EVIDENCE EXAM OUTLINE 2011 I.

Introduction to Evidence Law:

a. 103- Rulings on Evidence- Rulings on evidence cannot be assigned error unless (1) a substantial right is affected and (2) the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take corrective measures. i. Must make an objection! b. 104(a) - Preliminary questions concerning qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court (judge). To the extent that these determinations are factual, the judge acts as the trier of fact. i. For example- when there is a question of whether something is a declaration against interest, a decision must be made of whether it possesses the required against- interest characteristics. 1. Common practice is that the judge will determine competency when considering the testimony of a witness 2. Rule 602- personal knowledge 3. Hearsay- the judge must decide if the declarant had the opportunity to observe the fact declared. ii. Subject to the conditional relevancy requirement of 104(b) 1. Conditional relevance is NOT whether a preliminary fact is true, but whether a reasonable jury could think a given fact is true given the other evidence. 2. Example1. When a spoken statement is relied on to prove notice to Sam, it is without probative value unless Sam heard it. 2. The judge makes the determination of whether the foundation evidence is sufficient to support a finding of the fulfillment of that condition. iii. State v. McNeely- judge makes the determination of whether a reasonable jury could find a certain underlying fact of the evidence to be true 1. Example- can a reasonable jury conclude that the inference is true with the evidence?

II. Relevance:
a. Relevance and Irrelevancei. 401- Look to 403 (balance relevance with prejudice). 1. Sketch the inferences! The connection between the fact under inquiry and the evidence by which it is sought to be established must be open and visible but it need not bean actual connection and can by logical processes. To require that it be an actual connection would exclude all presumptive evidence.

2. What is relevant evidence? 1. Evidence is relevant if it is rationally probative in any way, and irrelevant if it is not (low threshold) 2. Advisory note- Does the item of evidence seek to prove the matter sought to be proved? i. Doesnt have to be a fact that is in contention, it can be
any "relevant fact that is of consequence to the determination of the action." ii. Evidence which is essentially background in nature can be the most helpful iii. Relationship between item of evidence and the matter to be proved tendency to make the existence of fact to be proved more or less probable.

3. Relevance as a relational concept- Relevance is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in a case i. Bandera v. City of Quincy3. United States v. Dominguez1. Facts: Dominguez was a customs officer and he was arrested of kidnapping, robbery and murder of Mitri, who tried to carry 70K into the US. The US admitted evidence that Dominguez owned a gun, after the shooting asked friend to bring it to gun shop to replace the barrel, etc. D argues that he had to carry a gun for work, and thus the evidence was inadmissible as overly prejudicial and irrelevant. 2. Rule: relevant evidence is any evidence that has the tendency to make a fact of consequence more or less probable than it would be without the evidence. A brick is not a wall aka weak evidence is just as admissible as strong evidence. Strength of a particular piece of evidence has nothing to do with its relevance. i. Could be less probative but not less relevant. ii. In this case Mitri was killed by a gunshot so the fact that the D owned a gun made his guilt slightly more probable than if he did not. iii. Despite the fact that these arent particularly strong pieces of evidence, they are nonetheless relevant. One piece of evidence among many. iv. The standard under 401 is more probable than it would be without the evidence. 4. State v. Larson1. Facts: Larson was riding a horse with Perry on the back. The horse reared, Perry fell off and died. After being presented with evidence of Larsons blood alcohol

content, the jury found him guilty. Larson challenges the BAC evidence as irrelevant and unduly prejudicial. i. The ultimate fact attempted to be proven was that because he couldnt drive a car, he couldnt conduct a horse 2. Rule- relevant evidence is any evidence of value to proving the proposition for which it is offered. i. Under 401 the test of relevance is whether an item of evidence will have ANY value, as determined by logic and experience, in proving the proposition for which it is offered. 3. Reasoning- the comparison was relevant because it aided the jury in evaluating levels of intoxication. ii. 402- irrelevant evidence is inadmissible; relevant evidence is admissible subject to limitations 1. Knapp v. State- The determination of the relevance of evidence rests on whether proof of that evidence would reasonably tend to help resolve the primary issue at trial 1. Facts- D argued that he killed Marshall out of selfdefense because he had heard that the Marshall killed another man. To rebut the self-defense defense, the prosecution introduces evidence that the other man had actually died of natural causes. 2. Process- testimony (other man- natural causes) inference (Marshall didnt kill other man) 3. Rule- evidence may be relevant that does not bear directly on the issue at trial. It is enough that the evidence (that he died of natural causes) once proved may shed some light on the primary issue without necessarily resolving it. i. To require an actual connection would exclude presumptive evidence 4. Remember! The question of admissibility of evidence proving a collateral facts (those not pertaining to the issue at bar) within the discretion of the trial judge. i. Facts can essentially be background in nature! b. Probative Value and Prejudice- Relevant evidence may be excluded if it is unfairly prejudicial (I.e. if its probative value is substantially outweighed by the danger of unfair prejudice and other accuracy/ efficiency concerns) This gives judges broad discretion to exclude evidence that is more trouble than it is worth- usually because it will likely impair the jurys search for the truth, or take up too much time. i. Unfair prejudice- undue tendency to suggest decision on an improper basis, commonly though not necessarily on an emotional one.

ii. Steps1. Consider the probative value of the alternative 2. The conclusiveness of the alternative? iii. 105- limiting instruction iv. 403- Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Balance the probative value of and the need for the evidence with the harm likely to result from its admission. 1. Trial Court discretion! Trial courts are in a superior position to admit the evidence (discretionary power) because they can take the context and the specific facts of the case into account. 2. How it works with 401- you have to decide whether an item of evidence, when tested by the processes of legal reasoning, possesses sufficient probative value to justify receiving it into evidence. Is it relevant, and then is it prejudicial? 3. United States v. Noriega- confusion of the issues and waste of time. 1. Facts- Noriega was brought into Federal Court on drugrelated charges. At trial Noreiga sought to introduce evidence regarding his intelligence work for the United States to prove the unexplained wealth he had. 2. Rule- 1) this is relevant under 401, and 2) the probative value is substantially outweighed by other considerations. Thus the court may choose to not allow it. i. You have to weigh probative value and unfair harm to the defendant. ii. In this case, evidence that shifts the focus of attention away from the issues before the jury in a particular case is likely to confuse the jury. Thus the probative value is les than its tendency to confuse. 4. United States v. Flitcraft- overly cumulative evidence. 1. Facts: tax evasion case in which the defendants thought that they didnt have to pay taxes on their wages. The husband testified that he based his decision on legal materials. The husband wanted to introduce the documents into evidence. 2. Held- the documents were overly cumulative (waste of time) since the husband had already testified as to the contents of the document 3. Evidence may be outweighed when its probative value is outweighed by its cumulative nature.

4. Analysis- evidence that would add little to what was already been presented to the jury is cumulative, and thus may be excluded. 5. Abernathy v. Superior Hardwoods, Inc. 1. Facts: Abernathy was hit by a log loosened by Superior Hardware's forklift operator, and won at trial. Superior appealed. On appeal, Superior sought to introduce evidence in the form of a video re -enacting how the logs would typically be unloaded. The court allowed the video but without the sound and Aber appealed. 2. Rule: the recording was not admissible because it didnt even meet the minimum standards of reliability. Where the evidence is lacking with regard to minimum standards of reliability, the district court doesnt have to allow it. 6. United States v. McRae- husband shot wife, says it was an accident. Prosecution introduced photos tending to suggest that it wasnt an accident. The husband states that the photos introduced were overly prejudicial because they were so gruesome in nature. 1. Rule: When the rule says unfair prejudice it means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. 2. Relevant evidence is inherently prejudicial. 3. The admission of the evidence, though gross, distasteful and disturbing, were important to establish the elements of the crime. 7. Old Chief: Old Chief convicted of violating 18 USC which prohibits possession of a firearm by anyone with a felony conviction. The P sought to introduce the name and nature of the conviction. The charge was assault with a dangerous weapon, and he was previously convicted of assault. Old Chief wants to exclude the name and nature of his prior crime (assault conviction resulting in serious bodily injury), and instead he wants to stipulate that he was in violation of 18 USC (and that's it). 1. Issue: can the court prevent the government from offering evidence identifying the previous offense? 2. Held- yes. The court may allow the defendant to concede the fact of a prior conviction before the govt. is able to offer its own evidence. 3. Reasoning: i. 403 authorizes the exclusion of relevant evidence when its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues or misleading the jury, or by concerns of undue delay, waste of time, or needless presentation of cumulative evidence. ii. Under 403, evidence of convictions for prior, unrelated crimes may lead a juror to think that since the D already has a criminal record, an erroneous conviction would not be as bad as if the criminal had not previously been convicted. iii. Rule 403 requires a balancing of interest. iv. Rule 403 seeks to prevent the admission of evidence which although relevant, is likely to lure the fact finder to declare guilt on a ground different from that at issue in the present case. 4. Converse argument- the P should be able to prove their case however they want. v. Problem 2.1 (page 38) c. Conditional Relevance- evidence that is relevant only if some other fact is relevant. i. 104(b) Judge decides the preliminary question 1. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of fulfillment of that condition ii. Sufficiency standard- applied in which the judge must determine whether there is sufficient evidence to allow the jury to find x (the preliminary fact). Is there sufficient evidence for a reasonable jury to conclude ______. iii. State v. McNeely1. Facts- D was charged with aggravated murder. P introduces testimony from a fellow inmate concerning conversations he had with the defendant despite the fact the inmate couldnt identify the D at trial. Trial court determined that a reasonable juror could find that the D was the person with whom Thomson had spoken. The evidence was admitted as conditionally relevant. 2. Remember! The fact that he couldnt identify him in court goes to its probative value of whether we will believe the particular witness. Not whether or not it could be admitted. 3. Rule- conditionally relevant evidence may be admitted where the foundation evidence is sufficient for a reasonable jury to find that the condition upon which relevant evidence rests has been fulfilled.

III.

Hearsay
a. The Hearsay Rule, Its Rationale and Non-Hearsay Usesi. Defined- an out-of-court statement offered for the truth of the matter asserted. The basic rule says that extrajudicial assertions (out of court statements) are inadmissible unless the assertor is brought to testify in court where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make it. Rationale is that factual disputes in criminal and civil trials should be decided base on live, sworn testimony, not on the second hand accounts of what other people did outside the court room. ii. Key Issues in the Hearsay Doctrine- the Anglo-American tradition has evolved 3 conditions under which witnesses ordinarily will be required to testify- oath, personal preference at trial and crossexamination. The rule against hearsay is designed to ensure compliance with these conditions, and when one of them is absent, the hearsay objection becomes pertinent. 1. Oath- an out-of-court declarant speaks without the solemnity of oath administered on witnesses in a court 2. Personal Preference- idea that someones demeanor can help shed light on its credibility. 1. The hearsay rule reflects a strong and distinct preference for live, sworn-in testimony, not secondhand accounts of what other people said outside of court. 2. No opportunity to observe the out-of-court declarant demeanor. 3. Cross examination- test aspects of the statement offered against you. 1. The main justification for the exclusion of hearsay- the lack of opportunity for the adverse party to crossexamine the out-of-court declarant. iii. Hearsay Risks: Triangulating Hearsay- see diagram! the hearsay problem is that the opposing party has no opportunity to test the perception, the memory, the articulateness or the veracity of the declarant. 1. Ambiguity 2. Insincerity- is the witness testifying falsely? 3. Erroneous Memory- has the witness retained an accurate impression of that perception? 4. Faulty Perception- did the witness perceive what is described and perceive it accurately? iv. 801(a)-(c)

1. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion (non-assertive conduct is not hearsay) 2. A "declarant" is a person who makes a statement. The witness then testifies as to what the declarant said. 3. "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. 1. Problem 3.1 v. 801(c) introduces the problem of determining 1. What is a statement? 801(a) 2. What is the truth of the matter asserted? 1. Matter asserted means the matter asserted in the statement offered into evidence, not the matter asserted by the party proving the evidence. 2. Evidence that falls within a chain of inferences is hearsay if any one of the propositions in the chain of inferences is the truth of the matter asserted in the out of court statement. 3. Witness= person who testifies in court regarding the declarant. The declarant= the person who made the outof-court statement 4. Proving the truth of the matter assertedi. Lyons Partnership v. Morris Costumes1. Facts- Lyons owns IP right to Barney. Morris sold a costume that was identical to Barney and at trial they tried to introduce evidence tending to prove that people confused the costume with Barney. TC said this evidence was hearsay. 2. Held- reversed- the evidence was not hearsay because it was offered to show that people were confused not that they actually thought it was Barney. 3. Rule- FRAME THE MATTER ASSERTED IN THE STATEMENT! Probative evidence that is not offered for its truth is not hearsay and may not be disregarded by the court. b. Non- Hearsay uses of out-of-court statements1. Used to show the declarants state of mindi. Barney case confusion ii. United States v. Parry knowledge 1. Facts: Parry was convicted of conspiring to distribute PCP and the intent to distribute PCP.

