Evidence Spring 2010 Mauet

I.

INTRODUCTION A. Evidentiary issues are questions of law. The trial judge, by ruling on motions & objections, determines what evidence may be presented to & considered by the jury during the trial. The motions & objections may be raised before trial, or may be brought during the trial itself. The law of evidence is the tool the judge uses to filter offered witness testimony or exhibits & determine whether it will be admissible or inadmissible. Once admitted, the jury decides what weight, if any, to give to the admitted evidence. In short, the judge determines admissibility, the jury determines weight. B. The law of evidence permits only that which is deemed sufficiently pertinent & trustworthy to be received by the jury. A convenient way to visualize this filtration process is to picture it as three "R's." All evidence, to be admissible, must be: 1. Relevant (must prove or disprove something in issue, & not be excluded for policy & other considerations), and 2. Reliable (must be first-hand or otherwise trustworthy information), and 3. Right (must be presented through proper witness testimony & exhibits). C. Only evidence which survives the three filters - the three R's - can be presented to the jury for its consideration. D. Federal Rules of Evidence v. AZ Rules of Evidence 1. The AZ rules, adopted in 1977, differ from the Federal Rules of Evidence, adopted in 1975, in the following principal ways (organized on my 3R's approach to evidence): 2. Relevance a. * AZ has not adopted 412-415. However, existing AZ case law is similar to 412 (Pope) & 414 (McFarlin). AZ 404(c) is similar to FRE 412-415, but has a higher threshold (clear & convincing) for admissibility in criminal cases, per Terrazas (1997). b. * AZ applies 407 to strict liability cases (ARS 12-686; Readenour) . The 1998 amendment of FRE 407 expressly applies it to strict liability cases. c. * AZ privileges law is statutory (ARS 12-2231-35 & 13-4062) . d. * The 2000 amendment to FRE 404(a), provides that if the defense has attacked the victim's character, the prosecution in rebuttal can attack the 's character for the same character trait (even though the defense did not go into the 's character). AZ has not adopted this amendment. 3. Reliable a. * In AZ, under 801(d) (1) (A), all prior inconsistent statements, whether made under oath at a proceeding or not, are admissible both to impeach & as substantive evidence. Therefore, in AZ no limiting instruction on the proper use of a prior inconsistent statement need be given. In federal courts, a limiting instruction should be given when a witness is impeached w/ a prior inconsistent statement not made under oath at a proceeding. b. * In AZ, former testimony in civil cases is an 803 exception (803 (25) ), & the

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declarant need not be unavailable; former testimony in criminal cases is an 804 exception (804(b) (1)). c. * The 2000 amendment to FRE 803(6) & 902 permits the admission of business records through a certification process, eliminating the need to call a live qualifying witness. AZ adopted this amendment effective 12/03, so the FRE & AZ business records rules are now identical. d. * FRE 804(b) (6) - forfeiture by wrongdoing - added in 1997 has not been adopted by AZ. 4. Right a. * AZ still has some witness competency rules in civil cases (ARS 12-2201, 2202, 2251). b. * In AZ, under 611 (b), a witness can be cross-examined "on any relevant matter," the unrestricted scope of cross rule. The FRE rule is that cross is limited to the "subject matter" of the direct & matters affecting witness credibility. c. * In AZ, under Woods, when a witness has been impeached w/ an admitted prior inconsistent statement which is recorded, in the judge's discretion the recording may also be admitted in evidence. d. * The federal courts follow Daubert & Kumho Tire for both "scientific" & "training & experience" experts. AZ still follows Frye for scientific experts, & follows Loqerauist for training & experience experts (i.e, the old Rule 702). FRE 701 & 702 were amended in 2000 to reflect the holdings in Daubert & Kumho Tire. AZ has not adopted those amendments. e. * FRE 703 was amended in 2000 to make the basis for an expert's opinions presumptively inadmissible, unless the basis has an independent evidentiary basis for admission, or the judge determines that the jury's need to hear the underlying basis "substantially outweighs" its prejudicial effect. i. AZ has not adopted that amendment, so in AZ the underlying basis for an expert's opinions are automatically admissible so long as they are of a type that experts in that particular field rely on in reaching opinions. f. * AZ has not adopted 704(b). g. * AZ has not adopted 301 & 302. Relevance 401-403 1. Is evidence of consequence? [material] a. Q-Whats in issue? pleadings + substantive law) 2. Does evidence have any tendency to make more or less probable? a. Q-Whats it prove? 3. Is probative value substantially outweighed by judicial economy considerations? a. danger of unfair prejudice? unduly inflammatory v. prejudicial 4. Ex. Old Chief (1997) 5. Argue! Appellate reversal rare! a. conditional relevance 104(b) b. direct v. circumstantial AZ has not adopted 412-415. i. However, existing AZ case law is similar to 412 (Pope) & 414 (McFarlin). ii. AZ 404(c) is similar to FRE 412-415, but has a higher threshold (clear &

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convincing) for admissibility in criminal cases, per Terrazas (1997). iii. AZ applies 407 to strict liability cases (ARS 12-686; Readenour). The 1998 amendment of FRE 407 expressly applies it to strict liability cases. iv. AZ privileges law is statutory (ARS 12-2231-35 & 13-4062). v. The 2000 amendment to FRE 404(a), provides that if the defense has attacked the victim's character, the prosecution in rebuttal can attack the 's character for the same character trait (even though the defense did not go into the 's character). AZ has not adopted this amendment. Reliable 1. In AZ, under 801(d) (1)(A), all prior inconsistent statements, whether made under oath at a proceeding or not, are admissible both to impeach & as substantive evidence. a. Therefore, in AZ no limiting instruction on the proper use of a prior inconsistent statement need be given. In federal courts, a limiting instruction should be given when a witness is impeached w/ a prior inconsistent statement not made under oath at a proceeding. 2. In AZ, former testimony in civil cases is an 803 exception (803(25)), & the declarant need not be unavailable; former testimony in criminal cases is an 804 exception (804(b)(1)). 3. The 2000 amendment to FRE 803(6) & 902 permits the admission of business records through a certification process, eliminating the need to call a live qualifying witness. AZ adopted this amendment effective 12/03, so the FRE & AZ business records rules are now identical. 4. FRE 804(b)(6) - forfeiture by wrongdoing - added in 1997 has not been adopted by AZ. 5. In AZ, under Woods, when a witness has been impeached w/ an admitted prior inconsistent statement which is recorded, in the judge's discretion the recording may also be admitted in evidence.

II. RELEVANCE
A.
General relevance rules - 401-403 1. Intro: a. All offered evidence, to be properly admissible, must first meet the general relevance tests. The Federal Rules definition of relevance-incorporates both traditional concepts of "materiality" & "relevance": 2. TEST1: Is the offered evidence "of consequence" to the action? a. (This is the traditional materiality concept.) What's in issue? based on the claims & defenses raised by the pleadings & on the underlying applicable substantive law? b. Examples: i. In a negligence action, 's contributory negligence is relevant; in a workmen's compensation case, it is irrelevant. ii. The victim's age in a murder prosecution is irrelevant; in a child molestation prosecution it is relevant. 3. TEST 2: Does the offered evidence have "any tendency" to make a fact "more or less probable"? (This is the traditional relevance concept.)

a. Is it probative? Put another way, does it fail the "so what" test? b. Example: i. In an automobile negligence action, proof that the driver previously lived in Florida, or was the father of an adopted child, or is a Vietnam veteran, is irrelevant to the negligence claim. ii. Sometimes evidence may be "conditionally relevant" (104(b)). That is, offered evidence will be relevant only if another fact is first demonstrated. c. Example: i. In a suit against a municipality for an accident caused by a pothole in a street, statutes often require that the municipality have actual notice of the defective condition before it can be held liable for injuries caused by the condition. To prove notice, offers a letter from another driver to the municipality, dated one month before 's accident, complaining about the same pothole. The letter is relevant & admissible only if first demonstrates that the municipality actually received the letter. That is, the letter's relevance is conditioned on proof of its receipt. 4. TEST3: The general relevance rules have a competing consideration expressed in 403. Even if the offered evidence is relevant, there may be sound reasons, based on concepts such as unnecessary prejudice & trial efficiency, for excluding it. Hence the third general relevance test: a. Even if relevant, is the probative value of the evidence "substantially outweighed" by the 403 considerations? 5. These considerations are essentially two-fold. a. First are the judicial economy concerns. Is the offered evidence i. cumulative, ii. needlessly repetitive, or iii. causing undue delay? b. Second are the confusion & inflammatory concerns. Is the offered evidence i. unfairly prejudicial, ii. confusing or iii. misleading? c. Example: i. In a murder case, the only contested issue being the identity of the killer, -the prosecution offers color photographs of the victim's mutilated body. The photos should not be admitted, since they have minimal probative value (showing only the fact of death, a fact undoubtedly established by other evidence) but are extremely inflammatory. ii. Gory pics 1) Def: proving something that is not at issue. 2) Pros: Doesnt matter. I still have to prove victim is dead. 3) Def: Unduly inflammatory. Will cause jury to make decision based on emotion. Alternative ways to prove hes dead (ie death cert.) 4) Pro: May prove how/where victim was killed (i.e. by homicide: stabbing strangling, etc.).

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iii. Example: 1) In a bribery case, the has already called several character witnesses, all of whom have stated that the has an excellent reputation for honesty. The prosecution objects to the next character witness. The witness's testimony should not be admitted, since by now it is repetitive & cumulative. *Note that Rule 403 favors admissibility. Evidence is relevant if it has "any tendency" to prove something in issue. It is barred under 403 only if its prejudicial, etc. effect "substantially outweighs" its probative value. The difficult relevance issues appear when the offered evidence is circumstantial, rather than direct. Evidence is circumstantial where the evidence being offered is about an event occurring at a time, date or place other than the event which is the basis of the lawsuit. Circumstantial evidence, requiring an additional inferential step, is often less probative than direct evidence & will more often run afoul of the 403 balancing test. These admissibility issues are directed to the sound discretion of the trial judge. Examples: i. In an automobile negligence case, claiming that the 's speeding caused the collision, is evidence that the 's car was speeding 10 min. before the accident admissible? ii. In an armed robbery case, the issue being identification, is evidence that the , when arrested one week later, was in possession of a handgun similar to the one used during the robbery admissible? In 1997 the Supreme Court reminded trial courts that their discretion under rule 403, while considerable, is not limitless. i. In Old Chief v. United States, 117 S. Ct. 644, U.S. (1997), the Court reversed a conviction bc of the erroneous admission of evidence under rule 403. In that case the was charged w/ assault & w/ being a felon in possession of a gun. Bc the prior conviction was for assault causing serious bodily injury, the offered to stipulate that he had been convicted of a felony. The prosecution declined the stipulation, & the trial judge refused to impose it. In reversing, the Supreme Court noted that the danger that the jury would misuse the prior conviction substantially outweighed its limited purpose of proving that the had a prior felony conviction, & concluded that the trial court had abused its discretion under rule 403.

6. Conditional relevance 104(b) a. Ex. Pothole. Letter written. Accident. i. City must have notice & do nothing. ii. Letter irrelevant unless city received it. Must prove that notice. 7. Direct v. Circumstantial Evidence a. Not treated differently. b. One not more probative. c. Use same analysis for circumstantial evidence. 8. Your job to ARGUE!

III.

A.

B.

a. Appellate reversal rare! b. Lots of deference given to judge. i. Even when J. made mistake, appellate ct will usually say it was harmless. c. Consequently, you want to convince the trial J. NOW! Not on appeal. Special Relevance rules - 404-412 Intro 1. If evidence is irrelevant under the general relevance tests, the evidence is inadmissible & the inquiry ends. However, if the evidence is relevant under the general relevance tests, you must also review the special relevance rules to see if any apply to the offered evidence. 2. Certain types of evidence are so recurring that specialized rules have evolved to regulate their admissibility. To determine if the other specialized relevancy rules apply, you must first categorize correctly the type of evidence offered. See if the offered evidence is one of the five kinds of special relevance categories. 3. Is it character trait evidence? 4. Is it evidence of other crimes, wrongs or acts? 5. habit evidence? 6. evidence to which specific policy exclusions apply? 7. evidence to which specific privileges rules apply? 8. Do character trait rules apply? - 404, 405 a. Common sense & experience tell us that a person is likely to act consistently w/ the kind of person he really is, i.e., his "character traits." Hence, a person's relevant character trait is circumstantial evidence of that person's actual conduct at a particular time. i. For example, 1) an HONEST person is LESS LIKELY to have committed a THEFT; 2) a VIOLENT, AGGRESSIVE PERSON is MORE LIKELY to be a MURDERER. ii. Under certain circumstances, in certain kinds of cases, evidence law permits introducing pertinent character traits. iii. There are two basic character trait rules: 1) the "ESSENTIAL ELEMENT" rule & 2) the CIRCUMSTANTIAL EVIDENCE of conduct rule. "ESSENTIAL ELEMENT" rule - 405(b) (1% Rule) 1. Is character or a trait of character an "essential element" of a claim or defense- in-a civil or criminal case? If so, character trait evidence is direct evidence and, when offered by the proper party at the proper time, is admissible in both CIVIL & CRIMINAL cases. (405 (b)) 2. More often in criminal cases. 3. Only when an essential requires proving a character is this at issue. 4. Examples: a. *NEG CASE: duty, breach, causation, damages (no character) b. Ex. *K CASE: K, breach, performance c. Ex. *CUSTODY: violence relevance (character matter)

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d. Ex. *TRUCKING ACCIDENT: Neg + trucking co. KNOWINGLY HIRED a wreckless driver. e. Ex.*NURSING HOME CASES: assaulting patient. CHARACTER NOT AN ASSAULT ELEMENT. But ELEMENT for claim that HOME KNOWINGLY HIRED. f. *DEFAMATION: prof drunk Character trait is an ESSENTIAL element of TRUTH DEFENSE. g. *Wrongful termination: You fired my bc Im ____. No, I fired you bc youre dishonest. Must prove DISHONESTY (char). h. *Typical crimes dont involve char. So, normally civil case. 5. Examples: a. A negligence action, where claims that the trucking company knowingly hired a reckless driver, raises the driver's reckless character. b. A custody action, where the parent claims that the other parent is an unfit custodial parent bc he is violent, raises the parent's character of violence. c. A libel action, where stated the pl. is a chronic liar, & the defense is truth, raises the pl.'s truth telling character. d. EEOC employment discrimination suit, where defense is that pl. fired for incompetence, raises the pl.'s competence. e. A drug prosecution, where defense is entrapment, raises the 's predisposition to sell drugs. (see Hampton v. U.S., 425 U.S. 484) f. In Examples 1) & 2), a character trait is an essential element of 's case-in-chief. In Examples 3) & 4), a character trait is an essential element of 's casein-chief. In Example 5), a character trait is an essential element of 's rebuttal case. 6. HOW TO PROVE CHARACTER: a. If admissible under this category, proof of the pertinent character trait can be through all three testimonial forms: reputation, personal opinion & specific acts. b. Examples: i. Reputation ("Have you heard his reputation for peacefulness?") ii. Personal opinion ("In your opinion, is he a violent person?") iii. Specific acts ("Did he beat up a man at the tavern last year?" c. When is the proper time for a party to present such evidence? i. Either the or may initiate presenting character trait evidence, depending on whether the character trait is an essential element of the 's claim or the defense's defense. ii. For example, 1) in a knowingly hiring a reckless driver suit, the must prove in the 's case in chief that the driver is reckless (the character trait). 2) In an EEOC discrimination suit, where the defense is that the was fired for being an alcoholic, the defense must prove in the defense's case in chief that the is an alcoholic (the character trait). Circumstantial evidence of conduct rule 1. Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

