separate the horror of a grisly photo from the evidence placed before him, and arrive at an appropriate verdict. Trial courts conducting Rule 403 examinations of offered evidence must consider whether the photograph offered is merely to elicit the emotional response of a juror or has probative value beyond its gruesomeness, and then the court must trust that the jurors will abide by their duties. It is not fair to expect a prosecutor to try a case with all emotion removed, but a proper trial court will ensure that evidence, rather than emotion, carries the day. Conclusion: The trial court must conduct a rule 403 review of the offered photos to determine if the photos are more prejudicial than probative in value. Here, the photographs probative value is suspect because Bocharski was not contesting the fact of the manner of Browns death or the extent of her injuries. The photos depicting the advanced state of decomposition did not add much to the prosecutions case, but the prosecution is allowed to admit relevant, however minimally relevant, evidence. The photos of the fatal stab wounds, however, did not prove that Bocharskis knife caused them nor did the prosecution elicit testimony that the angle of wounds supported his theory of Bocharski as the murderer. The only purpose in admitting the photographs then seems to be to inflame and outrage the jury, which is not allowed under Rule 403. Those photos should have been inadmissible. In this case, however, the trial judge noted that the jury did not seem to be disturbed when viewing the photographs of the knife wounds. Therefore, the was not prejudiced by their admission. Affirmed.
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Problem 1.8: govt said it was a machine gun. Govts test says that rifle did fire more than once. Hitts experts tested it and said that it may have functioned as a machine gun because the internal parts were dirty worn or defective. Govt shows picture of outside of gun with lots of other weapons from s homes. If it is all about the interior of the rifle, then there is unfair prejudice in showing the photo because it might cause the jury to think that all those guns are machine guns that belong to . Picture is weakly probative because it may indicate that inside of gun is clean if outside of gun is clean. May also confuse the jury and mislead him. The danger substantially outweighs the probative value. Calculate probative value for 403 considerations by looking at alternatives that would not have the same amount of danger but same or more probative value. Whole photograph should be inadmissible. Cropped photo would be admissible.
Tyco videotape jurors in danger of punishing just because they think hes a bad guy could cause moral outrage o Tape showed erotic dancers, boob cake, peeing guy, lavish party o Allowed to show some of the video the whole thing would be too much o Danger is that jury would convict on their feelings about his morals US v. James o Dissent - Would have excluded under 403 grounds instead Evidence of Ogdens prior crimes were unfairly prejudicial Made him look really bad Would have affirmed the exclusion based on 403 OJ Simpson o Defense made it clear it was a case about race Wants jury to hear the whole racist tape o Trying to use the tape to show that Fuhrman was a racist Using the word nigger Fuhrman uses the word over and over o Also wanted to show that he was a liar Lied about using the word o No question that it was relevant Probative and Material o But is there a 403 problem could incite anger from the jury Could make jury excuse OJ on the basis that Fuhrman was racist o Judge allowed a small part of the tape to impeach the witness and the fact of the 41 uses Because Fuhrman had denied using the word Used the word 41 times relevant to show how much of a liar he was and a racist No way to honestly answer he didnt use the word They said the rest of the tape was too prejudicial Stipulations o Would a stipulation deprive of probative value? Generally NO United States v. Jackson pg. 80 Nature of the case: Pretrial motion to exclude evidence.
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Fact Summary: is charged with a NY bank robbery at gunpoint. Subsequent to the date of the robbery but prior to his arrest, was arrested in GA on an unrelated charge and gave false ID. filed a pretrial motion to exclude the evidence of the GA arrest and false ID on the grounds that it would be overly prejudice. Issue: Is conditional exclusion of evidence upon entry of a stipulation an appropriate solution to a complex Rule 403 analysis where both highly prejudicial and yet probative evidence exists? Yes. Rule: Conditional exclusion of evidence upon entry of a stipulation is an appropriate solution to a complex Rule 403 analysis where both highly prejudicial and yet probative evidence exists. Analysis: The court points out that juries only hear a carefully crafted version of events rather than the entire mystery laid out before them. Perhaps not enough faith is placed in juries to separate the relevance of prior crimes from the evidence of the crime at issue. The court assumes that the jury will use the GA charges against Jackson when considering his guilt of the NY charge, but the FRE also assume this in providing noted protections against prejudice to the defense. The compromise ruling here with the stipulation may provide the best of both worlds. Conclusion: Admission of the GA evidence would likely violate FRE 404(b), which prohibits admission of evidence of other crimes when offered to show a general propensity to violate the law. Evidence of flight to another jurisdiction and use of a false ID to possibly avoid detection is highly probative. A proper response to this difficult Rule 403 analysis is to exclude the evidence in exchange for a stipulation from the defense. This is proper under FRE 102, which encourages minimizing evidentiary costs when protecting parties against prejudice. It is a frustrating but necessary fact that juries will only hear partial truths and constructed stories, but the justice system does not require disclosure of the entire truth when decisions should only be made about limited questions of law and fact. Jackson will stipulate that he was in GA and provided false ID, but the reason he provided false ID and the arrest for the GA bank robbery will be excluded. Motion granted. US v Jackson o Arguing that being found in another state is evidence of fleeing the state where the crime occurred o Stopped in Georgia o What is the fact? That he was found in Georgia Using to infer consciousness of guilt Kind of a stretch o False ID - Also shows he is trying to hide who he is o Idea that he is running away o Very low probative value o Danger of unfair prejudice that he is a criminal committing other crimes Jury is focusing on the wrong thing, not focusing on the crime at issue Purpose of 403 we dont want jury deciding things this way Old Chief v United States pg. 82 Nature of the case: Appeal of conviction for assault with a deadly weapon and for being a felon in possession of a firearm. Fact Summary: , on trial for violating 18 USC 922(g)(1), which prohibits possession of a firearm by anyone with a felony conviction, sought to concede the fact of his prior conviction for assault causing
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serious bodily injury, and prevent the Government from identifying or mentioning the prior conviction aside from the fact that it existed. Issue: During a prosecution for violation of 18 USC 922(g)(1), which prohibits possession of a firearm by anyone with a felony conviction, may a court may permit a to concede the fact of a prior conviction before the government has the opportunity to offer evidence indentifying the previous offense? Yes. Rule: During a prosecution for violation of 18 USC 922(g)(1), which prohibits possession of a firearm by anyone with a felony conviction, a court may permit a to concede the fact of a prior conviction before the government has the opportunity to offer evidence indentifying the previous offense. Analysis: As the majority argues, it would seem as if the fact of the prior conviction would be sufficient since the jury would know that it was a felony punishable by more than one year in prison. To many, this alone would be prejudicial. Despite the dissents objections, it is important to keep in mind that this ruling is limited to the statute at hand, 18 USC 922(g)(1), and is therefore quite a narrow holding. Conclusion: Rule 403 authorizes the exclusion of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by concerns of undue delay, waste of time, or needless presentation of cumulative evidence. This Rule serves to prevent the admission of evidence which, although concededly may be relevant, is likely to lure a fact-finder to declare guilt on the ground different from that at issue in the present case. Rule 403 requires a balancing of interests, and 18 USC 922(g)(1) raises a unique and specific problem. Examining the statutory language of 18 USC 922(g)(1) reveals that the prior conviction requirement indicates no congressional concern for the specific name or nature of the offense beyond what is necessary to place it within the broad category of qualifying felonies. The Government also argues that any stipulation should not be allowed to distinguish the full evidentiary force of the Governments case. The storytelling aspect of a trial and the force of a witness relating events as they occur are legitimate tools of the prosecution and a naked admission of the defense can neutralize the effectiveness of that tool. Acknowledging the Governments right to choose its method of prosecution is not relevant here, however, when the s legal status is the sole issue and not anything with a narrative. Therefore, Old Chief was correct in arguing the most the jury needs to know about the conviction was that it falls within the class of crimes that Congress thought should bar a convict from possessing a gun. Any further mention of the previous crime should be prohibited. Reversed and remanded. Dissent: The majority misapplies Rule 403 and upsets longstanding precedent regarding criminal convictions. The Court is incorrect in stating that Congress did not intend for the name and nature of the crime under 18 USC 922(g)(1) to be revealed. Furthermore, the Court never precisely explains why it constitutes unfair prejudice for the Government to directly prove an essential element of the offense under 18 USC 922(g)(1). The Court manufactures a new rule which precludes the Government from proving all of the required elements of the charged offense, as is required by the Constitution. Old Chief Charged with assault with a deadly weapon and using/possessing a firearm with a crime of violence already had on his record a crime of assault causing serious bodily injury o Gov. has to prove the prior felony Punishable by more than one year An element of the current crime of possession of a gun Uses the record of the prior crime Assault was a federal crime because it was on federal territory (reservation) o But prior conviction could unfairly prejudice the jury considering the second crime Jury could decide based on the fact that they think he is a bad guy o Willing to stipulate that he had been convicted of a crime punishable by more than one year An alternative that does the same thing
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Why does the stipulation work here? Proposed stipulation has the effect of reducing the probative value o High level of danger, low probative value diminished by the stipulation o Has to be consideration of alternative items of evidence that are less prejudicial with the same probative value How valuable is it if there are alternative Focus on the item of evidence as compared to other items Still has to substantially outweigh though o Prosecutors interest in the Narrative integrity But this goes beyond the present narrative Stipulation would not matter if it would mess up the P coherent narrative o So jury gets an instruction from the judge that D had been convicted of a past one-year felony o But normally the stipulation would not stop the evidence This is a rare situation o Dissent not unfair prejudice OConnor - How can it possibly unfairly prejudicial to establish an element through evidence Question is is it unfair? Question is not is it prejudicial? o Distinction between prejudice and unfair prejudice Judge will normally give the Prosecutor the leeway to tell the story how he wants even when there is a stipulation Old Chief does nothing to change this o But anytime alternatives are available it does lower the probative value but not necessarily substantially outweighed Will return to the 403 balance frequently every item must satisfy the 403 balance o Any analysis essentially involves 403 Analysis usually starts with 401 and then ends with 403
C.
Overview of the Specialized Relevance Rules

Fed. R. Evid. 407, 408, 409, 410, and 411 Fisher pp. 95-99
Specialized relevance rules Similar to the 403 balance o Has probative value, but balance is substantially outweighed according to the rule Not necessarily unfair prejudice But creates bad incentives public policy determination The balance is done for us
Rule 407: Subsequent Remedial Measures o When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. o But the court may admit this evidence for another purpose, such as impeachment or--if disputed-proving ownership, control, or the feasibility of precautionary measures. Rule 408: Compromise Offers and Negotiations
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a) Prohibited Uses. Evidence of the following is not admissible--on behalf of any party-either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: 1) furnishing, promising, or offering--or accepting, promising to accept, or offering to accept--a valuable consideration in compromising or attempting to compromise the claim; and 2) Conduct or a statement made during compromise negotiations about the claim-except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Rule 409: Offers to Pay Medical and Similar Expenses o Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Rule 410: Pleas, Plea Discussions, and Related Statements a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the who made the plea or participated in the plea discussions: 1) a guilty plea that was later withdrawn; 2) a nolo contendere plea; 3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or 4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): 1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or 2) in a criminal proceeding for perjury or false statement, if the made the statement under oath, on the record, and with counsel present. Rule 411: Liability Insurance o Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control.
D.
Evidence of Subsequent Remedial Measures

Fisher pp. 99-100; 110-113
Problem 2.1: Wolf chained to fence attacks little boy and seriously injured him after he was chained after attacking a beagle. Was chaining the wolf a subsequent remedial measure? Yes. Cant allow it in Beagle case because it was a subsequent remedial action. You can allow it into the little boys case because it didnt happen subsequently after the attack.
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Problem 2.2: Husband killed by a wood chipper. Evidence that maker lengthened the wood chipper chute length after the accident. It was excluded and it should have been because it was a subsequent remedial measure. If the offers evidence that, the army bought 30 machines (saying that they were so safe) and the wants to show that the machines the army had had their shoots lengthened, then evidence of the lengthening is admissible. Problem 2.3: Testimony from president of company saying that the machines are the safest length chute you could possibly put on the machine. Asked if he selling the Army chippers with longer chutes. Perfectly appropriate question because it was asked to impeach him. (Shows that the chute was not the safest length possible.)
E.
Evidence of Liability Insurance

Fisher pp. 130-132
Problem 2.5 Why does evidence not come in o P wants to offer evidence that the tape recorded statement was taken by an insurance adjuster bias argument o Inconsistent statement? o Hard to admit on bias or prejudice Problem 2.6 Rule 411 o Was the court right in excluding the s evidence that s expert witnesses were both insured by the same insurer as the ? o s argument for the evidence is that it shows witnesss bias o s argument against the evidence is that the jury will decide based on the s liability insurance Problem 2.7 o tries to offer evidence that the daycare center maintained liability insurance that covered child abuse claims which shows that she lacked a motive to conceal the abuse o Prosecutor objects to the admission of evidence of the insurance policy. o How should the court rule? o Court should not uphold the prosecutors motion because she was trying to prove that she had no bias. o Court should allow the evidence.
III. Evidence of a Persons Character or Propensity