Parry offered testimony of his mom regarding a conversation they had about the transaction. The conversation tended to prove that he had a goodfaith belief that he was working for the cops. TC denied the testimony as hearsay. 2. Held- the statement was not hearsay because it was offered for some other purpose than to prove the truth of the matter asserted (purpose was to show he thought he was working for the cops- not that he actually did) 3. STEPS: (1) Identify the out-of-court statement (2) Articulate the truth of the matter asserted (3) Is the statement offered for its truth? Look to substantive law! No. The substantive law required that Parry have intent to distribute PCP. The statement is offered to prove that Parry knew the agents identity and, therefore, lacked the required intent. 2. Used to show the statements effect on the listener- typical statements that are not offered for their truth include statements offered to show anothers reaction thereto (statements offered as a basis for a persons reasonable belief) i. Subramaniam v Public Prosecutor- statements by terrorists were admissible as non-hearsay because they were offered to prove he was under duress and thats why he carried the firearm. They were not offered to show that the statements were true. ii. Southerland v. Sycamore: iii. United States v. Jeffersoniv. United States v. Johnson1. Facts- The P wanted to admit into evidence statements by the secretary who said she heard Upal (another one of the defendants) talking to Johnson and telling him to stop writing bad prescriptions. 2. Held- the evidence wasnt offered for the truth of the matter asserted because they aren't trying to prove that he was in fact distributing bad prescriptions, it was offered to prove that he knew he was writing bad prescriptions 3. Rule- an out-of-court statement which is offered in evidence to prove the truth of the matter asserted is admissible if relevant (in this case it was relevant to show his state of mind) 3. Statements that have legal significance- there are certain utterances to which the law attaches legal significance (words of contract, defamation, bribery, cancellation and permission).

Evidence of such statements is not hearsay because the issue is whether the statements were made. i. United States v. Saavedra- defendants were inmates who called people in the community and obtained their credit card information by asking for confirmation of the info. Statement offered into evidence = I am a law enforcement agent. 1. Held- this is not an out-of-court statement offered for its truth because it was offered to prove that the defendants were committing fraud. All that the fraud required was that they said those words! Fraud requires misrepresentation and the very fact they spoke them is enough. 2. Rule- testimony providing circumstantial evidence of intent, and offered to show the nature of a fraud are admissible. ii. Hanson v. Johnson PO iii. Creaghe v. Iowa Home Mut. Cas. Co.- PO 1. The hearsay rule does not exclude relevant testimony as to what the contracting parties said with respect to making or the terms of the oral contract. 2. In an action on a contract, words that constitute the offer, acceptance, rejection, etc are not hearsay because they are only proof of what was said not that it was true. iv. United States v. Montana- PO 1. Rule- performative acts are considered verbal testimony which do not make any truth claims and do not fall under the hearsay category. *** PO= performative utterance in a performative utterance, there is no matter asserted (not saying anything about the world, just trying to accomplish something under the law. AND declarants credibility doesnt matter. c. Implied assertions under 801(a)(2) the effect of the definition of statement is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key is that nothing is an assertion unless intended as one. 1. 4 typesi. verbal or written communications intended as an assertion these are statements and are hearsay if offered for their truth. ii. Non-verbal conduct intended as an assertion these are statements and are hearsay if offered for their truth.

iii. Non-verbal conduct that is not intended to communicate anything, but tells something about the actors belief. 1. This is hearsay under Wright- NOT FRE 2. E.g., the Sea Captain takes his family out on his boat. Is evidence of the Sea Captains conduct hearsay if offered to prove that the vessel was seaworthy iv. Verbal or written expressions that reveal something beyond what is communicated. 1. E.g., Put $2 to win on Paul Revere in the third race. Is this statement hearsay if offered to prove that the place receiving the phone call is a gambling establishment? 2. Notes: i. Without the intent to assert the dangers (perception, memory and narration) are minimal. 3. United States v. Zennii. Facts- In the process of executing a legal search on Zennis home, the government answered phone calls. At trial, the government sought to introduce the content of these phone calls to show that the callers believed that the premises were being used in betting operations. ii. Rule: non-assertive verbal conduct is not covered by the hearsay rule and is therefore admissible. iii. Held: the callers were not intending to assert that the premises were being used for a betting operation- they were giving a direction, not making an assertion. Evidence admitted. iv. Consider- what is the intent to communicate the inferred fact? Facts or verbal acts which serve as an inference for the ultimate fact to be proven are admissible. 4. Wright v. Tatum versus FRE i. If what is being implied is what you are trying to prove Wright held that implied assertions- even if not intended to prove the matter at issue were inadmissible. Doesnt care at all about intent, whereas the federal rule does. ii. Issue: was the boat seaworthy? 5. State v. Dullardi. Facts: The state wanted to introduce a note (potentially addressed to the defendant) that said- "there's a cop outside your house... I'm nervous The state acknowledged that it was a written assertion but claimed it was not hearsay because it was not offered for its truth.

1. Purpose of the evidence- to show by inference that the receiver of the note needed to know this information because he/ she was connected with a drug transaction. ii. Held- the note constitutes hearsay. The court determines that it is iii. Could have come out differently had it been in Federal Courtd. Confrontation Clause- a criminal defendant has a constitutional right to be confronted by the witnesses against him. i. Constitution- In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . 1. Confrontation right only applies in criminal prosecutions 2. Criminal right only granted to the accused ii. Analysis 1. Is the out-of-court statement admissible under the FRE? 1. Does it fall within the definition of hearsay? 2. If it is hearsay, does it meet one of the hearsay exceptions? i. If hearsay, and no exception applies the evidence will be excluded. ii. If not hearsay Go to Step 2 2. If the out-of-court statement is admissible under FRE, is it nonetheless excluded by the confrontation clause? 1. Is it testimonial? i. Primary purpose to prove past events ii. Examples- Affidavit- Hammon; police investigation- Crawford. iii. If it is testimonial the statement will be excluded by the Confrontation clause unless 2 requirements are met (1) the declarant is unavailable (2) the defendant had prior opportunity to cross-examine. 1. Unavailable = a witness who cant testify because of privilege (Crawford); a witness who doesnt appear is usually unavailable so long as that person is summoned to court and they ignore it. 2. Consider primary purpose. (Bryant) iii. Ohio v. Roberts1. Old approach; has since been rejected 2. Indicia of reliability standard- hearsay was allowed against a criminal defendant so long as the evidence fell within a well established exception to the hearsay rule, or carried sufficient indicia of reliability.

3. Result- confrontation clause provided little protecting to criminal defendants. iv. Crawford Standard Crawford v. Washington1. Facts: Crawford charged with assault and attempted murder of Lee, whom allegedly tried to rape Crawfords wife Sylvia. The P introduced tape recordings of Sylvias statement to the police describing the stabbing, even though Crawford had no opportunity for cross-examination. The court admitted the recording under the Roberts standard. Crawford convicted. Appealed. 2. Held- where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. The statements admitted in this case required confrontation. 1. Testimonial prior testimony at a trial or hearing and police interrogations. 3. Rejects Roberts approach what matters is whether the statement was testimonial. If testimonial, not admitted unless the declarant is 1) unavailable or 2) there was a prior opportunity for cross-examination 1. To allow the judge to introduce evidence simply because they are deemed reliable is at odds with the right of confrontation. 2. You cannot admit statements based on their reliability! This is an unreliable, malleable standard. v. Distinction between testimonial and non-testimonial1. Davis1. Facts: Police arrested Davis after a women named Michelle McCottry called 911 and identified Davis as an assailant in a domestic dispute. He was arrested without any other evidence beyond a caller identifying him as her assailant. At trial, the 911 recording was played. McCottry did not testify, and Davis argued that the recording should be excluded unless he had the opportunity to cross-examine the witness. The Washington Supreme Court disagreed and held that the phone call was not testimonial evidence under Crawford 2. Issue: whether statements made to law enforcement personnel during a 911 call or at a crime scene are testimonial and thus subject to the confrontation clause? 3. Rule- statements made to police during the investigation of a crime, though not made with the intent to preserve evidence (state and emergency), may be admitted into court without allowing defendants to

cross examine the person who made the original statement. i. Book- statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. ii. Statements are testimonial when circumstances objectively indicate that there is no such ongoing emergency and the primary purpose of the interrogation is to is to establish or prove past events potentially relevant to later criminal prosecution. iii. ***Possible that what begins as nontestimonial evidence may become testimonial evidence. 4. Holding- resolving ongoing emergency standard. The callers identification of her attacker to the 911 operator was intended to help police resolve an ongoing emergency, not testify as to a past crime. 5. Look @ the Primary Purpose- Purpose is more important than formality standard- formalities in the situation strengthen the testimonial aspect of evidence, but formality is not the single most deciding factor. 6. Hammoni. Domestic battery case in which the wife, Amy, was questioned at the scene of a domestic dispute. Evidence in the form of an affidavit was admitted at trial. ii. Affidavits admittediii. WHY??? 2. Michigan v. Bryant- Richard Perry Bryant was convicted of second-degree murder in part on the basis of a hearsay statement made by the victim identifying Bryant as the perpetrator. That statement was introduced at his trial and used against him. Bryant challenged the use of the statement because he had had no prior opportunity to cross-examine the declarant, which he argued was a violation of his right to confrontation under the Sixth Amendment, as interpreted in Crawford v. Washington and Davis v. Washington 1. Circumstances surrounding the interrogationi. Shooting had occurred 6 blocks away some 25 minutes earlier. ii. Victim made statements while under a lot of pain in a gas station parking lot. 2. Testimonial or non-testimonial? What was the purpose?

i. Admitted as non-testimonial The statement was not testimonial evidence because it was made for the primary purpose of resolving an ongoing emergency, and not for preserving evidence. Factors
1) They were focused on resolving a threatening situation (diminished the possibility that they are false-reliability) 2) Consider whether the emergency is ongoing 3) What is the medical condition of the victim? 4) What was the duration and scope of the emergency? 5) Consider the formality/ informality of the encounter 6) Look at the actions of the declarant and informants

ii. The court wrestled with the idea of whether the police interrogations designed to help an injured victim, and identify and apprehend the apparently armed and dangerous shooter were resolving an ongoing emergency. iii. Thomas- insufficient formality to be testimonial. iv. Scalia- we should look at the declarant purpose he was being interrogated, not helped! vi. Melandez-Diaz- Melendez-Diaz and two co-defendants were arrested. At trial, the prosecution placed into evidence bags seized from the codefendants and from the police cruiser after the arrests. They also submitted 3 certificates of analysis which stated that the bags contained cocaine. The Petitioner objected but the evidence was admitted. 1. Issue- are the affidavits testimonial evidence, rendering the witnesses subject to the defendants right of confrontation under the 6th amendment? 2. Held- Affidavits are testimonial evidence because they were prepared in preparation for trial. There should be no special rights for forensic analysis because confrontation is a procedural right, not a substantive one. 3. We want confrontation to rule out fraudulent analysis. vii. Bullcoming v. New Mexico- Donald Bullcoming was arrested on charges of driving while intoxicated (DWI). Principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming's blood-alcohol concentration was well above the threshold for aggravated DWI. Court allowed a lab analyst (someone other than the person who actually prepared the report) to testify.