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a. Character evidence generally - Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: b. Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused & admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution; c. Character of alleged victim - In a criminal case, & subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; d. Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, & 609. If a character trait is not an essential element, evidence of a character trait is only circumstantial proof that the person acted in conformity w/ his character at the time at issue in the trial. This use of character trait evidence is generally inadmissible in civil cases (404 (a)) (possible exception in a few jurisdictions: intentional torts which are quasi-criminal in nature). This use of character evidence is admissible in criminal cases only under the limited circumstances of 404 & 405. Direct v. Circumstantial AZ has not adopted 412-415. a. However, existing AZ case law is similar to 412 (Pope) & 414 (McFarlin). AZ 404(c) is similar to FRE 412-415, but has a higher threshold (clear & convincing) for admissibility in criminal cases, per Terrazas (1997). b. AZ applies 407 to strict liability cases (ARS 12-686; Readenour). The 1998 amendment of FRE 407 expressly applies it to strict liability cases. c. AZ privileges law is statutory (ARS 12-2231-35 & 13-4062). d. AZ v. FRE i. FRE: The 2000 amendment to FRE 404(a), provides that if the defense has attacked the victim's character, in rebuttal the prosecution can attack the 's character for the same character trait (even though the defense did not go into the 's character). ii. AZ has NOT adopted this amendment!!! Examples character trait evidence are admissible as CIRCUMSTANTIAL evidence in CRIMINAL CASES: a. honesty in thefts, b. peacefulness in violent crimes & sexual assaults, and c. truthfulness in perjury cases. d. (You should always check the definition of the crime involved to determine the pertinent character trait.) Forms of character trait evidence admissible as CIRCUMSTANTIAL evidence in CRIMINAL CASES: a. Testimony in both reputation & opinion forms is permitted. (405 (a))

b. (Specific instances of conduct are not admissible unless the character trait is an "essential element" of a charge or defense. (405 (b)) c. Examples: i. Reputation ("Have you heard the 's reputation for peacefulness"?) ii. Personal opinion ("Do you have a personal opinion whether the is a peaceful person"?) d. Who may initiate the presentation of character trait evidence as circumstantial evidence in criminal cases? i. This decision is exclusively up to the . (404(a)). Only after the has presented character trait evidence may the prosecution rebut w/ contrary character trait evidence. ii. Exception: (Note the exception - in a homicide/self-defense case the prosecution may offer evidence of the victim's peacefulness, in reputation or personal opinion form, to rebut evidence that the victim was the aggressor. The reasoning is that this type of proof is necessary since the victim is dead, & there often would be no contrary evidence to the 's version of the events.) iii. Examples: 1) In a battery case, the in the defense case calls a witness to *testify that the 's reputation for peacefulness is good. Only then may the prosecution in its rebuttal case call witnesses to testify that the 's reputation for peacefulness is bad. 2) In the above case, if the merely testifies that the victim attacked him first, this is not raising in issue either his or the victim's pertinent character traits. iv. Example (HOMICIDE EXCEPTION): 1) in a homicide prosecution the testifies that the victim attacked him, & that he shot the victim in self-defense. 2) in rebuttal, the prosecutor may then, show through reputation or opinion evidence that the victim was a peaceful person. (This is circumstantial evidence that the victim was not the aggressor.) e. To whom may such character evidence be admitted as circumstantial evidence in criminal cases? i. It may be admissible both to the & the victim, provided the character trait is pertinent to the issues at trial. ii. Examples: 1) In a theft case, the 's character trait of honesty is pertinent. 2) In a battery case, the 's character trait of peacefulness is pertinent. If the defense is self-defense, the victim's character trait of being violent is pertinent. f. What is the permissible scope of cross examination of a reputation witness? i. The usual scope rules apply. (611) In addition, the cross examiner may ask about relevant specific instances of conduct. 405(a)) 6. Cross-examination Rule 405(a) a. Rule 405. Methods of Proving Character

i. Reputation or opinion. 1) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. (eg circumstantial proof). On cross-examination, inquiry is allowable into relevant specific instances of conduct. ii. Specific instances of conduct. 1) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. b. Examples: i. Battery case where the witness has on direct examination stated that the 's, reputation for peacefulness is good. On cross he may be asked: 1) "Have you heard" that the was convicted of battery last year? 2) "Do you know" that the was arreste after a fight in a tavern last year? a) (This is permitted as a legitimate test of the witness's actual knowledge of the 's reputation. See Michelson v. U.S., 335 U.S. 469. Of course, the prosecutor cannot bring up such earlier events unless the prosecutor has a good faith basis for believing the earlier events are true.) b) Note that the kinds of specific instances of conduct must be related to the character trait involved. In the above example, the cross examiner could not ask the witness if he knew that the had been convicted of perjury last year. c) (Note: These character trait rules must be distinguished from those dealing w/ witness veracity, which is governed by 608. Whenever a witness testifies, his credibility as a witness is in issue. The opposing party can attack the witness's credibility w/ bad reputation or opinion -for truthfulness evidence; thereafter the party initially calling the witness can present good reputation or opinion evidence. Remember that a witness's credibility must be attacked before it can be supported. See Witness section.) 7. Do other crimes, wrongs, or acts rules apply? (Doesnt matter if was convicted)404(b) a. Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; i. Other Crimes b. (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as i. proof of motive, ii. opportunity, iii. intent, iv. preparation, v. plan, vi. knowledge,

vii. identity, or viii. absence of mistake or accident, c. provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. d. Important: Often outcome determinative. If the evidence is let in incorrectly, will not be treated deferentially on appeal. e. The general rule is that such evidence is not admissible to show a person acted in "conformity" w/ it, which means that other acts evidence is not admissible if its only probative value is to show a person's propensity or bad character. f. It is only admissible, in both civil & criminal cases, as circumstantial proof of i. Identity ii. Modus operandi (usually to prove 's identity) iii. Intent iv. Knowledge v. Motive vi. Consciousness of guilt vii. State of mind viii. Absence of innocent state of mind ix. Dislike of or attitude toward the victim x. Opportunity or preparation to commit the crime xi. Absence of mistake or accident xii. To impeach 's alibi xiii. Circumstances of 's arrest xiv. Circumstances of crime charged when otherwise unclear xv. Proximity of to time and/or place of crime xvi. Identification of weapon used in crime charged xvii. That charged crime was actually committed other specific purposes suggested by 404(b). g. In criminal cases there is a notice requirement (1991 amendment) h. Two Supreme Court cases are important. i. In Huddleston v. U.S., 485 U.S. 681 (1988), the Court held that the admissibility standard for other acts evidence is the "PREPONDERANCE" standard. (Not in AZ, see Terrazas). ii. In Dowling v. U.S., 493 U.S. 342 (1990), the Court held that an acquittal on a criminal charge does not bar later use of its underlying facts as other acts evidence. 1) A few states do not follow Dowling. i. One AZ Supreme Court case is IMPORTANT. i. In State v. Terrazas, Ariz. (1997), the court held that the admissibility standard for other acts evidence offered against the in CRIMINAL cases is the "clear & convincing" standard.

ii. Civil still preponderance. j. Remember that 403 considerations are significant here. i. 404(b) evidence, particularly evidence of other crimes, can be highly inflammatory. Hence, it should not be admitted under 403 unless the evidence is highly probative on an actual issue at trial. 1) continuing course of conduct & inextricably intertwined a) If so close in time then treated as the same acts k. When & how to argue 1) Limiting instruction l. Finally, remember that there is a notice requirement applicable to criminal cases. This is there to permit the admissibility issues to be raised before trial, where the parties & judge have time to thoroughly consider the issues. m. Examples: i. The is charged w/ theft. The prosecution cannot show that the committed another theft 2 years ago. This is not permissible under 404(b) - it only shows that "once a thief, always a thief", which is not a proper use of a prior act. ii. Proof that the obtained a floor plan of a building burglarized a week later is admissible as proof of preparation & plan. iii. Proof of a previous identical claim, in a suit against a municipality, is admissible to show the municipality had notice or knowledge of a defective or dangerous condition. iv. In a dog bite negligence case, proof of a prior bite known to the owner is admissible to show the owner knew of the dog's vicious propensities. v. In an assault case, proof that the previously shot at the victim is admissible to rebut the defense of accident. vi. The "state of mind" types of proof are also part of 404(b). A can introduce evidence of his state of mind, as well as the victim's state of mind, if probative of a purpose permitted under 404(b). n. Examples: i. In a battery case, where asserts self-defense & claims the victim was the aggressor, the can testify that he was afraid of the victim, or that the victim had previously threatened him. ii. In the above example, evidence of the victim's prior threats, even if not communicated to the , is admissible, since it shows the victim's state of mind & makes it more likely the victim was the aggressor. iii. In AZ , new AZ Rule 404(c), effective 12/1/97), governs the admissibility of other acts evidence to prove the 's aberrant sexual propensity to commit the act charged. The new rule applies to both criminal & civil cases. (See Federal Rule of Evidence 413 & 414, which are similar.) 8. Do HABIT & routine practice rules apply? - 406 a. Is the proof specific & recurring enough to be habit evidence? Remember that habit is how someone (or an entity) recurrently acts in a in a recurring specific fact situation.

(Note that a single prior incident in civil cases is generally inadmissible. The fact that a person previously ran a stop sign is not probative, under 401-403, that he ran a stop sign at the time in question. It is not admissible under 404(b), since none of the permitted purposes can be met. Only if there are enough repetitive specific prior incidents to constitute habit are they admissible.) b. Do the issues involve negligence (courts reluctant to admit) or business practices (courts generous in admitting)? c. Ch traits v. other acts v. habit i. Careless driver v. ran a stop sign v. repeatedly ran a stop sign. ii. If it is recurring & specific enough, then it may constitute habit. d. Example: i. A routine business practice in handling & processing outgoing mail will be habit evidence admissible to prove circumstantially that a particular letter was actually put in the mail. 9. Do the special SEX OFFENSES RULES apply? - 412-415 a. Rule 412 was amended in 1994, & rules 413-415 became effective in 1995. (Arizona has not adopted Rules 412-415. However, AZ adopted new Rule 404(c), effective 12/1/97) b. Rule 412 is often called the "rape shield" rule, although it is broader in scope. In criminal & civil cases, the rule generally bars introducing specific instances of the victim's past sexual behavior. i. Such instances are admissible in only two situations: 1) to prove that someone other than the D was the assailant (ID), a) or that the victim CONSENTed to the sexual conduct. 2) In civil cases, evidence of the victim's REPUTATION is admissible only IF placed in CONTROVERSY by the victim. 3) Constitutional issues. W is prostitute. Or W picks up M at bar every night & has sex w/ them. Then, W accuses M of rape. Constitutional issues: if evidence was left out then it would violate Ms due process rights. a) Often in sex assault defense cases. b) 412 never officially adopted by AZ, but Pope case effectively adopted 412 by caselaw. BUT all cases are CRIMINAL. Although it likely applies to civil cases, no civil caselaw in AZ yet. ii. Commonly occurs on reservations. Remember this is FED rule. c. Rules 413-415 govern the admissibility of other acts evidence in civil & criminal cases involving sexual assault & child molestation. i. Rule 413 makes admissible, in criminal sexual assault cases, evidence of the 's commission of other sexual assaults. ii. Rule 414 makes admissible, in criminal child molestation cases, evidence of the 's commission of other offenses of child molestation. iii. Rule 415 applies the rules of 413 & 414 to CIVIL cases involving sexual assaults & child molestation. iv. Rules 413-415 REVERSE the approach of rule 404(b): in sexual assaults & child molestation cases, other acts evidence is now admissible to show

i.

propensity to commit such acts . For the party opposing the admission of such evidence, remember that Rule 403 always applies, so that if the offered evidence has low probative value, but its prejudicial impact is high, it should still be excluded. v. Opponent of the evidence ARGUE 403!!! Probative value low, inflammatory value high! But, in practicality, Judges usually let the evid in. 1) Ask for limiting instruction. Dont use the evid for propensity. vi. In AZ , new Rule 404(c) became effective on 12/1/97. The rule specifically governs character evidence in sexual misconduct cases, in criminal & civil cases. More carefully drafted version of Rule 413-415, but what is admissible is narrower. 1) It permits the admission of other acts if relevant to show that the " had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." 2) It also permits rebuttal evidence. The rule requires a determination & specific findings by the judge that the factors set out in the rule were considered. a) AZ: Remember that in a criminal case, the prior bad act must be shown to have been committed by the by CLEAR & CONVINCING evidence, bc of State v. Terrazas, Ariz. (1997). Note that this is a different standard than in federal court, which only requires a preponderance standard. 10. Specific policy exclusions - 407-411 (think of a subset of 404(b) rules) i. These policy exclusions are based on the premise that in certain situations it is socially preferable that relevant evidence is excluded bc a higher social value is benefitted (such as promptly repairing dangerous premises), or bc there is a danger that a jury may misuse the evidence (such as using the fact of insurance held by the parties to determine the amount of damages). ii. Hence, such evidence is not admissible to show negligence, fault, or ability to pay a judgment. However, such evidence may be admissible if probative of an actual issue at trial, most commonly ownership or control of premises or vehicles, & bias or interest of a testifying witness. b. Subsequent remedial repairs - 407 i. This rule holds that evidence of subsequent repairs is not admissible to prove "negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction." The rule was amended on 12/1/97 adding the quoted language, which makes it clear that the rule applies not only to negligence cases but also to strict liability in tort. ii. The rationale for the rule is two- fold: 1) first, it promotes repairs & changes; 2) second; such repairs & changes do not necessarily show negligence or a defect, but the jury will think so. iii. The rule does not bar use of such evidence for other purposes, such as proof of 1) ownership, 2) impeachment,

3) control, or 4) "feasibility of precautionary measures, if controverted." iv. Example: a) driver sues trucking company for negligence. may not introduce proof that the truck's brakes were repaired by the company following the accident to show negligence. However, if the company's defense is that it did not own or operate the truck, this evidence is admissible for the limited purpose of showing ownership & control. (The jury should be instructed on the limited purpose of this evidence.) v. A major issue regarding the scope of Rule 407 is whether it applies to strict liability cases? 1) In federal courts, bc of the amendment effective 12/1/97, the answer is Clearly yes. 2) State courts are split on this issue. AZ by statute (ARS 12-686) expressly bars proof of subsequent design changes to prove a defect in products liability cases. See Readenour v. Marion Power Shovel, 149 Ariz. 442, 719 P.2d 1058 (1986). vi. Another issue which arises frequently in products liability cases is whether the existence or non-existence of prior accidents involving the product is admissible. In Jones v. Pal-Mor Manufacturing, 145 Ariz. 121, 700 P.2d 819 (1985) the court held that in products liability cases involving a claim of a defective design, based either on negligence or strict liability, the trial court may admit safety history evidence of both existence & nonexistence of prior accidents involving the product, if a proper foundation for the evidence is established. The proponent must show that the manufacturer would have known the safety history of the product bc it has a system which collects & stores such information. c. Payment of medical expenses - 409 i. This rule holds that evidence of "furnishing or offering or promising" to pay medical, hospital or similar expenses (doesnt apply to non-medical expenses, ie repairs to car or temporary payment of salary) is inadmissible to prove liability. The rationale is that such offers or payments may be motivated by reasons other than fault, but the jury will think it shows fault. ii. Note that the rule is limited in scope. It does not bar other offers to pay, such as offering to pay for car repairs. Nor does it bar statements of fault associated w/ an offer. (Bc of this, the usual practice is to frame such offers as part of settlement discussions, where the protection of the rule is broader.) d. Liability insurance - 411 i. This rule holds that evidence that a person had liability insurance is not admissible to prove negligence or fault. The rationale is that the existence of liability insurance is irrelevant to the issue of negligence. 1) The rule does not bar use of such evidence for other purposes, such as proof of a) Agency (interest), b) ownership,

c) control, or d) witness bias. ii. Mixed statements are allowable. A: Slow down! B: Dont worry, I have insurance. Shows recklessness. iii. Examples: 1) driver sues taxicab company. The company defends on the ground that it neither owns nor controls the cabs, which are titled in the names of the individual drivers. in this situation may introduce evidence that the insured the cab, since this evidence shows ownership & control. 2) Same case as above. In the defense case the defense calls as a witness an accident investigator employed by 's insurance company. On crossexamination may disclose the fact that the witness is employed by the 's insurance company, since this evidence shows bias. e. offers of compromise, & compromise - 408 i. This rule holds that evidence of settlement or offers to settle are not admissible to prove liability or amount of damages. ii. The rationale is twofold: 1) first, such offers are irrelevant since there may be reasons other than fault to settle a case; 2) second, settlements should be encouraged. iii. Note how broad the rule is, by covering both "conduct or statements" made during the course of negotiations. Hence, statements of fault made during negotiations are not admissible against that party. iv. However, the rule does not bar using evidence of a settlement to show bias of a party who has previously settled & is now a witness in the trial of that case. v. Example: a) Smith, the driver, sues Williams, the driver of the other car. Smith settles. Jones, a passenger in Smith's car, who also sued Williams, goes to trial. Smith is called as a witness. Here the cross examiner can show that Smith already settled w/ Williams, since this shows bias. vi. Note also that 408 does not prevent facts from being discovered under discovery rules, even though the facts were first disclosed during settlement negotiations. a) A settlement method, commonly called a "loan receipt", "Mary Carter agreement", or, in AZ , a "Gallagher agreement", is a partial settlement between a & one of multiple s, in which the settling remains as a party in the case. If that testifies during the trial, is his "Gallagher agreement" admissible under 408? In Tucson v. Gallagher, 108 Ariz. 140, 493 P.2d 1197 (1972), the court upheld the validity of such agreements, rejecting public policy arguments. Other cases have held such agreements are discoverable, & may be used to attack the credibility of the settling if he testifies at trial. f. Plea agreements & discussions - 410 i. This rule holds that plea negotiations or agreements in a CRIMINAL case are inadmissible against the who was involved in them. Note, however, that the