A. The Character-Propensity Rule
Fed. R. Evid. 404(a)(1), 404(b) Fisher pp. 145-61 Rule 404: Character Evidence; Crimes or Other Acts a) Character Evidence. 1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
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2) Exceptions for a or Victim in a Criminal Case. The following exceptions apply in a criminal case: A. a may offer evidence of the 's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; B. subject to the limitations in Rule 412, a may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: i. offer evidence to rebut it; and ii. offer evidence of the 's same trait; and C. in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. 3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609. b) Crimes, Wrongs, or Other Acts. 1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. 2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a in a criminal case, the prosecutor must: A. provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and B. do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice. 404 (a)(1) Character/trait Stephens propensity to prove Stephen acted in accord with that propensity on a particular occasion. 404 (b)(1) Stephens past acts Stephens propensity to prove Stephen acted in accord with that propensity on a particular occasion. 404 (a)(1) encompasses 404 (b)(1) and it is useless. Rule: 404 (a) (1) prohibits: Persons propensity to show person acted in accordance with that propensity on a particular occasion. Exceptions: 404(a)(2)(A) can offer evidence in criminal case to show that they couldnt have done the act because it goes against their propensity. If evidence is admitted, prosecutor can rebut it. 404(a)(2)(B) can offer evidence of victims propensity in a criminal case. If it is admitted, the prosecutor can rebut it and offer evidence of the s same trait. 404(a)(2)(C) In a homicide case, prosecutor can offer evidence of victims peacefulness to rebut evidence that the victim was the first aggressor. Usual character traits in character evidence are either showing honesty/dishonesty or violent/peaceful.
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There is nothing wrong with showing that a person has the propensity. It is wrong to show it in order to show that they acted on the propensity on a particular occasion. 404 (a)(2)(A)- Does not involve civil cases. Offer evidence of peacefulness to show that he couldnt have been violent on the occasion. Cant offer specific acts to prove character. Can only use general character. 1) Stephen: Edward was first Aggressor 2) Prosecutor: Edward was peaceful 3) Stephen: Rebuts by saying Edward was violent. 4) Prosecutor: Can show that Stephen was violent. B ii
People (state of NY) v. Zackowitz (convicted murderer) pg. 147 Rule 404(a) prohibited use Nature of the case: Appeal of first-degree murder conviction. Fact Summary: Coppola, the decedent, insulted Zackowitz wife and Zackowitz later, while in a rage and under the influence of alcohol, shot and killed Coppola. Issue: Should s guilt of a specific crime be inferable from his general character? No. Rule: Character is never an issue in a criminal prosecution unless the chooses to make it one. Analysis: Aside from the prejudicial nature of character evidence in criminal prosecutions is the question of its probative value. If its introduction will not prove one of the elements of the crime charged, is it really relevant? Does the fact that Zackowitz had weapons available prove, either directly or inferentially, that the killing was premeditated? If it does, why cant the same reasoning apply to anyone owning a single handgun, switchblade, etc.? The question here is whether Zackowitz had a rational intent to murder Coppola prior to the commission of the killing. Does the fact that he had a weapon at home bear any relevance to intent? The law has made it a general policy that what a party was or had previously done is not relevant to the current charges against him. If the introduces testimony as to his good
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character, the prosecution may rebut by introducing evidence as to his past crimes, misconduct, or reputation. The rationale is that the prosecution always has the right to rebut direct testimony and the fact that this would prejudice the is irrelevant. Conclusion: In a very real sense, a starts his life anew. His guilt must be established with regard to the particular crime with which he is charged. The law has made a policy decision to exclude evidence of this nature in order to protect the innocent. The natural and inevitable tendency of the tribunal whether judge or jury is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. The evidence of the hidden guns would be admissible if they had been purchased subsequent to Zackowitzs wife being insulted in order to show motive or design or if Zackowitz had been carrying all of them (act of preparation). However, the fact that Zackowitz had the guns at home does not tend to prove, even inferentially, his murder of Coppola was premeditated. Ownership of weapons was not relevant to the charge. Reversed. New trial ordered. Dissent: The real question here is whether the matter relied on has such a connection with the crime charged as to be admissible on any grounds. If so, the fact that it constitutes another distinct crime does not render it inadmissible. The was presented to the jury not as a man of a dangerous disposition in general, but as one who, having an opportunity to select a weapon to carry out this threats, proceeded to do so. The judgment of conviction should be affirmed.
B.
Evidence of the s Propensity and the Alleged Victims Propensity in a Criminal Case
Fed. R. Evid. 404(a)(2), 405(a) Fisher pp. 234-247 (up to section on Distinguishing Proof of Character under Rules 413 to Rule 415)
Rule 405: Methods of Proving Character (with Pucillos edits) a) By Reputation or Opinion. When evidence of a persons propensity is being offered under FRE 404(a)(2) to prove that on a particular occasion the person acted in accordance with that propensity, it may be proved only by testimony about the persons reputation or by testimony in the form of an opinion. On cross-examination of the propensity witness, the court may allow an inquiry into relevant specific instances of the persons conduct. b) By Specific Instances of Conduct. When evidence of a persons propensity is offered to prove a fact other than that on a particular occasion the person acted in accordance with that propensity, the propensity may be proved by relevant specific instances of the persons conduct.
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Michelson v. US pg. 234 Rule 404(a)(2)(A) exceptions Rule 405 Nature of the case: Appeal from conviction of bribery. Fact Summary: Michelson was accused of bribing an official. Michelson claimed that the official demanded the money and had threatened to use his official power against Michelson if the money was not paid. Michelson claimed this was entrapment. The outcome of the trial depended upon whom the jury chose to believe. Michelson introduced reputation evidence as to his own good reputation in the community. The prosecutor asked these witnesses if they had heard that Michelson had been arrested for buying stolen goods some 20 years earlier. These questions were allowed over Michelsons objection. The jury found him guilty. Issue: When a puts his reputation at issue by calling witnesses to testify as to his good character, may the prosecution ask those witnesses if they have heard of specific acts of bad conduct relating to the ? Yes. Rule: When a puts his reputation at issue by calling witnesses to testify as to his good character, the prosecution may ask those witnesses if they have heard of specific acts of bad conduct relating to the . Analysis: The prosecution may introduce specific acts of misconduct where they show an ongoing conspiracy, establish a common plan, or establish the s modus operandi. Conclusion: The rule includes specific acts of misconduct. The acts need not be identical to the charges raised against the . It is sufficient that they cast doubt upon his truth, veracity, or reputation in the community. The law in this area is convoluted and archaic. The prosecution may not attempt to prove the s bad character. However, the may introduce evidence as to his good general reputation in the community. No specific acts may be testified to by these witnesses. Once the has placed his reputation in issue the witnesses may be cross-examined as to specific acts of misconduct. These may include arrests where there was no conviction or even an indictment. These questions test the witnesses knowledge of the s reputation. A 23 year old conviction may be excluded at the judges discretion since the may have been rehabilitated. Here, however, Michelsons attorney mentioned a 23 year old conviction of a misdemeanor for trading in counterfeit watch dials. It was within the courts discretion to allow the earlier crime. The earlier crime tended to diminish Michelsons reputation evidence. The fact that they were old merely goes to the weight that the jury wishes to place upon these specific acts. Judgment affirmed. Dissent: Questioning of a reputation witness that is intended to test the standards of the witness should have been excluded, because it allows the opposing party to convey facts to the jury under the guise of probing the witnesss standards by simply asking a question, depending on how it is worded and asked. The does not have the opportunity to reply. The prosecutor can clearly insinuate that the had committed a crime, as was done in this case, and no instruction to the jury can possibly mitigate the prejudice produced. 404(a)(2) Exceptions Applies to Criminal Matters o (2)(A) D can offer evidence of Ds pertinent trait (boosts own character) Prosecutor can rebut cross examine Ds witnesses Cant offer past acts still Michelson case D has opened the door Once the D opens the door the P can fire back on cross examination
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(2)(B) Alleged victim traits D can offer about Vs character traits (D tearing down Vs character) 412 sex crimes are different with everything all the rules are different D opens the door by offering evidence of the victims character P can offer evidence to rebut victim P can also offer evidence to show D had same alleged trait o (2)(C) Evidence of Vs character for peacefulness after D alleges V was first aggressor With (A) and (B), has to open the door BUT with (C) Ds claim that V was the first aggressor opens the door for P to rebut this by rehabilitating the Victim Showing evidence of Vs character for peacefulness 405(a) Methods of proving character o (a) Testimony witnesses stating an opinion of character, or reputation in the community Cannot offer specific acts Rare circumstance where layperson can offer an opinion Hearsay exception unique Reputation is necessarily hearsay Testifying as to what other people are saying about them o Can just say they believed the person was honest Opinion of the persons character of honesty o Or you can testify about the persons reputation for honesty in the community o On cross examination can ask witness questions about specific instances of conduct BUT cannot offer evidence of the prior acts Have to go with the witnesss answer How can we keep the prosecutor from just making this stuff up o Line of questioning Initial Testimony: Who are you, how do you know the person, how long have you known them, have you formed an opinion, what is your opinion on the persons character trait On cross-exam: did you know the last year this person did such and such Either way you answer your testimony is destroyed o Yes, I knew then youre full of crap o No, I didnt know then you really didnt know them that well o Judges instruction Witness knowledge is being questioned, jurors should not consider whether the person () actually did what the question alludes to. o 404(a)(2)(B) Character trait of victim Example Did you form an opinion about whether the victim was violent What was the victims reputation in the community for violence Cross-Exam: were you aware of that this person was a monk (specific instances of conduct) (i) Then: were you aware that the had a character for violence (ii) Cross-exam: specific instances o
C.
Evidence of Propensity when Essential to a Charge, Claim, or Defense

Fed. R. Evid. 405(b) Fisher pp. 247-252 (beginning with section on Distinguishing Proof of Character under Rule 405(b) on p. 247)
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Methods of proving character 405(b) When a persons character/ trait is not being offered to prove that person acted in accordance with character/trait on a particular occasion o slander hypo just trying to prove truthfulness as a character trait itself Example - Reputation for dishonesty Offer evidence to show the person is truthful o act to infer -> Character or trait and that's it So 404(a)(1) does not apply only pertains when using to prove acted in accordance o How can you prove character for honesty here? Can use specific instances 405(a) does not apply here Character evidence can mean different things Judge will require the prosecutor to have a good faith belief before asking a question on cross examination Ds counsel can rehabilitate witness with specific events
Problem 3.15 Issue: Murder trial. claims that she only shot a guy because her acquaintance told her to, and that she wouldn't shoot anyone if she had the choice. Prosecution asks, "You've shot at people before, haven't you?" She did state earlier that she shot at other people when she was interviewed by some detectives, but now she denies this. Question by prosecution admissible? Applicable Rule: 404; 801 (d) (1) (a) - Answer: Admissible as a prior inconsistent statement under 801(d)(1)(a). Could also be potentially admissible under 404 (A)(2)(a) if the court finds that her statement that she wouldn't shoot anyone was intended to show peacefulness, and the prosecution was simply rebutting this evidence. Problem 3.16 Issue: shot and paralyzed a man. claims self-defense. Paralyzed man shouts at 's brother during a break in trial. Defense wants to get in this evidence as evidence of the victim's violent nature under 404 (a)(2)(b). Applicable Rule: 404 (a)(2)(b); 405 - Answer: Not admissible because character evidence can only be proven by opinion or reputation evidence under 405. Specific acts can only be delved into on cross-examination. Problem 3.17 Issue: Facts from James case. Guy brags about stabbing and beating guys. Propensity ban applicable? Applicable Rule: 404 - Answer: Propensity ban not applicable because it is not being offered to prove whether or not the guy would act in conformance with a violent character, but rather to prove whether believed that the guy would act in conformance with his violent character. Problem 3.18 Issue: Murder trial. claims self defense. Wants to bring in evidence that the victim had drugs in his body, including a combination that would make the victim more aggressive. Inadmissible as against the propensity ban? Applicable Rule: 404 - Answer: Propensity ban has nothing to do with it here. isn't trying to prove that because the victim acted in conformity with his drug-abusing character that he did something, he is just trying to prove that because of the drugs' effect, the victim was more aggressive. Admissible, unless it is kept out because of 403 reasons. Evidence that the victim is the first aggressor. Expert establishing what the victim would have done under this occasion. No character and no traits.
D.
Non-Propensity Uses of Other Acts Evidence

1. Proving Knowledge Fisher pp. 165-167
Problem 3.1: charged with two thefts. Pleads guilty to later theft. Can prosecution offer evidence of the later theft when prosecuting the earlier theft? They are introducing it to show that he had knowledge of the encryption
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codes, so it is admissible. If they are introducing it to show that he had a propensity to act unlawfully and he acted unlawfully, it would be inadmissible. Problem 3.2: Prosecutor argues that s past drug conviction shows that he has knowledge of drug trafficking and proves his identity as the dealer. This is too general, and it seems to be offering evidence of his propensity to drug deal showing that he did it this time. Problem 3.3: Injured brakeman argues that crash that caused his injury was caused by a negligent drunk engineer. Brakeman introduces evidence that the engineer had a reputation for being drunk. Also produced evidence of incidents of the engineers drunkenness. Cant offer the evidence to show that the engineer had a drunken propensity and he acted on it on this occasion. Evidence was admissible to show that the railroad had knowledge of the engineers drunkenness and they were negligent by continuing to employ him. 2. Proving Motive Fisher pp. 167-168 (up to Problem 3.5) Problem 3.4: Peltier charged with murder of two FBI agents. Prosecution wants to show that Peltier had an arrest warrant for attempted murder. Evidence is admissible to prove that Peltier had a motive to kill the FBI agents because he did not want to be arrested. It is not admissible to prove that he had a propensity to kill and that he acted murderously on this occasion. Could be excluded because it may be unfairly prejudicial. 3. Proving Identity Fisher pp. 169-180 Problem 3.6: If objects to admission of tons of weapons found in Peltiers vehicle including the FBI agents gun, how should it rule? Prosecutor is trying to show that Peltier is the shooter because he has the officers gun and he had weapons capable of shooting the agents. Officers weapon and weapon that shot him should be admitted to prove identity, but the rest of the evidence fails the 403 balancing test. Problem 3.7: Issue: Cops found cocaine and cocaine bags in an apartment, but there was a dispute at trial for distribution of drugs as to the occupant of the apartment. There was also gambling lists and memorabilia in the apartment. Prosecutors want to bring in evidence about the 's previous conviction for illegal gambling to prove identity. Admissible? Applicable Rule: 404 - Answer: Inadmissible because of propensity reasoning. It doesn't matter that the wasn't on trial for gambling here. The court still used the reasoning once a gambler, always a gambler to get this in. 404(b) only applies if any of these-motive, identity-can be proved without using propensity reasoning. Problem 3.8: Bike racing material near cocaine. Evidence that is an avid bike racer. Still not admissible because it is not specialized enough to prove his identity. Modus Operandi Used to show that this could not be anyone elses crime; it is the s crime because this is his MO, and this is how he does things. US v. Trenkler pg. 171 FRE 404(b) FRE 403 Nature of the case: Appeal form a criminal conviction related to a bombing.
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Fact Summary: At s trial for building a bomb that killed a police officer, evidence of a prior bomb constructed by was admitted to show identity, skill, and knowledge for the present bomb. was convicted and appealed, contending the prior bomb was not sufficiently similar for admissibility. Issue: Is evidence of other crimes admissible if there is a showing of special relevance beyond demonstrating criminal propensity and the evidence is more probative than prejudicial? Yes. Rule: Evidence of other crimes is admissible if there is a showing of special relevance beyond demonstrating criminal propensity and the evidence is more probative than prejudicial. Analysis: The special relevance rule does not require that the two bombs be exactly identical in order to be admissible under Rule 404. The battle of the experts on the similarities allows the jury to determine the significance of the similarity of the bombs as it relates to the identity of the bomb maker. Conclusion: The expert evidence on either side weighed relatively evenly as to the potential similarity or dissimilarity of the two bombs. FRE 404(a) allows evidence of other crimes only if offered to show something other than a propensity of the to criminal behavior. The Government here was offering the evidence to show that the identity of the bomb maker was likely the same for the Roslindale bomb as for the Quincy bomb because the characteristics of the two bombs were so similar. Also, the evidence was offered to show that Trenkler had the skill and the knowledge to make such a bomb. Thus, the evidence had special relevance under FRE 404(1) beyond showing criminal propensity. The next step is to consider the evidence under Rule 404(b). The was not unfairly prejudiced here because the Quincy bombing did not result in loss of life or major property destruction and the trial judge accurately instructed the jury as to the weight of that evidence. Affirmed. Dissent: The expert testifying about the EXIS data neglected to explain why he input only certain characteristics. The majority does not point out this inconsistency, but it is vital to understand that the expert was specifically looking to connect the two incidents. 4. Maintaining Narrative Integrity (Res Gestae) Fisher pp. 189-193 Problem 3.10: Government got gun from grandmothers bedroom with obliterated serial number. Government wanted to admit evidence that the spun a bullet in a chamber and shot it at his fianc in order to prove that the possessed the gun. Improper character evidence? In order to show how probative it was, (she knew it was the gun because it was pointed at her head) the entire story must be told. a. US v. DeGeorge P argued Evidence of the 3 prior lost boats was essential to establishing why DeGeorge distanced himself from the boats ownership i. Inextricably intertwined 1. Constitutes a part of the transaction that serves as the basis for the criminal charge 2. Necessary to permit the Prosecutor to offer a coherent and comprehensible story regarding the commission of the crime ii. Court found that it instead fell under 2 1. To show why DeGeorge could not get insurance iii. Also did not substantially outweigh US v. DeGeorge pg. 190
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Nature of the case: Appeal for abuse of discretion in admitting evidence of prior acts. Fact Summary: An attorney participated in a scheme to defraud an insurance company by purchasing a yacht, purchasing insurance, and trying to sink it to collect insurance money. Issue: May evidence of prior acts be admitted if necessary to offer a coherent and comprehensible story about the commission of the crime? Yes. Rule: Evidence of prior acts may be admitted if necessary to offer a coherent and comprehensible story about the commission of the crime. Analysis: The prosecution is permitted under the FRE to weave together a story that makes sense to a jury. While courts are wary of admitting evidence of prior acts, they will often admit them to the extent necessary to provide the jury with a solid picture of the facts, provided there is no danger of prejudice to the . Conclusion: DeGeorges concealment of the prior losses was connected to the facts of the current indictment. The Government specifically alleged that DeGeorges scheme included sham transactions to hide ownership, and the jury could not have understood the relevance of all of the transactions to the fake corporations w/o hearing some explanation for why DeGeorge couldnt get insurance in his own name. The loss evidence could imply a tendency to defraud insurance companies, and in that sense could be prejudicial, but the district court took precautions against that by not allowing the Government to present evidence that DeGeorge collected under the previous policies, or the details of the loss, and by allowing only as much as was relevant to the specific issues. Affirmed. 5. Proving Absence of Accident Fisher pp. 193-195 Problem 3.11: Cleaning hunting rifle and it accidently discharged, killing his wife. Prosecutor wanted to offer evidence that three years earlier he had shot and killed his same wife, in the same manner. Can be admissible to prove lack of accident? Probably not. May be able to show manslaughter because he was obviously negligent by letting it happen twice. Should be allowed. Problem 3.12: Flung dog into street and it was hit and killed. Was it a reflex from getting bitten or intentional? Prosecution wants to offer evidence that he had clubbed a stray dog to death. Defense would say that it is not relevant because it was an intentional act that was totally different. Should not be allowed.
6.
Proving the Commission of Other Acts: The Huddleston Standard Fed. R. Evid. 104(a), (b) Fisher pp. 201-207
Rule 104: Preliminary Questions

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a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: 1) the hearing involves the admissibility of a confession; 2) a in a criminal case is a witness and so requests; or 3) justice so requires. d) Cross-Examining a in a Criminal Case. By testifying on a preliminary question, a in a criminal case does not become subject to cross-examination on other issues in the case. e) Evidence Relevant to Weight and Credibility. This rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. Huddleston Standard: What do we do when the other act is disputed by the person against whom the act is presented? Admissibility of the other act is the question here Huddleston o Did he know the tapes were stolen? Knew that other items obtained from the same source were stolen o wanted to introduce evidence of other acts sold stolen items in the past to show he knew the current items were stolen o Offering only to prove knowledge Cost, quantity, source implies that he knew they were stolen o Allowing evidence on conditional basis o Sufficient evidence to find (by preponderance of the evidence) that the televisions were stolen o What evidence was there low price, large quantity, same source, no bill of sale o saying that since I didnt know the TVs were stolen means that the evidence is irrelevant o Should have been under (b) not (a) is offering an act for a legitimate purpose o So the reason the Huddleston standard comes into play is because the prior act is being disputed by as something that he did not commit. Huddleston v. US pg. 201 Nature of the case: Review of conviction based on buying and selling stolen goods. Fact Summary: In a prosecution based on dealing in stolen goods, the trial court did not make a preliminary finding as to the accuracy of evidence of similar acts introduced to show motive and knowledge, prior to admission of the evidence. Issue: Must a court make, prior to admitting past acts introduced to show motive or knowledge, a preliminary finding that the acts occurred? No. Rule: A court need not make, prior to admitting past acts introduced to show motive or knowledge, a preliminary finding that the acts occurred. Analysis: FRE 404(b) is essentially an exclusionary section. It prohibits otherwise relevant evidence of prior acts to be introduced to prove conduct in conformity therewith. The rationale behind this is that the
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possibility of prejudice inherently outweighs whatever probative value exists. However, prior acts introduced to prove other than acts in conformity therewith are admissible. Conclusion: FRE 404(b) prohibits the use of evidence of prior acts to prove conduct in conformity therewith, but permits the introduction of such evidence to prove knowledge, motive, opportunity or the like. Huddleston argued that the court must preliminarily find that the prior acts did in fact occur. However, this runs contrary to the structure of the FRE. Relevant evidence is to be admitted. Evidence of prior conduct, if relevant to show a legitimate item such as motive or knowledge is equally admissible. It is for the jury to decide whether the prior act occurred. The only determination the court needs to make is that the evidence is relevant, which is to say, that a jury could find that the prior acts do in fact show motive or knowledge. Here, the court appears to have done just that. Affirmed. Rule 104 Notes a preliminary questions are decided by the judge o Not bound by rules of evidence b allowing to be admitted on an interim basis, until enough evidence is offered to support the findings conditional relevance (Im going to allow it for now) o Judge would have to ask whether there is sufficient evidence to allow the jury to find by a preponderance of the evidence the fact that the other act was committed by the o Then will leave the rest of it to the jury o If this cant be found, judge must instruct jury to disregard the evidence however well that works o Takes (a) out c if it goes to the relevance the jury will get to hear it Did not discuss (d), (e) Problem 3.13: Other act- robbery of Ms. Henry with ski mask and small pistol. Charged with robbery of bank with ski mask and small pistol. Acquitted of robbing Henry. Even though he was acquitted the judge can then look at the evidence and decide if the jury in the second case could find by a preponderance of the evidence that he committed the crime. Just because the government couldnt satisfy beyond a reasonable doubt in the earlier trial, doesnt mean that the jury in this case cant find by a preponderance of the evidence that he did it in this case. Maybe he was acquitted for some other reason in the previous case. Not that his identity was in question. Judge has to consider 403 when making a 104(b) decision. We also must look at 404(b) to see if this goes through the propensity box or is there a way around it.
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E.
Evidence of the s Propensity in Sexual-Assault and ChildMolestation Cases