1. Issue- Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements 2. Held- the substitute witness in this case is unconstitutional. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to crossexamine that particular scientist. 3. Sotomoyer concurrencee. Exceptions to the Hearsay Rule (see outline) i. 106ii. 801 (d)(1)- certain statements made by a person who testifies at a trial or a hearing, and is subject to cross-examination about the statements in not hearsay. 1. Prior inconsistent statement- 801(d)(1)(A) a witnesss prior inconsistent statement is not hearsay if it was made under oath at a prior proceeding. 1. Example- a statement made by a witness during grand jury testimony, if inconsistent with her in court statement, would be admissible to impeach credibility. 2. Albert v. McKay- the inconsistent statement, to be admitted, must be made under oath 2. Prior Consistent Statement- a prior consistent statement regardless of whether it is made under oath, is not hearsay if it is offered to rebut an express or implied charge that the witness is lying or exaggerating for some motive (introduce consistent statements to show they arent lying!) 1. The consistent statement has to have been made before the allegation regarding motive came up! 3. One of identification- 801(d)(1)(C) a witnesss prior statement identifying a person after perceiving them is not hearsay. The identification need not have been made at a formal proceedings, or under oath. 1. United States v. Owensiii. 801(d)(2)- Admissions by Party Opponents- A statement is not hearsay if (1) (5) conditions are met. (see chart) 1. Admissions by Party opponents1. Salvitti v. Throppe- A person's assertions regarding his own affairs have always some testimonial value regardless of the exactness of his personal observation of the data leading to his disbelief personal

2.

3.

4.

5.

knowledge is not required to admit a statement against interest. 2. United States v McGee- admissions by party opponents need not be inculpatory to be admissible as nonhearsay. Admission doesnt have to be incriminating, all that matters is that the declarant is the person against whom the statement is offered. 3. United States v. Phelps- you cant admit your own statement as an admission. Adoptive admissions1. United States v. Fortes- silent adoption. If the party fails to respond to accusatory statements where a reasonable person would have spoken up, his or her silence may be considered an implied admission. i. The party must have heard and understood that statement ii. The party must have been mentally and physically capable of denying the statement iii. And a reasonable person would have denied the accusation under the circumstances. 2. Southern Stone Co. v. Singer- the letter was not enough to establish acquiescence by silence. Authorized Admissions- 801(d)(2)(C) 1. Attorney- Hansen v. Walker- allows for a third party to make an admission on your behalf, so long as that person is authorized to speak on your behalf. Past employees dont fall within the exception for introducing something against a former employer. 2. Board of directors- Zoo case- Mahlandt v. Wild Canid Survival- the statement made by the Zoo Director that the Wolf (sophie) has bitten the child, was admissible under the principal agent 801(d)(2)(D). The board of directors minutes were not admissible under (C). i. No requirement for personal knowledge Agent and Employee Admissions- 801(d)(2)(D) Statements made by employees (who are not spokespersons) about matters within the scope of employment during employment relationship A statement made by a co-conspirator- 801(d)(2)(E) 1. Who decides whether something qualifies as a coconspirator admission? The judge 104(a) 2. What amount of proof is required to establish the elements of the coconspirator exception to the hearsay rule? Preponderance of the evidence- Bourjaily v. United States-

3. Can the out-of-court statement itself be considered in determining whether the elements of the exception have been established? i. In federal court, yes, the out-of-court statement can lift itself by its own bootstraps and establish the existence of a conspiracy. ii. Independent evidence + the statements themselves (bootstrapping) = conspiracy you need both. The judge usually has to look at both to determine the existence of the conspiracy under 104(a). You need more than just the statements iii. ***Furtherance and course of conspiracy*** 1. Bourjaily; Fed. R. Evid. 801(d)(2) iv. In a Florida court, no, the court may not rely upon an otherwise hearsay statement to find that a conspiracy existed- no bootstrapping in Florida iv. Admissions and the Confrontation clause with Co-defendantsFRE 105- When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. 1. Confessions may be admissible against one defendant but not against the other. 2. Bruton v. United States- Evans and Bruton were implicated in committing armed postal robbery. In confinement, Evans testified that both he and Bruton committed the robbery. That statement was admitted with a limiting instruction that it should be used as substantive evidence against Evans but not Bruton. Both were convicted. 1. Held- the confession deprived Bruton of his constitutional confrontation right. 2. Limiting instructions are not effective! Certain powerfully incriminating extrajudicial statements of a codefendant which name the defendant are so prejudicial that limiting instructions are not effective. 3. Gray v. Maryland- a confession that contained the use of blank spaces, the word delete, symbols or other redaction is so prejudicial that limiting instructions are not effective. 803: Normally these would be excluded by the hearsay rule, but they are admitted under rule 803, even though the declarant is available as a witness. v. 803(1) Present-sense Impression/ 803(2) Excited Utterance first hand knowledge required!!!

1. United States v. Obayagbona- Detective post drug deal makes a statement that the girl in the black and white handed it to me out of her purse. 1. Excited utterance 803(2) 2. Present sense impression 803(1) - because under the rule agent turners statement was made describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. i. Close enough to allow the inference of spontaneity ii. Near contemporaneity fulfills the requirement of 803(1) 2. Bemis v. Edwards- personal knowledge is required for a present-sense impression. It must be clear that the declarant speaks from personal knowledge. In this case, Bemis had no knowledge of what he reported- the cops are beating the shit out of him. vi. 803(3) State of Mind1. Direct versus circumstantial evidence as to state of mind1. Direct- I think, I believe. 2. Circumstantial- can be offered to show subsequent acts of the declarant. I.e. the intent of the declarant to do something in the future is admitted as circumstantial evidence tending to show that the intent was carried out. 2. United States v. Harris- The out of court statement was proffered to show the declarants state of mind rather than to show the truth of what it asserts. 3. Mutual Life Insurance Co. v. Hillmon- someones state of mind can be written as well as spoken. 1. The letters in question were competent not asproof that [Walters] actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon than if there had been no proof of such intention 4. Shepard v. United States: exception to rule distinction between past act and something in the future. 1. Statement that Dr. Shepard poisoned me! = A statement of belief: Not admissible to prove that Dr. Shepard, in fact, poisoned Mrs. Shepardthe fact believed.

2. The statement may not be admitted because declarations casting light upon the future [Hillmon] have been sharply distinguished from declarations of memory [Shepard] pointing backwards towards the past. 3. You dont want to shed light on past events because there is the issue of erroneous memory and faulty perception. 4. Barney Case- compare to Shepard. The statement of the child that I think thats Barney, is not offered to prove that in fact its Bareny but that there was confusion. This is okay! 5. Key distinction- The committee intends that the Rule be construed to limit the doctrine of [Hillmon] so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person. 6. United States v. Houlihan- the whole point is for the state of mind of person x to apply to person xs intent. Your state of mind regarding the conduct of another is not admissible. 7. OJ Casevii. 803(4) Medical Diagnosis or Treatment- You would think that declarations of past physical conditions would be omitted, but under FRE, declarations of past physical conditions are admissinle if made to medical personnel (or the like) to assist in diagnosing or treating condition. The cause or source of the condition may be allowed insofar as reasonably pertinent to diagnosis or treatment. 1. Rock v. Huffco Gas: reasonably pertinent to diagnosis or treatment standard. 2. Domestic Violence Exception1. Confrontation clauseviii. 803(5) Recorded Recollection- a tool for getting evidence- the requirement is that is has to have been written down by the witness when the matter was fresh in the witnesss memory. May be read into evidence but not received into evidence! 1. Fisher v. Swartz- P was trying to recover from unpaid labor on Ds house. P used an itemized statement which he had previously prepared demonstrating the labor and materials furnished to the D. He used this to refresh his memory. 2. United States v. Riccardi- the writing has to meet certain standards because it is serving as the witness testimony in the sense that they dont presently remember that to which they are testifying. ix. Business Records- 803(6) Records of Regularly Conducted Activity1. State v. Acquisito- D offered alibi evidence from his mother that said he was at home during the time of the alleged crime.

The P introduced evidence in the form of business records which suggested the mother wasnt at home and was actually at work. Business record properly admitted. 2. Keogh v. Commissioner of Internal Revenue- In tax fraud case, government sought to introduce evidence of a personal tip diary kept by a fellow employee of Keogh. Tip diary was used to show that Keogh underreported his tip income. Keogh argued that the tip diary shouldnt have been admitted because it wasnt prepared in the course of commercial business activity. 1. Rule- if they otherwise qualify, personal records kept for business reasons may be admitted into evidence under the business records exemption. So long as its kept within the business activity occupation and calling of its author. 2. Personal business records okay if systematically checked and regularly maintained. 3. Regular practice element Wilson v. Zapatax. Public Records and Reports- 803(8) 1. Beech Aircraft Corp v. Rainey- evaluative reports1. Facts: Plane manufactured by BAC crashed killing all those aboard. At trial BAC introduce a report generated pursuant to the incident in which blame was generally laid on pilot error. Rainey objected on the grounds that public records and report exception did not apply to introduction of opinions/ conclusions contained within public records/ reports. 2. Rule- public records exemption permits introduction of opinions and conclusions contained in the public records and reports, not merely the facts therein. i. Portions of the report other than raw data may be admitted, unless the circumstances or sources of information indicate lack of trustworthiness. 2. TRICKY PART! 803(8)(B) and (C) fact or matters 1. 803(8)(B) matters observed by law enforcement personnel are not admissible in criminal cases 2. 803(8)(C) factual findings in public records are not admissible against criminal defendants. 3. United States v. Oates: Oates convicted of possession of heroin with intent to distribute, etc. He objected to the introduction of the official report and worksheet prepared by the US Customs person in id-ing the substance as heroin. Report was determined not to be admissible i. Rule: Generally speaking, you can try multiple hearsay exceptions. BUT in the case of police

reports, and evaluative reports that dont satisfy the standards of 803(B) or 803(C), they may not qualify for admission under FRE 803(6) or any of the other exceptions to the hearsay rule. Evaluative and police reports that fail to qualify under the public records exception to the hearsay rule are not admissible as business records. 4. United States v. Brown- property receipt for gun admitted under 803(6) i. Rule: police records prepared in a routine, nonadversarial setting are not contemplated by the exclusion of the FRE 803(8)(B). 5. United States v. Orozco: routine photos taking shots of license plates of cars as they come through the border are admissinle. i. FRE 803(8)(B) excludes in criminal cases matters observed by police officers and other law enforcement personnel. ii. But Congress did not intend to exclude records of routine, nonadversarial matters such as those in question here. iii. Routine non-adversarial police records may be admitted. 6. United States v. Smith: f. 804- Hearsay Exceptions- Declarants unavailability at Trial REQUIRED i. If the declarant is unavailable under 804(a), certain testimony given at a prior hearing or deposition is admissible ii. 804(b)(1) Former testimony- Key to admissibility is that nature of the second case 1. If it is a criminal case, the party against whom the testimony is now offered must have had the opportunity and similar motive to develop the testimony at the prior proceeding. 1. United States v. Salerno- similar motive doesnt mean identical. 2. If it is a civil case, the party or his predecessor in interest must have had the opportunity and motive to develop the testimony. 1. Rationale page 209- in the former suit a party having a like motive to cross examine about the same motive as the present party would have, was accorded an adequate opportunity for such examination, the testimony received against the present party. 2. Under these circumstances, the previous party having like motive to develop testimony about the same material facts is a predecessor in interest to the present party.