D.

negotiations must be w/ the "prosecuting attorney". ii. Example: 1) Police officer arrests for burglary. Following his arrest, while still in jail, the talks to the officer & says: "You got me cold. Can we work out a deal?" This statement is admissible, since not made to a prosecuting attorney. Privileges - 501, 502 deleted 501 et seq. & state law 1. General considerations a. Privileges are based on policy considerations. Under certain situations a higher social good is obtained (promoting candid conversations between specified persons, Such as lawyer and-client) than the evidentiary cost of losing relevant evidence (usually party admissions, such as a client's statement to the lawyer). b. Privileges were developed through the common law and, more recently, by statutes. Unfortunately, the privileges that the federal courts & states recognize vary substantially, & it is always necessary to research which privileges are recognized in the applicable jurisdiction. c. The drafters of the federal rules attempted to create uniformity in this area by drafting an inclusive list of recognized privileges. These are the deleted rules 501 513. The U.S. Supreme Court approved them, but Congress failed to enact them. Instead, 501 was enacted, maintaining the status quo & providing for the continuing development of case law by the federal courts. However, since the U.S. Supreme Court had previously approved the specific rules, it is obvious that developing case law will in all likelihood track the deleted rules. (If the rules are to be developed in the light of reason, what could be more reasonable than a rule that the Supreme Court had previously approved?) d. What privilege law applies depends on what jurisdiction & what type of case is involved: i. In federal criminal & civil-federal question cases, 501 applies the federal common law of privilege. ii. In federal civil-diversity cases (where state law governs the claim or defense), 501 applies state privilege law (this is essentially the Erie doctrine). iii. In state courts, the state privilege law applies. e. The law of privilege is extremely technical & should always be thoroughly researched. In general, however, the following issues commonly arise: i. What communications, etc. does the privilege protect? ii. Who is the "holder" of the privilege? iii. What causes a "waiver"? iv. What causes a "termination"? 2. 2. Specific privileges a. Marital privilege to bar a spouse from testifying -505 deleted i. This privilege is really a witness competency rule. The policy consideration underlying the rule was to promote marital harmony by preventing spouses from being forced to testify against each other. This is a disfavored privilege, & some jurisdictions have abrogated it entirely, while others have limited its application. ii. Federal:

1) In federal courts, the privilege applies only in criminal cases. Until 1980, the was the holder of the privilege, & as holder could assert the privilege against the witness-spouse. In 1980, the Supreme Court decided Trammel v. U.S., 445 U.S. 40, which adopted the rule that the witness-spouse, not the -spouse, is the holder of the privilege & can decide whether or not to waive the privilege & testify against the . By case law, the privilege does not extend to "sham" or "moribund" marriages.. iii. Arizona: 1) The applicable statutory provisions are A.R.S. 12-2231 (civil) & 13-4062 (criminal). AZ keeps the traditional holder rule (party-spouse is the holder) in civil cases, & also keeps that rule in criminal cases, w/ several exceptions. 2) By amendment in 1983 the privilege in criminal cases cover only "events occurring during the marriage". The privilege in civil cases does not contain such limiting language, & courts often hold that the privilege in civil cases applies to any testimony, even as to events that occurred before the spouses married. 3) Note that the privilege usually does not apply to interspousal torts & crimes, domestic relations actions & joint crimes. 4) Termination: The majority rule, which AZ follows, is that the privilege terminates upon the termination of the marriage. This means that if the spouses are legally divorced or separated at the time of trial, this privilege does not exist & cannot be asserted. b. b. Marital privilege for interspousal communications i. This second marital privilege has the same policy rationale as most privileges: to promote candid conversations between persons having special relationships, here spouses, the law protects those conversations from being disclosed. ii. Federal: 1) In federal courts, the privilege protects confidential communications, between legally married spouses, made during the marriage, in both civil & criminal cases. Each spouse is the holder of the privilege & can assert the privilege as to his or her communications to the other spouse. 2) (Note: in about half of the states the holder rule is that each spouse is the holder of the privilege as to all communications between the spouses.) iii. Arizona: 1) The applicable statutory provisions are A.R.S. 12-2232 (civil) & 13-4062 (criminal). AZ essentially follows the federal rule. 2) Termination: The majority rule, which AZ follows, is that the privilege continues even after the termination of the marriage. 3) Note that the privilege usually does not apply to interspousal torts & crimes, domestic relations actions & joint crimes. 4) Issues in this area are what constitutes a "communication", & whether the communication was made where "confidential" circumstances were intended. c. c. Attorney-client privilege - 503 deleted

i.

This privilege, which is the oldest common law privilege, has the usual policy rationale behind it: to promote frank disclosures & discussions by the client & his lawyer, those discussions must be protected from disclosure. The Client is the holder. ii. Federal 1) The federal rule is essentially as set forth in the deleted 503. The privilege applies to confidential communications, between a client & a lawyer & his representatives, relating to the rendering of legal services. 2) The client is the holder of the privilege, 3) privilege can be asserted by the client or his personal representative, & by the lawyer on behalf of the client. 4) Elements: a) Confidential communications; b) Legal advice; c) Attorney; d) Client; and i) Corp, trade union e) During atty-client relationship. i) When atty talks to a client not as an atty (eg as a business partner) not privilege. iii. Arizona 1) The applicable statutory provisions are A.R.S. 12-2234 (civil) & 13-4062 (criminal). AZ essentially follows the federal rule. iv. -Termination: The majority rule is that the privilege survives the death of the client. 1) In Swidler & Berlin v. U.S, U.S. (1998), the Supreme Court held that the attorney-client privilege survives the death of the client in criminal cases. v. Issues in the area of attorney-client privilege are complex, & should always be thoroughly researched, using the applicable jurisdiction's law. vi. Common issues are: 1) How broad is the "legal advice" protection of the privilege? 2) Does the privilege extend to "agents" of the lawyer, such as accountants, investigators & consulting doctors? 3) Does the privilege apply where the lawyer represents multiple clients? 4) Does the privilege extend to the client as well as employees & agents of the client? 5) Emails. vii. Partners + Atty. Confidential btw the atty & each partner, but partners can talk about the info. viii. Artificial (eg Corp, unions) Clients 1) Note that in 1981 the U.S. Supreme Court decided Upjohn v. U.S., 449 U.S. 383, which rejected the "control group" test formerly used (in federal court & most state courts)

2) NOW EXPANDED privilege protection to a) any communication b) from any corporate employee to corporate counsel which c) was necessary to develop information needed to inform corporate counsel so that it could competently represent the corporate client. ix. ARIZONA: 1) NOW ARS 12-2234 (b) essentially adopts the broad Upjohn approach to the attorney-client privilege. x. What constitutes a waiver? 1) (This issue is problematic, particularly in the corporate client area & in discovery during the civil litigation process.) 2) HINT: BAR EXAM QUESTION!!! In 2008 Rule 502 was adopted to deal w/ advertent & inadvertent waivers of the attorney-client & work product doctrines. a) The new rule rejects the broad subject matter waiver rule, & provides that INADVERTENT DISCLOSURE of protected material does not waive the protection if certain steps are taken. b) The new rule also provides that a federal court order regarding these matters is binding on other federal courts & state courts. xi. Crime Fraud Exception 1) If xii. What is the interrelationship between the attorney-client privilege & the workproduct privilege? xiii. Emails d. Physician-Patient privilege - 504 deleted i. This privilege has the usual confidentiality rationale. The patient is the holder. II. FEDERAL 1) No privilege under fed law. There is little federal case law on this privilege, since it usually arises in diversity jurisdiction cases, where the forum state's privileges law is followed. 2) If federal law applies (in federal criminal & civil-federal question cases), federal courts have almost always held that there is no federal doctorpatient privilege. 3) However, in 1996 the Supreme Court decided Jaffee v. Redmond, U.S. (1996), & held that federal courts will recognize a privilege for psychotherapistpatient communications. Except for psychotherapists, federal courts still do not recognize a general doctor-patient privilege. III. ARIZONA 1) A.R.S. 12-2235 is very broad, & protects not only confidential communications but also examination results from disclosure in CIVIL cases. a) The patient is the holder. i) However, in almost all cases the patient waives the privilege by testifying to these communications or facts, or calling the physician to

testify to them. Hence, privilege issues are uncommon. b) Note: Most jurisdictions follow the approach that a , by filing a lawsuit which puts in issue his physical condition, impliedly waives the privilege as to the medical records relevant to his condition i) (e.g., in a PERSONAL INJURY CASE, these would be the hospital & physician's records about his treatment following the injury), as well as earlier medical records that relate to the particular medical condition (e.g., if says that his back is permanently injured, the defense is entitled to get the earlier medical records that show that the had a preexisting back injury). ii) Arizona now appears to follow this common approach. See Bain v. Superior Court, 148 Ariz. 331 (1986). c) Note: in AZ , under ARS 12-2281, hospital records are not discoverable unless the patient authorizes disclosure. i) However, a -patient will usually authorize disclosure, both bc (1) it is usually in 's interest to do so, & (2) the court may bar proof of damages if does not authorize disclosure. d) Finally, keep in mind the effect of Rule 35, FRCP, dealing w/ physical examinations of parties & providing for certain reciprocal discovery. 2) Waiver a) Litigation between doctor + patient (eg med mal) b) Court ordered examinations c) Patient (pl.) putting medical condition in issue (eg by bringing lawsuit) e. Other privileges - deleted 501 et seq. i. Other privileges, recognized in most jurisdictions, include: 1) clergymen-penitent (A.R.S. 12-2233) 2) psychiatrist-patient (A.R.S. 32-2085) 3) reporter-informant (A.R.S. 12-2237) 4) governmental secrets 5) informer identity 6) self-incrimination (constitutional) a) As usual, the applicable law should always be thoroughly researched whenever you encounter a privilege issue. ii. Rule 502 (adopted 9/19/08) 1) In 2008, Congress adopted a new rule, FRE 502, which governs disclosures made during federal proceedings. 2) It limits the effect of advertent & inadvertent waivers on the attorney-client privilege & work-product protection, & provides that, when made part of a federal court order, party agreements limiting the effect of waivers in federal proceedings shall be binding in other federal & state proceedings. The purpose of the rule is to make the discovery process more cost effective, since the parties can now avoid the effects of inadvertent waivers on the attorney-client privilege & the work-product protection.

IV.

A.

B.

HEARSAY Introduction 1. Hearsay is the second of the 3 R's - "reliable". The hearsay rules filter offered evidence & permit only that which is sufficiently reliable to be admitted in evidence. The first task is to distinguish between hearsay & non-hearsay. If evidence is non-hearsay, it is admissible (as far as the reliability filter is concerned). If evidence is hearsay, it is inadmissible unless a hearsay exception applies. Hearsay - 801(c) 1. "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." 2. The classic working approach to the rule is: a. Hearsay is i. a statement, 1) Oral 2) Written 3) Assertive conduct (pointing in a lineup, nodding, etc) 1) NOT STATEMENTS a) Questions b) Commands (close the door) c) Just bc someone said something doesnt mean that there was a statement. ii. made out of court 1) that a person is repeating. a) Eye witness made statement Witness hears W says in court EW said. HEARSAY! b) Eye witness statement EW says in court I said. HEARSAY! i) Doesnt matter if it is the a person iii. offered to prove the TRUTH of the matter asserted in the statement. 1) Purpose: force people w/ FIRST HAND knowledge to testify what actually occurred (no what they or someone else said). 2) If its NOT intended to prove the truth of the statement, then the statement is admissible. (ie Fred said its raining in Boston. Cant be used to prove that it was raining. However, can be used to prove that Fred is alive.) a) Ie if it doest matter WHAT was said, this its admissable. b) REASON: witness can be effectively cross-examined on the issue. 2. You should always ask the following questions: a. Is it a "statement"? i. Under 801(a), there are three categories of "statements": 1) oral assertions 2) written assertions

3) assertive conduct (conduct intended to be an assertion) ii. Examples: (in each example, the witness is testifying in court) 1) "I saw the shoot the victim." (This is not a "statement"; the witness on the stand is merely stating what he previously saw.) 2) "John told me he saw the shoot the victim" (oral assertion) 3) "John gave me a note which said: "I saw the shoot the victim" (written assertion) 4) "I met John & asked him: "Did you see the shoot the victim"? John nodded his head." (assertive conduct - the nodding of his head is the functional equivalent of John saying "yes".) iii. Note: Under 801 (a), "statement" does not include non-assertive conduct (sometimes given different labels by the courts & commentators, such as "implied assertions", "conduct as hearsay" etc.). Obviously the line between "assertive" & "nonassertive" conduct is a gray area. Keep in mind, however, that 801(a) suggests that assertive conduct should be restricted to conduct clearly intended as the functional equivalent of an assertion; hence the non-assertive conduct analysis should be broadly applied, & such evidence should be liberally admitted as circumstantial evidence. iv. Examples: (in each example, the witness is testifying in court.) 1) "I saw people in N.Y., & all of them had their umbrellas raised" (This is non-assertive conduct, or circumstantial evidence that it was raining. People don't normally say "it is raining" at the moment they raise their umbrellas, so it is not assertive conduct.) v. "I saw the auto mechanic inspect my car, then get in it & drive off." (If the issue is whether the car was in good mechanical condition, this is non-assertive conduct. Mechanics don't usually say "this car is in good mechanical condition" before driving off. Hence, the mechanic's conduct is simply circumstantial evidence of the car's condition.) b. Was the statement made "out of court"? i. The hearsay rule does not apply to the actual oral testimony of the witness in court (if it did, witnesses could not say anything on the witness stand, an obviously absurd result). It does apply whenever the witness, while on the witness stand, repeats any "statement" either he, or another person, made at any other time or place. ii. Examples: (in each example, the witness is testifying in court) 1) "Yesterday I saw John, & he said 'Tom, your carneeds a tune-up (John's statement was made out of court.) 2) "Yesterday I saw John, & I said: 'John, my car needs a tune-up" (This is also an out of court statement even though the out of court declarant is the same person as the witness testifying in court. (Note: Other jurisdictions, not following the FRE, may disagree. Their approach is that the hearsay rule is principally designed to insure effective cross examination. Since here the out of court declarant is in court & can presumably be effectively cross examined, this situation in some jurisdictions may be classified as non- hearsay.)

c. 3. Is the out of court statement "offered to prove the truth of the matter asserted in the statement"? i. Another way of stating this question is: Is the out of court statement being offered to prove a matter in issue? ii. Answering this question depends on the issues in the case. If the fact asserted in the statement is in issue, & the statement is being introduced to prove or disprove that fact, it is hearsay. If, on the other hand, the statement is being offered for any proper purpose other than proving or disproving the fact in issue, it is not hearsay. iii. Examples: (in each example, the witness is testifying in court.) 1) "My brother said to me: 'it is raining'" 2) (Hearsay, if the fact asserted in the statement -"it is raining" - is an issue in the case. Non-hearsay, if the issue is whether the brother was alive, could speak, etc., since on these issues the only important matter is that the brother spoke; what specific words he spoke, or whether those words spoken were true, does not matter.) 3) "My mechanic said to me the day before the accident: `your brakes are defective' ." 4) (Hearsay, if the issue is the condition of the brakes. Here the out of court statement is being offered to prove the truth of the matter asserted. Nonhearsay, if the issue is notice to the driver of the car. Here you are only concerned w/ the statement having been made, & heard by the driver - not w/ its truth. If the driver heard it, he was on notice of the possibility that the brakes were defective. Note that of the two possible purposes of the statement, one is admissible, the other inadmissible. Since one purpose showing notice is a non-hearsay use of the out of court statement, it is admissible on that issue, & the jury would be instructed on the limited proper purpose of that evidence.) iv. Common situations involving statements introduced for purposes other than their truth are: 3. Independent legal significance a. In all of these examples, it doesnt matter if the statements are true, just that they were said. b. Defamation (libel & slander) i. Not being offer for truth, offered bc it was 1) said 2) then P must prove it was false. c. Contract i. Offer/Acceptance ii. Statements can be introduced to prove offer & acceptance. d. Gift i. Just physically giving an object is ambiguous. ii. Only a gift if 1) physical act & 2) WORDS of donative intent. e. Authority, permission & consent i. you can drive my car.