Fed. R. Evid. 413(a) Fed. R. Evid. 414(a) Fed. R. Evid. 415(a) Fisher pp. 218-222
Rule 413: Similar Crimes in Sexual-Assault Cases a) Permitted Uses. In a criminal case in which a is accused of a sexual assault, the court may admit evidence that the committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. Rule 414: Similar Crimes in Child-Molestation Cases a) Permitted Uses. In a criminal case in which a is accused of child molestation, the court may admit evidence that the committed any other child molestation. The evidence may be considered on any matter to which it is relevant. Rule 415: Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation a) Permitted Uses. In a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. Sex cases rules are different: Rule 413 Notes may admit evidence that the committed any other sexual assaults May be considered on any matter on which it is relevant Allows prosecutor to offer this evidence - different from 404(a)(2) exceptions for o Why would prosecutor offer this evidence? To show a particular character o It is a limited superseding of rule 404(b)(1), 405(a) Why because of the nature of the crime and difficulty proving it Can do what 404(b)(1) prohibits o Allows P to do this without any prompting different from 404 exceptions because each require that the D open the door o Big advantage for the P o What form must the evidence take here Can use past acts Not limited to reputation or opinion Also supersedes rule 405(a) Others o Identity o Design o Knowledge o Motive Use Huddleston standard to bring in prior using 104(b) What could still keep it out 403 unfair prejudice, substantially outweighs o 403 is still in play here Without 413 is there any way they can get evidence in propensity evidence o If the D brings it up - 404(a)(2)(A) Offering evidence of something that would be inconsistent with sexual assault D opens the door
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Then P can bring in past acts, opinion, reputation evidence o What trait sexual dangerousness, violence o But because we do have 413, P does not have to wait for D to bring it up Why are we allowing this? o Because of the difficulty of proving these crimes o Sometimes no physical evidence o There is testimony from the victim, but the P has an opportunity to show past acts to bolster the victims testimony
Rule 414 Notes Child-Molestation same as 413 otherwise Same as 413 except for the term used Rule 415 Notes Civil plaintiff acts like prosecutor in 413 Cuts against relevant civil rule
F.
Evidence of the Victims Propensity in Sexual-Assault Cases: The Rape Shield

Fed. R. Evid. 412(a), (b) Fisher pp. 327-331
Rule 412: Sex-Offense Cases: The Victim's Sexual Behavior or Predisposition a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: 1) evidence offered to prove that a victim engaged in other sexual behavior; or 2) evidence offered to prove a victim's sexual predisposition. b) Exceptions. 1) Criminal Cases. The court may admit the following evidence in a criminal case: A. evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the was the source of semen, injury, or other physical evidence; B. evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the to prove consent or if offered by the prosecutor; and C. evidence whose exclusion would violate the 's constitutional rights. 2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy. Rule 412 Notes: Rape shield Sexual Misconduct means its broader than the other rules Why? Don't want this evidence used to show that she consented on this occasion, or that she was a liar. o Dont want to discourage people from coming forward o Avoid humiliating victim etc o Victimizing them again Evidence not allowed to prove victim engaged in other sex or predisposition o Similar to 410, complete prohibition o (a) victims sexual behavior or predisposition
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(b) exceptions (1) criminal Cases (2) Civil cases similar to 403 if the victim brings it up Flips the 403 balance Evidence is excluded very broadly here
G.
The Habit-Propensity Distinction

Fed. R. Evid. 406 Fisher pp. 252-56
Rule 406: Habit; Routine Practice o Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Rule 406 Habit 1) Can offer evidence of the habit or routine practice To show accordance with it on a particular occasion 2) Different than 404 Different than what you can do with character Difference Habits are automatic - specific o Regular or automatic response o Predictable - second nature action o Lack of volition (not voluntary) o Reacting to a specific situation o I always do something o Specific enough to infer a prediction Propensity/Traits/Character general o Disposition o Tendency to do something o Is it a habit or an act that is in conformance with a character trait o Focus on specificity o Repetition Halloran v. Virginia Chemicals o Mechanic changing Freon containers o Put in hot water to speed the process o Did this all the time Halloran v Virginia Chemicals pg. 252 Nature of the case: Personal injury product liability action. Fact Summary: The trial judge refused to allow to introduce evidence that Halloran had previously used an immersion heating coil to heat cans of refrigerant to show that he was acting in such a negligent fashion when one of the cans blew up and injured him.
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Issue: Where the issue involves proof of a deliberate and repetitive practice, may evidence of habit or regular usage be admitted? Yes. Rule: At least where the issue involves proof of a deliberate and repetitive practice, a party should be able to introduce evidence of habit or regular usage to allow the inference of its persistence, and hence negligence, on a particular occasion. Analysis: Since the days of common law reports, habit evidence has generally been admissible to prove conformity on specified occasions. However, where negligence is at issue, many courts have resisted allowing evidence of specific acts of carelessness or carefulness to create an inference that such conduct was repeated when like circumstances were again presented. Conclusion: The statement that evidence of habit or regular usage is never admissible to establish negligence is too broad. Of course, conduct which involves other persons or independently controlled instrumalities cannot produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged. However, proof of a deliberate repetitive practice by one in complete control of the circumstances, as in this case, is quite another matter and should be admissible because it is so highly probative. Of course, must be able to show on voir dire a sufficient number of instances of the conduct in question to justify introduction of habit or regular usage. Order of Appellate Division modified by reversing so much of the order as affirmed the award of judgment to plaintiff. Problem 3.19 - Issue: Patient dies of a steroids overdose. Doctor wasn't supposed to be giving him steroids at all. Patient's estate wants to bring in evidence that doctor has given steroids to other patients. Does it get in? Applicable Rule: 406; 404 Answer: Fisher says that this is almost a close case for a habit because there are some other patients that have been given the same steroid, but ultimately says that it is character evidence, violates the propensity ban, and doesn't get in under 406.
IV. Impeaching Witnesses

A. The Requirement of Personal Knowledge
Fed. R. Evid. 602 Rule 602: Need for Personal Knowledge o A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witnesss own testimony. The rule does not apply to a witnesss expert testimony under Rule 703.
B.
Modes of Impeachment
Fed. R. Evid. 404(a)(3), 607, 608 Fisher pp. 257-61
Rule 404: Character Evidence; Crimes or Other Acts a) Character Evidence.

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3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609. Rule 607: Who May Impeach a Witness? o Any party, including the party that called the witness, may attack the witness's credibility.
Rule 608: A Witness's Character for Truthfulness or Untruthfulness a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked. b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: 1) the witness; or 2) another witness whose character the witness being cross-examined has testified about. By testifying on another matter, a witness does not waive any privilege against selfincrimination for testimony that relates only to the witness's character for truthfulness. Impeaching a witness: Non-character impeachment o Contradiction by offering conflicting evidence o Contradiction by offering past inconsistent statements o Evidence of bias Motive to lie Covering for someone Character-based Impeachment o Propensity to be untruthful Relevant character trait is truthfulness, veracity, honesty or lack thereof Refer to Impeachment Evidence Flowchart on page 260 Rule 607 Notes Any party can attack the credibility of a witness Why attack your own witness? o Might not be able to trust your witness, witness could say something damaging, hostile witness Rule 608 Notes limited to testimony in the form of an opinion or reputation in the community Have to wait until there is an attack if other side uses a witness to say he is lying, or on crossexamination opposing counsel tries to impeach the witness o Cross-examination regarding past acts of dishonesty You have to accept the witnesses answer for past acts No extrinsic evidence No actual evidence about the past acts, just able to ask the question Party asking the question needs a good faith basis o Witness testifies about dishonesty Only reputation, or opinion o Cannot bolster the testimony of your own witness preemptively there has to be an attack
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The 404(a)(3) exception: Truthfulness/untruthfulness, honesty and dishonesty (a) last sentence witness A testifies, witness B bolsters character for truthfulness of witness A. o Cannot do this unless witness A character has been attacked by other side o Wait for the attack Backwards in relation to 404 o With 404 opens the door and then comes the attack o Here we have an attack on truthfulness then comes the bolstering Cant offer evidence that's favorable to your WITNESS just because they testified No extrinsic evidence - Extrinsic to the witness o Beyond the witness you are questioning you are stuck with what the witness says o Except for criminal evidence extrinsic evidence is allowed Hypo Impeachment o Witness A testifies for attorney about observations of the event Cannot ask A whether they are honest o Earliest that witnesss character for truthfulness can be attacked on cross examination Prosecutor asks is it true that you lied about something Must have a good faith belief Have to take the witnesss answer extrinsic evidence If witness denies your question about the past instance of untruthfulness you cant offer the evidence to prove you are right Legal significance opens the door o So since there has been an attack attorney can offer testimony of witness B to rebut (the door was opened) B testifies about opinion or reputation of A A is very honest in my opinion o Then Prosecutor could cross-examine B about specific instances of lying that A was involved in did you know that A lied about Stuck with Bs answer just like with A But jury gets to hear info about the lie again o Then P can question witness B about their own character to lie Opens another door o Then attorney calls C to testify about Bs honesty o Prosecutor calls witness E to testify that A, B, and C are liars Cannot use evidence of a specific act Just opine about whether they are liars, reputation etc Have you formed an opinion on their character o attorney cross examines E about his truthfulness didnt you get caught lying about OR Did you know that A found money and returned it? Either way E answers you have something o Yes then why do you think they are a liar o No then you dont know them very well do you Have to take Es answer, just like before
C.
Proving a Witness Propensity for Untruthfulness or Dishonesty

