Term
| The Prosecution seeks to introduce evidence that when the victim of an assault was interviewed at the scene of the crime, the only thing he kept saying was "tell my father, I love him." If you're counsel for the Defendant, how would you frame a 403 objection (State v. Covington) |
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Definition
| This causes the jury to think about what was going through the victim's head. You don't need this kind of evidence when there is enough other evidence about the physical harm. There's also a strong relevance objection. |
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Term
| Problem 1.9: At the Defendant's murder trial, the Prosecution introduced evidence of the D's flight. This forced the D to explain why he fled (because he had prior convictions for armed robbery). Is this unfairly prejudicial? |
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Definition
| In order to rebut the inference that D fled because of a consciousness of guilt, D is forced to take the stand to testify to the commission of a prior bad act. The testimony of prior convictions raises the risks of both nullification prejudice and inferential prejudice. The prejudice has to be "unfairly" prejudicial. |
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Term
| Problem 1.9: At the Defendant's murder trial, the Prosecution introduced evidence of the D's flight. This forced the D to explain why he fled (because he had prior convictions for armed robbery). As a Prosecutor how would you defend against a claim of unfair prejudice? |
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Definition
| Regarding inferential prejudice: murder is so different than his prior convictions that a jury would not think his previous robbery makes him more likely to murder. Also, the prior offense is remote in time. The longer the period of time the less unfair prejudice. |
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Term
| On appeal defendant “contend[ed] that the evidence of flight should not have been admitted because it forced him to present evidence of a bad act, namely, possession of marijuana, to rebut the inference that he fled out of a fear of apprehension for the shooting.” The D argues that this is prejudicial that b/c the jury might want to punish him for the uncharged marijuana offense. Should the evidence have been admitted? |
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Definition
| Yes. There is a small risk of prejudice because the marijuana offense is so much less serious than a murder charge. There's a huge disconnect between the two offenses. |
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Term
| Problem 1.11: D is charged with murder of young woman. Defendant seeks to offer evidence of non-flight. Should it be admitted? |
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Definition
| evidence of non-flight unfairly prejudices the prosecution because it’s not possible to rebut . . . there really isn’t any good argument here. |
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Term
| Thelma and Louise: They are fleeing from the police after they shot at some one in self-defense. Then they robbed a bank. When they saw a police baracade, they changed direction. Should evidence of the change of direction be admitted? |
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Definition
| Defense objects that evidence of this flight lacks sufficient probativeness. The Defense breaks the inferential chain by arguing that they do not have consiousness of guilt of the bank robbery because they were fleeing from having shot some one in self-defense. Although they would be acquitted of that charge, the defense argues any one would flee after shooting some one. The risk of nullification bias is high. |
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Term
| Shami v. Comm'snr of IRS: Irs determines that certain expenses should not be written off. Lab technician sues and wants to admit the procedures for all 1000 experiements to show that they are legitimate expenses. These pages are 1000s of pages long. The Court asked for only a sample of ten of those cases. Did the Court abuse its discretion? Under what rule? |
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Definition
| No abuse of discretion. Rule 403 allows judges to weigh substantial waste of judicial resources. |
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Term
| I own a restaurant. You slip and fall on the steps and sue me. In the meantime, I sell the restaurant to someone else. That third-party looks at the steps, decides they’re unsafe, and fixes them. Is the evidence admissible? |
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Definition
| Rule 407 does not bar admitting evidence of subsequent remedial efforts by third parties. |
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Term
| Someone claims that your bus driver was driving negligently; you fire him and send a message to all your bus drivers telling them to abide by the speed limit. Is this admissible? |
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Definition
| No Rule 407 bars admission of evidence of subsequent remedial efforts. |
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Term
| Problem 2.1: Sophie the wolf had attacked a beagle, so her owner chained her to the fence. The next day, Sophie attached Daniel, a 4 year old boy. Both beagle owner and Daniel’s parents sue the wolf owner, and try to introduce evidence that the owner chained Sophie after the beagle attack |
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Definition
| Evidence of the chaining should be excluded in the case brought by the beagle’s owner, b/c it was that attack that triggered the subsequent remedial measure, • But the evidence can be admitted in Daniel’s case. It’s not barred by FRE 407 because the chaining was not subsequent to, but preceded Daniel’s injury. It is relevant under 401 because it shows consciousness by the owner that Sophie is dangerous. |
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Term
| Problem 2.2: Man was killed by a wood chipper. Wife sued the machine’s maker; wants to introduce evidence that the manufacturer lengthened the chute leading into the wood chipper after the incident. Judge ruled the chute’s extension inadmissible, & D entered into evidence that Army Corps of Engineers and the City both continue to order and use the wood chippers. |
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Definition
| Prosecution wants to say that their device is safe, but D wants to say that it is only safe now because the chute was lengthened. Courts will admit this. The basic point is that the extension of the chute was admitted for a purpose other than proving liability – namely to controvert a fact that the defense had put in issue (that is, because the ACOE orders so many of the chippers, they must be safe). |
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Term
| Problem 2.3: Manufacturer of the wood chipper says: “it’s the safest length chute you could possibly put on the machine.” Is the fact that the wood chipper was lengthened admissible? |
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Definition
| Manufacturer’s statement that “this is the safest possible chute” despite the fact that he changed it implicates the impeachment exception to FRE 407. |
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Term
| Doctor prescribed a blood thinner that killed a patient. Doctor testifies that "he thought it was safe." Plaintiff seeks to impeach by showing that the Hospital changed practices by not prescribing the drug at the dosage the doctor suggested. Admissible? |
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Definition
| No. The Doctor was simply denying negligence. This is a classic subsequent remedial effort |
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Term
| Ramada built a hotel for Rauch, who refuses to pay. Ramada sues for substantial performance, and Rauch countersues, alleging defects. Ramada employs Goldsmith, an architect, to study defects and write a report. Rauch wants to introduce the report b/c it confirmed the majority of the alleged defects. Ramada objects on grounds that it commissioned the Goldsmith report to serve a basis for settlement negotiations. Should the report be excluded? |
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Definition
| The Goldsmith report doesn’t clearly fit into 408(a)(1) or (2), but Court said it’s excludable under 408(a)(2), b/c a report that you commission for the purpose of assisting in settlement negotiations is like a “statement.” Of course, 408(a)(3) only covers statements made DURING compromise negotiation. The Court, here, is more concerned with the policy of encouraging settlements |
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Term
| Williams v. McCoy - Defense argues plaintiff is litigious and introduces evidence she "hired a lawyer early on." Plaintiff seeks to show that she only hired an attorney after an insurance adjustor came to her hospital room. Is the latter admissible? |
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Definition
| Yes. FRE 411 does not bar P from mentioning that D had insurance in order to explain why she hired an attorney b/c it’s not being admitted for the purpose of establishing liability, it’s coming in to rebut the inference by the defense counsel that she’s litigious. Court goes on to say that the Defense's original line of questioning does not surivive 403 grounds and that 407-411 do not engate 403's bar. |
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Term
| Joan Lacher is visiting her friends, the Andersons, and she falls down a flight of stairs while looking for the bathroom. She sues for damages. Smith, an insurance adjustor for Anderson’s insurance company, comes to the hospital and takes Joan’s statement. During the trial, the insurance company wants to introduce the taped statement. Joan want to introduce evidence that Smith worked for the insurance company. Her counsel argues that evidence of his employment by the insurer was relevant to show his bias and prejudice in taking the statement. At trial, Lacher asserted that she was mistaken in some particulars when she made statement to Smith at hospital and disputed relevant parts of statement. |
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Definition
| Her claim that she misspoke isn’t related to her claim of bias on the part of Smith b/c he worked for the insurance company. She was trying to argue that the fact that he worked for the insurance company is sufficient to impeach him for bias, but the court doesn’t accept this. The Court thus didn’t admit the evidence that he worked for the insurance company. |
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Term
| Plaintiff wants to show that Defendant and Experts have common insurance in order to prove bias of experts. The theory is that Experts don’t want D to be held liable because then their rates will go up. Admissible? |
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Definition
| If the insurance is correctly priced, the likelihood that any individual will see his insurance rates rise because a single case is lost is quite small. Sharing a common insurer is therefore unlikely to create bias. Court said the claim here was too attenuated. It was not admissible because it was not probative. Though under the rule, if the evidence did show bias, it could be admitted. |
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Term
| Daycare center faces prosecution for failure to report that they knew there were alleged acts of abuse at the facility. Defendant seeks to introduce evidence that she had an insurance policy for this very purpose in order to show that she has no incentive to conceal the abuse. Should the court let it in? |
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Definition
| Exclusion shouldn’t apply, b/c the policies underlying 411 doesn’t apply here. Policy goal is that people should buy insurance. Even though language of the statute seems to suggest that her own possession of insurance shouldn’t be admitted, the policy of the statute cuts in favor of admitting it. |
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Term
| Problem 2.8: P charged with 1st degree murder. D tries to introduce evidence of a plea bargain for 2nd degree to show that the Prosecutor perceived weaknesses in the case. Is this admissible? |
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Definition
| No. A lawyer cannot be a witness in her own case. As the Advisory Committee Note makes clear, the drafters, when they considered incentives, were concerned about the incentives on the part of the defendant. These incentives were of two kinds: [a] the incentive to bargain in the first place, and [b] the incentive to proffer testimony or proposed plea arrangements, without having the proffers later used at trial. In other words, the drafters did not give much thought to the incentives of prosecutors, who, due to their backlog, might already have sufficient incentive to plea bargain.However,the plain text suggests yes (absurd result, but an argument could be made) |
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Term
| Problem 2.9: Defendant wants to present evidence he turned down immunity offer because he is innocent. Government wants to intro statement under 410(b)(1): “I’d rather face you guys at sentencing than those guys up some dark alley.” |
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Definition
| If we say this evidence is admissible, then it makes sense to also admit the prosecution’s evidence that in fact he turned down the immunity offer because he wanted to avoid retaliation. |
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Term
| Problem 7.1: Class action against SUV automaker for rollovers. Plaintiff’s counsel gets affidavit from star witness, fearing that witness (who is ill) will pass away before trial. WItness dies before trial. Is the affidavit hearsay? |
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Definition
| It is still hearsay. Doesn't matter that it is a written statement |
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Term
| Problem 7.2: To prove defendant short on cash, prosecution calls witness who testifies that he made non-verbal gesture indicating that he had no money. Admissible? |
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Definition
| No. non-verbal cues are still hearsay |
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Term
| Problem 7.3: Prosecutor asks Marilyn about lineup at police station. Marilyn testifies, “I said, ‘He’s number 3.’” Hearsay? |
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Definition
| The fact that you are testifying to something you previously said does not make your testimony an exception to hearsay. However, Alice's statement falls under the exception for 801(d)(1)© because it is testimony about a prior identification |
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Term
| Problem 7.4: Nurse drew blood, which arresting officer sent to lab for analysis. Lab technicians subjected blood to tests, and machine generated printout saying that blood sample obtained was positive. Is this hearsay? |
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Definition
| The key question is whether this is a statement by a person. It is not. Despite role of lab techs, all courts say that this is not a statement by a person because it comes from a machine, and therefore is not hearsay. |
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Term
| Problem 7.5: A kills B and claims self-defense. A seeks to introduce evidence that B told A about specific instances of violent conduct (egregious instances). Is this admissible? |
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Definition
| Yes. They are not being admitted for the truth of the matter asserted, but for the point of view of listener (A believed her life was in jeopardy and so killed B in self-defense |
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Term
| Problem 7.6: Getz charged with felony theft. She claims she believed the horses belonged to Patton and that Patton told her he had purchased them and wanted her help selling them. Hersay? |
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Definition
| not hearsay. She’s offering this testimony to prove her state of mind. She honestly believed the horses were Patton’s to sell, and so her state of mind is a defense to the charge. |
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Term
Problem 7.7: Police officers Volpe and Schwarz accused of assault. Schwarz eventually alleges ineffective assistance of counsel.