ii. you can sleep in my storage shed. f. Intentional misrepresentation i. D tells P Buy my ranch there is H20 20 ft down. P sues for frauduant misrep. P wants to introduce this bc 1) it was said 2) led P to buy ranch. g. Threat i. if you dont pay my $1000, Im going to put a bomb in your car. a. In these situations, the applicable substantive law gives legal significance to words merely bc they have been stated (orally or in writing). Hence, the statements are being introduced simply bc they were spoken (not bc they are true, or bc they prove a fact in issue), & are therefore non-hearsay. b. Examples: (in each example, the witness is testifying in court) i. "Jones said to me: 'Frank is a pervert.'" 1) (Non-hearsay in a defamation action, since the mere utterance of the words has legal significance, since uttering those words to someone constitutes a slander. is offering the statement to show it was said, not for its truth; indeed, 's position is that the statement is in fact false.) ii. "Jones said to Smith: 'I'll sell you my car for $1,000.' Smith said:'It's a deal.'" 1) (Non-hearsay in a contract action, bc the mere utterance of these words has legal significance; under substantive contract law, they are words of offer & acceptance & form a binding, enforceable contract. Put another way, thewords are not being offered to prove the truth of any facts asserted, they are being offered merely bc they were spoken, & are therefore non-hearsay. Note, however, that if the witness testifies he heard Jones say: "I have a contract w/ Smith to sell my car", this is hearsay. The issue is whether a contract existed, & the statement is obviously being introduced to prove that fact. Hence, it is hearsay.) iii. "Jones handed a diamond ring to Smith & said: `This ring is now yours'." 1) (Non-hearsay if offered to prove a gift. Substantive gift law says a binding gift occurs when physical transfer of an object is accompanied by an expression of donative intent. Hence, the words "this ring is now yours" have legal significance merely bc they were spoken. Note, however, that if the witness testifies he heard Jones say: "I gave Smith a diamond ring as a gift", that is hearsay, since the statement is now being introduced to prove that very fact in issue.) iv. "Jones said to his son: 'Bob, you can use my car tonight'." 1) (Non-hearsay if offered to prove that Bob had authority or permission to use the car. The mere fact that Jones spoke those words has legal significance, since they are words conferring authority. Note, however, that if the witness testifies he heard Jones say "My son Bob has permission to use my car

tonight", this is hearsay, since the statement is now being introduced to prove that very fact in issue.) v. "Bob said to me: 'There's water on my property only 20' down'." 1) (Non-hearsay if offered to prove that Bob misrepresented the condition of water to induce the purchaser to buy the property. The statement is being offered by for its falsity. Therefore, it cannot be hearsay.) 2. Effect on listener's state of mind a. Sometimes a statement can be non-hearsay if it is being introduced merely to show that it affected the listener. If so, it is being introduced to show the statement was made, not bc it proves a fact in issue. b. Common situations include showing notice, knowledge, & fear. c. Examples: (in each example, the witness is testifying in court) i. "Jones said: 'Smith, your dog bit my son last week'." 1) (Non-hearsay if a dog bite action based on a later incident, when the substantive tort law requires that the owner be aware of his dog's dangerous character. Here Jones' statement constitutes notice to the owner of the dog's vicious tendencies.) ii. "Jones said to Smith: 'I'm going to kill you some day'." 1) (Non-hearsay in a criminal case where Jones is charged w/ assaulting Smith & claims self-defense. The statement shows that Smith would be afraid of Jones, after hearing the threat, & hence would be unlikely to have been the aggressor.) 3. Impeachment w/ a prior inconsistent statement a. If a prior inconsistent statement is being offered at trial to contradict the testimony of a witness, this is called impeaching a witness. The out-of-court statement is being offered for the limited purpose of contradiction. Since its probative value (for impeachment)-does not depend on the out of-court statement being true, it cannot be hearsay. b. Example: i. A witness on direct examination testifies: "The light was red." On crossexamination the witness is asked: "Didn't you tell the police officer at the scene that the light was green?" The statement to the police officer is not hearsay. It is not being offered to prove that the light was green; it is being offered to throw doubt on the witness's testimony that the light was red. The out-of-court statement--"the light was green"--impeaches the witness's testimony whether or not the out-of-court statement is true. Since the cross-examiner is introducing the statement for its impeaching value, not for its truth, it cannot be hearsay.

II. HEARSAY EXCEPTIONS

A.
Introduction

B.

1. How should I approach a hearsay problem? a. In analyzing evidence involving a potential hearsay problem, first look to see if there is a non- hearsay rationale; if so, the evidence is admissible. If the evidence is hearsay, look at the possible hearsay exceptions; if any hearsay exception applies, the evidence is admissible. 2. What is the conceptual basis for permitting hearsay exceptions? a. Keep in mind that the hearsay rule is designed to admit only reliable ("trustworthy") evidence. The traditional guarantees of testimonial reliability are: i. personal presence of witness at trial oath cross examination ii. The basic reasons for testimonial unreliability are: 1) lack of perception 2) poor memory 3) inability to communicate 4) motive to fabricate a) These can be adequately exposed by cross examination. b. Hearsay exceptions are based in part on the premise that the particular circumstances eliminate one or more of the reasons for testimonial unreliability; hence, cross examination is no longer essential. 3. What categories of hearsay exceptions are there? a. Under the FRE, three categories exist: i. 801(d) classifies as non-hearsay both 1) admissions of a party opponent & 2) certain prior statements by witnesses; under traditional analysis, these are considered hearsay exceptions ii. 803 - exceptions which do not depend on the witness's unavailability iii. 804 - exceptions where the witness's unavailability is an essential requirement 4. Why is there an unavailability requirement for 804 exceptions? a. The FRE have a hierarchy of trustworthiness. i. 803 exceptions are viewed as inherently more reliable than 804 exceptions (with the obvious exception of former testimony). ii. Accordingly, under 804 the FRE have created a rule of preference: 1) if the witness is available, he must be called & be subject to cross examination; 2) if the witness is unavailable, its better to admit reliable hearsay than to lose the benefit of the evidence altogether. iii. 804(a) lists five reasons that create "unavailability." (Note that case law suggests a higher standard of proof for unavailability is required in criminal cases. Barber v. Page, Mancusi v. Stubbs) What does confrontation have to do w/ hearsay? 1. The 6th Amendment's confrontation clause states: "... in all CRIMINAL prosecutions, the accused shall enjoy the right ... to be confronted w/ the witnesses against him ..." 2. Since hearsay by definition involves assertions by an out-of-court declarant, who frequently has not been & cannot be cross-examined, a potential confrontation problem arises whenever, in a CRIMINAL CASE, the prosecution offers evidence which depends

3.

4.

5.

6.

for its admissibility on a hearsay exception. Since 1965, the Supreme Court has periodically grappled w/ the meaning of the confrontation clause & its relationship to hearsay. In Ohio v. Roberts, 448 U.S. 56 (1980), the Court held that for hearsay statements to be admissible against criminal s, two tests need be met. a. First, the declarant must be shown to be unavailable. b. Second, the statement must bear adequate "indicia of reliability," either bc i. the statement falls within a firmly rooted hearsay exception, or ii. bc the statement is shown to have "particularized guarantees of trustworthiness." (The Court upheld admitting an unavailable witness's preliminary hearing testimony at trial.) c. Roberts, the leading case for almost 25 years, was expressly overruled by Crawford v. Washington. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court fundamentally changed the way confrontation clause issues are analyzed. It rejected the reliability analysis of Roberts. a. Instead, the Court held that the essential purpose of the confrontation clause is to ensure that s in criminal cases have the opportunity to confront evidence which is "testimonial." i. (In Crawford, the evidence was a tape-recorded statement by the 's wife, who was not available as a witness at trial.) b. That opportunity can come either i. before trial (as is the case where a prosecution witness is cross-examined at a preliminary hearing) or ii. during trial (where the witness is present & is cross-examined), 1) but the must have an opportunity to cross-examine a prosecution witness at some time, or else the confrontation clause is violated. iii. (Since Crawford did not have an opportunity to cross-examine his wife, either when she made the statement or at trial, admitting the tape-recording violated Crawford's confrontation right. ) In Davis v. Washington & Hammon v. Indiana, 547 U.S. 813 (2006), the Court held that a statement IS NOT TESTIMONIAL when the primary purpose of the statement is to enable the police to meet an ongoing emergency. i. (For example, a 911 call in which the caller says: "Help, someone's trying to break into my house.") b. A statement IS TESTIMONIAL when the primary purpose of the statement is to establish or prove past events for later criminal prosecution. i. (For example, a person tells the police who have arrived at the scene of a burglary: "I saw the man leaving my house. He was a white male, about 20 years old, & he drove-off in a green pickup truck.") In Melendez-Diaz v. Massachusetts, 557 U.S. (2009) the Court held that a sworn certificate from a state crime laboratory, reporting the results of an analysis of suspect drugs, was "testimonial." To get in the results of the lab analysis, the prosecution must call as a witness at trial the lab analyst who conducted the analysis of

C.

suspect drugs. a. In light of Melendez-Diaz, whether prosecutors can introduce autopsy reports in homicide cases, or must call the pathologist who performed the autopsy, seems to be an open question. 7. Mich. V. Bryant (oral arg 10/5/10) a. Medical examiner statutes have other purposes other than to circumvent the 6th Amnd Confrontation Clause. b. Supreme Ct remanded the case in light of Melendez-Diaz. 8. Giles v. Cal. a. Guy charged w assaulting girlfriend. Indicted then killed girlfriend. Claimed her out of ct statements violate Confrontation Clause. Must prove 1) you killed the person & 2) the killing was to prevent the witness to testify. EXCEPTIONS (Miscellaneous witness statements) 1. Admissions of party - opponent - 801(d)(2) a. RATIONALE: The modern rationale for admissions is the inherent nature of the adversary system. The inability to cross examine is inoperative, since you can hardly complain about your inability to cross examine yourself. i. Hence the rule of thumb: if relevant, anything your opposing party says is admissible against it. b. points to remember: i. FRE characterizes party admissions as nonhearsay (exclusion to hearsay rule.). ii. Although party admissions are substantive evidence, they can also be used as a prior inconsistent statement to impeach the party if he testifies. iii. There is no requirement that the admission be against interest (ie self serving) when made (although most will be). c. Many courts i. No firsthand knowledge needed & ii. opinions okay, iii. (rationale: why should the party making the admission be able to keep it from being admitted simply bc the form of the admission happens to violate a technical rule of evidence?) d. Example: 1) In an automobile negligence action, a bystander will testify that the driver said: "I don't know, but perhaps the light was red" or "I was negligent." These statements are admissible, although they technically violate the rules against speculative testimony & opinions on ultimate issues. e. Common issues: i. Agency problems ("vicarious admissions"). 1) When will an agent's statements be admissible against the principal? Older case law used the "authority to speak" analysis, which usually resulted in excluding the agent's statements, since most employees are not expressly authorized to speak on behalf of the principal. The FRE in 801(d) (2) (D) is based on the "authority to act" analysis: if the agent had authority to act, he

has implied authority to speak about these things which are within the scope of the employment. 2) Note, before the agent's statements can be admitted against the principal however, that there must be a) Made during employment & b) the scope of the agency, c) plus independent proof of employment. i) Note also that on 12/1/97 Rule 801(d) (2) was amended. The rule now provides that the "contents of the [agent's] statement shall be considered but are not alone sufficient to establish the [agent's] authority." This means that while the judge can consider the declarant's statement when deciding if the declarant was an employee working within the scope of his employ, there must still be independent evidence presented on that issue. 3) Example: a) sues truck driver & truck company. seeks to introduce evidence that after the collision w/ 's car, driver stated: "I was running a load of lumber for my boss. It's all my fault." This statement is inadmissible against the company unless the agency relationship has first been proven. To prove that relationship, the judge can consider the driver's statement, but must introduce some additional independent evidence to establish that point. ii. Silence problems ("adoptive admissions") 1) Under what circumstances will a party's (or agent's) silence be considered an admission? 2) The usual requirements are: a) statement was actually communicated to party, heard & understood by party, within knowledge of party, & party capable of responding statement was of a type, & made under circumstances, where a reasonable person would have responded & denied the factual assertion in the statement. 3) Example: a) Following a car collision, a bystander says to a police officer "he ran the red light" & points to the , who stood 5 feet away & was listening to the bystander. The says nothing. Note, however, that the admissibility of admissions by silence is further governed by the Fifth Amendment's selfincrimination clause. If a in a criminal case is involved, his silence may be based on his privilege against self-incrimination, & his silence cannot then be brought up during trial. 4) Criminal Cases: a) 5th Amendment issues. Most Cts will say when you have State action (cop asks why did you run the red light) it is inherently ambiguous, therefore it is generally inadmissible bc you cant be punished for asserting a Constitutional rights. iii. Conduct problems. ("admissions by conduct")

a) When will a party's conduct be considered an admission? Under the rules, conduct not intended as an assertion is not hearsay. Hence, conduct will be circumstantial evidence in most cases. b) Examples: i) Someone threw a rock at a pedestrian, injuring him. As the police arrive, the , who has been standing nearby, suddenly runs away. This is nonassertive conduct, hence non-hearsay. ii) Same situation as above, but as the police arrive one of them asks the "did you throw the rock"? The simply runs away. This is probably assertive conduct, hence hearsay, but it is an admission. iv. Co-conspirator problems. 1) When do coconspirator rules apply? a) The principal issues are two fold: i) Was the statement made "during the course of the conspiracy" & "in furtherance of" it? ii) If so, a statement made by any coconspirator is admissible against all the conspirators. (Krulewitch v. U.S., 336 U.S. 440 (1949)) b) Has there been independent proof of a conspiracy? i) The 12/1/97 amendment to Rule 801(d)(2) apply to co-conspirator statements as well. ii) The judge can now consider the statement of a co-conspirator if (1) the prosecution must establish that a conspiracy existed, (2) the co-conspirators were members of it, & (3) that the statement was made during the course of & in furtherance of the conspiracy. *Furtherance means about the case. iii) The foundation must be established to a preponderance standard. You cannot use the coconspirator's statements to prove the existence of the conspiracy; this must be shown through independent evidence. Only then are co-conspirator's statements admissible against the other coconspirators. 2. Prior statements by witnesses - 801 (d)(1) a. RATIONALE: The FRE rules treat as non-hearsay some types of prior statements by witnesses on the theory that they are trustworthy, & that a limiting instruction on impeachment is ineffective. b. points to remember: i. Under FRE, prior statements of a witness are considered non-hearsay & substantive evidence only if the witness is on the witness stand at trial, under oath, & the prior statement was made under oath, at a previous hearing (such as a prior trial or deposition), & is inconsistent w/ the present testimony. ii. Arizona has a modified 801 (d)(1). In AZ , all prior inconsistent statements used to impeach are non-hearsay & substantive evidence. c. Example: i. W on stand says the light was green.On cross examination the following prior