iii. 804(b)(2) Dying Declaration- In a prosecution for homicide or civil action, a declaration by a now unavailable declarant while believing his/ her death was imminent that concerns the cause or circumstances of what he/she believed was his impending death is admissible. The declarant need not actually die, but must be unavailable. 1. United States v. Sacasas1. Rule- the statement has to relate to the cause and circumstances of impending death. 2. The court didnt consider this a dying declaration because this statement has nothing to do with the circumstances surrounding his pending death. 3. To be admitted as a dying declaration, the statement must relate to the person making the statement, and their own homicidal attack, not some external matter (i.e. Mahans statement that Sacasas wasnt responsible for the robbery) 2. Florida Statute- permits dying declarations in all cases, both civil and criminal 3. United States v. Shepard- Dr. Shepard charged with poisoning his wife. Prosecution introduces the evidence from the nurse that Mrs. Shepard said Mr. Shepard has poisoned me. Evidence initially admitted. Excluded on appeal. 1. To be a dying declaration, the declarant must have spoken without the hope of recovery and in the shadow of impending death. 2. To statement has to be spoken in the hush of deaths impending presence. 3. Failure to make out the imminence of death + abandonment of hope 4. State v. Lewis- Gary Finchum, an attempted robbery victim who had been shot during the crime, identified who he thought was involved in the crime prior to dying. The lower admitted the statements into evidence. 1. Rule- a statement made by a dying victim is admissible as a dying declaration even if it is opinion, as opposed to fact and testimonial, so long as it is reasonable under the circumstances. 2. Rule (2) there is essentially a dying declaration exception to the Crawford confrontation clause issue. i. Because the admissibility of the dying declaration is . . . deeply entrenched in the legal history of this statethis single hearsay exception survives the mandate of Crawford regardless of its testimonial nature.

ii. You could also argue the other way that like Bryant, this was non-testimonial. 3. A dying declaration is essentially a substitute for the testimony of the victim, and must be limited to what the victim could have testified to if present. Here the victims identification on Lewis is rational/ reasonable based on his perception. 4. Dying declaration trumps the confrontation clause issue. iv. Statements against interest 804(b)(3) 1. Requirements for a statement against interest- (very similar to admission except under the statement against interest, the statement must have been against interest when made.) 1. The statement must have been against pecuniary, proprietary or penal interest when made. 2. Declarant must have had personal knowledge of the facts 3. Declarant must have been aware that the statement was against his or her interest and she must have had no motive to misrepresent when she made the statement. 4. Unavailability. 2. United States v. Duran Samaniego- To prove that his brotherin-law stole his belts, Duran offered into evidence the BILs apology. 1. Rule- the statement was not admissible under 803(3) past thing not future event. But is was admissible under 804(b)(3) because the exception requires that unavailability of the D. v. Forfeiture by wrongdoing- 804(3)(6)- an effort to prevent the use of hearsay by a party who purposely and wrongfully caused a declarants unavailability. 1. Confrontation Clause issue2. Giles v. California1. Testimonial hearsay statements are allowed. 2. Under the forfeiture by wrongdoing exception, like the dying declaration exception, we will allow hearsay statements to circumvent the constitutional protection of the confrontation clause so long as the defendant engaged in conduct x, y, z in order to prevent the witness from testifying. 3. Difference between causing the person to be absent and preventing them from testifying? i. Intent is important because if you didnt look at intent to make the witness unavailable, in nearly every murder case you could subject every

IV.

defendant to the forfeiture rule and avoid the confrontation clause ii. D forfeits his right to object under the confrontation clause only if his conduct was designed to prevent the witness from testifying. g. 805- Hearsay within Hearsayh. 807- The residual exception! i. The residual hearsay exceptions should be used very sparingly, and only in exceptional circumstances. 1. The requirement is that the proponent of the evidence offered under the residual exception must give the opponent sufficient notice before trial to enable him to prepare and meet the evidence. 2. Evaluation of trustworthiness and need for a particular hearsay statement. ii. United States v. Lancaster- The analysis of hearsay doesnt end when a statement fails to qualify as _____ exception, but should be evaluated separately 1. Minority view2. Majority view- Any statement that is not admissible under FRE 803-04 is not specifically covered by FRE 803-04 and is therefore potentially admissible under FRE 807.

Character Evidence-

a. The Basic Rule and Its Exceptionsi. 404(a) Character Evidence generally- Character evidence is admissible when character is at issue. But character evidence of a persons character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. 1. In a civil case, character evidence is never admissible to prove action in conformity therewith. 2. In a criminal case, character evidence is admissible to prove action in conformity therewith in the following circumstances: 1. Character of the accused- must be invoked by the criminal defendant; once he/she chooses to open up the question of his or her own character, the prosecution may rebut with evidence of the same trait of the defendants character. 2. Character of the alleged victim- must be invoked by the criminal defendant; The prosecution may rebut with evidence of the same trait of the alleged victims character and The prosecution may rebut with evidence of the same trait of the defendants character. i. FL exception-

3. Character showing credibility of the witness1. In a homicide case, the prosecution may introduce evidence of the victims peaceful character to rebut evidence that the victim was the first aggressor. 4. People v. Zackowitz- The decedent insulted Zacks wife and Zack, in a rage, killed him. P sough to introduce evidence that Zack owned 3 other guns that were in his apartment, but not brought to the scene of the crime. The purpose was to show the Zack was criminally inclined. 1. Held- not admissible 2. Rule- character is never an issue in a criminal proceeding unless the D chooses to make it one. ii. 401- Relevant evidence is evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. 1. Tending to make the existence of a fact to be proved more probable or less probable. 2. STD: more probable that it would be without the evidence. 3. Evidence doesnt have to be in dispute iii. 402- all relevant evidence admissible; evidence which is not relevant is not admissible. 1. Not all relevant evidence is admissible. iv. 403- Exclusion of Relevant evidence on grounds of prejudice, confusion or waste of time1. Relevant evidence may be excluded if probative value is outweighed by prejudice or efficiency concerns. Old Chief v. United States (1997) 2. The reason to exclude such evidence on grounds of prejudice is because you dont want to show evidence of the defendants character. Thus 404 is a more specific application. b. Methods of Proving Characteri. 405 (a) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. 1. Reputation- testimony about a persons reputation 1. This is usually hearsay! 2. Opinion- witnesss own opinion about the persons character. 3. United States v. Seiten- evidence of specific acts of conduct are the most convincing but at the same time it produces the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. On cross-examination, inquiry is allowable into specific instances of conduct 4. Michelson v. United States5. How prosecution rebuts the character evidence-

1. Cross-examination- the prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about specific instances are allowed. i. Under 405 (a) inquiry is allowed on crossexamination. Thus, cross examination inquiry of whether the opinion witness has heard as well as whether the reputation knows of specific instances of misconduct on behalf on the D are allowable. ii. 405 (b) When character is directly at issue, evidence of specific acts that show the Ds character will be admitted. For example, to show that the D is a thief, the P may introduce evidence that D has previously stolen things. Under FRE, any type of evidence- reputation, opinions, or specific acts- may be used to prove character when character is directly at issue. c. Other Uses of Specific Conduct inferential chains that bypass character! i. 404(b) - Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith (criminal disposition). It may, however, be admissible for other purposes (propensity), such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ii. Examples of relevant misconduct- Evidence of uncharged criminal misconduct is routinely admitted on the theory that it is being used to prove something other than the defendants character, so that their character doesnt come into play at all. This evidence will be allowed so long as there is sufficient evidence to support a jury finding that the defendant committed the prior act (104(a)) Huddleston v. United States Under 404(b) its an issue of conditional relevance thus, the only threshold that must be met is that the jury could reasonable find *** Look for a direct logical link between the other evidence and the relevant and contested non-character issue** 1. Motive 1. United States v. Boyd: Boyd convicted of marijuana trafficking. Evidence introduced was that he smoked the reefer. i. Rule: evidence of personal drug use admissible as proof of motive for trafficking drugs. ii. Its not to prove that he is the kind of person to traffic marijuana, but that he had the motive to! Personal use iii. Had he been charged with possession of marijuana this probably would have come out differently

2. Intent 1. United States v. Beechum- D was convicted of unlawfully possessing a silver dollar that he knew to be stolen from the mail. At trial to establish his intent to keep it, the P introduced evidence that they found 2 credit cards in Beechums possession that were not his and had been mailed to the holders 10 months prior to the arrest. i. Rule- the evidence was admissible because it was not being used to prove his larcenous character, but to prove his intent that he didnt intend on returning it. ii. Two-step test: 1. The offered evidence is relevant to an issue other than the Ds character 2. The evidence has probative value that is balanced against undue prejudice under 403 3. Opportunity1. United States v. DeJohn- D charged with uttering and publishing two treasury checks. Character evidence testimony introduced by a police officer that he had found D with a treasury check once before and that he had taken it from the YMCA. i. Rule- prior act evidence may be used to demonstrate that the D was in the vicinity of the crime at the time it was committed, had access to some crucial instrumentality, or had the necessary knowledge, familiarity or experience to commit the crime. ii. 403 balancing test iii. Evidence of prior trespassesopportunity to steal checksdefendant stole the forged checks. 4. Absence of mistake or accident 5. Identity 6. Common plan or scheme Preparation 1. Lewis v. United States: Earlier burglary of a garage to steal toolspreparation for the post office breakindefendant broke into the post office. i. Rule: prior act evidence is admissible to establish the defendants intent and plan. 7. United States v. Wright: comes out differently. 1. Facts: Wright convicted of distributing cocaine. Evidence = Four daylight sales to undercover cops and Wiretap: Im a drug dealerIm kind of a big deal.

People know me. Wiretap admitted to prove identification and intent. 2. Rule: in a criminal case, prior acts evidence may not be used to prove a persons propensity to commit a crime in conformity with his bad character where there is no other justifiable use of that evidence. iii. Pre-trial notice requirement d. Character and Habit i. 406- Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. ii. Use of 403- Thus, it seems like 406 was designed to allow trial courts wide discretion in balancing the probative value of the evidence versus the prejudice. iii. Consider- adequacy of sampling and uniformity of response iv. Why is habit relevant? 1. Habit describes ones particular response to a repeated specific situation. A habit is a persons regular practice of meeting a particular kind of situation with a specific type of conduct. 2. The doing of a habitual act is relevant because it is something that is semi-automatic. 3. Habit is highly persuasive as proof of conduct on a particular occasion... nonetheless, most habit evidence is excluded because it fails to achieve the status of a habit (intemperate habits) v. Loughan v. Firestone Tire and Rubber Co. 1. Evidence: Loughan was injured on the job at Firestone when a part hit him in the head. Loughan challeneged as inadmissible evidence prior instances of Loughan drinking on the job. 1. Loughans admission that he carried a cooler of beer on his truck and would drink during the work day 2. Orrs testimony about the cooler, Loughans habit of drinking, and customers complaints 3. Thompsons testimony that he fired Loughan because he thought Loughan drank on the job. 2. Rule: under the FRE 406, the cumulative nature of effect of the evidence taken together from several sources is sufficient to establish the habit. 3. Rationale: Although a precise formular cannot be proposed for determining when the behavior may become so consistent as to rise to the level of habit, adequacy of sampling and uniformity of response are controlling considerations.