Evidence: Volpe’s lawyer told Schwarz’s lawyer that Volp could give statement excusing Schwarz. Is this statement hearsay? Should it be admitted or excluded? |
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Definition
| Not hearsay. Being offered to show that Schwarz' counsel knew there was additional evidence available. It didn't matter if the evidence was true, just that the counsel knew this and didn't bring it to light. |
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Term
| Problem 7.8 White and friend arrive at immigration at airport. White declares beer, chocolate, etc. to customs. Denies having anything else to declare. Agent searches bag and finds gun magazines, rifle stock, worth over $2,000. White charged with false customs declaration White wants friend to testify that White said “I have more items to declare.” Is this hearsay?. |
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Definition
| Testimony is not hearsay: being offered as defense to government’s claim that customs declaration was fraudulent … o An out-of-court statement being used to prove that the statement itself was a lie is not being introduced to prove the truth of the matter asserted, but to prove the falsity of the matter asserted |
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Term
| Problem 7.9: Ship sank. Question of seaworthiness. One party wants to introduce evidence that captain inspected ship thoroughly, got on board with family and went to sea. |
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Definition
| Jury could reasonably infer seaworthiness from captain’s actions, and those actions were not intended to be communicative. So it’s not hearsay. Non-assertive conduct. We could call this an “indirect assertion.” |
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Term
| Problem 7.10: Schlesinger tells reporters that he will prove safety of nuclear test site by taking family with him when he visits. Is the conduct hearsay? (used to prove the safety of the test site?) |
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Definition
| bc he’s specifically doing this to prove a point to reporters, this is clearly assertive conduct. There is an audience (reporters) and an intent to communicate. Different from the example of the sea captain. If the underlying issue is safety of the site, then Schlesinger’s conduct is hearsay |
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Term
| B wants to testify that Angela said she spent all morning planning retirement home with architect. Is this testimony allowable to prove that she’s not contemplating suicide? |
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Definition
| It’s only relevant if Angela really did spend the whole morning planning home with architect. Therefore it’s being admitted for truth of the matter asserted, and therefore it should be considered an indirect assertion that she’s not contemplating suicide. It is therefore, says Fisher, hearsay and should be excluded. |
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Term
| U.S. v. Zamastil: D arrested, charged with 1st degree murder. He tells FBI he has info about more serious murder and wants to negotiate. FBI agent says "I'll talk to Prosecutor." D waives miranda rights and makes a statement, which is incriminatory, but not plea bargain is reached. Prosecution wants to admit the confession by arguing that the GBI agent was not an attorney. Admissible? |
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Definition
| Two separate questions: 1. If a non-attorney is working under authority of the Prosecutor, are they covered by 410? They are and thus its inadmisslbe 2. If a non-attorney has not in fact been in touch with the prosecutor but in effect represents himself as an agent, are they covered? 9th circuit said yes, but some courts might say no |
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Term
| U.S. v Mezzanatto: Is the right under Rule 410 (plea negotiations are not admissible) waivable? I.e. can a prosecutor say "I'll negotiate as long as you waive 410?) |
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Definition
| Yes - see 4 page student note in Harvard Law Review "Contracts to alter the rules of evidence" |
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Term
| Is the statement, "I do" to a question at a wedding to "Do you take this man to be your husband?" admissible? |
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Definition
| Yes - statements with legally binding authority are not hearsay (exception not even needed). |
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Term
| Wife on trial for murdering husbands mistress. Husband to testify, "I told her and she stared back blankly at me and didn't say a word" Can the Prosecution get in evidence that the wife was aware of the affair? |
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Definition
| Depends. An adoptive admission must satisfy four prongs (1) the listener understood the statement (2) the listener was free to respond (3) the listener did not respond (4) the situation called for a response. Here, you can argue that this situation does not satisfy 1 and 4 - there's no evidence she understood the statement, and usually a wife would get angry when hearing about an affair |
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Term
| Plaintiff wants to introduce evidence of a breakthrough drug with testimony from a marketing executive. Should the Court admit hearsay under the opposing party statement exception from the marketing executive if the knowledge is typically found in the R&D department within the same company |
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Definition
| It's a case-by-case analysis. Courts routinely struggle with the question of whether the employee had authority to make a statement in the email being admitted. They would not accept a marketing exec's hearsay evidence about drug performance over an objection that they should find some one from R&D |
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Term
| Plaintiff fell on ice. Her friend phoned Management Company complaining of icy condition; man with shovel and bucket eventually appeared. Man with shovel said “those guys on the day of the shift were supposed to shovel and salt, but they bagged it and went home early.” Man with shovel was never identified. Should the court admit this against the condo management company? |
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Definition
| In order for the employment exception to apply, the man has to be an employee. The parties seeking to introduce the evidence have to show by a preponderance of the evidence that the man is an employee. There are strong grounds for inferring that he’s an employee The statement is being admitted for the liability of the employer, and the inference in the preliminary hearing is that he’s an employee, not that the employer is liable. When the inference in the preliminary hearing is different from the inference for which the party seeks to admit the statement, the statement may serve as a basis for the preliminary inference. |
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Term
| Government undercover agent had conversations with Y through co-conspirator/translator N, then N died. Govt. wants to enter in what Agent says (N) told him. |
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Definition
| If there were no translation, then this would be admissible under the "party opponent" exception. This would be a simple 104(a) question in which you could use the translation as evidence of the conspiracy and show by a preponderance the conspiracy exists. As defense counsel you would argue that the existence of the conspiracy hinges on the condition that the translation is accurate. Defense would argue this is a 104(b) question and then only admissible evidence could be used to establish the conspiracy |
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Term
| During investigation, Raymond said she saw Davis fire fatal shot. Now at Davis’s trial, Raymond testifying that she was nowhere near the crime scene and has no idea who fired shot. When questioned by prosecutor, Raymond denies ever having made previous statement. Police detective testifies that Raymond told him that Davis shot victim. If the Defense moves for directed verdict after the prosecution rests (this being their only evidence), how should the court rule? |
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Definition
| Since this testimony was not given under oath, the statement can only be used to impeach (not for the truth of the matter asserted). In that light, the directed verdict should be granted. |
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Term
| After arrested, officer overheard G said to F: “why so much excitement? If they caught us with the goods, they caught us with the goods.” F remained silent. Can the government introduce this evidence to show F's guilt? To show F's knowledge of the drug transaction? |
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Definition
| While this evidence can certainly be used to impeach the witness if he claims lack of knowledge, the question is whether it is admission of guilt. An adoptive admission occurs when a statement is made and 1. the listener understands what is said 2. is free to respond 3. does not respond and 4. the statement calls for the response. This fits all four and I would argue that silence is an adoptive admission of guilt, though one could argue that this occured in the back of a police car and knowledge of miranda rights is strong enough to prevent people from speaking at all |
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Term
| A testifies against her boyfriend at a grand jury hearing. She recants at trial. The prosecutor introduces the grand jury testimony under 801d(1)a. 1. Should a judge grant a directed verdict? Is there a confrontation clause issue? |
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Definition
| No directed verdict as the evidence comes in as substantive testimony under 801d(1)a. The jury gets to decide when A was telling the truth. There is no confrontation clause problem because A was in court to testify and be cross-examined. |
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Term
| A testifies against her boyfriend at a grand jury hearing. She says she does not remember because her injuries have led to memory loss. The prosecutor introduces the grand jury testimony under 801d(1)a. 1. Should a judge grant a directed verdict? Is there a confrontation clause issue? |
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Definition
| This is not evidence of past inconsistent statements. If she does not remember, it is the same as if she did not give testimony. She is "unavailable" as a witness and she cannot be cross-examined substantively so it raises confrontation caluse issues. Of course, that is if the Court believes she does not remember. You could argue that she really does remember and she is lying to protect her boyfriend who is now in court. |
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Term
| D is on trial for some crime. Defense is not guilty by reason of mental disease or defect. Prosecutor puts on as a witness his cellmate to testify: he brags to me night after night that he’s fooling everyone. D on cross brings out fact that cellmate has received a reduced sentence on the crime he was facing in return for his testimony here. Now prosecution wants to put on witness of cellmate’s mother: apparently she received phonecall from cellmate saying that his cellmate was indeed fooling his lawyers and the court. Admissible? |
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Definition
| It depends on when the inmate starting calling his mother and when he learned that his cellmate had a worse sentence than he did and he could potentially bargain |
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Term
| Prosecution wants nurse to testify that A told her that B hit her. Under what circumstances is this admissible? |
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Definition
| It is admissible as testimony about identification, but you can't admit any information about the crime itself. You have to call another witness first to testify to the substantive information about the crime and then the Nurse. The underlying policy is that witnesses are afraid ofa ccusing people in open court. Always consider this policy rationale. The policy rationale doesn't stop the victim from testifying about the injuries, just the who dun it part |
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Term
| Trial for bank robbery – bank teller called as witness, testifies that the woman who robbed the bank was average height, was wearing a light-colored raincoat, and had brown eyes. That’s the direct testimony. On cross: Defense says, didn’t you earlier tell a detective, shortly after the robbery, that the robber was wearing sunglasses. Prosecutor objects, hearsay. Statement admissible or not? |
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Definition
| It is admissible because it is being used for impeachment purposes only. If the prosecutor tried to introduce evidence that notwithstanding the sunglasses, she told the detective she could see the eyes, it would go to the truth of the matter and would thus be inadmissible |
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Term
| Problem 7.22: Domestic violence case where FT testified in front of grand jury that her husband hit her, but then next day in court refused to testify about incident at all. If prosecutor, over defendant’s hearsay objection, offered a transcript of FT’s grand jury testimony, how should court rule? |
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Definition
| Not admissible because there is no opportunity to cross-examine the witness before. The only way around this would be the residual exception and the prosecution could argue it. |
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Term
| Problem 7.23: • 2 cars collided. Officer on scene charged 1 driver with DUI. Later, other driver sued DUI driver for resulting injuries. At trial, non-DUI driver testified about acceded and was cross-examined by DUI lawyer. 4 months later, the DUI prosecution came to trial. Injured other driver was unable to attend trial, and prosecutor sought to read her previous testimony into record; DUI lawyer objected. How should judge rule |
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Definition
| Yes it is admissible. The motive of the attorney in cross-examining the witness in the previous trial is the same (to avoid culpability and expose inconsistencies). Therefore, it is admissible. The question is not whether you did the cross-exam the same way, but whether you had the opportunity and the motive to do so |
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Term
| A, a married man, is accused of murdering B, his wife, who was having an affair. The prosecution, in order to prove the affair (thus showing motive) wishes to call C, who was a friend of B, to testify that B told her of the affair. Admissible? |
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Definition
| The question turns on whether it is against the interest of the wife, in making the statement to her friend, to tell others about her affair. |
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Term
| Problem 7.24: Police investigate a robbery at the defendant's mother's house. The mother yells "Bobby what do you know about this missing truck" Bobby says, "Ask Magnolia, it was her idea" Is this admissible against Magnolia? Against Bobby? |
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Definition
| It is available against Bobby - against his interest. But it is not admissible against Magnolia under the Williamson standard. It would have to be redacted. It is admissible insofar as it inculpates Bobby, but not insofar as it inculpates Magnolia. Just because a statement is inculpatory of one person does not mean collateral evidence can get in |
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Term
| Problem 7.25: • The restaurant is gutted by fire. A car is seen leaving the scene. The driver is interviewed. Says he owed Alice a favor so he agreed to burn the restaurant. The guy says that when he remembered a family with young children lived upstairs, he lost his nerve and only poured a little gas in the window and lit it and took off. How would you edit the statement? |
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Definition
| Under Williamson, anything that exculpates Alcia goes out and anythign inculpating himself stays in. The final draft looks pretty beleaguered, but that is what Williamson requires |
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Term
| Problem 7.26: • Barone is charged with robbing a bank. Security guard is shot in the neck. Limoli’s sister states that her brother came to her asking for lemon juice because if you wash your hands with lemon juice they can’t tell you shot a gun. Limoli tells her he shot the guard in the foot and Barone shot him in the neck. Lamoli is dead. |
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Definition
| Suggestion that he did the minor wound and Barone did the major wound may be more exculpatory...by suggesting the other guy did worse, it's a slightly exculpatory statement…As the Judge you may want to consider editing the statement per Williamson. When analyzing inculpatory and exculpatory statements, take it line by line and statement by statement (e.g. separate the who shot whom statement from the lemon juice statement) |