inconsistent statements are disclosed: 1) W previously told police that light was red. 2) W previously said during a deposition that light was red. a) Under FRE, only the 2d statement is non-hearsay (that is, it can be considered as substantive evidence). Under AZ , both statements are nonhearsay & substantive evidence. The effect of the AZ rule is that it protects against witnesses changing their testimony, & enables the to establish a prima facie case through any prior inconsistent statement bc it is substantive evidence & can be considered for its truth. b) Under FRE (Arizona is identical), the following are also considered nonhearsay: i) a prior consistent statement, if used to rebut ii) an inference of "recent fabrication, improper influence or motive". d. Example: i. Robbery case: 1) W at scene says "I didn't do it, the did" 2) W later charged, w/ the , w/ robbery. 3) W now says "I didn't do it, nor did the " 4) W then makes a deal w/ prosecution, agreeing to testify against the . 5) At the 's trial, W testifies & says "the did it." a) On cross examination, the deal w/ the prosecution is brought out, & the witness is impeached w/ his prior inconsistent statement in (2) b) On redirect examination, the witness's prior consistent statement in (1) is brought out, to rebut the inference of recent fabrication. c) Keep in mind that the prior consistent statement is admissible on redirect only where a suggestion of recent fabrication or improper influence or motive is made on cross-examination, & the prior consistent statement was made before the alleged reason to fabricate arose. A prior consistent statement is never admissible on redirect merely bc the cross examiner brought out a prior inconsistent statement. d) In 1995 the Supreme Court decided Tome v. United States, 115 S. Ct. 696 (1995), holding that FRE 801 (d) (1) (B) makes admissible only those prior consistent statements, offered to rebut a charge of recent fabrication or improper influence or motive, which were made before the alleged fabrication or improper influence 6) or motive arose. The court declined to extend the rule to statements made after the alleged fabrication, improper influence or motive. e. Example: 1) Automobile - negligence case. A witness previously said to a police officer: " had the green light", & previously testified at a deposition that " had the red light." At trial the witness testifies that " had the green light," and, on cross examination, is impeached w/ his inconsistent deposition statement. On redirect, the witness's prior consistent statement may not be brought out, bc there has been no suggestion of recent fabrication, improper influence or

motive. f. prior identifications by a witness. i. Example: 1) Robbery case. The victim, who previously identified the at a lineup, can testify at trial about her lineup identification. (Although analytically this is hearsay, courts have long permitted this type of testimony as a hearsay exception, since the lineup identification is much more reliable than the incourt identification.) 2) Finally, although not in FRE, most states permit evidence of a prompt complaint by the victim in rape cases (and perhaps other sex offenses). The rationale is that this evidence is needed to rebut negative contrary impressions in these kinds of cases, although the statements may not be hearsay exceptions under the excited utterance section (803(2)). 3. Statements against interest - 804 (b)(3) a. rationale: A witness is not likely to make a a) statement, against his interest, unless it is true. In addition, bc the witness is unavailable (a requirement since this is an 804 exception), the evidence is necessary. b. points to remember: 1) Declarants must be "unavailable" under 804(a) c. The statement must be "against interest." Note the strict standard in the rule: the statement must be "so far contrary" to the declarant's interest that a reasonable person would not have made the statement unless he believed it to be true. Interests allowed include pecuniary, proprietary & penal. Note that a declaration against penal interest must be corroborated if offered to exculpate the accused in a criminal case. d. The statement must be against interest "when made." The statement must be a present statement about a current interest. e. Examples: i. This is an automobile negligence action. claims that was the driver of the other car involved in the accident; denies this allegation. In the defense case calls a witness who will testify that he heard Jones say a few days after the accident: "I was actually driving the car that was in the accident the is getting blamed for." If Jones is now unavailable, the statement is admissible, since it subjects Jones to possible civil liability. ii. In a murder case is charged w/ killing V. In the defense case calls a witness who will testify that he heard someone named Jones say shortly after the crime: "I shot the victim." If Jones is now unavailable, the statement, although against the declarant's penal interest, is being used to exculpate the accused, & it is not admissible unless "corroborating circumstances" are presented that "clearly indicate the trustworthiness of the statement." iii. Note that in Williamson v. U.S., 114 S. Ct. 2431 (1994), the Supreme Court emphasized that the statement must be against the declarant's self-interest. For example, a statement "I robbed the bank; Vito wasn't involved" is only partially

admissible. "I robbed the bank" is against the declarant's interest, but "Vito wasn't involved" is not. Therefore, only the first part of the statement is properly admissible. iv. Keep in mind the differences between an admission by a party opponent & a declaration against interest: Admissions by party-opponent Statements Against interest Only by a party-opponent By a witness (who can also be a party) Need not be unavailable Witness must be unavailable Need not be against interest when made Must be against interest of declarant when made Need not be within personal knowledge of Must be within personal knowledge of party declarant Opinion rules relaxed. Opinion rules enforced 4. Former Testimony - 804 (b)(1) a. rationale: former testimony, being under oath at a prior hearing, is highly reliable, particularly where the witness was adequately cross examined. In addition, it is fair to admit the transcript of a witness's former testimony at an earlier proceeding if certain requirements, designed to ensure fairness, are met. i. b)points to remember: ii. The former testimony exception has 3 requirements. 1) The out-of-court declarant is "unavailable" (804a); (Note, however, that the AZ version of the rule does not require unavailability if the transcript is being introduced in a civil case. This is AZ Rule 803(25) which applies to civil cases; AZ Rule 804(b) (1) applies to criminal cases.) 2) The declarant's testimony (transcript) is now being introduced against a party (or, in a civil case, the party's "predecessor in interest") that was present in the earlier proceeding; b. That party (or, in a civil case, the party's "predecessor in interest") had an "opportunity & similar motive to develop the testimony" at the earlier proceeding. c. common issues: i. What is a "similar motive to develop testimony"? ii. Who is a "predecessor in interest"? 1) These must be decided only on a case by case basis, by analyzing the nature of the two proceedings, & the relationship between the former & present parties. (For an expansive interpretation of "predecessor in interest", see Lloyd v. American Export Lines, 580 F.2d 1179 (1978).) d. Examples: i. Smith, the driver, sued Jones, the driver, for negligence arising from an automobile accident. During that trial called Williams as a witness, & called Franklin as a witness. Both were eyewitnesses to the accident. ii. Roberts, a passenger in Smith's car, now sues Jones, the driver, alleging negligence arising from the same automobile accident. Williams & Franklin, the

D.

two witnesses, have both moved out of state. Roberts wants to introduce the transcript of Williams' former testimony, & Jones wants to introduce the transcript of Franklin's former testimony. Can they? 1) In former testimony situations, it is useful to chart out what happened in the former trial & what is happening in the present trial, then ask yourself: a) Is the declarant unavailable? b) Was the testimony previously offered against the same party or, in civil cases, the party's predecessor in interest? c) Did that party have an opportunity & similar motive to develop the testimony at the earlier proceeding? 2) In this example, the outcome depends on which witness is involved: a) Williams' former testimony is admissible. i) He is presently unavailable, the testimony is being offered against Jones, the same party, & Jones would have had a similar motive & opportunity to develop the witness's testimony in the earlier trial. b) Franklin's former testimony is inadmissible. i) He is presently unavailable, but his testimony is not being offered against the same party or a predecessor in interest. (The current , Roberts, is not the same party as Smith, nor is Smith a "predecessor in interest" of Roberts. iii. b) is charged w/ robbery. At the preliminary hearing, calls Jones as a defense witness, but the prosecution does not cross examine. At trial the witness has disappeared & cannot be located. Is a transcript of Jones' former testimony admissible at trial? 1) Here the answer is yes, regardless of which side offers the transcript. The witness is unavailable, even under the higher criminal standards. Regardless of which side offers the testimony, the opposing party is the same as at the former proceeding, & that opposing party had similar motive & opportunity to develop the witness's testimony at the earlier preliminary hearing. Exceptions (Spontaneous statements) 1. Present sense impressions - 803(1) a. rationale: Reliability is reasonably assured bc the statement is made contemporaneously w/ the event & is usually made in the presence of witnesses. b. points to remember: i. The statement must be made during or "immediately after" the event. 1) The statement must "describe or explain the event". c. Example: i. After seeing another car pass them on a highway, the driver of the passed car says to his passenger: "The way they're speeding, they'll crash for sure." 2. Excited utterances - 803(2) a. rationale: These statements are reliable bc the declarant has no time to fabricate. The contrary argument, that excited people may have poor perception, can usually be exposed by cross examination & closing arguments.

b. points to remember: i. The statement must be made "under the stress of excitement" ii. The statement must "relate to a startling event" 3. Example: a. A pedestrian sees a car coming toward the intersection & yells: "Look out! He ran the red light!" b. The opinion rule is usually relaxed for excited utterances. c. Keep in mind the differences between present sense impressions & excited utterances: Present Sense Impressions Excited utterances An event A startling event Statement must be made during or Statement must be made under stress of immediately after the event. excitement caused by event Statement must describe or explain event Statement must relate to a starling event 4. Statements of present or past conditions for diagnosis -803(4) a. rationale: These statements are reliable bc a patient, presumably interested in getting well, will not deliberately falsify his medical history or present symptoms. b. points to remember: i. The statement need not relate to the declarant's condition (i.e., a parent's statement about a child's condition is admissible). c. Both doctors & related parties (such as nurses & clerks) can testify about such statements. d. There is no distinction between treating & non-treating physicians. e. The rule allows the testimony of a physician even if the physician was employed solely to testify at trial. f. common problems: i. What kinds of patient statements are admissible? (i.e., are there any on limitations on statements made for purposes of diagnosis?) g. Example: i. A patient, brought to the hospital after an accident, says to the nurse: "I broke my arm, I ache all over, my head hurts & I think I have a concussion. The other driver rammed me w/ his car going about 35 m.p.h.. He ran the red light." 1) All but the last statement is admissible. The last statementhe ran the red light"is one of "pure fault" which could not affect the doctor's diagnosis or treatment. 5. Then existing mental & physical condition - 803(3) a. rationale: This exception evolved from "pain & suffering" origins. Since substantive law sometimes makes the declarant's mental or physical condition relevant, it often could not be proved unless such evidence were admitted. b. points to remember: i. The difficult area is proof of "state of mind". 1) Such proof is admissible as direct evidence if it proves an element of the case,

& is admissible. ii. Common examples where "state of mind" evidence is admissible as direct evidence include: 1) intent to create a domicile 2) mental suffering element of damages 3) malice 4) intentional torts & crimes iii. Such proof can also be admitted as circumstantial proof of conduct in certain limited circumstances. Always ask: 1) Whose behavior is in issue, the declarant's or another's? a) This is the Hillmon case: "I intend to go to Crooked Creek w/ Hillmon". While case law freely admits such statements where the declarant's conduct is in issue, the cases usually exclude such evidence when another's conduct is in issue. 2) Is past or future conduct in issue? a) This is the Shepard case: "Dr. Shepard has poisoned me." The cases restrict evidence of mental state to prove future conduct. To permit otherwise would gut the hearsay rule. 3) Is a will in issue? a) Only in this category is evidence of state of mind admissible to prove past conduct. Since the testator is obviously in the best position to know what he intended to accomplish in his will, his statements of intent are admissible to interpret ambiguous parts of the will. b) In short, proof of present state of mind is usually admissible as circumstantial evidence only to prove the declarant's future conduct (with the exception of will cases, where its admissible to prove the declarant's past conduct.) iv. Examples: 1) X says "I'd like to kill Y" a) Admissible to prove X's ill will toward Y, & as circumstantial evidence that X subsequently killed Y.) 2) X says "I plan to go to Y's house tonight"; 3) X says "I plan to go w/ Y to New York tonight". 4) Both (1) & (3) are admissible as circumstantial evidence of X's conduct; is (3) admissible as circumstantial proof of Y's conduct?; Most courts hold no; see House report on intended scope of Hillmon case. c. Note that the present state of mind situations are closely related to statements which are non-hearsay. i. Examples: 1) X says "I am the Pope." On the issue of X's sanity, its non-hearsay, since the statement is offered not for its truth, but bc X said it. If X said it, its circumstantial proof that he's crazy. 2) X says "I am crazy." On the issue of X's sanity, its hearsay, since the statement is being offered for its truth. However, it is admissible bc it falls within the

E.

803(3) exception, & is direct evidence on the issue of X's sanity. 6. Dying Declarations - 804(b)(2) a. rationale: Persons who believe they are dying are, as their last act, likely to tell the truth. In addition, the admission of the declaration is necessary since the declarant is dead. It applies to homicides & civil cases. b. points to remember: i. The FRE expands the exception to include both homicide cases & all civil cases, as long as the declarant is "unavailable". 1) A few states that have not adopted the FRE, still follow the common law rule that only applies to homicide cases. ii. The FRE can be read to expand the rule beyond just the victim's statements (i.e., "his death" could apply to someone other than the victim, as in "X shot both me & Bob.") c. The basic foundation requirements are: i. belief in certainty of imminent death 1) Silence is not objective belief. If a guy is riddled w/ bullets & says call 911 show the person did not believe that he is dying. Similar treatment w/ silence. ii. statement must be about cause or circumstances of impending death. iii. opinion rule relaxed (e.g., "he murdered me" is admissible.) iv. personal knowledge required 1) If the person couldnt see the assailant the declarants statement would not be admissible. 2) Court are generous, but when obvious that the declarant could not have seen/known the information declared. Exceptions (Records) 1. 10. Recorded Recollection - 803 (5) i. 803 - The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ii. (5) Recorded recollection. 1) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully & accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory & to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. b. rationale: When a witness has forgotten an earlier event, but made an accurate record of the event, the record is reliable, & it is preferable to admit the record than lose the evidence altogether. c. points to remember: i. The rule is extremely liberal. Allows recorded recollection whenever the witness cannot testify "fully & accurately". Not just if the witness ii. Before introducing recorded recollection, you 1) must establish a foundation, which consists of showing:

a) witness once had personal knowledge of facts b) witness now does not have a full & accurate memory of the facts at, or near, the time the event occurred, c) witness made a record of the facts involved the record was accurate when made the record in court is that record. d. If this foundation is established, the exhibit is marked for identification & is read (or the pertinent parts are read) to the jury. The exhibit itself is not admitted in evidence, unless offered by the opposing party. 2. 11. Business Records - 803 (6), (7); 902 (11), (12) a. RULE: i. 803 - The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1) 2) (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person w/ knowledge, if kept in the course of a regularly conducted business activity, & if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies w/ Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, & calling of every kind, whether or not conducted for profit 3) (7) Absences of entry in records kept in accordance w/ the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance w/ the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made & preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. ii. 902 - Extrinsic evidence of authenticity as a condition precedent to admissibility is not required w/ respect to the following: 1) 2) (11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic, record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying w/ any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record a) (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person w/ knowledge of those matters;

b) (B) was kept in the course of the regularly conducted activity; and c) (C) was made by the regularly conducted activity as a regular practice. 3) Appendix Federal Rules of Evidence 475 A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, & must make the record & declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party w/ a fair opportunity to challenge them. 4) (12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record a) (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person w/ knowledge of those matters; b) (B) was kept in the course of the regularly conducted activity; and c) (C) was made by the regularly conducted activity as a regular practice. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, & must make the record & declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party w/ a fair opportunity to challenge them. b. RATIONALE: The complexity of modern commerce requires that business records be admitted to prove that the transactions occurred. Moreover, since businesses need accurate records to conduct their affairs, & the records are made by employees who have a duty to create accurate records, they are reliable. c. POINTS TO REMEMBER: (KRRAP) i. kept in course of regularly conducted bus. activity. ii. regular practice to make record iii. record of acts, events of regularly conducted bus. activity. iv. made at or near time of acts, events v. made by, or transmitted by, a person w/ knowledge 1) someone who is familiar w/ the events. Usually an employee. 2) UPS shipping invoices. Some Js require UPS employee to testify. d. This rule is expansive: i. The qualifying witness need only be the "custodian or other qualified witness". ii. A record includes a "memorandum, report, record, or data compilation, in any form". iii. The record may contain "acts, events, conditions, opinions or diagnoses". iv. A business includes "business, institution, association, profession, occupation & calling of every kind, whether or not conducted for profit."

e.

f.

g. h.

v. Business records need a foundation to qualify for admission in evidence. The custodian (or other qualified witness) must be able to testify that the exhibit is: 1) a record of the business 2) made at or near the time of the events recorded on it 3) by a person who had knowledge of the facts recorded, or a) made from information transmitted by a person having knowledge of the facts made as part of the regular practice of that business kept in the course of a regularly conducted business activity. EXCEPTION: i. "unless circumstances of preparation indicate lack of trustworthiness." ii. Keep in mind double hearsay problems (805). 1) If double hearsay exists, each level of hearsay must qualify under a hearsay exception. (Johnson v. Lutz rule) Example: i. A hospital admission record contains the statement: "patient says that her left leg was broken when the other car crashed into her car on the driver's side." The hospital record itself is hearsay, but an exception under 803(6). The patient's statement is also a second level of hearsay, but is also a second exception under 803(4). Since both the hospital record & the patient's statement are covered by separate hearsay exceptions, the statement is properly admissible. Keep in mind that under 803(7) you can prove the absence of an event by showing the absence of a record which would have been made had the event occurred. COMMON PROBLEMS: i. Expert opinions 702-704 ii. Summaries-1006 iii. Double hearsay (see above). 1) Eliminates the need to call the person who created the record. Could call person who created the record but that person probably doesnt remember. Therefore the actual document is weightier. What if a person w/ knowledge tells another to do something. Now we have double hearsay. But the rule allows information to be transmitted by a person w/ knowledge. As long as everyone as an employee of the company. It is allowed. iv. Handwritten margin notes + changes 1) Cost $100k $75K. 2) Want it out: Arg that it is not apart of business at or near the time of acts, or events. Must show qualified or certification. If not made at or near the time of the record, then its not admissible. v. Are police reports business records? 1) Cases hold that 803(8) controls police reports in criminal cases. vi. Example: Accident Report a) Reported by employee of accident of investigation company. 2) Skid marks 20 long a) Facts. :. Admissible. 3) P: I was going too fast.