1. The court in Reyes held that four prior convictions for intoxications spanning a 3-year period were insufficient regularity to establish habit. vi. Burchett v. Comonwealth- comports with the spirit of the rules in the sense that the court weighed the probative value against the potential harmful effects. Evidence that D smoked marijuana daily does not mean that he did so on a particular day. e. Sexual Assault and Child Molestationi. 412- Character of the Victim aka Rape Shield Statutes- in any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim in generally inadmissible. 1. In criminal cases, no evidence of other sexual behavior or sexual predisposition may be admitted except 1. Specific instances of behavior [with persons other than the person whose sexual misconduct is alleged] to prove that someone other than the defendant was the source of semen, injury, etc. 2. Specific instances of sexual behavior of the alleged victim with the accused to prove consent (or by the prosecution) i. Fla. Stat. 794.022: Also permits introduction of specific instances of activity between the victim and any other person to prove consent, if the evidence tends to establish a pattern of conduct by the victim. 3. Evidence required by the Constitution to be admitted. i. Olden v. United States: the confrontation clause mandates that a defendant be permitted to cross examine a witness on any relevant matter that tends to demonstrate an improper motive or bias by the witness. ii. Graham v. Stateiii. United States v. Saunders- Saunders was convicted of raping Patricia Duckett. S contended that the court erroneously excluded evidence of Patricias previous sexual conduct with him and a friend, and that Patricia was a skeezer. 1. Issue: state of mind? 2. Held: In rape cases, evidence of the victims prior sexual acts will be admitted only if it falls within one of the 3 categories evidence that the alleged victim engaged in sexual acts with a third party cannot be used to prove consent. 3. Only evidence allowed was the Ds past experience with the victim.

iv. Florida Rule in regards to 412- Applies only in criminal prosecutions for sexual battery. Permits introduction of specific instances of prior consensual activity between the victim and any other person to prove consent, if the evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent. v. In civil cases, evidence offered to prove sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible and its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party (balancing test) 1. Reputation evidence is admissible only if placed in evidence by the victim. vi. Character of the Defendant 1. 413- In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendants commission of another offense . . . of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. 2. 414- In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendants commission of another offense . . . of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. 1. United States v. Lecompte- L was convicted of sexually molesting his niece. The P tried to introduce evidence that L sexually molested another niece and it was excluded. i. Case reversed and remanded- the balancing test for prejudice under FRE 403 must be applied to allow the admission of similar crimes in child molestation cases under 414. ii. T.T.s testimony is obviously highly prejudicial evidence against defendant. . . . child sexual abuse deservedly carries a unique stigma in our society; such highly prejudicial evidence should therefore carry a very high degree of probative value if it is to be admitted. 1. In this case the probative value was high because the time lapse between the two incidences occurred when the D was in prison. 3. Standard of Proof for 413 and 414- reasonable jury could conclude by a preponderance of the evidence that the prior act

of the sexual assault, or child molestation did occur. (104(b)) Fulfillment of condition of fact. 1. The evidence of the prior act of sexual assault or child molestation is only relevant if that prior instance actually occurred. 2. The question for the court is could a reasonable jury find? 3. Florida looks for a clear and convincing evidence standard 4. Potential Arguments Against- The prior evidence could be false- our justice system is founded on the idea that it is much worse to deprive someone of their liberty than to let them free 1. Relevancy? 5. Potential Argument For- Prior acts of child molestation are admissible under 404(b) to prove motive- a taste or compulsion for engaging in a particular type of activity. 6. 415-

V. Other Forbidden Inferences

In addition to hearsay and other character evidence a. Operation of 403b. Subsequent remedial measures- do not apply 401 relevance standard i. 407- When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 1. Example- rule 407 will stop the customer in a slip n fall from introducing evidence that the store later changed the type of finish on its floor 2. The conduct is not an admission of guilt because the conduct is equally consistent with injury by mere accident or contributory negligence. 3. It is against public policy to discourage people from making things different - because the world gets wiser as the world gets older doesnt mean it was foolish before 4. Purposes for introducing evidence of SRMs other than establishing negligence or culpability 1. To prove control/ ownership- evidence of subsequent repairs performed by the D may be introduced to prove

ownership or control, since a stranger would hardly make these repairs; or to show that the D owned or controlled the thing/ place where the injury took place. i. Clausen v. Storage Tank: it was necessary to admit evidence of subsequent remedial measures to prove who had control over he area where the injury occurred. 2. To prove feasibility precautionary measures, if controverted by the defendant i. This has to be contested by the D- that it was not feasible to make the repairs. ii. In re Asbestos Litigation 3. To prove destruction of evidence- evidence of subsequent remedial measures may be admitted to prove that the opposing party has destroyed the evidence (spoliation) c. Settlement effortsi. 408(a)- Civil Cases: Evidence of (1)/ (2) is not receivable into evidence as an admission of the validity or invalidity of the claim; or to impeach (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations regarding the claim . . . 1. 408 (b) Permitted uses- anything not prohibited by (a) Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. 2. Rationale- (1) The evidence is irrelevant, since the offer may be motivated by the desire for peace rather than from any concession of a weaker position (2) promotion of public policy favoring the compromise and settlement of disputes. 3. Process1. Propenent of the rules application must show that there is a disputed claim 4. Prohibited- Settlement offers (offers to pay or payments); conduct or statements made in compromise negotiations regarding the claim (except in criminal cases where the negotiations involve a government actor) 1. Ramada v. Rausch: 2. Usually it is hard to determine whether compromise negotiations are in place. A good indicator could be whether there was a lawsuit filed.

VI.

3. What is the purpose for which the party seeks to introduce the evidence? 4. Information that was in a settlement talk, but has nothing to do with the settlement may not be immunized merely by mentioning it in settlement talks. ii. 410- Criminal Cases: Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: 1. A plea of guilty which is later withdrawn 2. Statements made in connection with plea bargaining which show liability for an offense 3. Presumption of waivability- United States v. Mezzanutomany law enforcement officers are able to avoid the rules effect by refusing to negotiate unless the defendant waives his or her rights under the rule. 1. Once you waive your rights, too bad so sad. d. Medical payment and Liability Insurance i. 409- evidence of furnishing or offering to promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible to prove liability for the injury. ii. 411- evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. This does not exclude evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership or control, or bias or prejudice of the witness. 1. Charter v. Chilboard- the fact that the defendants witness was employed by the insurance company was admissible to show bias or prejudice of the witness, or to impeach the witness. This goes against the general rule that evidence of insurance is not admissible. 2. Higgins v. Hicks Co. 2 motorcyclists injured on the same stretch of highway that was currently being repaved by the D. They sought to introduce evidence that South Dakota, who contracted for Ds work, had liability insurance. 1. Not admissible- evidence of liability insurance may not be admissible to prove negligence of the insured. The fact that SD was insured was also irrelevant to the case. 2. Consider the arguments for and against admitting evidence of insurance.

Impeachment and Rehabilitation-

a. Introductioni. Cross-examination and re-direct ii. Impeachment versus Rehab-

1. Impeachment- Impeachment is relevant because it suggests that a certain witness lacks credibility and therefore his or her testimony should be disregarded. 1. Character for Untruthfulness 2. Prior inconsistent statements 3. Bias 4. Incapacity 5. Specific Contradiction 2. Rehab- rehabilitation evidence is that which is relevant because it rebuts impeachment evidence i.e. because it suggests that a witness who has been impeached is in fact credible and should be believed. 1. Character for truthfulness 2. Prior consistent statements3. Disinterest 4. Capacity 5. Specific Corroboration b. Character for Untruthfulness- Offering character evidence that the witness shouldnt be believed because, as a general matter, the witness is dishonest. i. General Rule- opinion/ reputation for truthfulness permitted; questions regarding specific acts OK on cross examination; no extrinsic evidence of specific acts 1. Requirements1. the evidence may only refer to character for truthfulness or untruthfulness 2. the evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation or otherwise. ii. 608 (a)(1) [T]he evidence may refer only to character for truthfulness or untruthfulness. 1. Interplay with 404- Develops the exception under 404(a)(3) that character evidence may be offered to bear upon a witnesss credibility. 2. Interplay with 405(a) specific instances of conduct allowable under 405 when character at issue here, you may not use specific instances if proved through ??? iii. United States v. Lolar- Defendant can open the door 1. Rule- once the defendant takes the stand on his own behalf, the credibility of the defendant can be attacked by opinion evidence as to his veracity. iv. 608(b) Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness character for truthfulnessmay not be proved by extrinsic evidence. that is, impeachment/rehabilitation that occurs through the use of other evidencee.g., testimony from other witnesses or physical exhibits.

1. Exceptions (2)1. Criminal cases 2. On cross-examination of a principal witness or of a witness giving an opinion of his character for truthfulness. 2. United States v. Ling- when a criminal defendant testifies on his own behalf and is cross-examined for the purpose of impeaching his own credibility the opposing party on crossexamination cannot contradict him through testimony regarding specific acts when not at issue. v. Specific Acts of Criminal Convictions- 609 Which types of character evidence are admissible? 2 types! (felonies- part 1; crimen falsi- part2) 1. Generally1. Crimes involving dishonesty or false statements are always admissible to impeach. 2. Felonies admissible if: the witness is not a criminal defendant and probative value is not substantially overweighed by unfair prejudice (403) OR the witness is a criminal defendant and the probative value is not outweighed by unfair prejudice. 3. To challenge the 609 ruling on appeal, a defendant must take the stand and subject themselves to impeachment. 2. 609(a)(1) Felony convictions can be used to impeach the character of a witness- evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines (court discretion) that the probative value of admitting this evidence outweighs its prejudicial effect to the accused 1. United States v. Sanders: i. Facts: Current charges: Assault & possession of contraband. Prior convictions offered for impeachment: Assault & possession of contraband. ii. Evidence of prior felony convictions may be used to attack the credibility of a witness only if the probative value of the evidence outweighs its prejudicial effect (403) 1. Consider the high likelihood that the evidence would have a prejudicial effect

when there is a similarity between it and the charged offense. iii. Evidence of similar offenses for impeachment purposes should be admitted sparingly if at all (not all courts adhere to this rule- Oaxaca) 2. United States v. Oaxaca: Basically the same facts as Sanders but comes out differently. i. Rule- evidence of a prior conviction for a crime that reflects adversely on the Ds honesty and integrity can be used to impeach a defendant even where the offense involved in the prior conviction is identical to that for which the defendant is charged. 1. Case demonstrates the courts discretion 3. United States v. Hernandezi. Rule: In this case, the court was aware that the prior and current conviction were extremely similar, but they acted within their discretion in determining that, given the importance of the credibility issue in the case, the evidence of earlier convictions should be admitted. 3. 609(a)(2) Crimen falsi convictions used to impeach the witness- evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. 1. No discretion here for the court! It must be admitted regardless of rule 403 i. United States v. Wong2. Crimen FalsiCrimes involving an element of misrepresentation, crimes carrying a tinge of falsification. i. Crimes such as perjury, false statement, criminal fraud, embezzlement, or false pretense. 3. United States v. Amaechi: shoplifting is not a crime of dishonesty because it does not involve some misrepresentation or propensity to lie. c. Prior Inconsistent Statements- impeachment by showing that the witness has told a different story in the past (self-contradiction) and shouldnt be believed because they have changed their story. i. 613: an inconsistent statement, that is not offered for its truth, may be admitted so long as it doesnt unduly prejudice the witness. ii. May be proved by cross-examination or extrinsic evidence-