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Term
| Problem 7.27: Bucky Buzzy, and others are charged with stealing a stamp collection. An accomplice said, "Bicky wasn't involved. It was Buzzy." In the trial against Bucky, is this admissible? |
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Definition
| A statement that tends to show you were guilty AND exculpates some one else tends to come in because the more you exculpate some one else, the more guilty you are. Most courts would let this in. |
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Term
| Problem 7.28: Mattox on trial for Mullen's murder. Mattox's mother is present. The physician said to Mullen: "I saw the parties who shot me and Clyde was not one of them." Is this admissible? |
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Definition
| This is clearly a dying declaration. He is aware of his impending death. U.S. v. Chepard can be read as suggesting a temporal element, but most read it as knowledge of relative certainty of death (imminence). The problem is confrontation clause |
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Term
| Man in the backseat of a car shoots the driver and passenger. The passenger dies. When police arrive and the shooter is unconscious, the driver says "I'm dying, I'm dying, get me out of this car the man in the backseat shot me?" Admissible for dying declaration? Confrontation clause |
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Definition
| It is admissible as a dying declaration because he believed death is imminent from the gunshot wound. The car crash doesn't matter because the shot caused the crash. There is no confrontation clause problem because there is an ongoing emergency - the shooter had a gun in the backseat |
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Term
| A is an alibi witness for B. A gets deported for illegal immigration during the pendency of trial making him unavailable. Does his testimony come in? |
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Definition
| Most courts would treat the government as a single entitty and say that under 804B6 the government made the witness unavailable. It comes in |
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Term
| A arrives at her apartment to find her boyfriend, B, on the bathroom floor, bleeding profusely and slipping in and out of consciousness. She asks what happened, and he gasps, “Carter shot me,” and then goes unconscious. He’s taken to the hospital and it turns out the wounds are not life threatening, but have done sufficient damage to his internal organs that he goes into a long decline. He dies 6 months later. At Carter’s trial for murder, are B’s statements admissible as a dying declaration? |
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Definition
| Cardozo just said that there must be a sense of doom. That is subjective, as long as it’s a genuine belief, it counts. He can be wrong that he’s dying and still have a dying declaration. This is what the court held. |
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Term
| A arrives to find B bloody on the floor, asks what happened, B says “Carter stabbed me, I’m dying.” A calls the paramedics who find B has only a small flesh wound and was never at risk of dying, and was probably not in very much pain. It turns out he’s a hypochondriac who always believes he’s on the verge of death. If he becomes unavailable, is the statement admissible? |
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Definition
| It's possible that the belief of death must be reasonable. The Prosecution would say that he truly subjectively believed he was dying. Courts have consistently said that subjective belief is enough as long as it's sincere. |
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Term
| A is the owner of an expensive home that burns down. The cops talk to B, who’s an employee of A, the owner of the home. B says, “I burned down my boss’s house because A wanted me to. My girlfriend C and I did it for the boss.” When A learns of this, he asks several people to murder B and C for him. All of the people he asked tell the government that they turned down this request. But B and C wind up dead, along with their three kids. The owner of the house (A) is then indicted for murder. The prosecution wants to introduce B’s statement inculpating A in the arson. A’s counsel objects that this is hearsay. |
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Definition
| The Court can determine bya preponderance of evidence 104(a) that A precured the witness's unavailaility for trial. But, under the transferred intent doctrine, this can be for any charge. While the unavailability was procured for the arson charge, it can also be used for the murder charge. |
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Term
| Problem 7.29: Whipple is mauled by large dogs. Question is whether her partner, Smith, can testify about Whipple’s out of court statements that she was bitten by the dog and told the owner to keep the dog under control. Smith says she learned of the incident in a lunch time phone call, during which Whipple said, “That dog just bit me. I scolded the owner.” When Whipple got home, she provided more details. The question is how much if any of the testimony should come in? |
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Definition
| There are two aspects of an excited utterance: 1) when the event took place; 2) what their relationship is. If the event just took place, it’s easier to think of this of this as an excited utterance no matter who Whipple is talking to. If not, then whether it’s still excited might depend on their relationship is – this is because she might get re-excited when she finally is able to tell the story to someone she is close with. The next statement was made when Whipple came home from work. The question is how much time elapsed. Did she rush home? In that case excited utterance might still exist. The court let both in. |
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Term
| Daughter struck by car, calls mother who rushes home from work. Mom arrives half an hour after the accident. Daughter says that the car was blue. Can the mother testify to the daughter’s statement? |
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Definition
| yes because even though 30 minutes elapsed, the excitement of seeing her mother led to an excited utterance.Courts take the view that intimate relationships maintain the excited utterance |
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Term
| Daughter struck by car, calls mother who rushes home from work. Mom arrives an hour later. The girl says a car hit me. It was a Mercedes 3000 with a specific type of wheels. |
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Definition
| The court will hold that the wealth of detail makes it less likely it’s an excited utterance. Courts tend to hold that such detail makes the excited utterance exception not applicable. This is because courts additionally wonder what happened in the time that elapsed. If girl sat there crying the whole time, more likely to be an excited utterance than if she was g-chatting and researching on the internet |
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Term
| Problem 7.30 On the day of the attack, an old woman called 911 and said that the dogs were attacking the owner in the hallway. “I hear her screaming these dogs are ferocious.” The defense wants to put this tape in to try to argue that the owner tried and failed to control the dogs. Let’s assume that under the definition of the offense that is relevant. The question is, is there a way to get the statement in under 803(1) or 803(2)? |
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Definition
| We would need to know more information. For example, how familiar is the neighbor with the dog owner's voice? As it stands, there is no exception for present sense eimpression when there is a lack of personal knoweldge. She can't testify to the identification of the owner's voice without seeing the owner speak. The problem is that this is just her opinion. SHe doesn't claim to be observing. She can only testify to a present sense impression. |
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Term
| Evaluate the admissibility of 911 calls as a present sense impression or excited utterance. |
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Definition
| Most courts would let them in, but many argue that there is less sponteneity when the conversation is guided by operator scripts. There is another confrontation clause issue |
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Term
| Plaintiff claims to be injured by insertion of tube into her throat. She wants to introduce the statement of a doctor who examined her after the insertion, who said, “What butcher did this?” The court said it’s not admissible under 803(1) or (2). Why might this be? |
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Definition
| The doctor is examining the previous physician (D’s) work. He’s examining the injury and this is his first comment. There’s not a lot of time between the moment he sees the injury and his statement. the notion of both present sense impression and excited utterance is that there’s a disconnection of intellect, so the statement comes without interference of the part of the mind that reasons. But doctors are trained not to make the disconnection. Thus, whatever the doctor’s comment might have been, it must be considered the result of reflection even though it may be snapped out instantly. |
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Term
| Problem 7.31: Impson and his wife Laurie got in an argument, which ended with Lori calling the police. When they arrived, she was crying and upset, and told them Impson had knocked her down and pushed her head into a wall. At Impson’s trial, Lori changed her story and denied that Impson pushed her head into the wall. The officer testified that immediately after the battery occurred, Lori had told him that Impson had knocked her down and rammed her head into the world. If the defense objects to the officer’s testimony about Lori’s statements, should the judge admit the evidence at trial? |
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Definition
| It depends on how quickly the cops arrived and what happened during the time lapse. The court would also ask how she was acting when she ultimately gave the statement. Even if she was calm in the interim, she may have gotten upset again. The fact that she’s crying and rubbing her head suggests she’s excited. The description of her external state would be sufficiently indicative of her internal state that the court would admit the testimony. - Unlike some of the domestic cases we looked at last week, the statement is not coming in for impeachment – it’s coming in as substantive evidence. The jury now has two versions of Lori’s story and can decide which one to believe. In contrast, when the testimony comes in only to impeach, the jury can’t consider it on the merits. |
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Term
| Problem 7.32: At Puleio’s trial for a shooting death, which occurred outside a bar, LaMothe (the bartender) testified that after hearing a shot and a scream, she went outside and asked who shot the gun, then Bonnie Eaton yelled out “Joe Puleio.” Was the trial judge right to admit this testimony over the defense’s objection? |
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Definition
| The Court said it could come in as an excited utterance. The concern is that it doesn't require any showing that Bonnie had actual knowledge. There are a lot of cases of hearsay declarants where we can't test personal knowledge. This one is troubling. Imagine the testimony was that some one in the crowd yelled Joe Puleio. If Bonnie is unavailable there's no difference between bonnie saying it or any one else. The only question is whether Bonnie's statement was made out of stress and excitement. If she's not a witness, that's the same as if the witness said "somebody shouted." |
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Term
| Frank is charged with murder. The prosecution wants to introduce the victim’s out-of-court statement that on the night that she died she said to a friend, “I’m going out to dinner with Frank.” |
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Definition
| If it’s admissible, it must be admissible because of the inference that can be drawn from it. What inference can be drawn from her statement? We can infer that she met with Frank. That is the HIllmon point: from her statement “I’m having dinner with Frank,” the jury can infer that she did have dinner with Frank. But the jury can’t infer anything about what Frank did. THe dissent argued that on those facts it was inconceivable that the jury wouldn't draw an inference about what Frank did. |
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Term
| Case involving football player Aaron Hernandez. According to media reports, part of the prosecution’s evidence is a series of text messages that the victim, Lloyd, sent to his sister before he was shot to death. A few minutes before, he texted his sister, “Did you see who I’m with?” She said, “Who?” He answered, “NFL. Just so you know.” IF Hernandez is put on trial for murder, are these admissible under 803(3)? |
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Definition
| These texts are not expressing an intention. The first is asking about the sister's memory. The next is describing something that happened in the past. Even present sense statements (I'm with Frank now) don't come in under Hillmon |
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Term
| Problem 7.33: Larry left a group of his friend at a restaurant at 9:30 on June 1, walked into a parking lot, and was never seen again. At Angelo’s trial, the court admitted testimony by two of Larry’s friends concerning statements that Larry made on the day he disappeared, saying that he intended to meet Angelo in the parking lot at 9:30 to pick up marijuana. He said this to his girlfriend and friend earlier in the day. Also, just before he left the restaurant, he stated that “he was going to meet Angelo and he’d be right back.” |
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Definition
| First question: Whether it’s admissible to show that Larry didn’t disappear voluntarily. He said he’d be right back. From this, the jury can infer that he intended to come back. Thus, the statement should be admissible for this purpose. - Second question: Should the court have admitted the testimony to prove that Angelo was among those who kidnapped Larry from the parking lot? We draw a distinction between showing his intention and the intention of others. The problem here is that we can allow the jury to infer only that the disappearance wasn’t voluntary, but it may not be able to infer anything about Angelo. Still admissible though. |
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Term
| How can you get a contract in if its not kept as a regularly kept business record? |
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Definition
| Documents with their own legal significance are automatically admissible |
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Term
| Buyer tries to introduce a stub of a check to prove that he paid for something…admissible? |
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Definition
| No. Ct said that the mere fact that one uses a checkbook does not indicate the reliability, objectivity, and regularity |
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Term
| How can you admit software records and computer printouts? How can you lay a foundation? |
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Definition
| the court doesn’t need to know how the software works, the court needs to know what the software does: “We enter information here, then X information comes out here.”...minority of courts still require an explanation of how the software works. The problem is that how some software works is a trade secrete. So people are reluctant to offer that information into evidence. It is a diminishing minority of courts that require that though... Fully automated records (made bya computer) are admissible if they are authenticated. |
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Term
| Problem 7.39: A sues company for manufacturing defect of a lawnmower. A seeks to introduce the evidence of her return slip and other return slips noting the problem with the cord. What if the company wanted to introduce her return slip that said "reason for reeturn: grass chute clogs up" |
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Definition
| The record that there had been a return (absent reason for return) is admissible under 803(6). The witness is able to say, these are records that we keep and doesn’t have to say I made this specific record (judicial economy). The recording of the reason for return is likely not admissible. The clerk is writing down what the customer says, so it’s nested hearsay. The bottom layer has no indicia of reliability. So it’s not admissible. if form said “Donohue says the lawn mower clogs up?” Then under 801(d)(2)(A) it is enough that the statement is being offered against an adverse party who made the statement. Therefore the bottom layer is admissible. The top layer is admissible as a BRE. |
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Term
| A wants to introduce a business record showing return receipts for a lawnmower. What must B, the business, show in order to prevent admission? |
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Definition