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1.
Opinion Evidence, Reputation Evidence, and Cross-Examination about Prior Dishonest Acts Fisher pp. 261-276
US v. Whitmore Officer testifying about D throwing out a gun D strategy is to go after Sotos character Coopers testimony about reputation too narrow, only a handful of people in the community think that hes a liar o Needed to have a sufficient foundation for what he believes o How many in a community would be enough o General consensus o Cant just cherry pick a section of the community when the issue is reputation Cross exam question of Soto should have been allowed Testimony about Opinion can he form an opinion? o Court said no because it was too remote, too long ago US v Whitmore pg. 261 Nature of the case: Appeal of conviction for firearm and drug possession. Fact Summary: The trial court ruled that character witness testimony and the cross-examination of an arresting officer were inadmissible. Without any other evidence for his defense except cross-examining government witnesses for inconsistencies, was convicted for illegal firearm possession and drug possession. Issue: 1) May a party attack the credibility of a witness through reputation evidence of his character for truthfulness if the character witness is qualified by having an acquaintance with the witness, his community, and the circles in which he has moved? Yes. 2) May a party attack the credibility of a witness by cross-examining him on specific instances of past conduct? Yes. Rule: 1) A party may attack the credibility of a witness through reputation evidence of his character for truthfulness if the character witness is qualified by having an acquaintance with the witness, his community, and the circles in which he has moved. 2) A party may attack the credibility of a witness by cross-examining him on specific instances of past conduct. Analysis: This case is very fact-based, but it illustrates a courts approach to the distinction between reputation and opinion evidence, and the higher standard for admission of reputation evidence. To be able to testify authoritatively about another persons reputation, one must know not only the person testified about, but also who he or she consorts with, and what those people think of the person. Reputation testimony requires much more than opinion, even though reputation evidence is, in essence, a form of opinion evidence. Holding:
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1) FRE 608(a) permits reputation evidence. But Cherkis and Edmonds had no direct contact with Soto or his community for some time, and the lower court did not abuse its discretion in excluding their testimony as to being too remote from the time of the trial. The trial court also did not abuse its discretion in excluding Coopers testimony because it relied on Coopers conversations with only a few other criminal defense counsels, a subset of the proposed court community, and the foundation was therefore weak. Opinion evidence is also governed by FRE 608(a), and even though the foundational requirement for it is easier to meet than that for reputation evidence, the district court did not abuse its discretion in excluding Coopers and Edmonds opinion, because neither opinion had a reasonable basis, as far as the jury is concerned. 2) FRE 608(b) permits the cross-examination. The trial court precluded cross-examination because it found that it was based on inadmissible hearsay the record from the Maryland Motor Vehicle Administration. But a lawyer only needs a reasonable basis for asking questions on cross which tend to be permitted to cross-examine under FRE 608(b), and Sotos Maryland driving record provided such a basis, despite that the record was inadmissible. In addition, because Soto provided the only eyewitness evidence to support the conviction, the district courts error in precluding the cross-examination was not harmless error. Vacated in part, affirmed in part, and remanded. Uviller Article Testifying under oath is different than lying in everyday life, because of the implications of lying under oath Can casual observers really form an opinion about someone in the community Can the jury separate the evidence being offered to show lying from being offered to show guilt What might happen to allow past acts? just testifies thats it - then prosecutor can bring in all past acts of dishonesty Only ok to show evidence to prove dishonesty Jury instruction would be to use it to impeach only, not to find guilt in the current crime Problem 4.1: Answers on pg. 274 Larken sued Parker for bar fight. Rice- testimony that she saw Parker strike Larken Rices neighbors testimony: 1) Rices reputation in the neighborhood for peacefulness is good. Inadmissible because it does not go to truthfulness. 2) Rices reputation in the neighborhood for truthfulness and veracity is good. Only if other side has attacked her truthfulness on cross-examination. Inadmissible no bolstering until character for truthfulness has been attacked. Parker called a longtime coworker of Rice. 3) When Rice sold me her old car, she told me she had just replaced the brake pads, but she was lying. Inadmissible because it is a specific instance. 4) My opinion, based on all my dealings with Ms Rice, is that she is a liar. Admissible On Cross-examination of co-worker: 5) Isnt it true that you were expelled from college for a semester for trashing your dorm room in a drunken rage? Inadmissible because it doesnt go towards truthfulness. 6) Didnt you lie on your medical school application about whether you had any disciplinary offenses during college? Admissible Cross-examination about a specific lie is allowable.
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Problem 4.2: Belnick is charged with stealing money from Tyco. Can prosecutor, in case in chief, offer evidence that Belnick is an untruthful person? It is relevant because embezzlement is a crime of dishonesty. Past acts of dishonesty are relevant. 608 does not matter to anyone who has not testified as a witness. 404 (a) prohibits this evidence unless the prior act shows something beside character for truthfulness. Cannot offer evidence in form of opinion of witness saying that Belnick is untruthful 404 (a). Holly knows Belnick has an outstanding reputation for honesty. He has not been on the stand. She can testify that way because of 404(a)(2)(a). Prosecutor can offer evidence of specific instance of dishonesty on cross-examination. 2. Use of Criminal Convictions Fed. R. Evid. 609 Fisher pp. 276-281; 284-298 Rule 609: Impeachment by Evidence of a Criminal Conviction a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction: 1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: A. must be admitted, subject to Rule 403, in a civil case, or in a criminal case in which the witness is not a ; and B. must be admitted in a criminal case in which the witness is a , if the probative value of the evidence outweighs its prejudicial effect to that ; and 2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving--or the witness's admitting--a dishonest act or false statement. b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: 1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and 2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: 1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or 2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: 1) it is offered in a criminal case; 2) the adjudication was of a witness other than the ; 3) an adult's conviction for that offense would be admissible to attack the adult's credibility; and 4) admitting the evidence is necessary to fairly determine guilt or innocence. e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible. History of rule 609 If you were a convicted felon you did not get to testify
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Criminal s also could not testify o Why the person is facing prison time, how can they be expected to testify truthfully Assumption that the person is guilty Reconsidered policy on due process grounds o Jury should be evaluating this Reform give the opportunity to take the stand at his own defense Dilemma is that then the Ds criminal history can be brought in If D does not testify jury could infer guilt o Judge instructs that jury should not make this inference Only goes so far May still have the effect of holding silence against the D
Problem 4.3: Answers on page 296 1) She asked the on cross-examination whether he shot a man in the arm during a drunken barroom brawl. Inadmissible because specific act with no evidence of conviction. 608(b). 2) She called a witness to testify that he saw the shoot a man in the arm during a drunken barroom brawl. Inadmissible because it is extrinsic evidence. 3) She offered evidence that the was convicted of assault and battery and of a dangerous weapon and sentenced to serve five years in state prison. 609 (a)(1)(B) Probative value must outweigh prejudicial effect. Risk of unfair prejudice is moderated by dissimilarity of the old crime. Five Factors to determine if probative value outweighs prejudicial effect 609(a)(1)(B): 1. Nature of crime 2. Time of conviction and the witness subsequent history. 3. Similarity between the past crime and the charged crime 4. Importance of s testimony 5. The centrality of the truthfulness issue 4) She asked the on cross-examination whether he was convicted of turnstile jumping and sentenced to three months in county jail in 2006. Just because he was sentenced to three months does not mean that turnstile jumping carries a punishment of less than a year. 5) She offered evidence that the was convicted of lying to a federal investigator and sentenced to two years in 1998. Possibly admissible. Under 609(b) it is presumptively inadmissible because of the age. It is still rather probative, so it would have to be admitted under 609(a)(2) as long as there wasnt a timing issue. US v. Brewer wants to offer past convictions against , Kidnapping, rape, aggravated assault and assault w/deadly weapon Parole violation extended the timeline for the kidnapping charge Nature of the crime Time of conviction and subsequent history High danger of unfair prejudice with the kidnapping crime because the current crime was also kidnapping o Easier for judge to make this decision cause there were other crimes to bring in o Otherwise may have let the kidnapping in despite the unfair prejudice Did not involve an element of deceit Used a balancing test Look at the factors associated with 609 US v Brewer pg. 285 Nature of the case: Consideration of motion to exclude evidence.
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Fact Summary: is on trial for kidnapping and seeks to exclude evidence of four prior convictions, which the prosecution seeks to introduce under FRE 609. Brewer was charged with kidnapping and transporting a stolen vehicle. Issue: Is the probative value of evidence offered under FRE 609 discerned from the nature of the crime, the time of conviction and the witnesss subsequent history, the similarity between the past crime and the charged crime, the importance of s testimony, and centrality of the credibility issue? Yes. Rule: The probative value of evidence offered under FRE 609 should be discerned from 1) 2) 3) 4) 5) the nature of the crime, the time of conviction and the witnesss subsequent history, the similarity between the past crime and the charged crime, the importance of s testimony, and centrality of the credibility issue.
Analysis: The judge noted that no court had considered whether or not the proper release date to consider under 609(b) was the original release date or the release date after reincarceration for parole violations. The latter seems to be more appropriate as the reincarceration is for the original conviction. The leaning toward admissibility under the 10-year rule is counterbalanced by the requirement of a balancing test for probative value under 609(a). Conclusion: The trial court considered the evidence and weighed it against Rule 609. Under 609(b), none of the convictions is over 10 years old because the convictions are considered from the date of conviction or the date of release from incarceration. With the earliest conviction, Brewer violated his parole and had to be reincarcerated. That second release date was w/n the 10-year time frame. Once 609(b) is satisfied, the probative value of the evidence must be considered under 609(a). Looking at the four factors for discerning probative value, the violent nature of the four prior acts should keep them from the jury, the time factor supports admissibility, the similarity supports excluding the kidnapping conviction, and the fourth and fifth factor counterbalance each other. A limiting instruction could cure the similarity of the prior kidnapping conviction, but the other three prior convictions should be sufficient to impeach the . Motion denied for the three prior convictions and granted as to the kidnapping conviction. Rule 609 Notes (a) Can only offer if testifying (witness) 609 is about when a criminal conviction can come in (a)(1) More than one year (a)(2) - it must be admitted, not discretionary, no balancing, dont do 403 o Mandatory admittance o Crimen Falsi Element of deceit Fraud False statements Perjury Forgery o Admitted if there is an element of deceit o Only used in this context (b) 10 year limit within the past ten years o Starts at later of conviction or release from confinement (even if reincarnated after parole on the original charge) o If ten years is up before:
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Arraignment Date of indictment Trial date Date of testimony o Then it doesnt come in (c) conviction no longer legally held against you (d) juvenile (e) can come in even if appeal is pending can say that appeal is pending
The Various Standards of admission (arrayed from most permissive to most restrictive) 1. Rule 609(a)(2): Conviction of any crime must be admitted if the court can readily determine that establishing the elements of the crime required proving or the witnesss admitting a dishonest act or false statement, subject only to the limits imposed by Rules 609(b), 609(c), and 609(d). 2. Rule 609(a)(1)(A): If the witness is not the accused in a criminal case, conviction of a crime punishable by death or imprisonment for more than one year must be admitted, subject to Rule 403. 3. Rule 609(a)(1)(B): If the witness is the accused in a criminal case, conviction of a crime punishable by death or by imprisonment for more than one year must be admitted if the probative value of the evidence outweighs its prejudicial effect to that . 4. Rule 609(b): If more than 10 years have passed since the witnesss conviction or release from confinement for it, whichever is later, evidence of a conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. 5. Rule 609(d): Evidence of a juvenile adjudication is never admissible in a civil case or to impeach the accused in a criminal case, but may be admitted to impeach another witness in a criminal case if the evidence otherwise qualifies under Rule 609 and admitting the evidence is necessary to fairly determine guilt or innocence. The Varying Probativeness of the evidence that 609s components govern. o o o o o Rule 609(a)(1): More serious crimes suggest greater readiness to lie under oath. This rule therefore generally requires that crimes used to impeach have been punishable by death or more than a year in prison. Rule 609(a)(2): Crimes involving deceit are especially probative of ones propensity to lie and are therefore made automatically admissible. Rule 609(b): Older crimes are less probative of present character and so are less readily admitted. Rule 609(c): A persons successful rehabilitation diminishes the probativeness of past crimes, and a later finding of innocence would reduce probativeness to near zero. Rule 609(d): If the witness was a juvenile at the time of her past offense, there is a greater chance her character has changed and perhaps improved.
Problem 4.4: Charged with distributing cocaine, prior conviction for unlawful possession for sale and purchase of cocaine. Offered it under 404 (b)(2) for knowledge or something like it, but court said probative value was substantially outweighed by unfair prejudice. Testified on own defense later in the trial. Conviction was admitted on cross-examination under rule 609. Only avenue for admission is 609 (a)(1)(B), and court admitted it. argues that court determined that the danger of unfair prejudice substantially outweighed the probative value and now the judge is saying that the probative value outweighs the danger of unfair prejudice. Wrong logic because it is not the same probative value. Probative value for knowledge is different than probative value of untruthfulness. Same item of evidence can have higher or lower probative value depending on the fact that you are trying to prove. Evidence of 's prior conviction for unlawful possession for sale and purchase for sale of controlled substance was admissible for impeachment purposes; admitted during direct examination testimony that he had prior
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conviction for possession of cocaine but attempted to minimize his guilt regarding prior conviction and government thereafter properly cross-examined in effort to clarify facts of prior conviction and impeach his direct testimony after opened the door by attempting to minimize his guilt. Problem 4.5: Gary sued employer alleging that he was fired because of his age. Jury found for company. At trial, judge allowed evidence of conviction of theft. Conviction carried a maximum confinement of six months. Three different approaches to fulfilling elements of crime. Only one involves deception. Because of punishment 609(a)(2) is only avenue to admissibility. Timing issue because it is a 2002 crime. Assuming that it is resolved Court must be able to readily determine if it involved a dishonest act or false statement. Unless there was a document that allowed the judge to readily determine that it was dishonest, it would not be admissible. For purposes of determining whether misdemeanor conviction is admissible to impeach 's credibility as a witness under 609(a)(2), in case of crimes, such as perjury, deceit is element of crime, and therefore conviction of such a crime imports use of deceit; in case of other crimes, deceit is not an element, but manner in which witness committed offense may have involved deceit, and if that is shown conviction is admissible. In age discrimination suit brought by former employee against employer, employee's misdemeanor conviction for tampering with electric meters was admissible to impeach his credibility as a witness, notwithstanding absence of any showing by employer that specific acts of meter tampering for which employee was convicted involved dishonesty, as meter tampering was necessarily crime of deception since goal of such a crime is always to deceive the meter reader.
D.
Rehabilitating an Impeached Witness

Fisher pp. 307-316 (up to Problem 4.9)
Problem 4.6: Answers on page 309 1) Inadmissible. Evidence of Johnsons bias is not an attack on her character for truthfulness. FRE 608(a) therefore forbids evidence in support of Johnsons character for truthfulness. 2) Probably inadmissible. FRE 608(a) permits evidence in support of Johnsons character for truthfulness only after that character has been attacked. Evidence that specifically contradicts one aspect of Johnsons testimony probably does not amount to an attack on her character for truthfulness, especially as Johnson might have been merely mistaken (and not intentionally untruthful) in her original testimony about where she and the ate. As the advisory committee wrote, Whether evidence in the form of contradiction is an attack upon the character of the witness must depend upon the circumstances. Here the circumstances are a single contradiction exposing a possible memory lapse and hence no attack on character. 3) Admissible. The prosecutors question about the loan application appears to be an acceptable way under FRE 608(b)(1) to attack Johnsons character for truthfulness. Now that her character for truthfulness has been attacked, FRE 608(a) permits the to offer opinion or reputation evidence in support of Johnsons character for truthfulness. 4) Admissible. Evidence of Johnsons armed robbery conviction appears to be an acceptable way under FRE 609(a)(1)(A) to attack her character for truthfulness. Now that Johnsons character for truthfulness has been attacked, FRE 608(a) permits the to call Johnsons neighbor to support her character for
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truthfulness with opinion or reputation evidence. FRE 608(b)(2) in turn permits the prosecutor to crossexamine the neighbor about specific instances of Johnsons conduct to attack her character for truthfulness. The point of the prosecutors question is to test whether the neighbors opinion of Johnsons credibility is both well informed and well considered. Collateral matters and extrinsic evidence: Other matters not linked to the crime cannot be added to evidence because it is extrinsic Extrinsic evidence of a conviction is admissible Difference between 608 and 404 Offer evidence for character for peacefulness not character for truthfulness o Using opinion or reputation evidence o But then again the P can cross examine about prior acts but not extrinsic evidence Bolstering Problem 4.7: Bonner convicted with swindling Kettles out of her VA payments. Bonner challenged the admission of testimony by two character witnesses who told jurors of their high opinion of Kettles honesty. Kettles now has benefits so she may want government to win. Angelita is cleared of swindling, so she may want government to win. Both show evidence of bias. Shouldnt have been allowed because her character for truthfulness was not attacked unless you construe the evidence of bias as an attack on character. Witness bolstering, or offering evidence solely for the purpose of enhancing a witness's credibility before that credibility is attacked, is impermissible. 4.7 Bolstering Accusing of having a bias o Not attacking character for truthfulness Cannot bolster character of truthfulness unless it has been attacked
Problem 4.8: answers on page 316 1) Inadmissible. There is no indication that Johnson was convicted of anything, so FRE 609 does not apply. The false claim on the loan application probably qualifies as a specific instance of conduct probative of untruthfulness under FRE 608(b). But that rule specifically bars extrinsic evidence of such conduct. 2) Admissible. The prosecutors question went to Johnsons bias. Because bias is not deemed a collateral matter, extrinsic evidence to prove bias is allowed. See Abel pg. 313. 4.8 1. Attacking character for truthfulness collateral matter 2. Extrinsic evidence would be allowed to show bias so allowable here o Different than truthfulness
Abel organization that had an agreement to lie, steal, kill for each other Extrinsic evidence for bias But not for character for truthfulness Pisari Question Would not be ok under 404b o Because purpose would be to prove character or trait Not character for untruthfulness
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Or 403 Not bias Untruthfulness?
Very few things are actually collateral matters; character for truthfulness is one of them And even that is subject to 609 exceptions
V. Hearsay
A.
Historical Prelude
Fisher pp. 374-376
Raleigh Why we have a hearsay rule o Keeps claiming that Cobham should have to testify o People are more reliable under oath o Possibility for cross-examination Constitutional law component Confrontation clause
B.
Defining Hearsay
Fed. R. Evid. 801(a), (b), and (c) Fed. R. Evid. 802 Fisher pp. 376-388
Rule 801: Definitions that apply to this article, exclusions from hearsay a) Statement. Statement means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. b) Declarant. Declarant means the person who made the statement. c) Hearsay. Hearsay means a statement that: 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement by the declarant. Rule 802: The Rule against Hearsay Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court. Hearsay: An Introduction Sometimes a lawyer asks a witness what he heard someone say. Hence the problem of hearsay. What is Hearsay? o Witness Testifying at trial Subject to cross-examination o Out-of-Court Declarant Made the statement
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Not there so not subject to cross-examination Not at the current trial or hearing o Statement Intended as an assertion 801(a) Was an assertion intended? What assertion was intended? Assertion can be words, writing, or gesture Two elements 801(c)(1), (2) o Out-of-Court statements (assertion) Means out of THIS court not at the current trial or hearing o To prove truth of a matter asserted Can you offer your own out of court statement? o It is still an assertion out of court Hearsay The hearsay rule is about the reliability of the evidence the jury hears. Four testimonial capacities: 1) Perception 2) Memory 3) Narration 4) Sincerity 3 courtroom tools to test the accuracy of testimony 1) The Oath 2) Demeanor Evidence 3) Cross-examination 3 non-hearsay uses of out-of-court statements: 1) Statements impact on the witness Doesnt matter that the statements were true just matters what the effect was on the person 7.5 - He told me he stabbed someone so I was afraid 2) Prove a legal right or duty legally operative words Oral contract Oath I do in marriage Slander, defamation proving assertion was made And proving the untruth of the assertion anyway 3) Impeach the declarant later in court statement inconsistent statement
Problem 7.1: Affidavit offered to prove that automakers own tests had demonstrated the rollover hazard. Hearsay. Problem 7.2: Issue: Prosecution wants to bring in witness to talk about conversation between her and where she asked why he didn't buy something and he rubbed his index and thumb together in response. Admissible? Applicable Rule: 801 (a) Answer: Nonverbal conduct can still be considered a statement, and 801 would not let this in as hearsay. Nonverbal conduct that is an assertion showing that he did not have money, so it is hearsay. Offered to prove that he is short on money, is he asserting that he is short on money? More than likely, although it wouldnt be hearsay if he intended to assert that he didnt want to spend his money on the bike.
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Problem 7.3: Issue: Woman says in court in the context of talking about a lineup of suspects, "It was number three." Admissible? Applicable Rule: 801 (d) 1 (c) Answer: 801 (d) 1 (c) lets this in, even if it seems like hearsay because this is something that prosecutors need in many cases. **If you hear What did he/she/they say to you? BELLS GO OFF this is likely an out-of-court statement. Trying to prove that the who robbed her was the one that she picked out of the lineup. Witness testifies that she said Hes number three at the lineup. It is hearsay because she is using her own prior statement to prove that the was the one who robbed her. Problem 7.4: Blood tested, machine printout admissible? Yes declarant is not a person, so it is not hearsay. Problem 7.5: Issue: James case. Woman is talking about all of the bad things that the victim said that he did. Admissible? Applicable Rule: 801 Answer: 801 lets this in because it is being used to prove the effect on the listener, not to prove the truth of the matter asserted. Ernestine is testifying about Ogdens statements of past violence. Truth of incidents is irrelevant. Just trying to prove that Ernestine had a reasonable fear of Ogden; so it is not hearsay. Problem 7.6: Issue: Woman is being prosecuted for theft because she sold two horses. She wants to bring in evidence that another guy said that he bought the horses and needed help in selling them. Admissible? Applicable Rule: 801 Answer: Again, not hearsay and admissible because we are trying to prove the effect on the woman of what the man said. We don't really care whether or not he bought the horses in this case, we care about whether or not the believed that the man bought the horses. Horse theft, defense by believing that the horses were not stolen based on someones statement that he bought them. Assertion is that Patton told her he had purchased the two paint horses and that he asked her help in selling the horses. Not trying to prove that Patton had purchased the horses, offering it to prove that Getz did not have the appropriate mens rea because she believed that they were not stolen, so it is not hearsay. Problem 7.7: ineffective assistance of counsel constitutional issue o By not calling a witness who would have testified that he wasnt there o Was the statement hearsay? Out of court statement What was it offered to prove that he wasnt in the bathroom? Problem 7.8: Issue: Guy comes back into the country and declares only $102. When searched, officers find $2K worth of guns in his bags. Government wants to offer evidence that guy marked only $102 on his form to prove fraud, and guy wants to bring in evidence that he said to his friend, "I have more to declare." Are either of these statement admissible? Applicable Rule: 801 Answer: The government trying to get in the statement of declaration would be successful because it is being offered to prove the falsity of the matter asserted, and not the truth of the matter asserted. They are trying to prove that he lied, not that he correctly declared all that he should have. Fisher says that the other statement gets in, too, because it is not being offered to prove the truth of a matter. It is not disputed that he had more to declare, so he is using it to prove that he actually did declare something. Not sure about this one. Assertions o Verbal can presume it is an assertion Unless evidence to the contrary o Non-verbal can presume it is not an assertion
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Unless evidence to the contrary What was the intent was it to assert something
C.
Defining Assertions
Fisher pp. 388-403
Problem 7.9: Issue: Sea captain problem. Sea captain inspects a ship and embarks on it with his family. They all die. Plaintiff wants to bring this in as evidence that the sea captain believed that the vessel was safe. Admissible? Applicable Rule: 801Answer: Definitely not an assertion. There is no audience, he had no intent. This is not hearsay. Problem 7.10: Issue: Same as the sea captain problem, except now it is a politician that is going to a nuclear blast site with his family and says to reporters that he is going with them. Offered to prove that he thought that the site was safe. Admissible? Applicable Rule: 801 Answer: Fisher says that this is hearsay. He is using his actions to make an assertion to a specific audience that he thinks the sight is safe. By defining hearsay as an out-of-court assertion, the rule makes plain that sincerity is the testimonial capacity that most concerns us in this context.
pg. 401 1. Offered to assert that the beef is safe. Conduct of eating burger and letting daughter eat burger is an intended assertion that the beef is safe. Hearsay. 2. Assertion through silence. Trying to prove that the wife did not make an assertion about her husbands boat to prove that she didnt know anything about the boat. Can a declarants silence be used to prove that the declarant didnt know anything? No, she was not asserting that she didnt know it, she had no knowledge of it, and so it isnt hearsay. Silence would be enough if they had asked about the boat and she was silent, but they didnt. 3. Drug papers in briefcase belonging to . Government offers the papers to prove that knew how to make meth. Dont even know if he is a declarant because we dont know who authored the documents. Documents assert that this is how you make meth. Doesnt matter whether they are true, so they are not hearsay. 4. Libertys relevant conduct is shooting at Chambers with deliberateness. Liberty was shot, before he died, he took deliberate aim and shot a guy running away twice. Was he asserting that the man he was shooting was the one who shot him? Shooting the guy who shot him was intended, but he did not intend to assert that Chambers shot him. Not hearsay if it is not intended as an assertion. 5. Phone call to premises saying that I want to place a bet on a horse race. Offered to prove that the premises are a gambling operation. Was he asserting that the premise was a gambling operation? No, not hearsay. 6. Asks guy in lineup, Why did you stab me? Did he intend to assert that the guy was the stabber? Yes it is an assertion, so it is hearsay. It is a lineup and the whole purpose is for person to accuse someone in the lineup. 7. Postal inspector hears Reynolds whisper to Parran. I didnt say anything about you. Trying to prove that R and P were conspiring. Was R asserting that he and P were conspiring? No, it would be very odd. It was not an assertion about their conspiracy. Not hearsay. 8. Trial of fellow poisoned by arsenic. He had a diary. Was the diary hearsay? He said he was with her and got sick in the diary multiple times. Prosecution is trying to assert that he was with her and he got sick. It is an assertion because it is a written statement. It is hearsay. Exceptions to the Hearsay Rule fall into 5 broad categories:
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1) Rule 801(d)(1): Declarant-Witnesses Prior Statements A. Prior Inconsistent Statements B. Prior Consistent Statements C. Statements of Identification 2) Rule 801(d)(2): Opposing Parties Statements A. A Partys Own Statements B. Adopted Statements C. Statements by Spokespersons D. Statements by Agents E. Coconspirators Statements 3) Rule 803: Exceptions Applicable Regardless of the Declarants Availability 1. Present Sense Impressions 2. Excited Utterances 3. Statements of the Then-Existing Mental, Emotional, or Physical Condition 4. Statements for Medical Diagnosis or Treatment 5. Record recollections 6. Business Records 7. Business Records 8. & 10. Public Records and Reports 4) Rule 804: Exceptions Applicable Only When the Declarant is Unavailable (b)(1) Former Testimony (b)(2) Dying Declarations (b)(3) Statements against Interest (b)(6) Forfeiture by Wrongdoing 5) Rule 807: Residual Exception
D.
Hearsay within Hearsay