a) #1 not an employee. Therefore, double hearsay. Bob could testify that #1 was going to fast bc it is a party admission. 4) D: Other driver was going too fast. a) #2 not an employee. Therefore, hearsay. D statement against P is not a party admission, therefore inadmissible. 5) Bystnader (BS): #1 going too fast. a) #2 not an employee. Therefore, hearsay. BS statement against P is not a party admission, therefore inadmissible. 6) Accident caused by driver #1 going to fast around curve. a) Is Bob an expert to make this determination. If Bob is unavailable OR Bob is not an expert inadmissible. b) Could call someone else to qualify Bob. 7) Signed: Investigator Bob a) Treat like Bob is on the witness stand. vii. Summaries 1) If the data is different than how the data was entered then it is a Summary admissible under FRE 1006. a) Summaries i) Reorganized ii) Collate 2) Was summary made in anticipation of litigation. viii. Are records generated for litigation excluded? 1) The rule generally says no, although it gives the judge discretion to exclude a record which has a "lack of trustworthiness." (The old Palmer v. Hoffman approach has been generally rejected.) 2) Railroad conducted an investigation of a railroad crossing after accident. Although these investigations were regualarly apart of the RR business. However, in this case it was done in anticipation of litigation.. i. Alternative methods for getting the evid in: i. Party admissions ii. Statements against interest iii. Non-hearsay 1) Eg offer/acceptance of K, etc. j. Absence of record 803 (7) i. Can be used. ii. E.g. no license. k. Crawford i. Usually not a problem. Business record were not made in the interest of prosecution. Not testimonial. 3. 12. Public records & reports - 803 (8), (10) a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: i. (8) Public records & reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth

1) (A) the activities of the office or agency, or 2) (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers & other law enforcement personnel, or 3) (C) in civil actions & proceedings & against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. ii. (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrcnce or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made & preserved by a public office or agency, evidence in the form of a certification in accordance w/ rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. b. RATIONALE: The same guarantees of reliability that apply to business records apply here. In addition, it is socially beneficial to keep public officials at their jobs, rather than repeatedly making court appearances. c. POINTS TO REMEMBER: i. The principal characteristic of 803(8) is its broad scope. 1) It includes both statistical & investigative reports. 2) (A) Activities of the office a) The language of (B), "matters observed", & b) of (C), "factual findings resulting from an investigation made pursuant to authority", are extremely broad. i) (Beech Aircraft v. Rainey, 488 U.S.153, 109 S. Ct. 439 (1988) gives a generous interpretation of the factual findings language in the rule.) (1) Includes opinions & conclusions. ii) Police reports cant be used to determine who caused crash, but NTSB can determine who/what caused the crash. This is bc the NTSB is charged w/ determining who/what a iii) EEOC has been charged w/ determining who has the right to sue. ii. 803(8) bars police reports in CRIMINAL cases if 1) offered by Pros a) bc of the confrontation clause problems that would be created, 2) but allowed if offered by the . iii. Same problem areas of business reports. 1) Double hearsay 2) Foundation (qualified) a) AZ allow in Police report in civil issues (no Crawford issues). We dont allow how the crash occurred bc cop is not an expert. 3) Witness 4) Read to jury; only opponent can offer as exhibit 5) Rule of completeness 6) Vs. 612 recorded recollection

F.

III.

7) No Crawford issues. Exceptions (Other exceptions) 1. 13. Other exceptions - 803 (9)-(23), 804(b) (4) i. Keep in mind that all the hearsay exceptions in 803 & 804 should always be reviewed to determine if any applies to a given situation. 2. 14. Residual exception - 807 a. Rule 807. Residual Exception i. A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that 1) (A) the statement is offered as evidence of a material fact; 2) (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and 3) (C) the general purposes of these rules & die interests of justice will best be served by admission of the statement into evidence. ii. However, a statement may not be admitted under this exception unless 1) the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party wide a fair opportunity to prepare to meet it, 2) the proponent's intention to offer the statement & the particulars of it, including the name & address of the declarant. b. (On 12/1/97 former Rules 803(24) & 804(b)(5) were eliminated & replaced w/ a new rule, Rule 807. The language of Rule 807 is the same as the former rules.) c. rationale: i. Certain evidence, while not fitting into a recognized hearsay exception, may nonetheless be reliable, & should not be excluded merely bc it cannot be forced to fit a recognized exception. d. points to remember: i. 807 require five findings by the court: 1) equivalent trustworthiness 2) material proof 3) most probative available proof 4) serve interests of justice (incorporates confrontation rights) 5) give notice to opponent. e. Example: 1) The results of properly designed & conducted surveys & polls are commonly admitted in antitrust & trademark infringement cases. a) Throughout the hearsay exceptions we have been i) stressing that you should look for alternative reasons for admissibility. This category should be used as the last resort. f. Remember to apply Crawford in criminal cases. IV. RIGHT: WITNESSES, EXHIBITS, JUDICIAL NOTICE

A.

B.

Introduction 1. Up to this point we have been examining the nature of relevant, reliable evidence. We are now involved w/ the third "R" -"Right." Evidence otherwise admissible under relevance & hearsay rules must also be right; that is, the evidence must be presented the proper way. The principal topics involve: 2. Witnesses 3. Exhibits 4. Judicial Notice Witnesses 1. Competency 601 + Az statutes 2. Oath 603 3. First hand knowledge 602 a. No hearsay 4. Non-leading rule 611 (c) a. Sometimes you have to lead. i. Common law 1) Adverse, old, kids. b. Combines common law exceptions. c. Good lawyers dont have to ask leading questions. 5. Refreshing Recollection 612 a. While testifying b. Before testifying c. Vs. recorded recollection 803 (5). d. . 6. Competency rules - 601-606 a. The threshold issue is whether the witness is competent to testify. To answer that question you must know whether federal or state competency rules apply. To resolve that question you must know what forum & kind of case is involved. b. There are 4 types of cases for competency purposes: i. federal criminal cases FRE ii. federal question civil cases FRE iii. federal diversity jurisdiction civil cases State Law iv. state cases State Law c. In FEDERAL CRIMINAL & federal question CIVIL cases, the FRE competency rules apply. d. In DIVERSITY CASES, however, Rule 601 defers to state competency rules. In state cases, the state's competency rules apply. e. The FRE have essentially eliminated the common law disqualifications (parties, felons, heathens, infants, etc.), taking the view that those things that might discredit a witness can be brought up during cross-examination. This is preferable to depriving the jury of the witness' entire testimony. 1) Surprisingly, does not bar a lawyer in the case from being a witness. But Model Ethical Rule 3.7.

f. There are two AZ witness competency rules that are important: i. ARS 12-2201, 12-2202, & 13-4061 (general competency rules) 1) 12-2201: Everyones competent in criminal cases. 2) 12-2202: AZ has eliminated most competency disqualifications, a) retains baring witnesses of i) unsound mind only in civil cases, & ii) under 10 years of age who are (1) "incapable of receiving just impressions" or (2) "relating them fully." ii. ARS 12-2251 (Dead Man's Act), 1) The AZ Dead Man's Act is fairly typical. It applies only to actions "by or against executors", etc. & bars testimony only of parties to "any transaction w/ or statement by the testator", etc. 2) However, the opposing party may present such otherwise barred testimony. 3) Note, however, that AZ courts have substantially expanded the apparent meaning of the statute by holding that where such otherwise barred testimony is "corroborated", or a manifest injustice would otherwise result, it is an abuse of discretion to deny admission of the testimony (see Cachinos v. Baumann, 25 Ariz. App. 502, 1976). a) Example: Guy supposedly promises estate to nephew if nephew takes care of him. Guy dies but bequeaths estate to son (not nephew). Nephew barred from testifying about the claim unless testimony is "corroborated", or a manifest injustice would otherwise result. 7. Basic direct & cross examination - 611-615, 701 a. Competency 601 + Az statutes b. Oath 603 c. First hand knowledge 602 i. No hearsay d. Non-leading rule 611 (c) i. Sometimes you have to lead. 1) Common law a) Adverse, old, kids. ii. Combines common law exceptions. iii. Good lawyers dont have to ask leading questions. iv. The principal distinction between direct & cross is that leading questions are generally improper on direct, but are ordinarily proper on cross. v. A leading question is one which, either from its content or the way it is articulated, suggests a preferred answer to the witness. vi. Over the years exceptions to the prohibitions against leading questions on direct developed. 1) These included: a) preliminary matters b) adverse witnesses

c) hostile witnesses d) surprise witnesses e) young, infirm witnesses vii. Under the FRE, these old categories have been collected into one rule. Rule 611 allows leading questions on direct examination when "necessary to develop the witness's testimony." viii. Refreshing recollection - FRE 612. 1) While testifying 2) Before testifying 3) Vs. recorded recollection 803 (5). a) If jogs memory, then Refreshing recollection (612), b) If it doesnt the comes in under recorded recollection (803 (5)). 4) Whenever a witness forgets something important, the direct examiner can use any writing to refresh the witness's recollection. 5) Once the witness's memory is refreshed by showing the witness the writing, the witness can now testify directly from memory, & the exhibit is not admissible as an exhibit (unless other grounds for admission exist). 6) However, the opposing party has the option of actually introducing the relevant portions of the writing in evidence as an exhibit. ix. The principal issue on cross examination is the permissible scope of cross. Here the FRE & AZ Rules differ - 611(b). 1) FRE (American rule) - "cross examination should be limited to the subject matter [scope] of the direct examination" (and to matters affecting witness credibility, unless the court in its discretion permits additional inquiry as if on direct examination.) 2) Arizona (English Rule) - "a witness may be cross examined on any relevant matter." The AZ rule eliminates many of the courtroom tactics which the FRE rule still permits. x. Example: a) Negligence action. In the 's case in chief, the is called & testifies only about the accident (liability) & avoids damages entirely. Under the FRE, the cross examiner may only inquire about liability (unless the court permits broader inquiry) ; under the AZ rule, the cross examiner has a right to inquire about both liability & damages. 8. Impeachment - 607-610, 613 a. The subject of impeachment, that which discredits the witness or his testimony, is governed by a series of technical rules, which are derived from the FRE, case law, & local practice. It is useful to approach this topic w/ a series of general questions: b. Who can impeach? i. Rule 607 has discarded the common law "voucher" theory. 1) Any party can impeach any witness, including its own witnesses! ii. Some Js use 403 to materially impeaching. iii. MR 3.3, 3.4 must raise questions in good faith. 1) You had 3 double martinis, didnt you?

a) Must have good faith basis. b) Must prove-up w/ extrinsic evidence 2) Did you have anything to drink that night? a) This is just inquiring. No good faith required. iv. What are the permissible impeachment methods? 1) There are seven basic methods: a) Bias, interest (e.g. financial) , motive (most important, has reason to distort or falsify), b) prior inconsistent statements - 613, c) contradictory facts, d) prior convictions - 609, i) Some jurisdictions 10 years ii) Some jurisdictions felonies only e) FRE i) Must be a CONVICTION (not arrests or inditments) ii) Felonies only (COULD be sentenced for up to a year). iii) Prior convictions of any kind crime involving dishonesty or false statements (fraud, larceny, theft). f) Balancing tests i) Older than 10 years inadmissiable. (1) Weasel clause: unless Judge determines that the probabtive value substantially outweighs its prejudicial impact. (2) Pr ii) g) prior bad acts, h) bad reputation for truthfulness, i) treatises. c. When are "warning questions" required? i. Rule 613 requires that the witness being impeached w/ a prior inconsistent statement be given an opportunity to admit, deny or explain the inconsistent statement. ii. This is the so-called "warning" question, & is usually done during cross examination (but can also be done on direct). iii. Rationale: The theory is judicial efficiency: if the witness admits the impeaching matter, there is no need to call another witness to "prove up" the impeachment. iv. However, not all modes of impeachment require the warning question on cross (usually required: bias & interest, prior inconsistent statements, prior bad acts; prior convictions & contradictory facts; d/n/a to bad reputation for truthfulness). v. The various jurisdictions are not totally consistent on which types of impeachment require the warning questions. The FRE expressly requires it only under 613 dealing w/ prior inconsistent statements; & appears to require it under 609 dealing w/ prior convictions. d. How does the "good faith" requirement apply?

e.

f. g. h.

i.

j.

i. A basic requirement of impeachment is good faith. ii. You cannot bring up an impeaching matter unless you have a good faith basis to believe that the impeaching matter is true. 1) The court may require you to explain your good faith basis before using the matter on cross examination. When can you "prove up" a denial of an impeaching matter w/ extrinsic evidence? i. This again depends on the category involved. 1) "Non- collateral" (important) matters can be proven extrinsically; 2) "collateral" (unimportant) matters cannot be proven extrinsically; that is, the cross examiner must accept the witness's answer. a) State v. Woods AZ: sometimes you can prove collateral matter in court. 3) The classic definition of the collateral/non-collateral dichotomy is: if the matter can be properly introduced for any purpose other than merely to contradict the witness's testimony in court, it is non-collateral. (Attorney-General v. Hitchcock, 1847) When must you prove up a denial w/ extrinsic evidence? If the matter is non-collateral, & the witness does anything other than fully admit the impeaching matter, you are obligated to prove it up w/ extrinsic evidence. Equivocal answers ("I don't remember", "I'm not sure", "I might have said that", etc.) require you to prove up the impeachment. If you cannot prove up the impeachment if the witness were to deny it, you cannot raise it during cross examination of the witness. Example: i. Smith, a witness 's witness called during 's case-in-chief, testifies that she was 20' from the car collision when it happened. On cross examination, Smith denies telling a police officer that she was 200' from the collision when it happened. Since this difference (20' vs. 200') is important (non-collateral), the cross examiner must "prove it up" w/ "extrinsic evidence." This means that in the defense case-in-chief, the police officer must testify that Smith in fact told him that she Was 200' away from the collision when it happened. (This is really a judicial efficiency decision: given the issues in the case & the importance of Smith as a witness, it is worth spending court time & calling the police officer as a witness to prove that the witness made the prior inconsistent statement.) Bias & interest i. Bias (or prejudice) exists where a witness, through some relationship to the parties or attitude about the matter in dispute, has a frame of mind that will color or slant his testimony. ii. Interest exists where a witness's relationship to a party or lawsuit is such that he stands to gain or lose, usually financially, from a particular outcome of the suit. iii. Examples (bias) 1) Q: Aren't you the 's brother? 2) Q: Weren't you fired last year by the ? iv. Examples (interest):

Q: Aren't you an equal partner w/ the in this construction venture? Q: If this will is held invalid, you'll inherit half of the estate, won't you? In AZ , you must ask the warning questions on cross. Since bias & interest are considered non-collateral, you can (and must) prove up a denial w/ extrinsic evidence. k. Prior inconsistent statements - 613, 801(d)(1)(A) i. If a witness has previously said something that is inconsistent w/ what he says at trial, this inconsistency will necessarily detract from the credibility of his testimony. There are three basic types of impeachment, usually called impeachment by prior inconsistent statements, impeachment by omission, & impeachment by silence. ii. This mode of impeachment has several requirements: 1) Prior statement must be materially impeaching. a) There should be a significant ("material") difference between the testimony & the earlier statement. b) Example: At trial witness says he was "about 100 feet" from the intersection; previously in a deposition he had said "around 105 feet." (This is not a material variance) iii. Warning questions are required. 1) Rule 613 has eliminated any difference between oral & written prior statements. (The rule in the Queen's case is abolished.) On cross you must ask the witness if he made the prior statement. iv. When can you prove up a denial? 1) This depends on whether the prior statement is deemed collateral or noncollateral.. You can (and must) prove up denials of non-collateral (important) matters; you cannot prove up denials of collateral matters. The rationale behind this distinction is trial clarity & efficiency. v. Example: At trial the witness on direct says he was near the intersection 15 minutes before the collision; previously in a deposition he said 5 minutes. While it is proper to ask the witness if he made the prior statement, you cannot prove up a denial w/ extrinsic evidence. (This inconsistency is collateral; in the context of the case, the inconsistency is relatively unimportant.) vi. Note: 1) a) Since a prior statement is offered for the limited purpose of contradicting the witness's trial testimony (i.e., not for its truth) it does not have hearsay problems. (However, Note (c) below.) 2) If the prior statement was made by a party, the statement can also be used as an admission, & is admissible as substantive evidence . (Rule 801(d) (2)) 3) If the prior statement was made by a witness, you must keep in mind the difference between the FRE & AZ Rules 801(d) (1) (A): a) In AZ , all prior inconsistent statements are non-hearsay & hence are substantive evidence. Under the FRE, the prior statement must meet the