| That the business record is not regularly kept and that it is thus untrustworthy. The opposing party has the burden in this case |
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Term
| Dallas County v. Commercial Union Case: Issue is how the courthouse came to be damaged by fire. There is a 1901 newspaper article that purports to give information about how a fire occurred. Case occurs sixty years later. Can the unsigned newspaper article comes in. |
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Definition
| there is necessity for the evidence: it would be too difficult for the party to show otherwise that a fire occurred sixty years ago. The only witnesses would have been children at the time, and there is no indication that they’d remember. Similarly the reporter’s memory may not be reliable now either. There is an indication of veracity. It is not plausible that the reporter would make up news about lightning in the town. The Judge engages in Posner-style residual exception balancing |
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Term
| What is the near-miss theory and evaluate whether you should use it? |
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Definition
| The Near-miss theory says that evidence that comes close to the line of any of the 803 exceptions should come in under 807 (the residual exception). Opponents suggest that if it is a near-miss, then courts really didn't want it to come in. They say that near-misses are the worst type of evidence to admit because it is so prejudicial and obviously outside one of the 803 exceptions. |
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Term
| Problem 9.5: There's a large shipment of marijuana. If the marijuana came from outside of the United States, that is an additional offense. P calls in an expert who's job in the drug trade was to determine where shipments came from, which he did by smoking it. Is his evidence advisible to tesify the marijuana came from Columbia? |
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Definition
| He does have experience. We need to get more information to believe that he's good at his job of identifying where the marijuana came from. His life may have been threatened if he is wrong. He will likely be qualified as an expert, but this doesn't tell us whether he is using reliable methods. |
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Term
| Jinro v. Secure Investment: Witness is qualified as an expert based on living and working in Korea. He testifies as to Korean business practices. Is he an expert? |
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Definition
| No. He doesn't cite empirical data. His information is anecdotal. The Court also decides this runs the risk of unfair prejudice no matter what his qualifications may be. He's testifying about the way he says Korean people are, which has nothing to do with law. |
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Term
| P is trying to prove a calf belongs to one person rather than another. P tries to present evidence that the calf was rejected by the other person's cattle. Another rancher testifies that this behavior is used to determine maternal lineage. Are these people experts? And are they qualified to give this opinion? |
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Definition
| Yes to both. They are experts based on their experience. With the proper foundation, this is admissible |
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Term
| Problem 9.6 Government calls a detective to testify as to practices of narcotics trafficking, namely code-words used by drug dealers. He testifies as to what the code words in this case meant. Is he qualified from 350 past wiretaps and investigations? |
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Definition
| Yes, based on his experience, but he can't render a specific opinion as to what specific words mean without more evidence. How often have these words been used? In reality though, once a witness is qualified, the standards for what he says are pretty lax. |
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Term
| Problem 9.7: Two marks look and sound similar. P calls an expert to testify that they sound similar. Is this allowed? |
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Definition
| If the expert is simply testifying to spelling and pronounciation, an expert is not needed. If the difference were more precise like "Lexus" vs. "Lexis Nexis" then perhaps. Often these expert produce survey evidence, which is often admissible. |
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Term
| Problem 9.8: Housing discirmination case. Whether to admit an expert who will testify to the advertising that the D is running: How does an -allwhite advertising campaign affect African Americans |
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Definition
| The answer turns on whether the testimony would be helpful to the trier of fact. You must decide whether this is relevant under 403 (i.e. whether the suit depends on how blacks perceive advertising). |
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Term
| Problem 9.9: Passenger on a cruise ship slips and falls. Sues the ship saying they didn’t have adequate flooring.P wants to allow an expert on floor safety to testify. Testifies to the wet floor's coefficient of friction. Is this admissible? |
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Definition
| The fact that this expert calls it "coefficient of friction" and the jury calls it "slippery" is not enough to allow him to testify. He needs to structure his testimony in such a way that he's giving the jury more knowledge than it otherwise has. He is also offering a legal conclusion (unreasonable unsafe). |
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Term
| Problem 9.10: Two people buy a series of items from different stores. The items are used to make meth. One says he didn't know what the other was doing and his purchases were legitimate. A forensic chemist for the P said the combined purchases "are all what lead me toward the opinion that the items were possessed with the intent to manufacture meth." Is the wintess allowed to testify? With respect to intent? |
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Definition
| This is not barred by 704(b). It may be barred by 704(a) because the expert is testifying to an ultimate issue and intent is at stake in the case. It may be possible to argue that the expert is not using intent in the legal sense. His testimony also suggests that he doesn't believe the D's defense. In order to construct his theory, he needs to assume that the defendant is lying and experts are not allowed to testify as to whether or not other witnesses are lying. |
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Term
| Problem 9.11: D’s medical expert says that a witness may have been mistaken about what he saw, based on how a body falls. Not a problem so far. But then, upon questioning, expert testified that he rejected the guy was lying, based on the fact that he was a police officer and the lie was so likely to be disproved. Should this testimony have been allowed? |
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Definition
| The first part about how the body fell is admissible. Since the expert is assessing the credibility of the witness, the second part is inadmissible. The hard part is whether the expert can testify to whether a reasonable police officer would realize that a big investigation will reveal the truth of what happened and how the body fell. That's right on the line and it's unclear. |
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Term
| Prosecution for wire fraud: A allegedly made phone calls on behalf of a charity that doesn’t exist; kept the money. Offered testimony of B who testified she answered phone and it was a strange voice; caller identified himself as A. A’s counsel says that the call is not properly authenticated. Outside hearing of the jury, B says she can’t identify A. She’ll just testify the caller was male, identified self as A; and solicited her for charity. Is this properly authenticated? |
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Definition
| 901(b)(6) is not entirely clear, but points to how one might authenticate. Here, self-authentication, but is there other circumstantial evidence? Not really, many courts would not admit this (though some might). A simple statement by the caller or by the recipient of the call that, yes, I am X, is not enough. There is no clear standard for how much evidence you need, and standard is abuse of discretion. |
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Term
| A charged with kidnapping: Alleged to have kidnapped B’s husband and have telephoned with ransom demand. B offers to testify that a person called her on the phone demanding ransom, and that she had never heard the voice before. But she was at the arraignment and heard A’s voice and was satisfied that it was the same voice as what she heard on the phone. Authenticated? |
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Definition
| As long as she heard the voice under circumstances in which she could identify the speaker, the testimony is admissible. So she can testify to contents of the phone call. |
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Term
| Is self-identification on a phone enough to authenticate a call? |
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Definition
| No. There has to be other information to authenticate it - other facts (i.e. identification of voice or number) |
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Term
| Prosecution for armed robbery: Rober calls the store to make sure every one is OK later. Store owner dialed *69. How do authenticate the call? |
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Definition
| Owner could say the person who robbed me was the same person I heard on the phone, but cant connect this to the defendant…To authenticate something means to show that it is what we say it is. Here that the voice was that of the defendant, but you can't connect them. You could show under (b)6 that no other calls were made and that the *69 call was the same number which the robber used to make the call. A judge has to decide if the chain of inference is too attenuated. |
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Term
| Problem 10.6 – Famous case: Day after shooting photographer poses the victim in the bed saying that this was the position the victim was in at the time of the shooting. Photographer takes picture from outside the house from the alleged vantage point of the shooter. Prosecutor offers photos. Admissible? |
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Definition
| The photos if used to show the position of the victim should be admissible – they just illustrate the testimony of the photographer (who was, in fact, there). The ‘vantage point’ shot is more difficult: Does the photographer know the shooter’s point of view? If the photographer saw the shooter, maybe it would be admissible, but a court very well might exclude this because of skepticism about the ability of the photographer to capture the shooter’s angle (he was inside, not outside). |
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Term
| Problem 10.7: CGA was used to show how defendant shot his wife. How can the P authenticate the CGA? |
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Definition
| – Ideally in a CGA case you want two things to enable it to illustrate the testimony of the witness (e.g., the forensic expert or the police officer describing their assessment of the sequence of events). The CGA can show what is in the testimony – and no more. The gold standard CGA though is to have the witness and the creator of the CGA. It’s not per se necessary, but that is the gold standard. Courts have developed very clear standards to prevent the CGA from ‘inflaming passions.’ It can only show blood spattering if that is relevant to the testimony, etc. |
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Term
| : Prosecution for murdering: Prosecutor introduces evidence that the two opposing gangs had an altercation at a nightclub at which both men were present. Later that night, victim was walking down the street and shot in drive by shooting. Defendant is charged because there is a MySpace page where the user brags about the killing; there are chats about the killing with other MySpace users; MySpace account is registered to person with the name of the defendant; person with the account complains about having to wear a tag – which the defendant does; victim’s sister says found the page in browsing MySpace; expert says many gangs use MySpace because no one else uses it; defense says: anyone can create a MySpace account under any name. Need to authenticate that it is defendant’s MySpace page. Admissible? |
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Definition
| The aspects that would tend to authenticate it are the combination of facts that it is in his name, and correlates with events in his life. The other evidence on the page of the crime would be bootstrapping – it has to be other evidence from the defendant’s life. |
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Term
| State investigating sale of cocaine. Give informant a $100 bill. Informant says: I bought, here’s the cocaine and the change. The seller is arrested and the state tries to show that it did, indeed, give the informant $100. But it doesn’t have the bill anymore. So it seeks to introduce a photocopy of the $100, and the defense objects on best evidence grounds. |
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Definition
| The $100 is an issue in the litigation, Q is whether prosecution can introduce the duplicate. Rule 1004 (a-b) both support the photocopy. The court says – of course you can trace via the Federal Reserve, but that’s silly. If the key Q in litigation is whether the defendant had the $100 bill, it might not be silly. It's admissible here. |
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Term
| FBI raid on apt. where they believed there were terrorists. Journalists get in during course of raid and FBI kicks them out. Journalists say FBI used excessive force. FBI has immunity unless they knew or should have known that it was unreasonable force in the circumstances. FBI introduces videotapes obtained from television news broadcasts showing the incident. The journalists object, saying that they don’t show the entirety of the incident. Rule 1003 – does the fact that there might be more on the tapes “make it unfair.” |
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Definition
| .” It’s a hard case, but the court said that the mere fact that the videotapes are incomplete does not violate Rule 1003, you must have reason to suspect extensive and prejudicial fraud. Lots of academic criticism, but what the court did is actually what courts generally do |
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Term
| Masey v. State: Massey accused of theft at a WalMart. Security guard was following him because he was stacking his cart in a “fort” pattern (basically hiding expensive small items on the inside of the cart). When Massey walks out, guard stops him. Massey says: I’m just going to get something from the beverage machine. Guard calls the police. Manager says: we won’t press charges (except for trespass) if you pay. At trial, prosecution presents videotape which just shows the entire story. Apparently, videotape was created by splicing together videotapes from cameras around the store. Massey says that because the videotape leaves out a lot of detail – for example, that it doesn’t show him talking to an employee about where the beverage machines were – they shouldn’t be admissible |
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Definition
| if Massey thinks there really is something different on the tape, he can subpoena the tape. Defendants often claim there is something else, and courts say: you need to show us a reason to think there is something else there.There is academic criticism of this, and that there is a substantial risk of prejudice with splicing. |
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Term
| Problem 10.8: Myers on trial for suborning Lamarre’s perjured testimony. Government has to prove Lamarre lied; it needs to show the earlier testimony and that that testimony was false. To do this it calls a witness who was present at the testimony. Defense says: you need to provide the transcript of the testimony. Is the best evidence rule implicated? |
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Definition
| No, court says that you are not trying to prove what’s in the transcript. You are just trying to prove what he said – and that can be done by anybody who was there – and that’s what a transcript is anyway. That’s fine so far as it goes, but Rogers (the witness) was the questioner on the committee. So he’s an agent of the prosecution. But there is no way the court would overturn this conviction…. Myers had set up a shell company for defense contracts during WWII, and Lamarre had lied during the Congressional investigation. |
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Term
| Problem 10.9: a license plate is a writing, so you need to bring the license plate in – it is the best evidence of the content of the plate. |
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Definition