Fed. R. Evid. 805
Rule 805: Hearsay within Hearsay Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
E.
Impeaching Declarants
Fed. R. Evid. 806
Rule 806: Attacking or Supporting the Declarants Credibility When a hearsay statement or a statement described in Rule 801 (d)(2)(C), (D) or (E) has been admitted in evidence, the declarants credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may
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admit evidence of the declarants inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
F.
The Exclusions and Exceptions to the Hearsay Rule

1. Overview Fisher pp. 406-408 2. The Exclusions a. Statements of an Opposing Party Offered against that Party Fed. R. Evid. 801(d)(2) Fisher pp. 408-412 (up to Problem 7.14) Fisher pp. 419-429 (up to Problem 7.16)
Rule 801: Definitions that Apply to this Article: Exclusions from Hearsay (d) Statements that are not Hearsay. A statement that meets the following conditions is not hearsay: (2) An Opposing Partys Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the partys agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the partys co-conspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish: the declarants authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E). The partys own words (focus on FRE 801(d)(2)(A)) Problem 7.11: Issue: Lawyer claims diminished work capacity after rough landing. Airline wants to bring in records that lawyer worked an average of 104 hours per week for the next six weeks after the accident. Admissible? Applicable Rule: 801(d)(2) Answer: Admissible as an opposing party's statement. She adopted the statement that she worked 104 hours a week, so she has to deal with that now. Hearsay under 801(c), but not hearsay under 801(d)(2). Problem 7.12: Issue: OJ is trying to bring in evidence that he said that he would consent to a blood test to prove his own innocence. Admissible? Applicable Rule: 801(d)(2) Answer: Not admissible because it is being used to bolster a witness's own case and not as an opposing party. Adoptive Admissions (focus on FRE 801(d)(2)(B)) Problem 7.13: Issue: Undercover cop is buying crack from a girl and a guy. Girl says that cop can get more from her buddy. Guy goes over and gets out a bag of crack. Prosecution wants to admit evidence of the girl's statement
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about getting more from her buddy. There is no conspiracy, so admissible? Rule: 802(d)(2)(B) Answer: This is admissible as an opposing party's adopted statement. For an adopted statement, you need the following: 1) the person heard and understood the investigator's statement, 2) the person was at liberty to respond, 3) the circumstances naturally called for a response, and 4) the person failed to respond. Fisher says that getting up and getting the drugs would be adoption, regardless of whether it was by silence or not. Statement of Agents (focus on FRE 801(d)(2)(C) & (D)) Problem 7.15: Issue: Guy falls on ice in a parking lot. Maintenance guy comes and cleans it up and says to witness that someone should have come and cleaned up, but didn't. Admissible? Applicable Rule: 802 (d) (2) (D) Answer: The statement was made by an employee of the party on a matter within the scope of that relationship and while it existed. Gets in because its definitionally not hearsay. Coconspirators Statements (focus on 801(d)(2)(E) & 104(a)) Bourjaily v. United States pg.421 Nature of the case: Appeal from conviction for conspiracy to distribute drugs. Fact Summary: Bourjaily was charged with conspiracy to distribute cocaine. The Government introduced out-of-court statements made by Lonardo, an accomplice, which arguably implicated Bourjaily in the conspiracy. Under FRE 801, out-of-court statements by a co-conspirator against a party, made during the course of the conspiracy, are not hearsay. The court made a preliminary evidentiary ruling based in part on Lonardos out-of-court statements that a conspiracy existed and that Bourjaily was a co-conspirator. This ruling was made solely as a preliminary step to determining whether out-of-court statements fell under FRE 801, and were thus admissible. Bourjaily was convicted and appealed, contending the court could not consider the statements themselves in determining whether a conspiracy existed where such determination was the threshold consideration in the statements admissibility. Issue: May a court, in making a preliminary determination under FRE 801, consider the subject statements? Yes. Rule: A court may, in determining whether a conspiracy existed, consider the out-of-court statements which themselves are the subjects of the inquiry into admissibility. Analysis: FRE 104 allows trial courts to consider hearsay evidence in making evidentiary determinations. Thus, the court read Rule 104 in conjunction with FRE 801 to arrive at its decision. It has been held, however, that if an agency relationship must be proved, the statements at issue cannot be considered. Conclusion: Although case authority exists to the contrary, the amendments to the FRE have made it clear that the statements may be used. Once it is shown by a preponderance of the evidence that a conspiracy existed and that the was involved, the statements are not hearsay. The statements themselves may be highly probative of the existence of a conspiracy and may be used. Affirmed.
b.
Prior Statements of a Declarant-Witness (exclusion from hearsay) Fisher pp. 430-35
Rule 613 governs the impeachment of witnesses with their past inconsistent statements.
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When used to impeach, past inconsistent statements are offered not for the truth of what they assert, but merely to show that the witness says different things at different times and therefore should not be believed on this question. (i) Prior Inconsistent Statements Offered to Impeach Fed. R. Evid. 613 Fisher pp. 438-439 (Problem 7.17)
Rule 613: Witness's Prior Statement a) Showing or Disclosing the Statement during Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney. b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2). Problem 7.17: Issue: Murder investigation. Angela claims that Margaret shot someone to the police. At trial, Angela denies ever having said that. Officer is put on the stand and says that she did say that. Should the court grant a directed verdict of acquittal? How does a retraction affect evidence? Applicable Rule: 801 Answer: The court should grant the directed verdict because this reduces the evidence to nothing. Also, the officer's evidence would be inadmissible because it is hearsay and not subject to any exception because even though it was a prior inconsistent statement, it wasn't given under penalty of perjury. (ii) Prior Inconsistent Statements Offered Substantively Fed. R. Evid. 801(d)(1)(A) Fisher pp. 453-454 Rule 801: Definitions that Apply to this Article: Exclusions from Hearsay d) Statements that are not Hearsay. A statement that meets the following conditions is not hearsay: 1) A Declarant-Witnesss Prior Statement. The declarant testifies and is subject to crossexamination about a prior statement, and the statement. A. is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; Problem 7.19: Issue: Woman claims at a grand jury that her husband hit her with his open hand. Later, at trial, she claims that it was an accident and that it happened when her husband opened a door. Prosecution gets her grand jury testimony in, but that is all the evidence they have. Is this enough for a conviction? Applicable Rule: 801(d)(1)(A) Answer: 801(d)(1)(A) allows prior inconsistent statements when given under penalty of perjury at a hearing. Here, a grand jury is considered a hearing, so the evidence gets in. And a reasonable juror could find BARD that defendant did it, so yes, it is enough for a conviction. Problem 7.20: Issue: Woman claims at a grand jury that her husband hit her with his open hand. Later, at trial, she claims that she doesn't remember how it happened because of the injury. If the prosecution tries to get her grand jury statement in, is it admissible? Applicable Rule: 801(d)(1)(A) Answer: Fisher treats this under prior inconsistent statement analysis and says that it could go either way if there was a genuine memory failure. So, no clear answer. (iii) Prior Consistent Statements
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Fed. R. Evid. 801(d)(1)(B) Fisher pp. 454-465 Rule 801: Definitions that Apply to this Article: Exclusions from Hearsay d) Statements that are not Hearsay. A statement that meets the following conditions is not hearsay: 1) A Declarant-Witnesss Prior Statement. The declarant testifies and is subject to crossexamination about a prior statement, and the statement. B. is consistent with the declarants testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or Tome v. United States pg. 454 Nature of the case: Appeal from conviction of felony sexual abuse of a child. Fact Summary: Tome convicted of felony sexual abuse of a child, appealed, contending that the trial court abused its discretion by admitting out-of-court consistent statements made by his daughter to six prosecution witnesses who testified as to the nature of Tomes sexual assaults on his daughter. Issue: Does FRE 801(d)(1)(B) permit the introduction of declarants consistent out-of-court statements to rebut the charge of recent fabrication or improper influence or motive only when statements were made before the charged recent fabrication or improper influence or motive? Yes. Rule: FRE 801(d)(1)(B) permits the introduction of declarants consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when statements were made before the charged recent fabrication or improper influence or motive. Conclusion: These conditions of admissibility were not established here. The prevailing common-law rule, before adoption of the FRE, was that a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being but inadmissible if made afterward. FRE 801 defines prior consistent statements as nonhearsay only if they are offered to rebut a charge of recent fabrication or improper influence or motive. Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because he has been discredited. Here, the question is whether they suggested that A.T.s testimony was true. The Rule speaks of a partys rebutting an alleged motive, not bolstering the veracity of the story told. However, the requirement is that consistent statements must have been made before the alleged influence or motive to fabricate arose. The language of the Rule suggests that it was intended to carry over the common-law pre-motive rule. If the Rule were to permit introduction of prior statements as substantive evidence to rebut every implicit charge that a witnesss in-court testimony results from recent fabrication, improper influence, or motive, the whole emphasis of the trial could shift to the out-of-court statements rather than the in-court ones. In response to a rather weak charge that A.T.s testimony was a fabrication so that she could stay with her mother, the Government was allowed to present a parade of witnesses who did no more than recount A.T.s detailed out-of-court statements to them. Although those statements might have been probative on the question of whether the alleged conduct had occurred, they shed minimal light on whether A.T. had the charged motive to fabricate. Reversed and remanded. Concurrence: Advisory Committee Notes are drafted by experts, but they are not authoritative on the meaning of the FRE. A promulgated Rule says what it says even if the Advisory Committee Notes seem to point to a different drafters intent.
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Dissent: No case law or commentary supports the absolute rule on the relevancy of post-motive statements, which has been adopted by the majority of courts. Trial courts may find it easier to apply an absolute rule, but a reasonable result may be more likely if trial courts can take a flexible approach. Here, the court of appeals appropriately used a flexible approach to consider A.T.s prior consistent statements against a possible motive to lie. (iv) Prior Statements of Identification Fed. R. Evid. 801(d)(1)(C) Fisher pp. 469-474 Rule 801: Definitions that Apply to this Article: Exclusions from Hearsay d) Statements that are not Hearsay. A statement that meets the following conditions is not hearsay: 1) A Declarant-Witnesss Prior Statement. The declarant testifies and is subject to crossexamination about a prior statement, and the statement. C. identifies a person as someone the declarant perceived earlier. United States v. Owen pg. 469 Nature of the case: Appeal of conviction for attempted murder. Fact Summary: Foster, a prison guard, was severely beaten. While in the hospital, he identified Owen as the attacker. He later lost independent recollection of the attack and could not explain the basis for his hospital identification. Over defense objection, Foster was allowed to testify regarding his hospital identification. Owens was convicted and appealed. The Ninth Circuit reversed, holding that the Confrontation Clause barred such testimony. The Supreme Court granted review. Issue: May a witness in a criminal trial testify about an earlier identification even if he can no longer testify as to the basis for that identification? Yes. Rule: A witness in a criminal trial may testify about an earlier identification even if he can no longer testify as to the basis for that identification. Analysis: Owens also contended that Fosters testimony violated the FRE. Specifically, Owens contended that FRE 801(d)(1)(C)s exclusion from hearsay of a prior identification required that the declarant be subject to cross-examination. Foster, stated Owens was not subject to cross-examination due to his memory loss. The Court disagreed for the same reasons noted in the discussion on the Confrontation Clause. Conclusion: The Confrontation Clause of the Sixth Amendment has been read to require only the opportunity for effective cross-examination, not whatever sort of cross-examination the defense might wish. When a witness cannot recall the basis for an earlier identification, the opposing party already has a potent cross-examination tool, as a forgetful witness has inherent credibility problems. It has long been held that an expert may give an opinion even if he has forgotten the basis therefore, and this situation is no different. Here, Owens had the opportunity to attack Foster on the basis of his forgetfulness, and that was all the Confrontation Clause required. Reversed and remanded. Dissent: The right of confrontation ensures effective cross-examination. With respect to hearsay statements, a witnesss mere presence in the courtroom is not sufficient to guarantee the opportunity for such examination.
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Problem 7.21: Issue: Woman claims at a grand jury that her husband hit her with his open hand. Later, at trial, she claims that it was an accident and that it happened when her husband opened a door. Prosecution tries to bring in evidence that a nurse heard the woman say "My husband hit me in the eye with his open hand." Admissible? Applicable Rule: 801(d)(1)(C) Answer: Fisher treats this as an identification problem and says that only "My husband" gets in, but concedes that others treat identification much more narrowly. 3. The Exceptions (Declarant Unavailable) a. Establishing Unavailability Fed. R. Evid. 804(a) Rule 804: Exceptions to the Rule against Hearsay When the Declarant is Unavailable as a Witness a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: 1) is exempted from testifying about the subject matter of the declarants statement because the court rules that a privilege applies; 2) refuses to testify about the subject matter despite a court order to do so; 3) testifies to not remembering the subject matter: 4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or 5) is absent from the trial or hearing and the statements proponent has not been able, by process or by other reasonable means, to procure: A. the declarants attendance, in the case of a hearsay exception under Rule 804 (b)(1) or (6); or B. the declarants attendance or testimony, in the case of a hearsay exception under Rule 804 (b)(2), or (3), or (4). But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarants unavailability as a witness in order to prevent the declarant from attending or testifying. b. Former Testimony Fed. R. Evid. 804(b)(1) Fisher pp. 474-483 Rule 804: Exceptions to the Rule against Hearsay When the Declarant is Unavailable as a Witness b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: 1) Former Testimony. Testimony that: A. was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and B. is now offered against a party who had or, in a civil case, whose predecessor in interest had an opportunity and similar motive to develop it by direct, cross-, or redirect examination. Problem 7.22: FT testified to battery by bf at grand jury trial. Refused to testify at regular trial. Unavailable under (a)(2). It does not fit in former testimony exception because it is offered against bf and since defendant isnt at grand jury trial, he wasnt subject to cross-examination.
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Problem 7.23: Testimony from civil trial for criminal trial from victim. Testimony is offered against Crewing. Crewing had an opportunity to develop it by direct, cross, or redirect examination. Motive problem civil was it just about being drunk or was it more. This trial: criminal DUI. Would Crewings attorney ask Morgan same questions in civil and criminal trial? Yes. It is Hearsay that fits in 804(b)(1)(A)(B) so it is admissible. United States v. Duenas pg. 475 Nature of the case: Appeal of district court decision to permit the prior testimony of a now-deceased witness. Fact Summary: Ray Duenas and his brother were drug dealing on the island of Guam were arrested after the search warrant discovered both drugs and stolen items. Duenas was interviewed by both DEA agents and Officer Frankie Smith. After invoking his Miranda rights while speaking with DEA agents, Duenas provided incriminating oral and written statements to Officer Smith. At a pre-trial suppression hearing, Duenas cross-examined Officer Smith as to the voluntariness of the statements, arguing that they were procured in violation of his invocation of both his right to remain silent and a request for an attorney. The district court found Duenass statements to be voluntary and denied the motion to suppress. Subsequently Officer Smith died and the court allowed the Government to introduce his suppression hearing testimony as an exception to the hearsay prohibition as former testimony. After Duenass conviction, he appealed. Issue: Can former testimony be introduced under FRE 804(b)(1) without showing of similar motive? No. Rule: Former testimony cannot be introduced under FRE 804(b)(1) without showing of similar motive. Analysis: While former testimony is permitted as a hearsay exception when a declarant is unavailable, the key question is whether a party had an opportunity and similar motive in its examination. The similar motive determination focuses in on the fundamental objective of examination, not just the broad concept here of suppressing the s statement. Because the focus of the examination of Officer Smiths testimony shifted from voluntariness to what would have been an attack on accuracy, the initial testimony did not fall into the hearsay exception. Conclusion: Former testimony is not hearsay if a declarant is unavailable. Former testimony is testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had or in a civil case, whose predecessor in interest had an opportunity and similar motive to develop it by direct, cross, or redirect examination. Smith was unavailable because he was deceased, and his former testimony was given during the pre-trial suppression hearing. Thus, the critical question is whether Duenas had the opportunity and similar motive to develop Officer Smiths testimony by direct, cross, or redirect examination at the suppression hearing as he would have had at trial. Because Duenass motive at the suppression hearing was solely to demonstrate that his statements were involuntary and obtained in violation of Miranda, and thus inadmissible, his motive for cross-examining Officer Smith at trial, to challenge the substance in which they were given, was substantially dissimilar. The record of the suppression hearing and written motion plainly shows that Duenass motive at that proceeding was to question Officer Smith about circumstances bearing on the voluntariness of the statement, and not to delve into the contents of the statement. Rather, Duenass fundamental objective at trial would have been to vigorously challenge Officer Smith on the details of the oral and written statements, to cast doubt on his credibility and on the reliability and completeness of his version of Duenass statement. Reversed.
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c.
Statements against Interest Fed. R. Evid. 804(b)(3) Fisher pp. 489-497 (up to Problem 7.27)