1) 2) 3) 4)

801(d) (1) (A) requirements to be deemed substantive evidence. 4) Note: In AZ , in a criminal prosecution (and, presumably, in civil cases as well), the admissibility of extrinsic evidence of an admitted prior inconsistent statement is in the discretion of the trial court. (State v. Woods, 687 P.2d 1201) Hence, even if a witness on cross-examination admits making a prior inconsistent statement, the trial court can permit additional extrinsic proof of the inconsistent statement, if it is important enough, given the issues in the case. 5) Note: Impeachment has an additional consideration in criminal trials. Bc a has 5th Amendment protection against self-incrimination, you must also determine if that right, if applicable under the circumstances, has been waived before attempting to impeach. This problem arises whenever a is cross examined about new areas not brought up during the direct testimony. l. Contradictory facts i. Under certain circumstances a cross examiner may wish to show that the true facts are different than what the witness claims. This is often called impeachment by contradiction. ii. The warning questions on cross are required. If the witness denies the inconsistent facts, whether the cross examiner will be allowed to prove up the denials depends on whether the denied facts are collateral or non-collateral. You must prove up denials of non-collateral (important) facts; you cannot prove up denials of collateral facts. (This is identical to the procedures involving prior inconsistent statements.) iii. Example: 1) The witness in an automobile negligence action testifies he was wearing a green tie & was 10' from the accident when it happened. On cross the witness is asked: "weren't you wearing a red tie?" & "weren't you 100' from the accident?", & he denies both facts. Here only the fact that the witness was 100' away is important, & the cross examiner can prove up that fact w/ extrinsic evidence. The fact that his tie was actually red is collateral & cannot be proved up. (The theory is that this fact, under these circumstances, is relatively unimportant, so it is not worth using court time to prove up.) m. Prior Convictions 609 i. Rule 609 permits attacking a -testifying witness's credibility by showing that the witness was previously convicted of felonies misdemeanors involving "dishonesty or false statement" ii. Rule 609 requires, in determining admissibility of the prior conviction, balancing its probative value w/ its prejudicial effect, where the following situations are involved: a) felony convictions of s in criminal cases iii. The "balancing test" is particularly important when the prior conviction of the accused is similar to or identical to the charge on which the is being tried.

1) To avoid an all or nothing approach, courts now frequently "sanitize the prior conviction." a) Let in the fact of the conviction, but not what the conviction was. b) Example: i) is on trial for rape. He was convicted of rape 5 years ago. If the testifies, his prior rape conviction may be admissible under 609. The danger in admitting the prior conviction to impeach is the danger that the jury will misuse the conviction (by using it to conclude that "once a rapist, always a rapist," an improper use of the prior conviction). On the other hand, completely preventing the use of the prior conviction (on the grounds that its prejudicial impact exceeds its probative value) misleads the jury into thinking that the has let a crime-free life. In this situation the judge is likely to "sanitize the prior", by allowing into evidence the fact that the has been convicted of "a felony," but not disclosing to the jury what particular felony it was. iv. Convictions over 10 years old. 1) In these situations the probative value must outweigh the prejudicial effect before the prior conviction can be used to impeach. 2) Note: AZ has deleted "to the " from 609. (Hence, the balancing test apparently applies to any testifying witness, not just a .) v. Are warning questions required? 1) Rule 609 apparently requires raising the fact of a prior conviction during the direct or cross examination. It permits using the record of conviction during the cross examination. vi. Prior convictions are always non-collateral (ie IMPORTANT). You can (and must) prove up a denial on cross examination w/ extrinsic evidence, usually the certified copy of the record of conviction. 1) Public Record so you dont need to call a witness. 2) Always get a certified copy of the witness. n. Prior Bad Acts - 608(b) i. Prior bad acts are admissible to attack the credibility of a witness, if the acts are "probative of truthfulness. ii. Examples: 1) Q: Didn't you fill out a false employment application at Sears last year? 2) Q: Didn't you file a false state income tax return two years ago? 3) Rolling back odometers. 4) Note: Some non-FRE jurisdictions totally bar the use of prior bad acts to attack witness credibility. In addition, Rules 403 & 611 are safeguards against abuse. The cross examiner as always must have a good faith basis for asking questions about prior bad acts. iii. Prior bad acts are considered collateral (never important). 1) Hence, you cannot prove up a denial on cross-examination w/ extrinsic evidence. (The theory here is that prior bad acts are generally less probative of untruthfulness than prior convictions, & there is no

correspondingly efficient way of proving up a denial.) 2) Stuck w/ the witnesses answer. iv. You must remember the distinction between specific acts under 404(b) & prior bad acts under 608(b): 404(b) specific acts admissible only for specific limited purposes, such as intent, knowledge, plan, motive, etc. proponent introduces in his case in chief by calling a witness who can testify to the pertinent facts. 608(b) prior bad acts admissible only to adversely affect credibility of a witness who is testifying. opponent introduces during cross examination of the testifying witness.

o. Bad character for truthfulness - 608(a) i. Whenever 1) any witness testifies at trial & 2) his credibility is in issue. ii. Then 1) The opponent can a) call a character witness to testify that the earlier witness' character for truthfulness is bad. b) That testimony must be in either i) reputation or ii) personal opinion form. iii. Then 1) The proponent thereafter can present contrary good character evidence. iv. The evidence is limited to truthfulness, either in the form of reputation or opinion. v. Example: 1) in a personal injury case calls Jones as a witness in 's case-in-chief. then rests. in his case-in-chief calls Smith, who testifies that Jones has a bad reputation (or opinion) for truthfulness. then rests. in rebuttal calls Adams, who testifies that Jones has a good reputation (or opinion) for truthfulness. vi. You must remember the distinctions between specific character traits under 404 & 405 & reputation/opinion for truthfulness under 608(a):
character trait evidence 404,405 any relevant specific character traits regarding or victim reputation/opinion for truth fulness - 608(a) truthfulness trait only. regarding any witness who has testified

proponent initiates evidence (see essential element & circumstantial evidence rules) opponent rebuts w/ contrary evidence

opponent initiates with bad evidence proponent rebuts w/ good evidence admissible are reputation and opinion only

admissible are reputation, opinion (and specific acts if trait an essential element of action or defense)

relevant time: date of event

relevant time: date of testimony

vii. Keep in mind the cross examination of a witness who testifies to good reputation for truthfulness of the earlier witness. He may be asked if he has heard anything bad about the earlier witness that is contrary to his testimony, even if the bad matter had not previously been exposed at trial. (e.g., a witness who testifies to a 's good reputation for truthfulness). 1) can be asked if he heard about the 's previous arrest for theft.) p. Treatises 803(18) i. Experts 1) Opponent witness wouldnt acknowledge the authoritativeness of the treatise. 2) Your own witness will acknowledge. 3) Judicial. ii. You only read the pertinent portions of the treatise. q. g) Impeaching an out-of-court declarant - 806 i. At trial statements of an out-of-court declarant are often admissible since they frequently qualify for admission as hearsay exceptions. Since the weight of this evidence depends in part on the credibility of the out-of-court declarant, the opponent may wish to attack the declarant's credibility w/ any of the impeachment techniques. ii. This situation is governed by Rule 806. iii. Since the declarant is, not in court, it is impossible to ask him the warning questions normally required on cross examination. However, the opponent can introduce extrinsic evidence to impeach the out-of-court declarant whenever the impeachment is non-collateral (important). iv. Example: 1) In an automobile negligence action, introduces the deposition of Jones, who has recently died. Since Jones is unavailable, his deposition transcript qualifies as former testimony under Rule 804(b) (1). In the defense case the can introduce the fact that Jones was convicted of perjury five years ago, since this prior conviction is admissible to attack Jones' credibility under Rule 609. (This would be done by introducing a certified copy of Jones' record of conviction.)

r. 4. Rehabilitation i. When a witness has been impeached, his credibility has been reduced ("discredited"). Accordingly, the direct examiner on redirect will wish to rehabilitate ("accredit") the witness. The permissible methods are: 1) Ask the witness to explain why, or the circumstances under which, a prior inconsistent statement was made. Rule 613(b). 2) In general, a prior consistent statement is NOT admissible merely bc the witness has been impeached w/ a prior inconsistent statement. 3) However, under Rule 801 (d) (1) (B), a prior consistent statement is admissible in rebuttal when the cross examination suggests that the witness' in-court testimony differs from a prior statement bc of a recent reason to fabricate, or improper influence or motive. (See example in Sec. III -prior statements of witnesses; see Tome v. U.S., 115 S. Ct. 696 (1995), holding that the prior consistent statement must have been made before the alleged fabrication or improper influence arose.) 4) If the victim has been impeached w/ bad reputation or opinion for truthfulness, (and perhaps a prior conviction or significant prior inconsistent statement), the proponent can accredit the witness w/ evidence of good reputation or opinion for truthfulness. (A showing of bias & interest is not considered an attack on truthfulness which would permit accrediting the witness w/ good reputation for truthfulness.) 5) In a few states (not AZ ), a witness is permitted to explain the facts underlying his criminal conviction to mitigate the apparent seriousness of the crime. 9. 5.Opinion rules - 701 - 706 a. Generally i. The basic premise underlying the witness testimony rules is that witnesses should only testify to the facts of which they have firsthand knowledge, leaving any opinions or conclusions for the jury to make. 1) However, these rules have been relaxed for lay witnesses & almost eliminated for experts. b. Lay witnesses - 701, 602 i. The FRE have relaxed the significance of distinctions between facts & opinions. ii. Under Rule 701, a lay witness if 1) Witness has firsthand knowledge may testify in opinion form and 2) it is helpful to the jury. a) The rule is essentially one of preference. iii. Witnesses should testify to facts, but if they can't, they should be permitted to tell what happened in opinion form. iv. Example: 1) Witnesses are usually permitted to testify that someone a) was "drunk", b) "looked scared", c) "looked & acted crazy",

d) and that a car was "speeding" or e) "playing chicken", 2) although these are all technically opinions. c. Expert witnesses - 702 - 706 i. History 1) Until 1993, federal courts followed the prevailing test for the admissibility of expert witness testimony: the Frye test, named after the leading case (293 F. 1013 (D.C. Circuit, 1923)) a) Under Frye, an expert could testify to opinions only if the scientific tests & methods the opinions were based on were "generally accepted" by the particular scientific community. b) Under the Frye test, the trial judge's function was limited to determining if the underlying tests & methods were generally accepted in the scientific community. If they were, the expert (if otherwise qualified) was allowed to testify. c) In 1993, the rules changed, & it is useful to ask a series of questions to determine if an expert will be allowed to testify. ii. Is the subject proper for expert testimony? - 702 1) Under FRE, expert testimony is proper whenever it will "assist the trier of fact to understand the evidence" or "determine a fact in issue." 2) The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), expressly rejected the Frye test, & established a new standard for admitting scientific testimony in federal courts. The key inquiry is whether the offered testimony is relevant & reliable. 3) The trial judge a) must, under Rule 104(a), determine initially if the expert will "testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue," which requires the trial judge to assess "whether the reasoning or methodology underlying the testimony is scientifically valid & whether that reasoning or methodology properly can be applied to the facts in issue." 4) Factors bearing on this inquiry include: a) (1) whether the theory or technique can & has been tested, b) (2) whether it has been subjected to peer review & publication, c) (3) the known or potential rate of error, & d) (4) whether the theory or technique has been generally accepted by the scientific community (the old Frye test). iii. In General Electric v. Joiner, 522 U.S. 136 (1997), the Supreme Court held that the trial court's decision to admit or reject expert witness testimony under the Daubert analysis will not be reversed on appeal unless it rises to an abuse of discretion. iv. And in Kumho Tire v. Carmichael, 119 S. Ct. 1167 (1999), the Supreme Court held that the federal rules of evidence apply to all expert witness testimony, regardless of whether it is based on scientific tests & methods,

or on technical or other specialized knowledge. v. In all cases, the trial judge must determine if the expert's proposed testimony is both relevant & reliable. 1) If the testimony is based on scientific tests & methods, the Daubert factors apply. 2) If the testimony is based on technical or other specialized knowledge, the trial judge may use some of the Daubert factors, but the inquiry must be flexible & trial judge must have leeway in making this assessment. vi. Rule 702 was amended in 2000 to reflect the holdings in Daubert & Kumho Tire. vii. To date the AZ Supreme Court still adheres to the Frye test. See Logergist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000). viii. Is the witness qualified? - 702 1) Under FRE, any person having specialized knowledge can be qualified as an expert. (i.e., its almost impossible not to qualify as an "expert" in FRE jurisdictions.) ix. What are the proper forms for questions? - 702 1) The FRE permit "opinion or otherwise". The following are all proper: 2) Examples: a) Q:Do you have an opinion, to a reasonable degree of medical certainty, whether 's injuries are permanent? (Opinion. However, you dont have to ask whether the witness in form of opinion. Law said opinion or otherwise.) b) 4: In your opinion, are ' s injuries permanent? c) 4: Are 's injuries permanent? (conclusion) d) The FRE have also eliminated the requirement of a hypothetical question to an expert who did not have firsthand knowledge, such as a nontreating physician. (A hypothetical is still required in some non-FRE jurisdictions.) x. What are proper bases for expert opinions? -703, 705 1) Under FRE, the expert need not have firsthand knowledge of all the facts on which he bases his opinion. He can also give an opinion if facts were conveyed to him (as where he sits in court & hears all the evidence presented) or come from a reliable source relied upon by persons in the field (as where a doctor relies upon lab tests actually performed by a hospital laboratory). 2) However, FRE 703 was amended in 2000 in an important way. Added to the rule was the following: a) "Facts or data that are otherwise inadmissible [usually hearsay] shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."

b) In other words, in federal court the expert cannot tell the jury what the bases for his opinions are, unless those bases are independently admissible in evidence (such as a doctor who bases his opinion in part on lab tests, & the lab tests are admissible as business records), or the trial judge rules that the probative value of the bases in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect (such as a doctor who bases his opinion in part on consulting other experts, & the trial judge rules that the jury can hear what the other experts told the doctor). c) This means that whenever expert testimony has, as its underlying basis, sources that are not independently admissible in evidence, those sources are presumptively inadmissible unless the trial judge rules otherwise. 3) Finally, the amended FRE 703 has not been adopted by AZ (or other states). a) In AZ , an expert can freely testify to all the bases for his testimony, so long as they are of a type that experts in this field commonly rely on in reaching opinions & conclusions. b) For example, a doctor can testify that he based his opinions in part on consulting w/ other specialists, & then tell the jury what the other specialists told him (even though what the specialists said is hearsay). xi. What is the permissible scope of expert opinions? - 704 1) Under FRE, opinions on "ultimate issues" are proper, if helpful to the jury. The difficult question is whether ultimate issues include just factual matters, or legal conclusions. 2) In general, a legal opinion or conclusion is proper only if the jury cannot reach it on its own. Example: (civil commitment proceeding) a) A: (psychiatrist) " is a paranoid schizophrenic." (proper) b) A: (psychiatrist) " is a danger to himself & others." (proper) 3) Example: (negligence action) a) A: (accident expert) " crossed the centerline." (proper) b) A:(accident expert) " was at fault & negligent." (improper, not helpful to jury.) c) A: D is insane. ( d) In the second example, the jury is obviously capable of reaching the proper legal conclusion from the expert's factual opinion. e) Note: Rule 704 was amended in 1984. i) Subsection (b) BARS an expert from testifying, in a CRIMINAL CASE, to his opinion on whether the had a mental state required under the charge, or a defense to it. This new rule bars a psychiatrist from directly stating that in his opinion a criminal was legally insane when the crime was committed. xii. f) How can experts be cross-examined w/ treatises? - 803(18) 1) Under 803(18), an expert may be cross-examined using a learned treatise