| maybe short patterns of letters and numbers are not writings for the purpose of best evidence rule. This has good basis in doctrine (not always noted by courts): the “inscribed chattel” doctrine holds that inscribed chattel is not a writing. Chattel is non-real property. The doctrine holds that inscriptions on certain chattels are not writings for the best evidence rule – including license plate numbers, inscriptions on tombstones, badge numbers. These have in common (generally) that they are short – and have a potential for a tremendous waste of resources if you’d have to bring them in. For example: I was kidnapped and the kidnapper took me down State St. – Objection: bring in the State Street sign. So it’s basically a 403 calculus. But license plates and tombstones don’t necessarily fall into this: license plates are random strings that are more difficult to remember and tombstones may have more extensive text. Some courts call this a doctrine. McCormick says there shouldn’t be such a doctrine: we should recognize there are situations where we don’t need the best evidence because of the nature of the writing: where it is simple to remember and hard to produce, court should not demand production. |
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Term
| Problem 3.19: Weil died unexpectedly. He had been taking what he believed were antihistamines, but it was later discovered that his doctor had been prescribing him steroids. His illnesses were attributable to his long term ingestion of steroids. Wel’s estate files against the doctor. The doctor also prescribed steroids instead of antihistamines against 8 other patients. Can you admit that evidence? |
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Definition
| We need to know how many patients the doctor has, to put the number 8 in context. Unless you take that it has to be literally invariable to be a habit, you have to figure out where you are comfortable with the figures going through the propensity box. Courts have not said that the number is 100%, although several treatises think that’s the right number. |
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Term
| A suing B for damages from a car accident. Police report it was A’s fault. A contends that the report is based on B’s statement to the police, and that the defendant’s statement is false. B takes the stand, repeats statements he made to police. A’s counsel asks, “Have you ever falsified an official document?” B says no. A offers testimony of witness C, who says she saw defendant sign a false tax return. Admit? |
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Definition
| If you are the lawyer for A, what do you argue to say this doesn’t go to truthfulness? (In which case admit). Argue that it’s not that the claim that B lied to police puts in issue B’s veracity. That would get around 608(b). C: not sure who would win, tough case. Courts are uneasy. Strong case you can make that the question comes in. |
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Term
| Problem 4.2: B charged with stealing money. If B testifies, which of the following should the prosecutor be allowed to cross on? (1) A letter B sent to a clerk asking to be excused from jury duty b/c he moved from Utah when he was still living there (2) B's application for a Utah driver's license in which he denied that his license had been revoked in the past 10 years (it had) (3) Letter of rec. B wrote for an employee's daughter when she didn't work for him |
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Definition
| With all of these, you have to ask how remote the offense was… And then it has to survive a 403 weighting. 1 and 2 are admissible - the 2nd with a limiting instruction. 3 is inadmissible |
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Term
| Problem 4.3: D charged with theft. He says he was 100s of miles away at the time of the crime. Prosecutor asked the D on cross whether he shot a man in the arm in 2006. Admissible? |
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Definition
| Inadmissible. There is no mention of a conviction so this problem is analyzed under 608(b) and not 609. This is not probative of his character for untruthfulness |
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Term
| Problem 4.3: D charged with theft. He says he was 100s of miles away at the time of the crime. Prosecutor called a witness to testify that he saw D shoot a man in a bar brawl in 2006. Admissible? |
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Definition
| Inadmissible. No mention of a conviction. Under 608(b) this has nothing to do with untruthfulness |
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Term
| Problem 4.3: D charged with theft. He says he was 100s of miles away at the time of the crime. Prosecutor offered evidence that D was convicted of assault and battery for shooting a man in a bar brawl |
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Definition
| Maybe admissible if the probative value of the evidence outweighs its prejudicial effect to that defendant. |
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Term
| Problem 4.3: D charged with theft. He says he was 100s of miles away at the time of the crime. Prosecutor asked D on cross whether he was convicted of turnstile jumping and sentenced to 3 months county jail in 2006 |
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Definition
| Probably inadmisible. Turnstile jumping is unlikely to be punishable by 1 year in jail. And its provative value probably doesn't outweigh the danger of unfair prejudice. This is also not crimen falsi |
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Term
| Problem 4.3: D charged with theft. He says he was 100s of miles away at the time of the crime. Prosecutor offered evdence that D was convicted of lying to a federal investigator and sentenced to two years in federal penetentiary in 98. Admissible? |
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Definition
| Possibly admissible. The age of the conviction is a strike against it, but this is probative of untruthfulness. Some judges would take the defendant's more recent criminal record into account. |
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Term
| What is the five-factor test for impeachment of past crime? |
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Definition
| (1) nature of crime - crimes of violence aren't usually probative of untruthfulness (2)time since conviction (3) similarity of past crime (if it's too similar will not be admitted) (4) importance of defendant's testimony - if the defendant's testimony is CRUCIAL, take that into account (5) centrality of the credibility issue |
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Term
| Problem 4.4: defendant says TC erred when it admitted for impeachment purposes a prior conviction of unlawful possess for sale and purchase of cocaine. Court denied the use of conviction during government’s primary case, finding it too prejudicial. On cross, the government offered a certified copy of the prior conviction under R609. Admit? |
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Definition
| This can only come in for impeachment purposes because it goes through the propensity box. It is likely admissible here as long as it makes it through 403 relevance. A lot of literature criticizes this though because it should only be admitted for its attack on credibility for truthfulness. |
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Term
| Problem 4.5: Gary suing former employer alleging employer violated Age Discrimination act. Loses. Appeals defense counsel’s impeachment of his testimony in which they asked, “Gary, in 2002 you were convicted of the crime of tampering with electric meters, right?” Penalty: 6 months in jail |
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Definition
| 609(a)(1) doesn’t apply (max penalty is less than a year). What about 609(a)(2)? Requires the court “readily determine” the crime required proof of a “dishonest act or false statement.” Most authorities ask, can the judge look at the record to “readily” determine? (Based on statutory definition). You can't conduct a mini-trial |
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Term
| Plaintiff files suit for defamation. D wrote that P is a drug addict. P is called to the stand, lawyer asks on direct, “Have you ever purchased or used illegal narcotics?” Admit? |
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Definition
| Sounds like propensity evidence on the face of it. Is there a way to get it in without going through the propensity box? Defamation is for damage to reputation. Even though this sounds like propensity, since it goes to the central issue in the case, including aspects of reputation, it’s useful to determine what kind of reputation you have. Admit. C: Not sure this is right. |
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Term
| A, law student, suing B, for injuries that A sustained when B hit her with his car. A testifies that B did not sound his horn. On cross, B asks A whether she was wearing noise-impeding earphones as she crossed the street. A says no. B now seeks to call a witness to testify that she was wearing headphones. Admit? |
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Definition
| Assume witness wasn’t allowed to be called as part of the main case (the testimony goes to the facts at issue, not just impeachment). It would be admissible as part of the main case because it’s contributory negligence. On cross, is it about her character? No. It’s instead tending to show contradiction of her statement given while on the stand. If the next Q was "did you lie on your law school ap" and she says no, there the court probably wouldn't allow extrinsic evidence because the question about the law school goes to character for truthfulness. |
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Term
| Problem 4.7: A was government's chief witness for the prosecution of B for swindling A out of her VA benefits. Two characters testified of their high opinion of A after B's counsel stated "I don't expect A will agree to this because she is receiving government benefits again and she has been cut off in the past." She was questioned about getting money from the VA to testify against B |
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Definition
| it looks like it is an attack on bias or motive, and as ACN says, this type of attack does not amount to an attack on truthfulness. But the 7th Cir came out the other way on this case. So, if this was truly an attack on bias rather than truthfulness, then the 7th Cir got it wrong. That said, courts are always wary of overturning lower court decisions when the lower court’s decision was based on what the judge observed first-hand of the credibility of the witnesses. That probably explains why the 7th circ ruled as it did. |
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Term
| Problem 4.9: At T's trial for conspiracy to runa clandestine drug lab, B testified that H permitted her and a third person to operate the lab in T's home. T advised the judge he was going to introduce two witnesses to testify that B had falsely accused them of possessing meth in order to divert the autherities attention from her to parker. T's theory was B was a meth addict. |
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Definition
| This shows bias and not character for untruthfulness. You can't use impeachment witnesses for bias because character is not an issue. You could cross examine her about these instances, but if she lies on the stand you are stuck with those denials and you can't bring in extrinsic evidence to refute her. |
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Term
| Witness is collaborating with SEC for the prosecution of illegal trades at the firm where she works. She explains to investigators that she worked to get trades for certain traders at the firm for the firm’s advantage. She refuses to testify at trial but prosecution offers a recorded statement of the witness’s remarks to investigators. Would the CC bar the govt from admitting the recording? |
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Definition
| The witness's statement aren't accusatory or testimonial. They just describe what she did. It's admissible. |
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Term
| Carter is on trial for murder. Govt seeks to introduce 911 call. The caller (the witness) says he saw a man walk up to another man on the sidewalk and fire several shots. 911 operator: “are you hurt? can you give me a description of the assailant?” Which parts of the conversation with the 911 operator are admissible? |
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Definition
| The question is whether the caller's statement is testimonial. The first part (are you hurt) is not accusatory. The second part is and would be barred unless there is an ongoing emergency |
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Term
| · Carter on trial for cocaine possession. Govt offers statement of lab technician stating that the substance held by Carter is indeed cocaine. Carter objects to admission of the technician’s statement citing Crawford. How should the court rule? |
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Definition
| The technician's statements are accusatory. It should be barred. The Court is not saying every one in the chain of custody needs to testify though, just the one making statements. |
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Term
| Defendant is accused of domestic assault. The prosecution seeks to put on 911 tape. The caller says to operator: “he’s jumping on me again, using his fists.” Operator: “who?” Caller: “Davis—he’s running now.” Is this admissible under CC? |
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Definition
| § SCOTUS held that this is not testimonial bc the 911 call entirely involves an effort to respond to the ongoing emergency; and as long as that is the context, then the statements are non-testimonial. Statements become testimonial if the interrogation takes place after the emergency is over. Even if the name of the defendant is mentioned on the call, the statement from the call is not testimonial bc, taken as a whole, the call is solely an effort to respond to the emergency. |
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Term
| victim, while in the middle of dying, identified the shooter four separate times before dying. 1. to a bystander 2. to an EMT 3. to an ER nurse and 4 to a detective. Would you admit this evidence? |
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Definition
| 1. Not testimonial to a bystander. 2. Not testimonial bc EMT is not investigating (depending on the conversation bc. Some EMTs are trained) 3. not testimonial because the nurse doesn't have a motive to seek testimony 4. to the detective is testimonial and barred |
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Term
| D charged with killing ex-girlfriend, kidnapping her daughter, shooting police, shooting daughter. Then D shoots himself. On way to hospital, the daughter implicated the D in all of the shootings. Both an EMT and police officer are in ambulance and hear the daughter’s inculpatory statement. Are her statements testimonial |
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Definition
| Yes, they are testimonial. There was no ongoing emergency. D already shot himself. Prosecution could say that it wasn't until the girl gave the answer that the dad was the shooter and the shooter is dead that they knew for sure. |
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Term
| 1.1: Defendant charged with murder. During arrest, wife repeats, "where's the body if there's a murder?" The body has not been found. What chain of inferences would make this relevant to the defendant's guilt? |
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Definition
| statement --> reason to believe no body was found --> reason to believe husband disposed of the body --> greater likelihood that husband committed the murder |
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Term
| 1.6: Police officer claims self-defense in a shooting. He claims the victim pointed a violin case at him and he thought it contained a fun. The violin case really contained cash. Is the real contents of the case relevant? |
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Definition
| The prosecutor can cast doubt on the officer's story. The jury could reasonably find that a person without a gun would be unlikely to "aim." |
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Term
| 1.3: Polygraph examiner will testify: she informed the defendant that the test is highly successful in detecting lies, and the defendant enthusiastically volunteered to take the test. Relevant? |
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Definition
| Argument for admissibility: defendant thinks the test will exonerate him --> less likely that he has a guilty mind --> less likely that he is guilty; Argument for inadmissibility: he could be overly cocky and thinks he can beat the test, he may know that polygraph results aren't admissible, so he has nothing to lose (counterargument: this may assume too much cunning) |
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Term
| 1.4: Defendant charged with violating statute that prohibits persons previously convicted of crimes punishable by more than 1 year imprisonment. Defendant wants to testify that she did not know her previous crime was punishable by more than 1 year. Relevant? |
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Definition
| Irrelevant. Testimony goes only to her state of mind, which is not an element of the violation. It would be relevant if she did not know she was transporting a firearm. |
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Term