Rule 804: Exceptions to the Rule against Hearsay When the Declarant is Unavailable as a Witness b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: 3) Statement against Interest. A statement that: A. a reasonable person in the declarants position would have made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the declarants claim against someone else or to expose the declarant to civil or criminal liability; and (the statement) B. is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. Problem 7.24: police have substantial evidence to charge girl with robbing Brinks truck. Boy tells mom Ask the girl, it was her idea. Asserting that he was involved or not? Can assume that he was asserting that he did it and it wasnt his idea. Prosecutor wants to offer statement against both defendants. If it was just his trial it would fall into the exclusion, under 801 (d) because it is the defendants statement offered against the defendant. To what extent can Bobbys statement be offered against Magnolia? Bobby is unavailable because he plead the 5th. Doesnt fall under 801 conspiracy exception because it doesnt further the conspiracy. Is this 804 (B)(3) or not? Break statements up. She and I did it together. It was her idea. Use it was her idea. inculpatory = establishing guilt exculpatory = not guilty or has no criminal intent Williamson v. United States pg. 489 Nature of the case: Appeal from conviction of possession of cocaine with intent to distribute, conspiracy to possess cocaine with intent to distribute, and traveling interstate to promote the distribution of cocaine. Fact Summary: Williamson contended that the district court erred in allowing the testimony of a DEA agent in court who related arguably self-inculpatory statements made out of court to him by Harris, one of Williams employees, regarding the possession and transport of the cocaine. Issue: Does FRE 804(b)(3) allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory? No. Rule: FRE 804(b)(3) does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. Analysis: FRE 804(b)(3) requires that self-inculpatory statements should be examined in terms of the reasonable person and that the declarant believes the statement to be against interest. In order to analyze whether the declarant truly believes his statement was against interest, the identity of the person to whom the statement was made should be considered. Although the situation wherein a declarant makes his statement to the authorities is the prime example of a statement against interest, if such a statement was
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made to a trusted friend (who was expected to keep the information secret), it has not necessarily been held that this eliminates the disserving nature of the statement. Conclusion: The rationale behind the Rule is that a reasonable person would only make statements believed to be true when those statements are self-inculpatory. The admissibility of an entire statement, however, depends on the surrounding circumstances and not just on the fact that a few self-inculpatory statements were thrown into an otherwise exculpatory statement. A smart defendant will usually mix truth with lies, thus the self-inculpatory statements do not lend greater credibility to the collateral statements. In this case, Harriss confession was not fully self-inculpatory, and in fact, squarely implicated Williamson. The court of appeals must review Harriss statements to determine if each statement is in fact self inculpatory and thus falls within the exception of Rule 804(b)(3). Vacated and remanded. Problem 7.25: Akker stated that he torched the restaurant for the owner. Only statements that he made to incriminate himself can be admitted, not ones that incriminate the owner. 804(b)(3)(B) is out here because it is a civil case. Problem 7.26: Guy says that he and friend robbed a bank. Tells his sister that he shot guard in foot and friend shot him in the neck. Is it against his interest if he tells sister? Probably yes. Brother is murdered before the trial and is unavailable as a witness. Are statements admissible against friend? There is corroborating evidence because Jordan also testifies that he was told by Barone.
d.
Dying Declarations Fed. R. Evid. 804(b)(2) Fisher pp. 498-504
Rule 804: Exceptions to the Rule against Hearsay When the Declarant is Unavailable as a Witness b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: 2) Statement under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarants death to be imminent, made about its cause or circumstances. Problem 7.28: Dr. tells patient that he is dying. Homicide prosecution. Declarant is now dead. Was he under the belief of imminent death? Dr. says no hope. Dr. didnt say how long he had to live. Says ladys son didnt do it. Cause or circumstances of death? Yes, even though he is saying who didnt do it and not who did do it. Shepard v United States pg. 499 Nature of the case: Appeal from conviction for murder. Fact Summary: Shepard was convicted of murdering his wife by poisoning. Two days after Mrs. Shepard had become ill, while she was lying in bed, she had a conversation with Brown to bring her a particular bottle of liquor, told Brown that was what she was drinking right before she collapsed, asked Brown to test it for poison, and then stated, Dr. Shepard has poisoned me. The conversation was admitted after Brown testified that Mrs. Shepard said she was not going to get well, that she was going to die. At the time the conversation took place, all prospects for Mrs. Shepards recovery were good. A fortnight after the conversation, Mrs. Shepard gave an indication that she was still hopeful of recovery. Shepard was convicted, and the conviction was affirmed by the court of appeals. Shepard then filed a writ of certiorari.
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Issue: In order for a statement to be considered a dying declaration, must the declarant have spoken without hope of recovery and in the shadow of impending death? Yes. Rule: In order for a statement to be considered a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death. Analysis: There is no reason to believe that fear or even that one is going to die could not provide the guarantee of special reliability necessary to admit this type of hearsay evidence, since it is probably reasonable that persons so inclined would tell the truth. The strict application of the doctrine probably represents a basic lack of trust in deathbed statements. [Review FRE 104(a) in regards to whether declarant here had personal knowledge] Conclusion: Fear or even belief that illness will result in will not suffice. There must be a settled hopeless expectation that death is near at hand, and what is said must have been spoken in the hush of its impending presence. Here, there was hope for recovery, and death was not imminent when the statement was made, and therefore it could not have been admitted as a dying declaration. It cannot be said that the admission of the declaration was mere unsubstantial error. e. Forfeiture by Wrongdoing Fed. R. Evid. 804(b)(6) Fisher pp. 505-510 Rule 804: Exceptions to the Rule against Hearsay When the Declarant is Unavailable as a Witness b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: 6) Statement offered Against a Party that Wrongfully Caused the Declarants Unavailability. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarants unavailability as a witness, and did so intending that result. United States v Gray pg. 505 Nature of the case: Appeal of conviction for mail and wire fraud. Fact Summary: Josephine Gray allegedly killed two husbands and a boyfriend, and collected their life insurance. She was convicted for mail fraud and wire fraud related to the insurance proceeds. On appeal, she sought a new trial based on the district courts admission of testimony regarding several out-of-court statements made by her second husband, Robert Gray, during the 3 months before his murder. Issue: Under FRE 804(b)(6), does a who wrongfully and intentionally renders a declarant unavailable as a witness in any court proceeding forfeit the right to exclude, on hearsay grounds, the declarants statements at that proceeding and any subsequent proceeding? Yes. Rule: Under FRE 804(b)(6), a who wrongfully and intentionally renders a declarant unavailable as a witness in any court proceeding forfeits the right to exclude, on hearsay grounds, the declarants statements at that proceeding and any subsequent proceeding. Analysis: The important thing to remember about this case is that the wrongdoing perpetrated by the need not be done specifically with the intent to prevent the declarant from appearing as a witness in a
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particular trial. The test is whether the should profit from her wrongdoing at a particular time, place, or with a particular intent related to a particular trial. Conclusion: The purpose of the forfeiture-by-wrongdoing exception is to prevent wrongdoers from profiting by their misconduct. The exception should be applied broadly. Gray cannot be allowed to avoid the impact of statements made by her victim, whether or not she suspected the victim would be a witness at the trial in which the evidence was offered against her. Because the district court properly found by a preponderance of the evidence that Gray engaged in some wrongdoing that was intended to procure Robert Grays unavailability, it did not abuse its discretion in admitting testimony concerning out-ofcourt statements made by Robert Gray. Affirmed. 4. The Exceptions (Declarant Availability Immaterial) a. Overview Fisher pp. 510-511 ACN regarding 804(b) acknowledge that hearsay embraced by the rule is not equal in quality to testimony of the declarant on the stand, and that testimony given on the stand in person is preferred over hearsay, and hearsay, if of the specified quality, is preferred over complete loss of the evidence of the declarant. In contrast, the ACN suggests that hearsay admitted under 803 sometimes is better than the declarants live testimony...under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant even though he may be available. b. Present Sense Impressions and Excited Utterances. Fed. R. Evid. 803(1), (2) Fisher pp. 512-515 Rule 803: Exceptions to the Rule against Hearsay Regardless of Whether the Declarant is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. 2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Problem 7.29: 803 (1) and (2) Crim law dog mauling case. Agitated Whipple exclaimed That dog just bit me! During phone call prior to mauling. Used to prove that it had happened. Admissible because it is an excited utterance. Could also be a present sense impression because of word just. Doesnt matter that Whipple isnt testifying. As I was walking by, the dog lunged at me. I put my hand out and the dog bit me. Didnt happen at time of bite so it isnt a present sense impression, also isnt an excited utterance because it doesnt have an exclamation point. If there were exclamation points, it could still be an excited utterance because the stress of the excitement can last for quite awhile. Last statement cant be used. Problem 7.30: 911 calls: Present sense impressions. Im just a wreck. Please send police. We have two dogs rampaging out in the hall up on the sixth floor, and I think they have their you know even their owner cannot control them. They are huge. Door is closed, so there is a personal knowledge issue, but it may be ok because she
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is hearing it. Present sense impressions, may be excited utterances. Tape is offered by dog-owner to show that she tried to control the dogs. Problem 7.31: Wife is crying and upset shows that she may be under stress of excitement. May be present tense impressions. Tells officers that Impson pushed her and hit her head. Refuses to testify that he hit her at trial. Depends on timing if its admissible. Recorded recollections must be written by the declarant.
Problem 7.32: Shooting outside bar. Bartender heard shot and scream. Bartender has no personal knowledge of the event. Someone ran into a bar and told her to call an ambulance. She testifies that after calling, she went outside and asked who shot the gun? Bonnie then yelled out name of Defendant. Bonnie yelling is an excited utterance and a present tense impression. Bonnie isnt testifying. Bartender is testifying. Is admissible if what Bonnie said was an excited utterance. c. Statements of Then-Existing State of Mind or Condition Fed. R. Evid. 803(3) Fisher pp. 515-519 Rule 803: Exceptions to the Rule against Hearsay Regardless of Whether the Declarant is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarants thenexisting state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarants will. Mutual Life Insurance, Co. v Hillmon pg. 515 Nature of the case: Action to recover proceeds of an insurance policy. Fact Summary: Hillmon was missing. A body which could have been his or anothers was buried at Crooked Creek. Hillmons wife, the beneficiary of his life insurance, filed suit against three life insurance companies to recover the policy proceeds. Mutual Life defended on the basis that it could not adequately be established that Hillmon was dead, since the body could not be positively identified. Some evidence was admitted which tended to show that Hillmon had gone to Crooked Creek at the same time the body was discovered. Mutual Life contended that Walters was the actual decedent at Crooked Creek. It tried to introduce a letter written to Walters fianc that he intended to go to Crooked Creek at the time the body was discovered. It was alleged that this was within the business record exception to the hearsay rule. The letter was not admitted, and the jury found for Hillmon. Issue: Where an actors intentions are a material factor in a controversy, is evidence admissible to establish his intent? Yes. Rule: Whenever a partys intention is, of itself, a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. Allowing evidence of intention as tending to prove the doing of the act intended.
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Analysis: Regarding this case, McCormick has said, Despite the failure until recently to recognize the potential value of declarations of state of mind to prove subsequent conduct, it is now clear that out-ofcourt statements which tend to prove a plan, design, or intention of the declarant are admissible, subject to the usual limitations as to remoteness in time and apparent sincerity common to all declarations of mental state, to prove that the plan, design, or intention of the declarant was carried out by the declarant. Conclusion: Here, there is a controversy over the identity of the decedent. Mutual Life contends that the decedent was Walters. While the letters were not w/n the business records exception as Mutual Life argued, they are admissible as falling w/n the state of mind exception. The evidence of Walterss intention is admissible to create the inference that since he intended to go there at the time the letter was written, he did go there. It is not proof that he actually went there, only that it is more likely than not that he did. Since the issue was in controversy, it might have tended to influence the jury. Where the bodily or mental feelings of an actor are material to be proved, the usual expression of them is competent and admissible as an exception to the hearsay rules. After death, there is no other way of establishing such facts. Since the letters were probably as to Walterss current state of mind, it was error to exclude them. Judgment is reversed and the cause is remanded. Problem 7.33: Tells friends I am going to the parking lot to get pot from Angelo. Cant include Angelo because it relies on memory or belief 803(3). Could arguably be a present tense impression because it occurred right then when he made the statement. Could be in furtherance of conspiracy. More than likely, fact that he is going to parking lot and fact that he said that he would be back in, also include pot. d. Statements Made for Medical Diagnosis or Treatment Fed. R. Evid. 803(4) Fisher pp. 531-542 Rule 803: Exceptions to the Rule against Hearsay Regardless of Whether the Declarant is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 4) A Statement Made for Medical Diagnosis or Treatment. A statement that: A. is made for and is reasonably pertinent to medical diagnosis or treatment; and B. describes medical history; past or present symptoms or sensations; their inceptions; or their general cause. Problem 7.34: Browning pushed by caretaker. Then he went to the doctor and told him the events that occurred and that he had suffered severe headaches and bouts of nausea. 1) No, statements to lawyer are not for medical diagnosis or treatment. Doesnt necessarily have to be made to doctor. Should be made to someone with the expectation that they will relay the information to doctor. 2) Admissible because it was pertinent to his medical diagnosis and describes their present symptoms. 3) Maples had pushed him. The statement that he had been pushed would have been very relevant and admissible, but who it was is not relevant. Doctor may also be concerned about prevention so source may be important. Privilege only applies to patient. As long as patient waives it, doctor can testify to it. Assume that privilege is not an issue. Exception stops short when you attribute fault i.e., when you start blaming your issues on someone.
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United States v Iron Shell pg. 532 Nature of the case: Appeal from rape conviction. Fact Summary: Lucy, the 9-year old girl the jury found Iron Shell had assaulted with intent to commit rape, had made certain statements to the doctor who examined her on the night of the assault. He elicited various statements from her concerning the cause of her injuries. At trial, the doctor was permitted to testify that she had told him she was dragged into the bushes, then her clothes were removed, that the man had tried to force something into her vagina that hurt, and that she tried to scream but was unable to because he put his hand over her mouth and neck. Lucy was unable to detail what happened to her after she was assaulted but did manage to respond to a series of leading questions on direct and thus tell some of her story. Defense counsel did not explore any of the substantive issues on cross-examination, nor did he examine Lucy concerning her statements to the doctor. On appeal, Iron Shell argued that these statements were not ones falling w/n the hearsay exception for statements made for the purposes of medical diagnosis or treatment. Issue: Are statements made for purposes of medical diagnosis or treatment admissible? Yes. Rule: Under FRE 804(4), an exception to the hearsay rule is created that permits admission of statements made for purposes of medical diagnosis or treatment. Analysis: While a number of states have adopted the federal rule, others have maintained a more orthodox and restrictive stance. The federal rule dropped the distinction b/t the doctor who was consulted for the purpose of treatment and one who consulted only in order to testify as a witness. Many states have not. Conclusion: To ascertain if this exception to the hearsay rule applies, it must be determined if the statement communicated a fact of the type reasonably relied upon by experts in a particular field in forming opinions. Actually, a two-part test is appropriate in these cases: first, is the declarants motive consistent with the purpose of the rule; and second, is it reasonable for the physicians to rely on the information in diagnosis or treatment. Both parts of the test seem satisfied by the circumstances of this case. Thus, admission of the statements Lucy made to the examining doctor was proper. Affirmed. Problem 7.35: Dad says that he slapped the child and the child fell of the porch. Child stated that his arm broke when his dad twisted his arm after he had played with one of his dads records to his doctor indicates child abuse which means that the dads fault is relevant because the doctor needs to know to prevent future abuse. Father twisting the arm is fine. Does it matter that it happened after playing with the record? Yes, if doctor needs to know whether the environment is abusive. Problem 7.36: Cross-examining the doctor by asking if she told the child to tell the truth. May be trying to suggest that the child was lying because she didnt know she had to be honest to the doctor. Reason for exception is the presumption that the party knows that they need to be truthful to the doctor so they can get a good treatment. No qualification in the rule. Problem 7.37: Husband tells wife while pointing at take out container: I think I ate some bad meat; Youd better get me a doctor. Asserting that he has food poisoning statements and he got the bad meat from the deli. Talking to wife doesnt defeat the exception because she can tell the doctor. Places fault on Deli. 1) Issue with him accusing Deli of bad food. Everything else is admissible. 2) Admissible even though it is double hearsay. 3) Doctors statements that this has signs of arsenic poisoning. Yes. The entire exchange should be included. Back and forth. Exception covers it all.
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e.
Recorded Recollections Fed. R. Evid. 803(5) Fisher pp. 542-543
Rule 803: Exceptions to the Rule against Hearsay Regardless of Whether the Declarant is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 5) Recorded Recollection. A record that: A. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; B. was made or adopted by the witness when the matter was fresh in the witnesss memory; and C. accurately reflects the witnesss knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. Problem7.38: Guy gets hit by car. Bystander yells out plate number. Different lady writes the number out that the bystander yells. Declarants: Bystander and lady. Bystanders assertion: License # is Ladys Assertion: Bystander said that the # is . = Double Hearsay. Must go through steps for both assertions. Bystander called out number in loud voice: either excited utterance or present sense impression. Bystanders is hearsay that falls in an exception. Lady lacks personal knowledge. (Usually in double hearsay situation, second declarant lacks personal knowledge) Is the lady covered? Yes, because she has a recorded recollection. (1) Can offer it to the witness, cannot offer it as an exhibit. (2) Perfectly Appropriate. (3) Still cant offer it.
VI. The Confrontation Clause