1. Cross examination 613(a)-In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. 2. Extrinsic evidence only allowed if procedural requirements of 613(b) are followed. 1. Extrinsic evidence of prior inconsistent statement by the witness is not admissible unless the witness is afforded the opportunity to explain or deny the same, and the opposing party is afforded the opportunity to interrogate the witness thereon. 2. Requirements = all prior statements must be disclosed to opposing counsel on request. 3. Extrinsic evidence of prior inconsistent statements is admissible only if: i. Witness being impeached is is given the opportunity to explain or deny the prior statement, and ii. The opposing side is given the opportunity to question the witness about the statement. iii. United States v. Ince1. Impeachment for prior inconsistent statement was not intended to circumvent the hearsay rule. You cant try to impeach a witness using hearsay evidence when the defendant isnt offering inconsistent statements. 2. Impeachment by prior inconsistent statement may not be employed as a mere subterfuge to get before a jury evidence not otherwise admissible. (United States v. Morlang) iv. How it works with the hearsay rule for prior inconsistent statement- 801(d)(1) - Addresses the separate question of under what circumstances the prior inconsistent statement can be used not just for impeachment, but also to prove the truth of the matter asserted. 1. Is the distinction here whether the prior inconsistent statement was made at trial? 2. As it works with hearsay, consider that prior inconsistent statements are always admissible for impeachment purposes (subject to 401-403) . And prior inconsistent statements are SOMETIMES admissible as substantive evidence. 1. Under oath distinction? d. Biasi. Bias- impeachment because the witness has a motive to lie or slant their testimony. For example, showing that the expert witness is being paid, showing that the witness is the defendants lover.

ii. Confrontation Clause provides criminal defendants with the right to explore witness bias United States v. Abel iii. Intrinsic or extrinsic evidence admissible to show bias iv. Bias restricted by 403 in terms of undue wasteful or prejudicial e. Incapacityi. Impeachment for Incapacity= demonstrating that the memory or perception of the witness is unreliable (showing that the witness has a defect in their capacity to observe) 1. Relevance rules require that the incapacitated condition existed at the time of the relevant events. 2. United States v. Sasso- evidence of a witness depression is not admissible to show incapacity/ impeach them when there is no indication that the depression affected the witness ability to perceive, understand or remember events. 3. Henderson v. Detella- Henderson convicted of murder and attempted murder (attempted murder of Chavez). His defense tried to introduce testimony of a witness who had seen Chavez do drugs (prove her incapacity). This testimony was not admitted because the witness merely would have said that he had known Chavez to do drugs, not whether those occasions were in reference to the murder. 1. Thus, the testimony would not have been probative as to Chavezs ability to recognize and identify the individual (Henderson) who had committed the offense. f. Specific Contradiction- Proving that some particular part of the witnesss testimony is false, and then suggesting that this gives the jury a reason to disregard the remainder of the testimony. i. Inference- The witness made a mistake of fact, and so her testimony might contain other errors and should be discounted accordingly. ii. Collateral evidence rule (applies only to stop extrinsic evidence)- A witness may not be impeached by extrinsic evidence (contradiction by another witness or evidence) on a collateral issue. 1. Evidence is collateral if- the party seeking to introduce it for purposes of contradiction would [not] be entitled to prove it as part of his case. 2. The effect of the collateral evidence rule is that you may not admit a specific contradiction in a witness testimony for impeachment purposes if that specific contradiction is to a collateral or irrelevant matter. g. Rehabilitation- in order to use rehabilitatibe testimony- i.e. testimony that suggests that a witness testimony is in fact believable- you must wait until the witness testimony has been attacked! That means no bolstering! i. Bolstering = Bolstering is the practice of offering evidence solely for the purpose of enhancing a witnesss credibility before that

VII.

Competence-

credibility is attacked. Generally all rehabilitation must follow impeachment. ii. Character for truthfulness 1. 608 (a)(2)- character for truthfulness may only be offered after the witness credibility as a witness has been attacked. 1. What constitutes an attack? Opinion or reputation that the witness is untruthful specifically qualifies as an attack. So does evidence of misconduct, conviction of a crime and corruption. iii. Prior consistent statements- Whether evidence in the form of a contradiction is an attack upon the character of the witness depends on the circumstances. The matter is up to the discretion of the court 1. 801(d)(1) prior consistent statements 1. Prior consistent statements that may be admitted include those offered to rebut an express or implied charge against a witness or recent fabrication or improper influence or motive. 2. Inconsistencies do not equal an attack necessarily- In United States v. Daheny, discrepancies between a witness; testimony and that of other witnesses and arguing that the witness testimony is not credible does not constitute an attack on the witness reputation for truthfulness that permits the witness to afterward bolster his reputation for truthfulness. 3. FRE 801(d)(1)(B) permits the introduction of a declarants consistent out-of-court statement only when the statement was made before the charged recent fabrication or improper influence/motive. 1. Tome v. United States (1995) 4. Most courts (including Florida courts) hold that, even if there is no charge of recent fabrication or improper influence/motive, a prior consistent statement may still be offered to rehabilitate from impeachment with a prior inconsistent statement. 1. United States v. Simonelli (1st Cir. 2001) 5. Most courts (including Florida courts) hold that the pre-motive requirement of Tome (point 1) does not apply to prior consistent statements offered only to rehabilitate (point 2). 6. But post-motive statements are subject to exclusion under Rule 403. iv. Bias does not constitute an attack

a. In General: In general witnesses are presumed to be competent until the contrary is determined. i. There are four basic testimonial attributed that every witness must have to some degree capacity to observe, to recollect, to communicate and to appreciate the obligation to speak truthfully. A

diminution of any of these capacities usually goes to the weight of the testimony and serves to make the witness less persuasive. BUT a witness can be so deficient in one or more of these categories as to be deemed incompetent to testify. ii. 601- Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. 1. Advisory Committee Note- Discretion is regularly exercised in favor of allowing the testimony . . . The question [of witness competence] is one particularly suited to the jury as one of weight and credibility. 2. A convicted felon is competent to serve as a witness- Rosen v. United States 3. Legal insanity alone is not enough to render a witness incompetent to testify- United States v. Lightly- Lightly was convicted of a stabbing. McDuffie was not charged because he was ruled criminally insane and not competent to stand trial. 1. Rule- Insanity alone does not make someone incompetent Rather, the court must consider whether the witness lacks relevant knowledge, cannot recall or cannot testify truthfully. 4. Occasional incompetency is not enough- United States v. Hickey- Hickey convicted of conspiring to distribute cocaine. Witness for government, who was a self-proclaimed cocaine addict testified against Hickey. Hickey argued that the court erred in allowing the witness because of his cocaine addiction and inconsistencies in his testimony (D didnt think that the statements were valid on the grounds they were impaired by cocaine addiction) 1. Issue- so impaired as to be unable to satisfy personal knowledge requirement? 2. Rule- a witness who is sometimes impaired is competent to testify if a reasonable juror could believe that the witness perceived the event to which they testify. Testimony should not be excluded for lack of personal knowledge unless no reasonable juror could believe that the witness had the ability and opportunity to perceive the event to which they testify about. b. 2 Requirements to satisfy Competence Personal Knowledge & Oath or Affirmationi. 602- Personal Knowledge- A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. 1. Sufficiency standard- all that is needed is evidence sufficient to support a finding that the witness has personal knowledge. This standard should be satisfied if a reasonable juror or judge could believe that the witness observed matters to which they testified. After that, it is up to the jury to determine the trustworthiness of the testimony. 2. United States v. Hickey- testimony shouldnt be excluded for lack of personal knowledge unless no reasonable juror could believe that the witness had the ability and opportunity to perceive the events that he testifies about. ii. 603- Oath or Affirmation- the rule requires that the witness perform the mechanical act of taking an oath or affirmation in a form calculated to awaken the witness conscience, and impress in his or her mind the legal duty to tell the truth. The witness must understand or appreciate the oath. 1. 2 considerations- form of oath + understanding of the oath (what it means) 2. United States v. Ward- Ward wanted to swear an oath of his own creation and the court denied him his request. 1. Rule- there is no strict requirement of 603 as to the content/ form of the oath. All that matters is that a witness declare that he will testify truthfully, by oath or affirmation administered in such a form as to awaken the conscience and impress in his mind the duty to do so. 3. United States v. Allen1. Rule- problems with the testimony raise questions of credibility not competency. 2. Rationale, in this case a child who is mentally retarded, but who is able to understand and answer simple questions, and understand the difference between truth and falsehood, and the consequence of falsehood is able to testify. 4. Compare Fla. Stat. 90.605(1): Before testifying, each witness shall declare that he or she will testify truthfully, by taking an oath or affirmation in substantially the following form: Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth? 1. A person is disqualified to testify as a witness when the court determines that the person is . . . [i]ncapable of understanding the duty of a witness to tell the truth. c. Judges, Jurors, and Lawyers-

i. 605- The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. ii. 6061. 606(a) At the trial- A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. 2. 606(b) Inquiry into validity of verdict or indictment- Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jurys deliberations or to the effect of anything upon that or any other jurors mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the jurors mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurys attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A jurors affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. 1. The harder cases arise when someone wants post-trial juror testimony to set aside a verdict 606(b) 2. Tanner v. United States- Tanner was convicted for mail fraud. He moved for a new trial after two jurors came forward and told Tanners attorney that several of the jurors had been drinking, smoking, doing dugs etc throughout the trial. i. Rule- juror testimony may not be introduced to impeach a verdict, or to grant a new trial, unless one of the exception is met. ii. External versus internal influences1. If external, possible inquiry after the trial. 2. If internal, no inquiry after the trial (Tanner) a. Lots of factors that are internal could have an effect on trial but we have systems in place to stop this jury striking. b. Public policy supports this internal/ external distinction i. Finality- we dont want too many ground for invalidating a judgment

ii. Protecting the jurors from harassment- to the extent that there are many things you can look into to after the verdict you limit harassment. iii. Full and frank deliberation iii. Consider the dissents argument that there is a difference between stomach flu symptoms and cocaine use. 1. Clear bright line rules are important, but distinctions can be made (by judges) between conditions which could clearly affect someones constitutional rights to a jury (cocaine use, intoxication) and conditions that do not (sleepiness). 3. Competency of Lawyers-

VIII.

Opinions and Expertsa. Fact versus Opinioni. Facts: first-hand observations ii. Opinions- inferences drawn from observations 1. Experts are the ONLY ONES who can offer opinions 1. Lay witnesses- can offer opinion based on their firsthand observations (first-hand knowledge requirement) 2. Expert witnesses- can rely on hearsay and other inadmissible evidence (first-hand knowledge or other types of knowledge based on hearsay, etc.) b. Opinion Testimony in Floridai. Process1. Scientific, technical or other specialized knowledge? 1. If no, i. Based on first-hand knowledge? (if not qualified as an expert witness) ii. Helpful to the trier of fact? 2. If technical or otherwise i. Assist trier of fact? ii. Qualified as an expert? 3. If scientific: assist trier of fact? i. Qualified as an expert? ii. Scientific principle gained general acceptance in field? Frye iii. Novel or new? (Frye application to new or novel scientific application) c. Lay Opinions

i. 2 requirements for Lay Opinion 1. Firsthand knowledge 2. Helpful to the jury ii. 701- If the witness is not testifying as an expert (i.e. is a lay witness), the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 (this is the distinction between expert testimony) 1. First-hand knowledge requirement- lay opinion testimony must be based on first-hand knowledge 1. Government of the Virgin Islands v. Knighti. Rule- first-hand knowledge required! ii. Investigating police officers report was properly excluded as lay opinion testimony because he did not observe the assault. iii. The eyewitnesses testimony, conversely was based on first-hand knowledge and was admissible so long as it would help the jury to resolve the disputed fact. 1. If circumstances can be presented with greater clarity by stating an opinion, that opinion is helpful to the trier of fact. 2. After that, the jury can weigh the witness credibility. iv. The first-hand knowledge requirement relaxes the distinction between lay testimony and expert testimony so long as the witness meets the requirement of firsthand knowledge v. Police officer testimony- when a law enforcement officer is not qualified as an expert by the court, her testimony is admissible as lay opinion only when the law enforcement officer is a participant in the conversation, has personal knowledge of the facts relating to the conversation, or has observed the conversations as they have occurred. vi. perceiving the same acts or events. 2. Helpful to the jury requirement- phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or conclusion 1. United States v. Meling- consider that just because a witness is somewhat uncertain and testifies to what he thinks or believes does not disqualify the testimony,

provided it is clear that the testimony is based on first hand knowledge. i. Facts- D was convicted of poisoning his wife. When his wife collapsed from the poison, he phoned 911 and feigned hysteria. Operator and paramedic both testified that it seemed like D was feigning grief. ii. Rule- testimony admissible as when it satisfies first-hand knowledge requirement AND is helpful in aiding the jury in their understanding. iii. Helpful to the jury- in this case, the testimony was helpful to the jury because it helped them compare the behavior of the D with other emergency callers to assess whether it was abnormal. 3. Not based on specialized knowledge (third requirement for lay opinion testimony) 1. Not based on specialized knowledge 2. Distinction important because if it is determined that the evidence is expert testimony, the court has to play its gate-keeping role. (Based on reliable principles) 4. Contrast1. United States v. Ayala- Pizarroi. Facts- D convicted of possession and intent to distribute heroin. The arresting police officer testified regarding drug distribution points and how they operate, the fact that the area has known as a drug point, as well as how drugs were packaged for distribution. ii. Rule- Testimony about drug points and drug packaging based on personal knowledge and required no special expertise Particularized knowledge is allowed. iii. Reasoning- the witness here meets the 3 requirements of 701. His testimony was based on his own particular knowledge. He testified only to his own perception of drug points and how drugs were packaged for distribution. There was nothing particularly technical about what he did or testified to. iv. Notes- there are essentially 3 levels of opinion testimony 1. Level 1- lowest level- lay opinion testimony 2. Level 3- highest level- expert testimony