C.

or other authoritative sources such as journals. 2) The treatise must be shown to be an authoritative source, which can be done through the expert's admitting that the treatise is authoritative, by another expert testifying to its authoritativeness, or by judicial notice. 3) Under 803(18) the impeaching part of the treatise is read to the jury, but the treatise itself is not admitted in evidence as an exhibit. Exhibits - 901 - 903, 1001 - 1008 1. Foundations - 901 - 903, 106 a. Exhibits are tangible items of evidence. i. Common examples are weapons, photographs & business records. ii. Exhibits, to be admissible, must be relevant. iii. The proponent must show that the offered exhibit is what it appears to be, that is, the exhibit must be "authenticated." 1) In trial lawyers' terms, this means that a witness must be called who can "establish a foundation" for the offered exhibit. 2) The proponent of the exhibit must present sufficient credible evidence for the judge to determine that a foundation for admission has been established so that the exhibit may be presented to the jury for its consideration. 3) The kind of foundation required to have an exhibit admitted in evidence depends on the type of exhibit involved. b. There are four basic exhibit types. i. "Real evidence" 1) Real evidence refers to physical objects, such as a gun, car, narcotics & blood. a) Here the exhibit is the actual piece of evidence. 2) The foundation necessary for admissibility, from a competent witness, is: a) The exhibit is actually the same object AND b) The exhibit is in substantially the same condition now as when first obtained. 3) For foundation purposes, it is useful to divide real evidence into two categories: a) Objects which can be uniquely identified by the senses, (e.g., guns, tools, vehicles, etc.) b) Objects which cannot be uniquely identified by the senses, (e.g., narcotics, blood, other fluids) & need a "chain of custody" to demonstrate that the evidence in court is the same as that obtained at an earlier time. c) Examples: i) gun (sense identification) (1) A police officer who seized a gun from a must testify that he recognizes the gun in court as the same gun he previously took from the (bc of its unique appearance, serial number, or other markings), & that the gun is in the same general condition now as when he first saw it.

ii) blood (chain of custody) (1) A nurse who obtained a vial of blood from a patient must testify that she placed the blood in a vial, sealed it & labeled it, then personally gave it to a lab technician. The lab technician must then testify that he obtained that vial from the nurse, broke the seal, & tested the contents. Both witnesses should be able to identify the particular vial in court. ii. "Demonstrative evidence" 1) Demonstrative evidence refers to exhibits which REPRESENT real things, a) Ex. photographs, diagrams, models & maps. b) Here the exhibit is only a representation of the actual object. 2) The foundation necessary for admissibility, from a competent witness, is: a) The exhibit is a representation of the real thing as it was at the pertinent date. b) The exhibit is REASONABLY ACCURATE or to scale. 3) Examples: a) house diagram i) Where a-diagram of a crime scene has-been-prepared, anyone familiar w/ the house's floor plan can testify that the diagram reasonably accurately shows the floor plan on the pertinent date. b) photograph i) Where a photograph of an intersection (the scene of an accident) has been taken, anyone familiar w/ the intersection on the date of the accident can testify that this photograph accurately shows how the intersection looked on the pertinent date. iii. Writings 1) Certain types of writings have independent legal significance. a) Common examples are wills, contracts, promissory notes, & checks. i) These kinds of writings are non-hearsay, so the only foundation requirement is whether they were in fact signed or written by the undersigned person. ii) Put another way, the signatures or handwriting must be authenticated. iii) This can be done through any witness who saw the document being signed or written, or is familiar, w/ the signature or handwriting & can identify it. If such a witness is unavailable, handwriting comparisons may be used, or any other method that identifies the maker of the document. (Rule 901) b) Note that under Rule 106, if a party introduces part of a writing or recording, an adverse party may require him at that time to introduce any other parts of the writing or recording that in fairness should be considered at the same time. 2) Business Records a) Business records are obviously hearsay, & must therefore be qualified as

an exception under 803(6). The foundation requirements are spelled out in that section: i) the qualifying witness must be the "custodian or other qualified witness". ii) the record must be a "memorandum, report record or date compilation of any kind. iii) the record was "made, or transmitted, by a person w/ knowledge" of the facts. iv) the record was "made at or near the time" of the acts & events recorded on it. v) the record was made as part of "the regular practice of that business activity. vi) the record was "kept in the course of a regularly conducted business activity. b) Establishing the foundation for business records is a simple matter of asking the witness the 803(6) requirements. c) Keep in mind that the 803(6) foundation qualifies only the business record as a hearsay exception. It does not solve double hearsay problems. If, for example, the record contains a statement by someone who is not an employee of the business (and hence under no business duty to report accurately), the statement will be inadmissible unless another hearsay exception covers it. d) The AZ version of 803(6) is essentially identical. It does make clear, however, that a party may object to the introduction of any part of a business record if the part does not have an appropriate foundation. (This most commonly exists in the double hearsay situations.) 3) Public Records a) Public records are simply business records generated by governmental entities. b) Such records are self-authenticating under 902. i) Hence, no qualifying witness is necessary; a properly CERTIFIED copy of the public record will be admissible without further foundation. 4) Recorded recollection!!! (Bar Q!) a) Recorded recollection is an infrequently used rule, & is used only if a witness has a partial or total failure of recall. Under 803(5), if a witness now has "insufficient recollection" to allow the witness to testify "fully & accurately," any memorandum or record that the witness accurately made when the matter was fresh in the witness's mind will qualify as recorded recollection. b) The important thing to remember is the procedure. If a memorandum or record has been qualified as recorded recollection, the proponent of the memorandum may read it to the jury, but the memorandum is not actually admitted as an exhibit unless an adverse party offers it in evidence. 5) Summaries

a) A summary, chart, or calculation of voluminous records is admissible under 1006. Three requirements must be met. i) First, the underlying records must be too voluminous to be conveniently examined in court. ii) Second, the summary must be shown to be accurate, usually through the testimony of the witness who prepared the summary. iii) Third, the underlying records must be made available for examination & copying by the other parties, so that they can check the summary for accuracy & completeness before a trial or hearing. b) The summary rule is an important rule in commercial litigation, which often involves large amounts of records or data that would overwhelm the jury. In such situations, the parties often have an employee, or an expert, prepare summaries of the underlying records before trial & give the other sides access to the records or data before trial. iv. Original Document (Best Evidence) Rule - 1001 - 1004 1) Applies when contents of writing, recording, photograph in issue! 2) The original document rule, sometimes called the best evidence rule, applies principally to writings. a) The common law rule stated that whenever a writing's contents were to be introduced in evidence, the original had to be produced. The rule was a response to the errors & inaccuracies of handmade copies. 3) The FRE version of the rule is significantly different: a) It controls writings, recordings & photographs -1001 4) The terminology includes: a) "originals" (the original as well as executed copies intended to have the same effect as the original.) b) "duplicates" (carbon copies, photocopies, microfilms, etc.) c) "other evidence" (any memoranda of contents and oral testimony) 5) When the best evidence rule applies, the FRE has three basic rules: a) In general, duplicates are admissible to the same extent as the original. (Rule 1003) b) However, if there is a genuine dispute over authenticity, or it would be unfair to admit a duplicate, the original must still be produced. (Rule 1003) c) Where the ORIGINAL IS STILL REQUIRED, its production is EXCUSED if the original is unavailable bc: i) it was lost or destroyed in good faith; ii) it cant be obtained by legal process; (1) Cant compel production & person wont voluntarily turn it over. iii) the opponent has it & refuses to produce it despite being on notice to produce.

(1) In this situation any "other evidence" of the original's contents is admissible. (Rule 1004) d) The principal difficulty w/ the rule is in determining what exhibits it applies to. It does not apply to "collateral matters". The rule defines a "collateral" writing as one which "is not closely related to a controlling issue." (Rule 1004 (4)) It is clear that where the contents of a writing is an important issue in the case, the rule applies. i) If whether someone is a Dr. is an issue, the needs to produces best evidence (diploma). Otherwise, dont need to produce document. 6) Examples: a) Contract action where the only issue is damages. must show that a contract exists but need not produce the original contract, since its terms are not in dispute; a duplicate is equally-admissible. b) Contract action where the only issue is damages. Not in dispute is whether paid for the ordered goods. may orally testify that he paid for the goods w/ a $1,000 check, without producing the check, since the best evidence rule does not apply to the check under these circumstances. c) Contract action in which the defense is that the contract is a FRAUD & the signatures are FORGERIES. Since the issue is the contract's genuineness, must produce the original or account for its absence before he can introduce other evidence of its contents. d) NOTE: The best evidence rule should not be confused w/ the parol evidence rule. The latter, a substantive contract law rule, states that the terms of an unambiguous written contract cannot be modified by contrary oral testimony. c. Judicial Notice -201 i. Judicial notice is an evidentiary procedure in which the trial judge is asked to rule that certain facts are true. Its purpose is to promote trial efficiency, sharpen issues, & permit introducing indisputable evidence where formal proof would be difficult & lengthy. ii. FRE 201 is limited in scope. It governs only "adjudicative facts", those facts which are in issue in the case. (Judicial notice of law is covered by Rule 44.1, FRCP, & Rule 26.1, FRCP). iii. Procedural aspects are governed by 201(c) - (f). 1) Basically, the party wishing to have the court judicially notice a fact must ask the court to take judicial notice, & the opposing party must have an opportunity to state objections. 2) Note the differences between CIVIL & CRIMINAL cases in 201(g). a) CIVIL - While in civil cases the jury must take a fact judicially noticed as being TRUE, this is not so in criminal cases. b) CRIMINAL - Bc of due process problems, juries in criminal cases are instructed that they MAY, but not required to, accept a judicially noticed fact as being true. iv. Example:

IV.

1) In a civil case, the court would tell the jury: "In this case, you must accept as a fact that . . ." In a criminal case, the court would instruct: "In this case, you may, but are-not-required to, accept as a fact that-. . ." v. The kinds of facts which may be judicially noticed are governed by 201(b). There are two basic types: 1) Facts which are generally known within that particular geographic area. a) Examples: i) That the corner of 42nd St. & Park Ave. is in Manhattan is generally known to New York City residents, but not known to most others. Hence, a court in New York City would take judicial notice of that fact, but other courts would not. 2) Facts which are capable of accurate & readily available determination from an unquestionably accurate source. a) Examples: i) Actuarial tables showing life expectancy, compiled & published by the Labor Department, are routinely judicially noticed in wrongful death cases. ii) Almanac facts, such as when a full moon occurred, what day of the week a certain date was, & what the annual average rainfall is at a certain location, are commonly judicially noticed. vi. Note: In practice, judicial notice is infrequently requested. Such uncontestable facts are usually admitted by stipulations between the parties or, in civil cases, have already been admitted by the pleadings. V. OBJECTIONS, BURDENS OF PROOF & PRESUMPTIONS 301, 302 1. Evidentiary Objections a. Evidentiary objections must be made at the right time & for the right reason. There are three principal considerations in making evidentiary objections. b. Timeliness (right time) i. Evidentiary objections must be timely. 1) If a question is improper, an objection should be made before an answer to the question is given. 2) If an answer is improper, an objection must be made as soon as that fact becomes apparent. 3) If the objection is sustained to the improper answer, you should ask that the answer be stricken & the jury be told to disregard the answer. a) This may be necessary to preserve error on appeal. c. Legal basis (right rule) i. Objections should state the legal basis for the objection, UNLESS the basis is obvious.(FRE 103) ii. Remember that you cannot usually raise error on appeal UNLESS your objection is timely & a proper legal basis for the objection is made. d. Offers of proof (right reason) i. If an objection to evidence is sustained, you must make an offer of proof. (FRE

103) 1) An "offer of proof" is simply the way you make a record of the barred evidence so that the appellate court, as well as the trial judge, will know what that evidence would have been. ii. The usual procedure is for the lawyer to recite at a side-bar conference, which is out of the jury's hearing, what the witness' answer to the question would have been, had he been permitted to answer to question. e. Get a ruling! f. Reason for Objecting: Preserving error for appeal: i. Objection overruled (W testifies or evid admitted, so trial record contains everything need to determine if ruling was proper.) ii. Objection sustained offer of proof A + Exhibits 1) (testimony/exhibit was excluded, so no way of determining whether ruling was proper. So you make an offer of proof (i.e. put the evidence on the record even though it was excluded). This preserves error for appeal. 2. Burdens of Proof a. Burden of proof is a term, often loosely used, which actually encompasses two distinctly different concepts: the burden of going forward & burden of persuasion. b. burden of going forward (burden of production) i. This is a procedural term which refers to the party which is legally required to initiate producing evidence on a claim or defense. The has the burden of going forward as to its claims; the has the burden of going forward as to any affirmative defenses or counterclaims. The burden of going forward continues until a party has made a prime facie case on what it is obligated to prove. If it fails, the other side is entitled to a directed verdict; if it succeeds, the burden of going forward (to disprove the issue) shifts to the other side. 3. burden of persuasion a. This term refers to the standard of proof, or the amount of evidence, a party must produce to prevail on any issue. There are three principal burdens of persuasion: b. "preponderance" (greater weight) i) This is the standard in most civil cases, such as tort & contract actions. c. "clear & convincing" i) This higher standard is sometimes applied in special kinds of actions, such as fraud cases & will contests. d. "beyond a reasonable doubt" i) This is the usual standard in criminal cases. ii. The burden of persuasion never shifts, but always stays on the side on which it is initially imposed. In addition, keep in mind that the side w/ the burden of production does not always also have the burden of persuasion. 4. Example: i. In a murder charge, were the defense is insanity, the has the burden of going forward, since insanity is an affirmative defense. However, once the defense has done so, the prosecution frequently has the burden of persuasion of disproving insanity, often by a beyond a reasonable doubt standard.

B.

Presumptions - 301, 302 1. Presumption v. inference a. A presumption is a procedural device which affects the burdens of going forward. A presumption must be distinguished from an inference. b. An inference is a logical factual deduction derived from a given fact. c. When inferences from a given fact are sufficiently recurring, the law elevates the inference to the status of a legal presumption. (e.g., common experience tells us that we can infer a person's intent from his conduct; accordingly, tort law generally holds that a person is presumed to intend the probable consequences of his actions.) i. Since presumptions are procedural devices, a question arises about their effect. 2. Two theories have been argued: a. Thayer bursting bubble approach. This theory holds that presumptions shift the burden of going forward on that particular issue to the other side.Presumptions in effect state that the presumed fact is prima facie established. The presumption disappears if rebuttal evidence makes it reasonable for the jury to decide that the presumed fact does not exist. (Hence, the Thayer approach is called the "bursting bubble" theory). b. Morgan approach. This theory holds that a presumption shifts the burden of persuasion. 1) FRE 301 adopts the majority view, the Thayer "bursting bubble" approach. The practical effect of all this occurs when the jury is instructed on the law. Only where a presumption exists, & there is no persuasive contrary evidence, will the jury be instructed on the presumption involved. If evidence to rebut the presumption was presented, no instruction is given at all. 3. Examples: a. In a personal injury action, driver sues the driver of the other car for negligence. i. 's employee was a passenger in 's car, but did not call the employee as a witness during the trial. ii. The court could instruct the jury on this failure to call the employee as follows: 1) " in this case has not offered the testimony of John Smith, the passenger. As this witness was under the control of the , & no reasonable excuse for failure of to produce him was given, you may presume that his testimony would have been adverse to the ." b. Some jurisdictions have a presumption which holds that when a letter is properly addressed, stamped & dropped in a U.S. mail box, it is presumed that the addressee actually received the letter. Where such evidence has been presented, & there has been no contrary evidence, the court can instruct the jury about the presumption. 4. Keep in mind that presumptions apply only in CIVIL CASES. 5. Constitutional due process limitations bar presumptions from being conclusively applied to criminal cases, at least when the presumption goes against the . (See Sandstrom v. Montana, 442 U.S. 510 (1979)) 6. FRE 302 incorporates the Erie doctrine in diversity cases & applies the state law of presumptions regarding a fact which is an element of a claim or defense. 7. Note: AZ has not adopted Rules 301 & 302. Since presumptions have not been codified

in AZ , its common law of presumptions still applies.