1. The Crawford Framework Fisher pp. 594-609; 615-617; 618-619
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In a criminal case, the admission of testimonial hearsay violates the Confrontation Clause if: 1) the declarant is unavailable to testify at the defendant's trial; and 2) the defendant had no prior opportunity to cross-examine the declarant. Therefore, the admission of testimonial hearsay would not violate the Confrontation Clause if: 1) the declarant is available to testify at the defendant's trial; or 2) the defendant did have a prior opportunity to cross-examine the declarant. Crawford v Washington (2004) pg. 594 Nature of the case: Appeal from criminal conviction. Fact Summary: Michael Crawford stabbed a man who allegedly tried to rape his wife, Sylvia. At his trial, the prosecution played for the jury Sylvias tape-recorded statement to the police describing the stabbing, even though Crawford had no opportunity for cross-examination. The jury found Crawford guilty. The Washington court of appeals reversed, but the Washington Supreme Court upheld the conviction after determining that Sylvias statement was reliable. Crawford appealed to SCOTUS, contending that the State of Washingtons procedure of playing the tape violated the Sixth Amendments guarantee that in all criminal prosecutions the accused shall enjoy the right to confront the witnesses against him. Issue: Where testimonial statements are at issue, is confrontation the only indicium of reliability sufficient to satisfy constitutional demands? Yes. Rule: Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. Analysis: In Crawford, SCOTUS makes clear that where testimonial statements are involved in criminal cases, the framers did not intend to leave Sixth Amendments protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability. Legal authorities and scholars do not acknowledge any general reliability exception to the common-law confrontation rule. In this regard, the Crawford decision notes that admitting statements simply because they are deemed reliable by a judge is fundamentally at odds with the right of confrontation. While the Sixth Amendments ultimate goal is to ensure reliability of evidence, it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by cross-examination. Conclusion: Here, the state admitted Sylvias testimonial statement against Crawford despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. SCOTUS will not mine the record in search of indicia of reliability. Although where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the states flexibility in their development of hearsay law. Where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for crossexamination. Whatever else the term testimonial covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations. These are modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. The Constitution prescribes the procedure for determining the reliability of testimony in criminal trials, and this Court, no less than the state courts, lacks authority to replace it with one of our own devising. By replacing categorical constitutional guarantees with open-ended balancing tests, we would do violence to the Framers design. Reversed and remanded. Crawford v. Washington: Afterthoughts
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The distinction b/t a declarant who is contemplating being a witness in future legal proceedings and one who is simply crying for help became a dominant statement of the line dividing testimonial from nontestimonial hearsay statements. (This case was a 911 call.)
Whorton v. Bockting: Case Note Under Crawford, the Confrontation Clause has no application to unreliable out-of-court nontestimonial statements, and therefore permits their admission even if they lack indicia of reliability. 2. Forfeiting the Right to Confrontation Fisher pp. 619-627 Giles v. California: Case Note A s wrongful conduct forfeits his confrontation right only if that conduct made a witness unavailable and the accused intended to prevent the witnesss trial testimony. If witness is unavailable, and defendant made them unavailable with the intention of making them unavailable, then the hearsay statement is admissible. For confrontation clause purposes, the testimonial statement is not barred if defendant forfeited right to bar admission by wrongfully making the declarant unavailable. Similar to FRE 804(b)(6) Exception to confrontation clause is if it is a testimonial statement and the defendant wrongfully caused their unavailability. Does there have to be purpose in causing the unavailability? Purposely must make the witness unavailable to testify. Court makes finding by a preponderance of evidence. This is a very hard thing to prove. If purpose were eliminated from the prong, no problem, but that is not the case. Problem 8.1: Domestic violence circle. Abuse and tension at time of incident. At trial, victim refuses to testify against defendant because she loves him. Argued that grand jury testimony of victim should be admitted because the defendant made her unavailable through long pattern of abuse. Could get police officer to testify about victims statements right when it occurred as present sense impressions. Is it a forfeiture? 804(b)(6) wrongful 3. Distinguishing Testimonial from Non-Testimonial Statements Fisher pp. 627-646 Michigan v. Bryant (2011) pg. 627 Nature of the case: Appeal from state court decision reversing a murder conviction. Fact Summary: When the police found Anthony Covington, he was alive but fatally wounded. After asking him a series of questions about what had happened, who has shot him, and where the shooting occurred, Covington identified Richard Bryant as the shooter and where it occurred. Covington later died at the hospital. At trial, the State was allowed to introduce Covingtons statements identifying Bryant as the shooter. Upon conviction, Bryant appealed. The state supreme court reversed, holding Covingtons statements were testimonial. The state then appealed. Issue: Where the primary purpose of an interrogation of a witness is to allow police to respond to an ongoing emergency, do statements made by a witness qualify as testimonial statements and will the Confrontation Clause bar their admission at trial? No.
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Rule: Where the primary purpose of an interrogation of a witness is to allow police to respond to an ongoing emergency, statements made by a witness will not qualify as testimonial statements and the Confrontation Clause will not bar their admission at trial. Analysis: Testimonial statements made by an unavailable declarant implicate the Sixth Amendments Confrontation Clause, which generally prohibits their introduction. The significance of this case is that assessing the admissibility of such statements requires an inquiry into whether the primary purpose of the interrogation was part of (1) an ongoing emergency, and (2) where informality in the encounter existed to a lack of focus that statements would be later used in a criminal prosecution. Justice Scalias withering dissent alleges the majoritys total distortion of the facts, an unbridled expansion of what constitutes an emergency situation, and a confusing focus on what would be the appropriate test of the reliability of the victims statement. The easy question (and probably winnable) posed by Justice Ginsburg, as to whether Covingtons statement would have fallen w/n the dying declaration hearsay exception, went unanswered because it was never argued by the State. Conclusion: Out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial. When the primary purpose of an interrogation is to respond to an ongoing emergency, its purpose is not to create a record for trial and thus is not w/n the scope of the Clause. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. To determine whether the primary purpose of an interrogation is to enable police to meet an ongoing emergency, which would render the resulting statements nontestimonial, requires an objective evaluation of the circumstances in which the encounter occurs and the statements and actions of the parties. The circumstances in which an encounter occurs at or near the scene of the crime, versus at the police station, during an emergency or afterwards are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. The relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had. An emergency focuses the participants on something other than proving past events potentially relevant to later criminal prosecution. Rather, it focuses them on ending a threatening situation. Implicit in the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to cross examination. As Davis v. Washington made clear, whether an ongoing emergency exists is simply one factor that informs the ultimate inquiry regarding the primary purpose of an interrogation. Another factor is the importance of informality in an encounter between a victim and police. Formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. The questioning in this case occurred in an exposed, public are, and in a disorganized fashion. All of those facts make this case distinguishable from the formal station-house interrogation. Statements made to assist the police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation. As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public. Nothing Covington said to the police indicated that the cause of the shooting was a purely private dispute or that the threat from the shooter had ended. The potential scope of the dispute and therefore emergency in this case thus encompasses a threat potentially
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to the police and the public. The questions asked were the exact type of questions necessary to allow the police to assess the situation, the threat to their own safety, and possible danger to the potential victim and to the public. In other words, they solicited the information necessary to enable them to meet an ongoing emergency. Likewise, the informality suggests that the interrogators primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements. Because the circumstances of the encounter, as well as the statements and action of Covington and the police, objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, Covingtons identification and description of Bryant as the shooter and the location of the shooting were not testimonial hearsay and the Confrontation Clause did not bar their admission at trial. Vacated and remanded. Concurrence: (Thomas) Covingtons questioning by the police lacked sufficient formality for them to be considered testimonial. The majoritys analysis relies on what the police knew when they asked, the particular information Covington conveyed, the weapon involved, and Covingtons medical condition which illustrates the uncertainty in the test created. Rather, the Court should consider the extent to which the interrogation resembles those historical practices that the Confrontation Clause addressed (formal interrogations). Here, the police questioning was a formalized dialogue and did not result in formalized testimonial materials . . . nor is there any indication that the statements were offered at trial in order to evade confrontation. Covingtons statements were not testimonial because they occurred in an informal setting. The statements did not therefore bear testimony against Bryant. Dissent: (Scalia) The declarants intent is what counts. For an out-of-court statement to qualify as testimonial the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used against the accused. A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause. From Covingtons perspective, his statements had little value except to ensure the arrest and eventual prosecution of Bryant. The majoritys decision is not only a gross distortion of the facts; it is a gross distortion of the law a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence. Dissent: (Ginsburg) Covingtons statements are testimonial. The cloak protecting the accused against admission of out-of-court testimonial statements was removed for dying declarations. This historic exemption applied to statements made by a person about to die and aware that death was imminent. Were the issue properly tendered in this case (which was abandoned by the prosecutor), the question should be whether an exception for dying declarations survives the Confrontation Clause.
4.
The Current State of the Confrontation Right Fisher pp. 674-678
Statements not offered for their truth: avoid Confrontation Clause scrutiny Statements offered in civil cases or against the prosecution: avoid Confrontation Clause scrutiny Past statements of trial witnesses: the Confrontation Clause places no constraints at all on the use of his prior testimonial statements Statements by unavailable declarants once subject to cross-examination by the : satisfies the Confrontation Clause Nontestimonial statements: the Confrontation Clause has no application to nontestimonial statements Testimonial statements include: o Solemn declarations made for the purpose of proving some fact
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o Formalized testimonial materials Nontestimonial statements include: o Casual and offhand remarks o Coconspirators statements o (Some) business records
Problem 8.4: The letter must pass through the hearsay gauntlet. A s wrongful conduct forfeits his confrontation right only if that conduct made a witness unavailable and the accused intended to prevent the witnesss trial testimony. If witness is unavailable, and defendant made them unavailable with the intention of making them unavailable, then the hearsay statement is admissible. For confrontation clause purposes, the testimonial statement is not barred if defendant forfeited right to bar admission by wrongfully making the declarant unavailable. Similar to FRE 804(b)(6) Here it hinges on whether the intended on preventing the witnesss trial testimony. Problem 8.5: Crawford: Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.
VII. Lay Opinions and Expert Testimony