3. Level 2- gray area- this is where the court in Ayala says that the line between expert testimony and lay opinion testimony is not easy to draw. 2. United States v. Peoples- The expert testified about her opinion regarding the meaning of words and phrases used by defendants during conversations that were recorded even though she didnt personally observe the events or conversations. i. Issue- properly admitted? ii. Rule- when a law enforcement officer is called to testify, and he/she is not qualified as an expert, his/her testimony is admitted as lay opinion only when she has participated in the conversation., has personal knowledge of the facts relating to the conversation, or has observed the conversations as they have occurred. 1. Her testimony may not provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events. 2. What is essentially expert testimony may not be admitted under the guise of lay opinion. iii. Consider1. Lay testimony: Results from a process of reasoning familiar in everyday life. 2. Expert testimony: Results from a process of reasoning which can be mastered only by specialists in the field. d. Expert Testimony i. Process1. Scientific, technical or other specialized knowledge? (Ayala) 1. If yes, FRE 702i. Assist the trier of fact? (State Farm) 1. There is no more certain test for determining when experts may be used than the common sense inquiry of whether the untrained layman would have been qualified to determine intelligently and to the best degree the particular issue without enlightenment from those having specialized

understanding of the subject involving the dispute. ii. Qualified as an expert? 1. The expert must have the requisite knowledge, skill, experience, training or education. 2. Consider skilled witnesses (bank owners or landowners testifying to the lands value) iii. Based on reliable principles/ methods? (Daubert) applies to all types of expert testimony 1. The FRE try to prevent shoddy expert testimony by requiring the trial judge to exclude expert testimony unless it is reliable. 2. If no, FRE 701 i. Based on first-hand knowledge? (Knight) ii. Helpful to the trier of fact? (Meling)

ii. Permissible Subjects and Scope of Expert Testimony (see above) 1. 702- If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on specific facts/ data (2) the testimony is the product of reliable principles and methods (3) the witness as applied the principles and methods reliably to the facts of the case. 1. Hatch v. State Farm Fire and Casualty Co.

i. Rule: expert testimony that requires not specialized knowledge, and that does not assist the trier of fact is inadmissible. ii. Rule 2: expert testimony which does not relate to the issue is not releveant and non-helpful. iii. In this case, the witness was simply proffering testimony that the jury could have easily understood without the expert testimony. iv. The witness must truly be drawing on some special skill or knowledge, as opposed to making judgments the jury could easily make themselves. 2. 703- The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. 1. Amendment- when an expert reasonably relies on inadmissible information to form an opinion or inference, the underlying information is not admissible simply because the opinion or inference is admitted. 2. Advisory Note- Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources. i. Firsthand observation of the witness, with opinions based thereon traditionally allowed. ii. Presentation at the trial, also reflects existing practice. The technique may be the familiar hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. Problems of determining what testimony the expert relied upon, when the latter technique is employed and the testimony is in conflict, may be resolved by resort to Rule 705. iii. The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception

3. State v. Lewisi. Rule- the court may not allows testimony in the form of opinion or inference if the underlying facts or data indicate a lack of trustworthiness. ii. Rule 2- Where the underlying data is not untrustworthy or otherwise not a type generally relied upon in a particular field, an expert may base an opinion or inference on facts or data perceived or made known to an expert at or before the hearing. 4. Bullcomingiii. Court-appointed experts 706(a) 1. Leblanc v. PNS Stores Inc. 1. Rule- court-appointed experts should be reserved for exceptional cases in which the ordinary adversary process does not suffice. 2. 706 authorizes the appointment of an expert to be made either on the judges own motion or on the motion of the own party. 2. Rationale against- there is a strong discomfort with courtappoinetd experts because our American legal system is an adversary system, and as such we want to factfinding to be under the control of the parties and not the judge. 3. Instead of court-appointed experts, why not allow the judges to make a reliability determination? The judges can scrutinize the testimony offered by the parties to make sure it is reliable. iv. Party- Approved Experts1. Daubert v. Merrell Dow Pharmaceuticals1. Facts- Ps experts were excluded on the grounds that their testimony was not based on the Frye standards of methodologies generally accepted in the scientific community. The court said that the evidence was not sufficiently established to have general acceptance in the field which it belongs. 2. Frye Test= general acceptance standard expert opinion based on scientific technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community. i. The theory or technique should be subjected to peer review rationale is that submission to scrutiny by the scientific community is a component of good science in part because it increases the liklihood that flaws in methodology will be detected. ii. Publication std.

iii. These factors are dispositive but not determinative!!! 3. Held- The Frye test is superseded by the FRE. 4. Rule- Nothing in the FRE establishes general acceptance as the prerequisite to admissibility. i. Requirements of FRE1. The trial judge must ensure that nay and all scientific evidence or testimony asmitted is not only relevant but reliable. ii. Scientific knowledge implies a grounding in the methods and procedures of science iii. To be scientific knowledge there must be more than a subjective belief or unsupported speculation the inference or assertion must be derived by a scientific method. iv. Relevance + reliability 1. Relevance= fit sufficiently tied to the facts of the case that it will help the jury to resolve the dispute. a. Must be helpful- valid scientific connection between pertinient inquiry as a precondition to admissibility. 2. Reliability= v. Scientific knowledge establishes a standard of evidentiary reliability. vi. Vigorous cross examination, presentation of contrary evidence and careful instruction of burden f proof are traditional, adversarial means of attacking the evidence. 2. General Electric v. Joiner1. Issue- whether the expert opinions were sufficiently supported by the animal studies on which they purported to rely. i. Principles and methodology versus conclusions they generate? 2. Rule- There must be a relationship between the data and the opinion proffered. 3. Kuhmo Tire Company v. Carmichael1. Issue- Under Daubert, all scientific testimony must be reliable so, must other types of expert testimony (i.e. technical or other specialized knowledge) also be reliable? 2. Held- the trial court must examine the reliability for expert testimony for not only scientific knowledge but for technical or other specialized knowledge as well.

Additionally, the judges gatekeeping function applies to scientific, technical or other specialized types of knowledge. i. The Daubert factors should be applied flexibly-

v. Opinion Testimony in Florida- Fla. Stat. 90.702- If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
Scientific, technical or other specialized knowledge?

If no: Based on first-hand knowledge?

If technical or other: Assist trier of fact?

If scientific: Assist trier of fact?

Helpful to the trier of fact?

Qualified as an expert?

Qualified as an expert?

Scientific principle gained general acceptance in field? (Frye)

IX. Physical Evidence- These rules operate in ADDITION to all other FRE consider 3 separate and distinct possibilities authentication, best evidence and hearsay) a. Example that we have seen before! Plaza Hotel Memoranda regarding the callers that are confusing the Plaza Hotel with the Plaza House Hotel i. The document still has problems though1. Hearsay within hearsay b. Authentication- before a writing or any secondary evidence may be received into evidence of its content may be received into evidence, the writing must be authenticated by proof that the writing is what the proponent claims it is.

i. Rule- all physical evidence must be authenticated. The party offering the evidence must provide sufficient evidence for the fact finder to conclude that the evidence is genuine (conditional relevance under 104(b)) 1. All that is necessary under 104(b) and 901 is proof sufficient to support a jury finding of genuineness. ii. 9011. (a) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Whether a reasonable jury could conclude that the matter in question is what the proponent claims that it is. 2. United States v. Long- Longs fianc identified a contract and described its contents before admission into evidence. The purpose was to show Ds state of mind that the contract was an employment contract which represented he thought he was participating in a legitimate business venture. 1. Rule- authentication, as it pertains to contracts, requires the witness to merely be able to identify the contract. 3. Bruther v. General Electric Co. 1. Facts: while unscrewing a light bulb at his place of employment, P suffered serious shock and injury when the light bulb exploded. Where in the world is the light bulb? P claims it was a GE bulb, and a broken bulb was found in the room where the explosion occurred. BUT GE claims that the light bulb cant be authenticated based on the lack of identifying marks, and the gap in the chain of custody. 2. Rule- even though the evidence isnt conclusive, the requirement of authentication or identification under 901(a) is met by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. i. Whether or not it actually is what the proponent claims it to be is a matter for the jury to decide. ii. The authentication requirement is a threshold burden, and is not intended to bar evidence from being introduced! The requirement is not designed to ensure the reliability of the evidence, but merely to ensure that an inquiry into the reliability would be relevant. 3. Rule 2- a break in the chain of custody goes to the weight of the evidence not its authenticity.

4. United States v. Grant1. Facts- D was charged with drug related crimes based on possession of heroin. D claims that there was a break in the chain of custody between when the drugs were seized, and the time they showed up in the lab. (Potential authentication problem because it tends to suggest that the drugs in the lab are not the same as the drugs seized in the airport) 2. Rule- to authenticate the drugs (if they were actually admitted into evidence), the govt. would have to prove that the drugs offered into evidence were the drugs seized at the airport. i. But because the drugs themselves werent offered into testimony, the govt. would have to prove that a jury could have found that the drugs seized at the airport were the same as the drugs tested ii. Chain of custody not relevant with the witness testimony, just less likely. 1. The standard is sufficient evidence for a jury to conclude xyz, but it doesnt necessarily render the testimony irrelevant. 5. Problem 11.1 (page 681) the photo is only relevant if it shows her condition shortly thereafter the accident, so thus it must be authenticated. In order to do so use 901(b)- testimony by the photographer; or testimony by Julia or someone else who saw Julia soon after the accident. 6. Problem 11.2- in order to establish the tapes relevance, we need to authenticate the tape. 1. Evidence sufficient to allow a reasonable jury to conclude that it is an accurate record of the tape that Harold gave. i. Examples- testimony by the student who made the recording. ii. Testimony by a student present at the lecture iii. Is it hearsay? No, because its not offered for its truth think about what Clyde is arguing? iii. 902- Authenticity as a condition precedent to admissibility is not required and considered sufficiently established with respect to the following1. Domestic public documents under seal 2. Domestic public documents not under seal 3. Foreign public documents 4. Certified copies of public records 5. Official publications

6. Newspapers and periodicals 7. Trade inscriptions and the like 8. Acknowledged documents 9. Commercial paper and related documents 10. Presumptions under acts of Congress 11. Certified domestic records of regularly conducted activity. iv. 903- writing may be authenticated by testimony of one who sees it executed or hears it acknowledged. Subscribing witness is not necessary to authenticate a writing unless required by state statute. c. The Best Evidence Rule- (narrower scope than the authentication rule) does not require that the party introduce the best evidence available on a given point. In proving the terms of a writing, where the terms are material, the original writing must be produced. Secondary evidence is permitted only after it can be shown that the original is unavailable for some other reason than serious misconduct of the proponent. i. Issue- whether the contents are material/ sought to be proved? ii. Introduction: 1. In litigation, parties have a natural inclination to argue the best evidence that they can (a written document that a party signed is much more persuasive than oral testimony regarding what the document contained) iii. 1002- Requirement of the Original- To prove the content of writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. 1. Under 1001(1)- Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. 1. Drawings- Seiler v. LucasFilms, LTD 2. What does it mean to prove the content of a writing, recording, or photograph 1. Meyers v. United Statesi. Facts- Transcript and oral report of what Lamarre said. The oral report was used to infer the answers from the questions put forward in the transcript and was introduced. The transcript was later introduced in addition. ii. Issue- the D thought that the best evidence rule should be applied because there was a transcript that said what he said. Does the best evidence rule apply? iii. Rule- The best evidence rule should be limited to cases in which the content of the document is trying to be proved.