| 1.5: Officers discover 2 dead men with gunshot wounds, and one man extremely drunk with a gun. The charge is "purposely" or "knowingly" causing their deaths. This includes awareness of a high probability that conduct will have that result. Defendant wants to introduce evidence of his BAC. Statute says that evidence of intoxication may not be introduced to show a mental state. Admissible? |
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Definition
| Evidence of intoxication is relevant (goes to his state of mind), but not material due to the statute. |
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Term
| 1.2: Ehle testifies against the defendant. Mills testifies that Ehle told him he planned to falsly testify against the defendant. Prosecutor asks Mills if he and the defendant belong to a gang that requires members to lie for one another. By what chain of inferences is this question relevant? |
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Definition
| Character of untruthfulness --> untruthfulness in this instance (see problem []); OR gang membership --> general bad character |
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Term
| Union Paint & Varnish v. Dean: Dean buys 2 batches of paint from Union with a 10 year warranty. After 6 months, the first batch has started peeling. Union refuses to let him return the second batch. Is it admissible that the first batch of paint peeled in 6 months when it had a 10 year warranty? |
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Definition
| Ct: yes, the second batch should be expected to perform as poorly as the first. Argument for no: it wouldn't be rational for the store to sell bad paint with a 10-year warranty. |
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Term
| Hypo: Carter charged with murder. Witness: "I saw Carter standing over the body holding a gun saying 'I'm sorry, I'm sorry, I didn't mean to do it." Admissible by what chain of inferences? |
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Definition
| holding gun --> having just fired the gun --> fired gun at victim --> hit the victim --> caused the victims' death; apology --> belief that he had something to apologize for --> consciousness of guilt --> consciousness of shooting victim --> actual guilt |
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Term
| Types of prejudice of concern for Rule 403 determinations: |
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Definition
| Inferential error prejudice (reasoning prejudice)—jury gives excessive weight; Nullification prejudice (moral prejudice)—jury decides to punish defendant or victim for facts unrelated to the offense |
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Term
| Hypo: Carter accused of burglary. Prosecution wants to enter evidence that Carter is a drug addict. Admissible? |
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Definition
| Unlikely. Inferential error: jury may give too much weight to the fact that drug addicts commit more burglaries; nullification: jury may think drug addicts are bad people who deserve to be punished |
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Term
| State v. Flett: defendant is accused of murdering her husband. State has evidence of her infidelity. Admissible? |
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Definition
| The evidence is relevant because it gives a motive. For older infidelities, this relevance is slight and the risk of nullification prejudice is high. The court allows more recent instances of infidelity to come in. |
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Term
| Rath Salvage v. Browning Sons: Admissibility of polygraph tests. |
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Definition
| Court: scientific reliability of tests is irrelevant. They inherently lead to inferential error prejudice (juries give too much weight to them). |
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Term
| US v. Yahwah Ben Yahwah: prosecution wants to intruduce evidence that includes photos of dismembered body parts. Defense objects on Rule 403 grounds. |
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Definition
| Court: admissible on theory that testimony is so incredible that the jury won't believe it unless they see the photographs. |
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Term
| Evansville School Corp. v. Price: Boy is struck by ball at baseball game and dies. Plaintiff enters photos of the corpse in the casket, claiming they are relevant to show the physical characteristics of the victim ("nice looking and healthy chap") and the fact that funeral expenses were incurred. |
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Definition
| Potential nullification prejudice, but court doesn't focus on this aspect (more likely when photos are gruesome); court finds the photos to be of little probative value |
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Term
| 1.8: Question at trial is whether gun could fire rapidly (gov't test showed it could). To show the gun was clean and in good repair when tested, gov't wants to introduce a photo of the gun amidst an aresenal of guns belonging to the defendant's housemate. Admissible? |
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Definition
| Probative value is slight (inference of clean exterior --> clean interior); outweighed by unfair prejudicial effect |
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Term
| Hypo: defendant charged with assault with a gun. Prosecution wants to admit evidence that he often carried a firearm. Admissible? |
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Definition
| Court: yes. Probative value (inference from often carrying a gun to more likely carrying a gun in this instance) outweighs risk of unfair prejudice. Counterargument: risk of nullification prejudice (people who often carry guns are bad people); inferential error (inference that people who carry guns are more likely to use them) |
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Term
| Grundy case: Construction firm sues union for illegal secondary boycott. Defendant wants to show that activity did not involve illegal boycott by showing a film that the union plays to explain the limits on activity to its members. Admissible? |
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Definition
| Slight relevance outweighed by risk of unfair prejudice: video was produced to forward the union's view of matters |
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Term
| Lewis v. Chicago PD: officer bringing gender discrimination claim and retaliation claim appeals trial court exclusion of testimony regarding an incident in which a coworker struck her with a sledge hammer. Should it have been admitted? |
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Definition
| If this had been her only evidence, it would be admissible. But she had much more evidence of retaliation, so this would have been unfairly prejudicial and not terribly probative. |
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Term
| Problem 7.2: Prosecution wants Laci Peterson's facialist to testify that her husband never told her she had purchased a boar. Hearsay? |
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Definition
| Not communicative: not attended by gestures or made under circumstances where silence might be communicative |
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Term
| Hypo: Issue is whether defendant's headlights were on. Defendant wants to introduce document showing that his car was equipped with automatic headlights. Hearsay? |
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Definition
| Argument that it's hearsay: asserts the truth of the fact that the car had the feature. |
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Term
| Assertion Problem 3: agents find papers with a formula for making methamphetamines in defendant's hotel room. Prosecution wants to enter the documents with expert testimony that they contained a meth recipe to show defendant knew how to make meth. Hearsay? |
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Definition
| No. The piece of paper itself is not an assertion. Courts will always admit this sort of evidence |
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Term
| Assertion Problem 4: Officer Liberty is shot while trying to control a crowd. At trial, prosecution wants to offer testimony of witness who saw Liberty on the ground bleeding and then fire his gun a the defendant. Hearsay? |
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Definition
| In order to be hearsay, firing the gun would have to have communicative intent. Probably not. |
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Term
| Assertion Problem 5: Officers searching a suspected gambling den answer the phone. The caller tries to place a bet. Prosecution wants to enter evidence of the call to show the premises were a gambling den. Hearsay? |
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Definition
| Not hearsay. Caller makes an assumption, not an assertion. |
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Term
| Regina v. Korley: Police searching house of defendant ("Chippy"), answer the phone. Caller says, "Is Chippy there? I want to buy meth"… this happens 10 times. Admissible? |
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Definition
| House of Lords: inadmissible, because the calls have no tendency to prove anything except the state of mind of the caller, which is irrelevant. U.S. courts would probably admit |
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Term
| Assertion problem 6: Stabbing victim is shown a lineup of suspects. Victim looks at defendant and says, "why did you stab me?" Is this an assertion? |
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Definition
| There seems to be an implied assertion. But it depends on who he is communicating with. If assertion is made to the detective, then it's hearsay. But the defendant already knows whether he stabbed the victim, so there wouldn't be communicative intent. Court likely to call this an excited utterance. |
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Term
| Assertion Problem 8: is a diary entry an assertion? |
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Definition
| Probably not an assertion: you don't expect anyone to read it. You could argue, though, that they are written as if they are intended to be read. |
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Term
| Assertion Problem 7: R is arrested in a bank attempting to cash a stolen check. P walks by R, R says, "I didn't tell them anything about you," which is overheard by a postal worker. Would worker's testimony about the statement be hearsay? |
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Definition
| There could be an implied assertion (i.e. that there is something important to tell about P). Hearsay determination depends on whether he thought anyone was listening. If R knew that the employee was listening, there was communicative intent. |
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Term
| A is arrested on elder abuse based on statement that B made to medical professional (A had pushed him). Defense wants to admit 1) B's attorney's testimony that B, the day after the injury, told him, "I fell and hit my head"; 2) Doctor's testimony that B told him he had fallen and hit his head; 3) Doctor's testimony that B told him A had pushed him. Which, if any, are admissible? |
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Definition
| 1) Inadmissible (not made to a medical professional; not an excited utterance); 2) Admissible. Clearly relevant to the diagnosis; 3) The fact that he was pushed is diagnostically relevant (i.e. he didn't just fall); most courts would redact the identity of the pusher (you could argue that identity is relevant to prevent a vulnerable elderly person form being released back into the care of a violent person) |
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Term
| Problem 7.35: Defendant (father) tells a doctor that he slapped his child and the child fell. The child tells the doctor that he made his father mad and his father twisted his arm. Is the doctor's testimony about what the child told him admissible? |
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Definition
| The child's statement that his arm had been twisted by someone is admissible. The court did not find the identity of the twister relevant, but dissent argues that it was (in order to protect the child from further harm). Medical diagnosis testimony regarding statements by young children are strengthened when doctors explain to the child the importance of candor during examinations. |
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Term
| Problem 7.36: Prosecution wants to offer testimony by doctors that the alleged victim (5 years old) told them she was sexually abused. Neither of the doctors explained to the child that they were there to help them, the importance of telling the truth, or the consequences of not telling the truth. Admissible? |
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Definition
| Will probably come in unless the child appears to have had any motive behind her statements besides medical diagnosis. |
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Term
| Problem 7.36.1: Prosecution wants to offer testimony by doctor that the alleged victim (5 years old) told her she was sexually abused.The doctor did not tell the child she was a doctor, and did not confirm that the child understood this was a medical examination. Admissible? |
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Definition
| Doctors are encouraged to make sure that children know they are doctors in these sorts of situations. |
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Term
| Problem 7.37.1: Monica comes home, sees her husband lying sick in bed. He says, "I think I ate some bad meat" and gestures toward a container from the Downtown Deli. He later dies of arsenic poisoning. Is this gesture and statement admissible to show that he had eaten food from the Downtown Deli? |
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Definition
| Likely admissible—statements made to close family members about the cause of illness or injury may be treated as analogous to statements made to doctors if the purpose is to get diagnosis and treatment. |
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Term
| Problem 7.37.2 : Monica comes home, sees her husband lying sick in bed. He says, "I think I ate some bad meat" and gestures toward a container from the Downtown Deli. She calls the doctor's office and tells the nurse, "My husband told me he ate some bad meat from the Downtown Deli." He later dies of arsenic poisoning. is Monica's statement to the nurse admissible to show that he had eaten food fron the Downtown Deli? |
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Definition
| Hearsay within hearsay is admissible as long as each layer is admissible. If the husband's statement to Monica is admissible, then Monica's statement to the nurse is admissible (Monica's statement will be treated as made for the purposes of diagnosis, since she is a close family member) |
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Term
| Problem 7.37.3: Monica comes home, sees her husband lying sick in bed. He says, "I think I ate some bad meat" and gestures toward a container from the Downtown Deli. The doctor says, " this has all the signs of arsenic poisoning." Is the doctor's statement admissible? |
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Definition
| No. A doctor's delivery of a diagnosis to a patient to not treated as having the same motivation for truthfulness as a patient's statement to a doctor. A doctor's statement about a patient's symptoms and their causes to another doctor may be admissible if made for the purposes of advice or consultation in making a diagnosis. |
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Term
| Hypothetical: A is suing B for allegedly hitting him over the head with a bottle in a bar fight. Can a nurse testify that when A was treated for the injury, he told her that he was drunk and fell down and hit his head 1) to impeach A's testimony; 2) to show the true cause of the injury? |
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Definition
| 1) Yes 2) Probably admissible, since the cause of the injury is diagnostically relevant. However, some courts have held that exculpatory statements are inadmissible because they go to fault, but other courts have held that the motivation (diagnosis and treatment) is the same for both inculpatory and exculpatory statements. |
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Term
| Hypothetical: A sues B for beating him up in a bar fight. Defense wants the nurse who treated A to testify that A told her during examination that C beat him up. Admissible? |
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Definition
| Harder question. Does the identity of the assailant matter for the diagnosis? Arguably not. |
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Term
| Hypothetical: A is on the witness stand and doesn't remember a fact. Can the examining attorney show her an inadmissible item to refresh her memory? |
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Definition
| Yes, but it can't be shown to the jury. |
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Term
| Hypothetical: A is on the witness stand and does not remember a fact asked about on direct examination. The attorney shows her a document, she says, "yes that's my handwriting and signature, but I still don't remember." Admissible? |