1. Lay Opinions Fed. R. Evid. 701 Fisher pp. 735-739 Rule 701: Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: a) rationally based on the witness's perception; b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Problem 9.1: 1) Were the opinions rationally based on perception? Yes, face to face interview. 2) Were the opinions helpful to the fact finder? Yes, the jury wasnt present during the interview. 3) Was there any specialized knowledge here that would need expert testimony? It does not require scientific, technical, or other specialized knowledge to communicate someones tone of voice. The court should allow this because defense counsel is likely trying to infer that it would require a psychologist to determine if someone is depressed. Problem 9.2: Yazzie is on trial for selling cigarettes to a minor. He raises the defense that he reasonably thought that she was an adult. He offers testimony of witnesses who knew the minor at the time and also thought that she was at least 20-21. Applicable Rule: 701 3-step analysis for expert/non-expert testimony Answer: 1) Were the opinions rationally based on perception? Yes, familiar with the minor seems to be good enough. 2) Were the opinions helpful to the fact finder? Yes, the jury didn't know the minor when she was a minor. 3) Was there any specialized knowledge here that would need expert testimony? Appearances are usually not specialized knowledge. So, this admissible.
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Permissible lay opinions: the appearance of persons or things the manner of conduct degrees of light darkness sound size weight distance Testimony that a person walked unsteadily or spoke loudly Testimony that a package weighed about 40 pounds Basically, things that cannot readily be reduced to more fundamental factual units FRE 701(c) At what point does a lay witness cross the nearly evanescent line that separates an opinion rooted in common knowledge from one based on scientific, technical, or other specialized knowledge of the sort only experts may deploy? Problem 9.3: No longer is lay opinion testimony limited to areas within the common knowledge of ordinary persons. Rather, the individual experience and knowledge of a lay witness may establish his or her competence, without qualification as an expert, to express an opinion on a particular subject outside the realm of common knowledge. Accordingly, we conclude that the district court did not abuse its discretion in admitting Ms. Christo's opinion that the substance she found was cocaine. Ms. Christo's opinion was based on her past experience with cocaine and her personal observations, the appearance and taste, of the substance she found. Thus, her opinion was rationally based on her own perceptions and, as the district court found, would assist the jury in understanding her testimony. Thus satisfying the two requirements of Rule 701, admission of Ms. Christo's opinion identifying the substance she found in Paivas shoe as cocaine was clearly within the district court judge's discretion. 2. Expert Testimony Fed. R. Evid. 702 Fisher pp. 749-52; 793-806 Rule 702: Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b) the testimony is based on sufficient facts or data; c) the testimony is the product of reliable principles and methods; and d) the expert has reliably applied the principles and methods to the facts of the case.
Five Demands the law places on expert opinion testimony: 1) Proper Qualifications: The witness must be qualified as an expert by knowledge, skill, experience, training, or education. Rule 702
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2) Proper Topic: The experts testimony typically must concern a topic that is beyond the ken of jurors. Moreover, the expert may not simply tell the jurors what result to reach in the case and may not intrude on the judges role by supplying information or insights they otherwise would lack. Rules 702(b) and 704 3) Sufficient Basis: The expert must have an adequate factual basis for his opinions. Rules 702(b) and 703 4) Relevant and Reliable Methods: The experts testimony must be the product of reliable principles and methods, reliably applied, to the facts of the case. Rule 702(c) & (d) 5) Rule 403 Challenge: The evidence, if challenged, must survive a Rule 403 weighing test. Problem 9.5: FRE 702 provides that expertise may be obtained by experience as well as from formal training or education. DePianelli's testimony during voir dire revealed that his substantial experience in dealing with marijuana included identification of Colombian marijuana. In light of that testimony, the trial court was within its discretion in deciding to admit the testimony for the jury's consideration. A witness may be qualified as an expert by reason of knowledge, skill, experience, training or education. Under Rule 702, a witness may be qualified as an expert by virtue of any one such factor, or upon a combination of any of the five factors. Specific degrees, certificates of training or membership in a professional organization are not required. Included within the category of experts are what the Advisory Committee's Note refers to as skilled experts, such as bankers or landowners testifying as to land value. The local carpenter, plumber, tilelayer, etc., may be added to this list of experts. The degree and manner of knowledge and experience required of the proffered expert is directly related to the complexity of the subject matter and the corresponding likelihood of error by one insufficiently familiar therewith. Of course a person may be an expert with respect to a related subject matter and still not be qualified as an expert in the subject matter at hand. Overall the court must determine whether testimony by the witness as an expert will assist the trier of fact to understand the evidence or to determine a fact in issue
United States v. Johnson pg. 750 Nature of the case: Appeal from drug conviction. Fact Summary: The government needed to prove that the marijuana at issue came from outside the United States customs territory. Johnson argued that the origin of the marijuana was impossible to prove w/o objective indicia. A witness for the government, DePianelli, testified as an expert that the marijuana came from Columbia. DePianellis expertise came from admitted significant use of marijuana and previous experience identifying marijuana through the physical appearance of the plant. Johnson appealed the admission of DePianellis testimony, contending he should not have been qualified as an expert under FRE 702 and the jury should not have been allowed to consider his testimony. Issue: Can expert testimony under FRE 702 derive from experience as well as formal training or education? Yes. Rule: FRE 702 allows for exert testimony derived from experience as well as formal training or education. Analysis: An expert witness does not become an expert through mere passing familiarity with a topic. The experience, training, or education must be such that the average juror will be aided by the testimony. If training and education are not the qualifying characteristics, the experience should be extensive and thorough in that narrow field. DePianelli admitted that he qualified as an expert. Most jurors are not going
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to be familiar enough with illegal narcotics or botany in general to be able to have made determinations as to the origin of the plants on their own. Conclusion: The defense cross-examined DePianelli during voir dire and the judge was satisfied that DePianellis experience qualified him as an expert. Formal training or education is not required in addition to experience under FRE 702 and DePianelli demonstrated ample experience with the identification of marijuana. Aiding the jury in identifying the source of the marijuana was vital, as the average juror likely has little experience in identifying illegal narcotics, the trial court did not err in allowing DePianelli to testify as an expert witness. The defense also took the opportunity to put its own expert witness on the stand to testify that determining the origins of a marijuana plant through examination of physical characteristics is impossible. The defense expert did, however, concede that plants grown in different climates could produce identifiable differences. Given the ambiguity of the defense experts testimony, the jury certainly could choose to favor the prosecutions expert testimony. Affirmed. Assessing the reliability of expert scientific testimony Frye v. United States pg. 793 Nature of the case: Appeal from second-degree murder conviction. Fact Summary: Frye was indicted for second-degree murder. At trial, he sought to introduce expert testimony regarding a systolic blood pressure deception test given to the . The test involved measuring a subjects blood pressure as the subject attempts to deceive the examiner. The theory is that the blood pressure will increase when the subject is lying and remain steady when the subject is telling the truth. The government objected to the admission of this evidence and the trial court sustained the objection. Frye was convicted of second-degree murder and he appealed on the ground that the expert testimony should have been admitted. Issue: Must scientific expert testimony attain standing and scientific recognition in the applicable field in order to be accepted as admissible testimony? Yes. Rule: Scientific expert testimony must attain standing and scientific recognition in the applicable field in order to be accepted as admissible testimony. Analysis: Frye presented the court with a novel theory and remained the standard for scientific admissibility until SCOTUS decided Daubert v. Merrell Dow Pharmaceuticals. The test of general acceptance w/n the appropriate community had enough flexibility to allow attorneys latitude to make arguments, but also provided judges with a rule to follow. Conclusion: It is difficult to ascertain when a scientific test moves from experimental to demonstrable, but acceptance w/n the appropriate scientific community is a reliable indicator. The symbolic blood pressure deception test has not yet attained such acceptance. Affirmed. Daubert v. Merrell Dow Pharmaceuticals pg. 794 Nature of the case: Review of summary judgment dismissing product liability action. Fact Summary: Daubert and Schuller filed a lawsuit against Merrell, alleging that they suffered in utero injuries due to maternal ingestion of the drug Bendectin. Merrell moved for summary judgment, introducing expert opinions to the effect that there was no causal link b/t Bendectin and birth defects.
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Daubert and Schuller countered with a series of declarations from 8 medical experts, contending that such a link existed. The district court held that the s experts had used methodologies not generally accepted in the scientific community. Specifically, they had based their opinions on in vitro and animal studies, as well as chemical structure analysis. Merrells motion for summary judgment was granted, dismissing the action. The Ninth Circuit affirmed, and the Supreme Court granted review. Issue: Does an expert opinion need to be generally accepted in the scientific community to be admissible? No. Rule: An expert opinion does not need to be generally accepted in the scientific community to be admissible. An expert opinion must be reliable and relevant. Analysis: The general acceptance rule was first enunciated in Frye v. US in 1923. For 70 years after Frye, the general acceptance requirement was adopted by most courts, although the rule was a matter of great controversy. The present opinion appears to have settled this issue. Conclusion: FRE 702 provides that If scientific or other specialized knowledge will assist the trier of fact in issue, an expert may testify thereto. Nothing in this Rule provides that general scientific acceptance is a condition to admissibility. This being so the broad relevance requirement of FRE 104 takes precedence, which also provides no such requirement. Consequently, no such requirement should be inferred. However, this does not mean that there are no limits on admissibility of expert testimony. The Rule requires knowledge, so guesses or speculations are inadmissible. A necessary corollary to this is that the expert must base his opinion on sound principles and valid deductions. In this analysis, such factors as peer review, publication, and even general acceptance may be relevant. No one issue will be determinative, however. Here, the courts below held general acceptance to be determinative, and this was erroneous. Reversed and remanded.
VII. Privileges
1. Rule 501s Origins and Application Fed. R. Evid. 501 Fisher pp. 930 934 Rule 501: Privilege in General The common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
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2.
Familial Privileges: The Marital Privileges The Spousal Testimonial Privilege The Marital Privileges Fisher pp. 1043 1066
Tilton v. Beecher pg. 1043 Fact Summary: Mr. Evarts argued for the that the law should not compel one spouse to testify against the other because of the sanctity of the marital relationship. Mr. Beach argued for the that the wife should be able to testify because the marital relationship has already been disrupted by women joining the workforce and becoming independent beings in every other facet of life. Issue: Is there a privilege for spousal communications? Yes. Analysis: s attorney has a point. Women had recently been ushered into leading independent lives through legislative acts, and recently joined the workforce in noticeable fashion, and were no longer as tied to their domestic duties. Perhaps the defense attorney is arguing that women were no longer under the rule of their husbands, so they should be able to testify if they desired. The spousal privilege, however, is intended to work both ways and is held by the spouse who made the communications. The sanctity of the marital relationship should protect the conversation shared within it. Trammel v. United States pg. 1044 Nature of the case: Appeal form convictions for conspiracy to import and importing heroin. Fact Summary: In return for lenient treatment for herself, Mrs. Trammel, an unindicted coconspirator, agreed to testify against her husband at his trial for conspiracy to import and importing heroin. The district court ruled she could testify to any act she observed during the marriage and to any communication made in the presence of a third person but not as to confidential communications between herself and her husband because they fell within the privilege attaching to confidential marital communications. On appeal, Trammel contended that he was entitled to invoke the privilege against voluntary testimony of his wife. The court of appeals rejected this contention and affirmed the convictions. Issue: Can a criminal invoke the privilege against adverse spousal testimony so as to prevent his spouse from voluntarily offering adverse testimony against him? No. Rule: A criminal cannot prevent his spouse from voluntarily offering adverse testimony against him because the privilege against adverse spousal testimony belongs to the testifying spouse. Conclusion: Hawkins v. United States left the federal privilege for adverse spousal testimony where it found it at the time, thus continuing a rule which barred the testimony of one spouse against the other unless both consented. However, since that 1958 decision, support for that conception of the privilege has eroded further and the trend in state law is toward divesting the accused of the privilege to bar adverse spousal testimony. The ancient foundations for so sweeping a privilege involved a conception of the wife as her husbands chattel to do with as he wished, and they have long since disappeared. Nor is the desire to protect the marriage a valid justification for affording an accused such a privilege. If his spouse desires to testify against him, simply preventing her from doing so is not likely to save the marriage. Affirmed. The Marital Confidence Privilege
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United States v. Rakes pg. 1060 Nature of the case: Appeal from grant of motion to suppress evidence. Fact Summary: Stephen and Julie Rakes, husband and wife, owned a South Boston business which drew the interest of James Whitey Bulger. The government believed that Bulger threatened the Rakes and forced them to transfer their business interests to an associate of his for a fraction of the businesss worth. Before a federal grand jury, Stephen Rakes denied threats and the extortion, so the government indicted him for perjury and obstruction of justice. The government sought to introduce several communications between Stephen and Julie concerning the alleged threats and extortion. Stephen moved to suppress on grounds of privilege for confidential marital communications. The district court suppressed all but one statement because it involved a communication to a third party. The government appealed, claiming privilege was waived or forfeited because Stephen was discussing criminal matters as a participant in the extortion. Issue: Are confidential marital communications forfeited or waived absent wrongful complicity merely because the communications involve criminal matters? No. Rule: Confidential marital communications are not forfeited or waived absent wrongful complicity merely because the communications involve criminal matters. Analysis: The court here was not impressed with the governments argument that marital communications between innocent victims about criminal matters forfeit privilege. Open communication is important in families and the courts do not want to chill communication between spouses. The privilege even survives divorce, although the communication must have taken place during the marriage. Conclusion: Stephen and Julie were not participants in the extortion, but victims of it. Their discussions concerning the criminal matter never rose to the level of wrongful complicity. Had one or both spouses committed a crime, the crime-fraud exception could perhaps permit the admission of their communications into evidence. Privilege is not otherwise lost when innocent parties share communications that play a role in a crime. Stephens communications to a third party also does not waive the privilege. Stephen was not sharing information about the communication between him and his wife. He was sharing a story to avoid debt collection. Here, marital privilege for confidential communication was neither forfeited nor waived. Affirmed.
Spousal Testimonial Privilege (status) criminal cases only witness is married to criminal only the witness spouse may invoke this privilege may not be invoked by the criminal
Marital Confidence Privilege (communications) more narrow than STP applies to confidential communications crime-fraud exception only covers communications during the marriage either spouse may invoke applies to civil or criminal cases
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Relevancy and its limits

Rule 401: Test for Relevant Evidence Evidence is relevant if: a) it has any tendency to make a fact more or less probable than it would be without the evidence; and b) the fact is of consequence in determining the action. Rule 402: General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: The United States Constitution A federal statute These rules; or
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Other rules prescribed by the Supreme Court
Irrelevant evidence is inadmissible. Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, waste of time, or needlessly presenting cumulative evidence. Rule 407: Subsequent Remedial Measures When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: Negligence Culpable Conduct A defect in a product or its design or A need for a warning or instruction But the court may admit this evidence for another purpose, such as impeachment or if disputed proving ownership, control, or the feasibility of precautionary measures. Rule 404: Character Evidence; Crimes or Other Acts a) Character Evidence 1) Prohibited Uses. Evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. 2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: A. A defendant may offer evidence of the defendants pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; B. Subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victims pertinent trait, and if the evidence is admitted, the prosecutor may; i. offer evidence to rebut it; and ii. offer evidence of the defendants same trait; and C. In a homicide case, the prosecutor may offer evidence of the alleged victims trait of peacefulness to rebut evidence that the victim was the first aggressor. 3) Exceptions for a Witness. Evidence of a witnesss character may be admitted under Rules 607, 608, and 609. b) Crimes, Wrongs, or Other Acts 1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character. 2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a in a criminal case, the prosecutor must: A. provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and B. do so before trial or during trial if the court, for good cause, excuses lack of pretrial notice. Rule 405: Methods of Proving Character (with Pucillos edits) c) By Reputation or Opinion. When evidence of a persons propensity is being offered under FRE 404(a)(2) to prove that on a particular occasion the person acted in
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accordance with that propensity, it may be proved only by testimony about the persons reputation or by testimony in the form of an opinion. On cross-examination of the propensity witness, the court may allow an inquiry into relevant specific instances of the persons conduct. d) By Specific Instances of Conduct. When evidence of a persons propensity is offered to prove a fact other than that on a particular occasion the person acted in accordance with that propensity, the propensity may be proved by relevant specific instances of the persons conduct. Rule 104: Preliminary Questions a) In General. The court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (judge) b) Relevance that Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (jury) Rule 413: Similar Crimes in Sexual Assault Cases a) Permitted Uses. In a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. Rule 414: Similar Crimes in Child Molestation Cases a) Permitted Uses. In a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. Rule 415: Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation a) Permitted Uses. In a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.
Rule 412: Sex-Offense Cases: The Victim's Sexual Behavior or Predisposition c) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: 4) evidence offered to prove that a victim engaged in other sexual behavior; or 5) evidence offered to prove a victim's sexual predisposition. d) Exceptions. 3) Criminal Cases. The court may admit the following evidence in a criminal case: D. evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the was the source of semen, injury, or other physical evidence; E. evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the to prove consent or if offered by the prosecutor; and F. evidence whose exclusion would violate the 's constitutional rights. 4) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy.
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Rule 406: Habit; Routine Practice. Evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there is an eyewitness.
Witnesses
Rule 602: Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witnesss own testimony. This rule does not apply to a witnesss expert testimony under Rule 703. Rule 607: Who May Impeach a Witness? Any party, including the party that called the witness, may attack the witnesss credibility. Rule 608: A Witnesss Character for Truthfulness or Untruthfulness a) Reputation or Opinion Evidence. A witnesss credibility may be attacked or supported by testimony about the witnesss reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked. b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesss character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: 1) the witness; or 2) another witness whose character the witness being cross-examined has testified about. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witnesss character for truthfulness.
Rule 609: Impeachment by Evidence of a Criminal Conviction f) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction: 3) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: C. must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a ; and D. must be admitted in a criminal case in which the witness is a , if the probative value of the evidence outweighs its prejudicial effect to that ; and 4) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving--or the witness's admitting--a dishonest act or false statement. g) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: 3) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and 4) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
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h) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: 3) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or 4) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. i) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: 5) it is offered in a criminal case; 6) the adjudication was of a witness other than the ; 7) an adult's conviction for that offense would be admissible to attack the adult's credibility; and 8) admitting the evidence is necessary to fairly determine guilt or innocence. j) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Hearsay
Rule 802: The Rule against Hearsay Hearsay is not admissible unless any of the following provides otherwise: A federal statute; These rules; or Other rules prescribed by the Supreme Court. Rule 801: Definitions that Apply to this Article: Exclusions from Hearsay a) Statement. Statement means a persons oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. b) Declarant. Declarant means the person who made the statement. c) Hearsay. Hearsay means a statement that: 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the Statement. d) Statements that are not Hearsay. A statement that meets the following conditions is not hearsay: 2) A Declarant-Witnesss Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement. D. is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; E. is consistent with the declarants testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or F. identifies a person as someone the declarant perceived earlier. 3) An Opposing Partys Statement. The statement is offered against an opposing party and: A. was made by the party in an individual or representative capacity; B. is one the party manifested that it adopted or believed to be true; C. was made by a person whom the party authorized to make a statement on the subject; D. was made by the partys agent or employee on a matter within the scope of that relationship and while it existed; or E. was made by the partys co-conspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarants authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
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Rule 805: Hearsay within Hearsay Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. Rule 806: Attacking or Supporting the Declarants Credibility When a hearsay statement or a statement described in Rule 801 (d)(2)(C), (D) or (E) has been admitted in evidence, the declarants credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarants inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination. Rule 804: Exceptions to the Rule against Hearsay When the Declarant is Unavailable as a Witness c) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: 6) is exempted from testifying about the subject matter of the declarants statement because the court rules that a privilege applies; 7) refuses to testify about the subject matter despite a court order to do so; 8) testifies to not remembering the subject matter: 9) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or 10) is absent from the trial or hearing and the statements proponent has not been able, by process or by other reasonable means, to procure: C. the declarants attendance, in the case of a hearsay exception under Rule 804 (b)(1) or (6); or D. the declarants attendance or testimony, in the case of a hearsay exception under Rule 804 (b)(2), or (3), or (4). But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarants unavailability as a witness in order to prevent the declarant from attending or testifying d) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: 2) Former Testimony. Testimony that: C. was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and D. is now offered against a party who had or, in a civil case, whose predecessor in interest had an opportunity and similar motive to develop it by direct, cross-, or redirect examination. 3) Statement under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarants death to be imminent, made about its cause or circumstances. 4) Statement against Interest. A statement that: C. a reasonable person in the declarants position would have made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the declarants claim against someone else or to expose the declarant to civil or criminal liability; and D. is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
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6) Statement offered Against a Party that Wrongfully Caused the Declarants Unavailability. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarants unavailability as a witness, and did so intending that result. 602: Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witnesss own testimony. Rule 803: Exceptions to the Rule against Hearsay Regardless of Whether the Declarant is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 6) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. 7) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. 8) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarants thenexisting state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarants will. 9) A Statement Made for Medical Diagnosis or Treatment. A statement that: C. is made for and is reasonably pertinent to medical diagnosis or treatment; and D. describes medical history; past or present symptoms or sensations; their inceptions; or their general cause. 10) Recorded Recollection. A record that: D. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; E. was made or adopted by the witness when the matter was fresh in the witnesss memory; and F. accurately reflects the witnesss knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
Confrontation Clause
In a criminal case, the admission of testimonial hearsay violates the Confrontation Clause if: 3) the declarant is unavailable to testify at the defendant's trial; and 4) the defendant had no prior opportunity to cross-examine the declarant. Therefore, the admission of testimonial hearsay would not violate the Confrontation Clause if: 3) the declarant is available to testify at the defendant's trial; or 4) the defendant did have a prior opportunity to cross-examine the declarant.
The Confrontation Clause bars admission against a criminal defendant of a testimonial statement, if the declarant is unavailable to testify at the defendants trial and the defendant had no prior opportunity to cross-examine the declarant. Exception to confrontation clause is if it is a testimonial statement and the defendant wrongfully caused their unavailability.
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Lay Opinions and Expert Testimony

Rule 701: Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: d) rationally based on the witness's perception; e) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and f) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Rule 702: Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: e) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; f) the testimony is based on sufficient facts or data; g) the testimony is the product of reliable principles and methods; and h) the expert has reliably applied the principles and methods to the facts of the case.
Privileges
Rule 501: Privilege in General The common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
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Pucillo Evidence Fall 2013

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Evidence Fall 2013 Pucillo ISBN 978-1-60930-060-9

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Balancing Probative Value against the Danger of Unfair Prejudice

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Overview of the Specialized Relevance Rules

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Evidence of Subsequent Remedial Measures

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Evidence of Liability Insurance

III. Evidence of a Persons Character or Propensity

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Evidence of Propensity when Essential to a Charge, Claim, or Defense

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Non-Propensity Uses of Other Acts Evidence

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Rule 104: Preliminary Questions

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Evidence of the s Propensity in Sexual-Assault and ChildMolestation Cases

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Evidence of the Victims Propensity in Sexual-Assault Cases: The Rape Shield

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The Habit-Propensity Distinction

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IV. Impeaching Witnesses

Rule 404: Character Evidence; Crimes or Other Acts a) Character Evidence.

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Proving a Witness Propensity for Untruthfulness or Dishonesty

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Rehabilitating an Impeached Witness

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Or 403 Not bias Untruthfulness?

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Hearsay within Hearsay

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The Exclusions and Exceptions to the Hearsay Rule

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Prior Statements of a Declarant-Witness (exclusion from hearsay) Fisher pp. 430-35

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