1. Here, The government was trying to prove what Lamarre had said, not the content of the transcript. 2. United States v. Gonzales-Benitezi. Facts- Ds charged with heroin trafficking. Admitted into evidence was a tape that an informant recorded during conversations he had with the defendants. Ds argue that the recordings were the best evidence and that the testimony should have been excluded. ii. Admissible? Yes, testimony admissible because the Government was trying to prove content of the conversations not content of the tapes. iii. The best evidence rule does not bar live testimony regarding the contents of the recordings. 3. When is the content of a writing, recording or photograph at issue? 1. Seiler v. Lucasfilmi. To prove copyright infringement Seiler has to show substantial similarity. There can be no proof of substantial similarity unless Seilers works are juxtaposed with Lucas and their contents compared. ii. Rule- in an action based on copyright infringement (where the content of the ____ is material) the best evidence rule requires the productions of the originals or true copies thereof. iii. Rule 1008 will not apply2. Advisory Comm. Note 1002- Photograph of bank robber. Can an eyewitness testify as to the person in the photo? i. NO, if the person is only testifying as to the person in the photo, than they are testifying as to its contents. Thus, the photo itself is the best evidence. 3. Document offered to prove the terms of a written contract- you cant offer a party to come in and testify as to the terms of the contract if you have the contract 4. United States v. Stockton1. Facts- Evidence introduced of photos of evidence obtained during a search. The evidence = photos of miscellaneous papers and the papers themselves were not offered as evidence. The court argued that these

were allowable because the reproductions could not be introduced. 2. Allowable reproductions? Yes, the photos were properly introduced as duplicates under 1003, even though the photographs violated rule 1002 because they were not original documents. 3. Distinction from Gonzalezi. Here the government was actually trying to prove what was written in the papers. ii. Thus, the rule is going to require the original evidence to be introduced or for some exception to apply. 5. To prove content 1. When the matter to be proved is an oral conversation, FRE 1002 doesnt apply, even if the oral conversation was recorded or written down. 6. Problem 11.41. Hearsay? 2. Best evidence? i. Question one- writing or recording? ii. It qualifies under 1001(1) writing recording consists of letters, words, numbers or their equivalent graphical representation of the GPS data. iii. He has no independent knowledge regarding the GPS data therefore he needs to introduce the GPS iv. When he is talking about the content of the advice iv. Exceptions to the Best Evidence Rule1. 1003- photocopy exception- a duplicate is admissible to the same extent as the original unless (1) a genuine question is raised as to the authenticity of the original (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original 1. Duplicate defined in 1001(4) photocopies and photographs 2. Generally, a duplicate is admissible under 1003 if no genuine issue exists as to authenticity, and there is not other reason requiring the original. If a duplicate of evidence is the product of a method that ensures accuracy and genuineness, the rule requiring production of the original as proof of its contents is merely a rule of preference. 2. 1004- The original is not required, and other evidence of the contents of the writing, recording, or photograph is admissible

if all of the originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. 3. 1005- Public Records- a copy of a record is admissible so long as it is certified correct by the custodian of the document, and or other person authorized to do so, or testified to b correct by the person who compared it to the original.

X. Burdens, Presumptions and Judicial Noticea. Infoi. Burden of production- aka burden of producing evidence, burden of going forward. 1. Must be satisfied to get an issue to a jury 2. If you dont satisfy the burden of production, the court will enter a directed verdict, or a judgment as a matter of law against you. 3. Implemented by the judge. ii. Burden of persuasion1. Aka burden of proof 2. Once the P satisfied the burden of production, the D continues with his case the case goes to the jury and the jury will decide if the P met his burden of persuasion. 3. Examples1. Prep of evidence 2. C and C evidence iii. Presumption- legal relationship between two facts. 1. The fact that gives rise to the presumption. 2. The fact that gets presumed- the presumed fact 3. Yoder- Is letter that is properly mailed is presumed to be received. 1. Fact that gives rise to the presumption- that it was properly mailed 2. Presumed fact- the letter was received. iv. Key Question in dealing with presumptions what happens if there is some evidence rebutting the basic fact or the presumed fact? v. 3 views of how presumptions should work1. Thayer (bursting bubble presumption)- presumption shifts the burden of production but not the burden of persuasion. 1. Once evidence of proper mailing is introduced (basic fact), the evidence is on the opposing party to introduce some evidence of non-receipt

i. Once there is some evidence to rebut the presumption, the presumption of receipt leaves the case 2. If there was no argument of non-receipt by the opposing party, the presumption remains the same and the issue doesnt even get to the jury the court will find as a matter of law under the presumption that the letter was received. 3. Under Thayer, the burden of persuasion stays where it always was NO SHIFTING! 2. Morgan- presumption shifts both the burden of production and the burden of persuasion. 1. Once evidence of proper mailing is introduced i. Production- evidence of non-receipt must be introduced! If not the letter is presumed to be received (same as Thayer) ii. Persuasion- if there is evidence of non-reciept (production) then the burden of persuasion remains for the opposing party 1. This is the difference from Thayer! The burden of persuasion goes away in Thayer, but stays in Morgan! 2. Under the Morgan approach, the presumption doesnt disappear, the opposing party has the burden of persuasion (to persuade the party) of non-receipt 3. Bohlen/ California/ Florida Rule1. Presumption established primarily to facilitate the determination of the particular action in which the presumption is applied is a presumption affecting the burden of producing the evidence. Thayer 2. Alternatively, presumptions established to implement public policy affect the BOP. Morgan 3. In Re. Yoder- how would this come out in Florida? 4. You can apply a different approach depending on what the presumption is 5. The presumption that the letter properly addressed is a letter properly received is the Thayer presumption 6. Presumptions that FL treats as Thayer presumptionsi. A thing that a person possesses it is presumed they own it ii. Driver that hits the rear of a vehicle is presumed negligent iii. 7 year absence presumes the death of the person iv. An attorney has the authority to act on behalf of his client 7. Morgan Presumption PP Assumption

i. Presumption that a child born into a marriage is the child of both parents ii. Presumption that a marriage is valid iii. Presumption against suicide in a case to recover the proceeds of a life insurance policy iv. Presumption of competence to consent to medical treatment b. Burdens and Presumptions in Civil Cases i. 301- Presumptions in General Civil Actions and Proceedings- In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. 1. The federal courts, in cases under federal law, will use the Thayer approach- burden of producing the evidence ii. 302- Applicability of State Law in Civil Actions and ProceedingsIn civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law. iii. Problem 12.11. There shouldnt be an instruction given- under Thayer, the tenants testimony shifts the burden to the LL. The LL met that burden by saying I didnt receive the letter. Because of this, the presumption is rebutted, it drops out of the case and there is no jury instruction! The jury will weigh the evidence as they see fit iv. Problem 12.21. The jury should be instructed that under Morgan, the burden of proof has been shifted to Sauls wife. The instruction is not that she had heard from him, but that he is alive. 2. The burden that shifted to Sauls wife is that he is not dead. 3. Both burdens shift!!! v. Problem 12.31. Basic fact- receipt for later rent or installment 2. Presumed fact- the earlier payments were made 3. The basic fact in not controverter at all, so under Thayer, the P is entitled to a direct verdict (Burden of production shifted to defendant, defendant didnt meet the burden, therefore P can have a directed verdict) 4. What about under Morgan? Under Morgan the outcome is the same because the burden of persuasion doesnt come into play once the burden of production is not met!

5. Regardless of whether it is treated as a Thayer presumption or a Morgan presumption it doesnt matter id the burden of production isnt met 6. What If the plaintiff introduced evidence of payment of 4th installment1. Under Thayer or Morgan the burden of producing 7. . 1. Under Thayer 2. Under Morganc. Burdens and Presumptions in Criminal Cases- NO provisions in the FRE as to how the presumptions apply in criminal cases. i. Key points: 1. Presumption of innocence; burden = beyond a reasonable doubt. 2. 3 types of presumptions (page 713) 1. Conclusive or irrebutable 2. Mandatory presumptions or presumption of law- letter mailed is presumed received. 3. Permissive presumption, inference or presumption of fact aka permissive inference i. Example- some evidence of the permissive fact permits them but does not require them to reach a specific conclusion. ii. Allows something to be found but does not mandate ii. Permissive Inferences1. County Court of Ulster v. Allen: 1. Facts: rule in NY that there is a presumption that if there is a firearm in the court it is presumed to be illegally possessed. The court instructs the jury that they were entitled to infer possession from the defendants presence in the car (see p. 724-footnote 20). i. Entitled= can, but is not necessary 2. Held- these instructions violate due process because the instructions shift the burden to the defendant to disprove 3. Rule: for a permissible presumption to be constitutional, there must be a rational connection between the basic facts that the prosecution proved and the ultimate fact presumed, and the ultimate fact presumed must be more likely than not to flow from the facts proven 4. Permissive inference versus mandatory presumption-

i. Permissive- permissive inferences are constitutional if they are rational based upon the facts of the case. ii. Mandatory presumption- tells the trier of fact that they must find the elemental fact upon proof of the basic fact. iii. Affirmative Defenses1. Patterson v. New York: 1. Facts- Patterson, though separated from his wife, finds her hooking up with another person, shoots him, and is charged with second-degree murder. 2 elements- intent, and actually causing. 2. Rule: it is permissible for a state murder statute to put the burden of proof on the defendant to prove the existence of extreme emotional disturbance. i. Preponderance of the evidence std. follows ii. But, you may not shift the burden to the defendant to disprove an element of the crime that is charged. iii. NY has extreme emotional disturbance as an affirmative defense iv. Mullaney v. Wilbert- different iv. Mandatory Presumptions1. Sandstrom v. Montana: Sandstrom confesses to the killing Annie Jensen, but says he was insane and thus he does not have the sufficient intent to kill her. 1. Jury instruction- the law presumes that a person intends the consequences of his voluntary acts. i. 4 ways that the jury could have interpreted the presumption1. Conclusive presumption of intent 2. Presumption shifted burden of persuasion of intent 3. Presumption shifted burden of production of intent- Montana court says that just shifting the burden of presumption doesnt violate the constitution a. This is where the states argument is b. But the court does not buy it! 4. Permissive inference of intent ii. Gray area in this case! What if you had said you may, but need not, conclude that a person intends the ordinary

1. If this is the case, then you have to determine whether that inference is rational based on the facts iii. There is a danger that if the criminal defendant cant rebut the presumption, he might lose before the case even gets to the jury