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Definition
| Yes, under 803((5), but it can only be read into evidence |
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Term
| Hypothetical: A is on the witness stand and does not remember a fact asked about on cross examination. The attorney shows her a document, she says, "yes that's my handwriting and signature, but I still don't remember." Admissible? |
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Definition
| Yes, it can be entered as an exhibit. |
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Term
| Hypothetical: Baker v. State. Baker is convicted of robbing a man and beating him to death. Defense wants to offer testimony that the victim said, "she didn't do it" to a cop before he died. But the cop doesn't remember. The defense wants to use a report written by another officer who wasn't there. Admissible? |
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Definition
| Not admissible as a recorded recollection (writer never had personal knowledge of the facts); admissible to refresh a present recollection. |
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Term
| Hypothetcal: U.S. v. Ricardi. Defendant charged with stealing items entrusted to him. At trial, victim needs help remembering what the items were. The prosecution shows her a copy of the indictment with a list of items illegally sold. She says, "now I remember" and reads the list. Defendant is convicted and appeals. What result? |
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Definition
| Court: it would be a waste of time to keep handing her the list, having her recite a few items, forget, and then show her again. Problem: was her memory actually refreshed? Judges don't like to make these determinations. In this case, there were so many items that it is plausible she would forget them. |
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Term
| Problem 7.38.1: Hit-and-run witnessed by Menandier, who saw the license plate and called out the number to Sullivan. Sullivan wrote what Menandier called out on an envelope. The number was the number of the defendant's car. Sullivan testifies that she was certain that she wrote down the number Menandier called out, but doesn't remember it now. Plaintiff's attorney shows her the envelope, but she still does not remember on her own. Is the envelope admissible as an exhibit to prove the license plate number? |
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Definition
| Contents may be read into evidence, but the envelope is inadmissible as an exhibit (not offered by an adverse party). Nested hearsay: Menandier's shout to her is admissible as a present sense impression, her recording of a past recollection is admissible. |
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Term
| Problem 7.38.2: Hit-and-run witnessed by Menandier, who saw the license plate and called out the number to Sullivan. Sullivan wrote what Menandier called out on an envelope. The number was the number of the defendant's car. Menandier testifies that he memorized the number by repeating it over and over, but doesn't remember it at trial. Plaintiff's attorney shows him Sullivan's envelope, and Menandier says his memory is refreshed, and then recites it without looking. Defense objects. What result? |
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Definition
| Objection should be overruled—you can refresh a present recollection with anything, and courts are usually unwilling to say that a witness's memory is not actually being refreshed. |
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Term
| Problem 9.5: At issue is whether a shipment of marijuana was from outside the U.S. Witness has extensive experience smoking marijuana and identifying its origins. He will testify that the marijuana was from Colombia. Is he qualified as an expert? |
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Definition
| He could be qualified. Rule 702 does not require any specific source or knowledge, and he was in a trade where accuracy is important. Court admits it in real life, even though defense expert witness testifies that identification of orgigin through smoking is impossible |
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Term
| Example: Ellis v. State: defendant charged with cattle theft, defends that the calf belonged to him. Prosecution shows evidence that when the calf was taken to someone else's pasture, it was rebuffed by many cows, but one came running up to it and let it nurse. Expert who did not observe the incident testifies that this is an accepted test for determining maternal lineage in cows. Was this testimony properly admitted? |
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Definition
| Yes. Unlike lay witnesses, experts can testify about things they have not seen themselves, as long as there is a basis for the hypothetical in the record. |
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Term
| Problem 9.6: Detective testifies as an expert on drug dealer slang based on his extensive undercover work and wiretapping experience. He interprets cryptic recorded statements by defendant. Was this properly admitted? |
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Definition
| He could be qualified, but it would help if he had experience with the specific slang terms and code words involved in the case. |
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Term
| Problem 9.7: In a trademark infringement case, an expert English professor is prevented from testifying about English pronunciations of "match" and "macho" because the factfinder could figure this out for itself. Was this correclty decided? |
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Definition
| Yes. Testimony of this kind is more likely to be admitted is from a language not familiar to most Americans. |
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Term
| Problem 9.8: Plaintiffs allege that ads for apartments are discriminatory in that they only feature white people. Plaintiff wants expert, a professor fo psychology and marketing, to testify as to how white-only ads affect African Americans based on focus group studies. Admissible? |
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Definition
| Lower court said the testimony represented common knowledge. 7th circuit ruled it admissible. Carter: the expert is qualified, but is he qualified to give this specific testimony? |
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Term
| Problem 9.9: Slip-and-fall case. Expert will testify that floor had "inadequately low coefficient of friction" and was "not reasonably safe." Plaintiff has to show that defendant was negligent, and that the negligence was the cause of the fall. Is the expert witness's testimony admissible? |
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Definition
| "low coefficient of friction" doesn't come in: not helpful (juries know tile floors are slippery when wetIf the slipperiness—more likely to come in if the case involved comparing different surfaces to one another); "not reasonably safe" just states a legal conclusion. |
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Term
| Problem 9.10: Defendant and other woman drove together around Spokane, made various purchases in various stores. Purchases (together) largely consisted of materials to manufacture methamphetamine. However, separately the purchases would not have communicated intent to manufacture meth. Defendant claimed to be unaware of woman’s purchases and gave alternate reasons for his purchases. Was forensic chemist’s testimony that, considered together ,the purchases communicated intent to manufacture meth, admissible? |
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Definition
| No. he would be opinion on intent, a mental state that is an element of the crime, which is forbidden by 704(b). Witnesses are also not allowed to testify, even implicitly, that they thing another witness is lying (here, the expert would be saying that he doesn't believe the alternate explanations for the purchases) |
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Term
| Problem 9.11: Civil rights action based on incident where defendant was shot in the back by NYC police officer. Fact at issue was truthfulness of officer’s testimony that plaintiff was turning to face him with a gun, and that officer shot him in the chest. Medical expert testified to police officer’s truthfulness, saying that police officer would not lie because would know that there would be a big investigation and if lying he would get caught. Properly admitted? |
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Definition
| No. Expert invaded the province of the jury in testifying as to another witness's credibility. |
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Term
| Hypothetical: Bynum. Child porn case where there is a question as to whether pictures of adults have been transformed to appear to contain children. FBI analyst offered as expert (had years of experience, has checklist of criteria, never been proven wrong). Should he be qualified? |
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Definition
| Court allows qualification as expert—cites case where cop translates drug dealer codes. |
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Term
| Hypothetical: Celebrity Cruise. Plaintiff contracts a disease in a cruise ship's spa. Plaintiff's expert testifies that he examined the filter and found a defect. Defense objects that tere is no consensus in the scientific community on how to test filters for defects (no peer reviewed publication or experiment). What result? |
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Definition
| The issue is of a type unlikely to be published on. Look to flexible Daubert standards. |
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Term
| Problem 10.1: Government needs to show that "to send money" forms with the defendant's name were really filled in by the defendant. What could authenticate them? |
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Definition
| non-expert handwriting identifiers (e.g. family & friends); video surveillance of him signing the forms; if similar forms found in his possession, submit those |
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Term
| Problem 10.2: RICO charges. During the investigation, a postal inspector claimed to have become familiar with the defendant's handwriting. She is called as a witness and identifies writing samples as having been written by the defendant. Defense objects that the samples aren't properly authenticated as having been written by the defendant and therefore aren't admissible. What result? |
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Definition
| 2d Cir.: the postal inspector can authenticate the doctor because she was not part of the litigation. S.Ct.: when the government is undertaking an investigation with an eye toward prosecution, the inspector understands that what they are doing is for the purposes of the prosecution. |
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Term
| Example: Nazi war crimes case. Prosecution offers objects from former Soviet archives that document defendant's involvment in war crimes. Defendant is arguing that he was framed, and that the objects aren't trustworthy (Soviets destroyed evidence of their own wrongdoing and preserved records of Latvian wrongdoing). What result? |
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Definition
| 901(b)(8): documents are where you would expect them to be if they were authentic. Defendant would need to present some theory that someone was planting documents. |
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Term
| Problem 10.3: Armed truck robbery. Police find the getaway vehicle with a note saying the perpetrators changed vehicles, with the new car's license number. Defendant is stopped in that car and is carrying lots of small bills. Prosecution wants to admit the note on the theory that a bystander saw the robbers switch cars and left an anonymous note. There is no other way of identifying the author of the note. Is the note sufficiently authenticated? |
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Definition
| To authenticate something, you only need to show it is what it purports to be. Here, the object is purported to be a note left in a car. You could show this by presenting testimony that it was found there, showing chain of custody, or another note that says the same thing. The note is still not admitted on hearsay grounds. |
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Term
| Hypothetical: Smith finds her car in a parking lot with the fender bashed in. There is a note with a phone number that says the writer will pay for the damage. The number belongs to Jones. Is the note admissible? |
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Definition
| You could authenticate it as a note found on the car, but this would not get around a hearsay objection. |
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Term
| Hypothetical: McCoy is walking his dog and wants to call his mistress. He accidentally dials his wife and refers to her as "Maria." Wife wants to know why he was calling Maria during his walk. If the wife wanted to introduce the phone call at trial, could it be authenticated? |
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Definition
| 901(b)(5): opinion about a voice. Is it hearsay? May be an admission against interest (implied statement that "I intended to talk to Maria") |
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Term
| Example: Keagan v. Green Giant. Plaintiff alleges he but his hand on a defective can of peas. He wants to offer the can and its label as evidence. Can this be properly authenticated? |
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Definition
| Court: not the label. It is not unique (901 cases are all over the place) |
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Term
| Example: plaintiff alleges a lightbull caused an injury. He doesn't preserve it. Later, he claims to have found it in a cabinet in his house. Authenticated? |
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Definition
| court says yes. (901 cases are all over the place) |
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Term
| Problem 10.4: Man wearing Pizza Hut uniform robs a Pizza Hut. After getaway, he calls from another Pizza Hut to make sure everyone is ok. Manager dials *69 How can the call be authenticated? |
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Definition
| Would have to show that the call is what the prosecution claims it is—i.e. a call from the defendant. Could be authenticated by having the manager testify that she recognized the voice. Contents of the call can be taken into account for authentication purposes, but can't be dispositive on their own (conditional relevance question) |
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Term
| Problem 10.10: Defendant charged with importing drugs. State wants to enter testimony of agent who will say that he used the GPS system on defendant's boat to see that the boat had come from Mexican waters. Admissible under the best evidence rule? |
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Definition
| 9th Cir.: not properly admitted (should have been downloaded printed out or otherwise recorded); this sort of government incompetence should be considered "bad faith" for the purposes of Rule 1004(a) |
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Term
| Hypothetical: deportation trial. At issue is whether defendant filed an application for residency. Government witness testifies that the database doesn't show that an application was filed. Defendant objects on Best Evidence Rule grounds. What result? |
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Definition
| The defendant wants the government to produce a printout of the database. Court: best evidence rule is not applicable if your claim is that a record does not show something. Best evidence rule applies only if you claim the record shows something. |
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Term
| Hypothetical: parents are accused of abusing their kids. Government wants to introduce photos of the kis that seem to show signs of abuse. Defense expert claims that the way the photos were taken, scanned, and downloaded only makes it look like the signs are there. Are the photos admissible under the best evidence rule? |
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Definition
| Court says yes: defense argument goes to weight, not admissibility (free to argue that the process distorts colors) |
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Term
| Hypothetical: Bonita v. Yamaha. Motorcycle manufacturing defect case. Defense wants to introduce evidence that plaintiff has twice been convicted of speeding. Is this evidence of character or habit? |
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Definition
| Character. Habit is "one's regular response to a repeated specific situation." The evidence does not establish this. Rather, it could establish his tendency to drive reklessly, which is inadmissible character evidence |
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Term
| Problem 3.1: Two separate indictments for fraud for two instances of computer hacking. Defendant pleads guilty to the second charge (caught red-handed), but not to the first. In the trial for the first instance, prosecution wants to enter evidence of the guilty plea to the later theft. Admissible? |
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Definition
| Court would probably admit the evidence to show he had the knowledge and skills to hack (404(b)(2)). If there were more incidents of hacking on the record, this would look more like inadmissible propensity evidence. Also relevant is how wide-spread such knowledge is. |
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Term
| Problem 3.2: Police arrest Davis for drug dealing an hour after claiming to observe him do a deal. He claims they got the wrong guy. State wants to introduce evidence of a prior drug dealing conviction as evidence of his knowledge of the drug trade. Admissible? |
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Definition
| Inadmissible. This knowledge is not narrow enough, and there are concerns about inflaming the passions of the jury. It might make a difference if he was known to be the only drug dealer in this particular neighborhood. |
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Term
| Problem 3.3: Train crash injury suit. Plaintiff alleges that the cause of the crash was a drunk employee. Plaintiff wants to offer evidence of specific instances in which company employees and managers observed him in a drunken state. Admissible? |
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Definition
| Admissible only to show that the company had knowledge that he was potentially a danger, not that he was more likely to have been drunk at the time of the incident. |
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Term
| Problem 3.4: Agents follwing a van, which stopped at a fork in the road. Agents radioed that they were about to be fired on by van occupants. Government wants to introduce evidence that defendant was charged with attempted murder in another state 3 years prior, pleaded not guilty, and never showed up for trial. Admissible? |
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Definition
| Argument for admissibility: there is a strong motive to flee when you're charged with murder, and there's a motive to kill to continue your escape, so admissible under 404(b)(2) (court agrees). Argumet against admission: charge was from 3 years prior, he probably wasn't worried (not strong); risk of prejudice is quite high. |
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Term
| Problem 3.5: Streetcar pulls off as passenger is exiting, and she's injured. Plaintiff wants to testify that she rang the bell several times, and was ignored. Admissible? To show what? |
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Definition
| Could be admitted under 404(b)(2) to show that the driver had a motive to rush that day (not that he was generally careless or in a hurry) |
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Term
| Example: Presumed Innocent. Prosecutor is accused of killing another prosecutor with whom he was having an affair. Is evidence of the fact they were having an affair admissible? |
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Definition
| Prosecutor's theory: she broke up with him and he was mad (404(b)(2)—motive). Part of res gestae (necessary to telling one side's story of the case, though not an element of the crime). There is still a danger that the jury may treat the affair as propensity evidence. |
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Term
| Problem 3.6: Defendant accused of murdering federal agents following him in a van. At a later vehicle stop, authorities recovered 1.) victim's revolver and shells; 2) other firearms, pliers, tools, some of which have labels; 3) an AR-15 that matches firearm believed to have killed the victims. What can be admitted? |
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Definition
| 1) can be admitted to show identity (person with victim's gun more likely to have been at the scene of the crim, more likely to have been involved); 2) probably inadmissible. Only very weak evidence of a plan in place before the incident, since this is 5 months after the incident 3) admissibility as identity evidence depends on how common the weapon is (courts usually admit firearms that match forensic evidence) |
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Term
| Problem 3.7: Police search apartment and find lots of cocaine and bags for packaging. They also find illegal gambling slips. At issue is whether defendant was an occupant of the apartments. The government wants to introduce, along with the gambling slips, evidence of the defendant's prior conviction for illegal gambling. Admissible? |
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Definition
| Inadmissible—no way around the propensity box. The chain of inference is that past conviction makes it more likely he's a gambler today, which makes him more likely to be an occupant of an apartment with illegal gambling equipment in it. |
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Term
| Problem 3.8: Police search apartment and find lots of cocaine and bags for packaging. They also find information about bicycles, and want to introduce evidence that defendant was an avid bicycle racer 3 years prior to the search to prove he was an occupant of the apartment. Admissible? |
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Definition
| Depends on what you think the rationale behind 404 is. If you think character evidence presents a logical hole in inferential chains, then it should be inadmissible. If you think character evidence is inadmissible because it inflames the passions of the jury, it's easier to argue that this comes in. |
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Term
| Example: People v. Fields. Fields is convicted of sex with a minor. Trial court allows evidence of "uncharged" incident of sex with a minor. Defendant appeals, saying this is evidence only concerns a criminal act he's not charged for, and can only serve as propensity evidence. What result? |
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Definition
| Appeals court upholds conviction. Evidence was party of the narrative of his offenses. Evidence of other acts is admissible when they are intertwined with the charges. |
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Term
| Hypothetical: Defendant calls the cops, who arrive and find him drunk with a man on his sofa who has been shot to death. Defendant claims he awoke to find the dead man there. At murder trial, prosecution wants to introduce evidence that 6 years earlier, the same thing happened and he gave the same story. Admissible? |
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Definition
| Court held that it was admissible. The state offered no evidence that the defendant was responsible for the first death, so this could not possibly be propensity evidence. Rather, it's evidence of lack of accident. Problem: if the state isn't claiming he was responsible for the first death, the evidence of the prior incident is irrelevant and, moreover, will likely excite the passions of the jury. |
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Term
| Problem 3.11: Defendant charged with shooting wife, claims he was cleaning his gun when it went off accidentally. State wants to offer evidence that the same thing happened to his previous wife, and that he told the same story. Admissible? |
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Definition
| Could be admitted to show absence of accident (unlikely to happen to anyone twice, so more likely not to have been an accident) |
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Term
| Hypothetical: Police sargent's wife disappears. Investigation leads to exhumation of his previous wife, who had died in the bathtub. The medical examiner changed the cause of death to homicide. Is evidence that the previous wife's death was considered a homicide admissible? |
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Definition
| Can subsequent events show absence of accident? |
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Term
| Problem 3.13: A masked man robs a bank. At the defendant's trial for this crime, the government calls a witness who will testify that a masked man and a man named Christian broke into her home, and that she unmasked and recognized the defendant. The defendant was acquitted of the breakin, but the government wants the woman's testimony to show that he was wearing a similar mask and carrying a similar gun at the bank robbery, and that he was connected with Christian. Does the acquittal bar the testimony? |
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Definition
| As Huddleston suggests, the acquittal has no bearing on admissiblility. The testimony comes in. |
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Term
| Problem 3.15: Defendant on trial for drive-by shooting. On direct examination, she says,"I wouldn't shoot anyone" if she could do things over again (meaning she isn't the type of person to shoot). On cross examination, the prosecutor asks, "you've shot at other people before, haven't you." Should the judge allow the question? |
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Definition
| Defendant offered opinion evidence of her character, allowed under 404(a)(2)(A). Cross-examiner may inquire about specific instances pursuant to 405(a). The quesiton should be allowed. |
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Term
| Problem 3.17: United States v. James. Defendant, claiming self defense, testifies that the victim told her stories of his violent acts. Is the testimony inadmissible character evidence? |
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Definition
| Statements go to the defendant's state of mind (her fear of the victim), not whether the victim acted a certain way on that occasion. |
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Term
| Problem 3.18: Murder defendant claims self-defense. He appeals exclusion of expert testimony by a toxicologists who would testify that the victim was on cocaine, morphine and alcohol. HE would also testify that the combination prolongs the effects of cocaine, which makes aggressive behavior more likely. What result? |
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Definition
| When 405 says character evidence may be offered in the form of an opinion, it's not talking about expert opinion. |
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Term
| Problem 8.2: 911 call, victim is trying to get help, operator wants to know who the assailant was and if he was still there. The man named by the victim, who later died, on the tape claims this violates his confrontation rights. |
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Definition
| The victim is only trying to get help, but the operator is trying to get useful information for a prosecution. It depends on whose point of view you think is more important. The court let the tape in as a dying declaration. |
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Term
| Problem 8.3: 911 call, reporting a drug deal. Caller describes the perpetrator and his activities, and asks the police to be discreet to avoid making it known that he was the informer. If the call is used against the defendant and the caller isn't located, does it violate confrontation rights? |
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Definition
| On one interpretation, the caller and operator could both be contemplating future prosecution. But on another interpretation, the caller is trying to deal with an emergency, since there is a drug dealer in the neighborhood and drug dealers tend to be dangerous |
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Term
| Problem 8.4: Distressed woman goes to her neighbor, hands her a sealed envelope and instructs her to give it to police if anything happens to her. She later died of poisoning. The letter, when opened, said that she was afraid her husband would kill her, and that she loved her children too much to kill herself. If the letter survives hearsay laws, will it survive a confrontation rights objection? |
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Definition
| The letter is testimonial—if she dies, she wants her husband punished. Could only come in on forfeiture grounds (real case decided before Giles). |
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Term
| Problem 8.5: Murder trial. Glanville told his nephew that he and the defendant had broken into the victim's house, that the defendant attacked the victim, and Glanville ran away. Glanville is unavailable to testify (self incrimination), but the court allows the nephew to recount what he told him. Does this violate the defendant's confrontation right? |
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Definition
| Probably not testimonial: Glanville does not appear to have intended this to lead to prosecution. Probably he was just getting it off his chest. (Thomas: lacks somlemnity) |
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Term
| Problem 8.6: Rape case (victim dies for unrelated reason). Police officer drove her to a healthcare facility designed for victims of sexual assault. She signed a document consenting to collection of forensic evidence for the investigation. Nurse prepares a discharge plan, wanting to make sure the victim is released into a safe environment. Victim relates that defendant was her boyfriend's boss, who raped her. Will this testimony survive a confrontation clause challenge? |
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Definition
| Part of the treatment plan is to not send the victim back into a dangerous environment. The victim probably has mixed motives (wants to cooperate and get treatment, but also wants the perpetrator to get caught), but here the victim has already told the story to the police. In practice, courts usually let this sort of testimony in, except when the victim is taken to a second specialty hospital after an initial treatment (all people involved know it's for catching the perpetrator) |
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Term
| Problem 8.7: 4-year-old is being baby-sat. Baby sitter is awakened, and sees defendant leaving the kid's room. Kid tells the baby stter that the defendant abused her. The kid's mother arrives home 30 minutes later, and notices the kid acting strangely. She asks what happened, and kid repeats the story. When an officer arrives, the kid tells her the same story. hours later, the kid tells the same story to medical staff at the hospital. Applying Bullcoming, which statements will survive a confrontation clause challenge? |
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Definition
| Assume the child is too young to have a primary purpose. Babysitter's primary purpose is to make sure the child is ok. Mom's primary purpose is probably the same (she notices the kid acting strangely). The officer's testimony is probably barred, but the statements to the doctor and nurse almost certainly come in. |
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Term
| Problem 8.9: 3 defendants tried jointly for setting a highway fire. Government wants to play one defendant's tape recorded statement, which says that she drove the other two defendants to a gas station to get gas, that the two planned to light a fire to distract workers and steal equipment, and that she dropped them off to carry out their plan. The statement was redacted to include only the words "we" "they" "someone" or "others" in place of names. [read transcript in book]. Does this still violate the other defendants' confrontation rights? |
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Definition
| Court says it does—the jury could still not help but apply the pronouns used to the defendants. |
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Term
| 1.1: Defendant charged with murder. During arrest, wife repeats, "where's the body if there's a murder?" The body has not been found. What chain of inferences would make this relevant to the defendant's guilt? |
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Definition
| statement --> reason to believe no body was found --> reason to believe husband disposed of the body --> greater likelihood that husband committed the murder |
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Term
| 1.6: Police officer claims self-defense in a shooting. He claims the victim pointed a violin case at him and he thought it contained a fun. The violin case really contained cash. Is the real contents of the case relevant? |
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Definition
| The prosecutor can cast doubt on the officer's story. The jury could reasonably find that a person without a gun would be unlikely to "aim." |
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Term
| 1.3: Polygraph examiner will testify: she informed the defendant that the test is highly successful in detecting lies, and the defendant enthusiastically volunteered to take the test. Relevant? |
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Definition
| Argument for admissibility: defendant thinks the test will exonerate him --> less likely that he has a guilty mind --> less likely that he is guilty; Argument for inadmissibility: he could be overly cocky and thinks he can beat the test, he may know that polygraph results aren't admissible, so he has nothing to lose (counterargument: this may assume too much cunning) |
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Term
| 1.4: Defendant charged with violating statute that prohibits persons previously convicted of crimes punishable by more than 1 year imprisonment. Defendant wants to testify that she did not know her previous crime was punishable by more than 1 year. Relevant? |
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Definition
| Irrelevant. Testimony goes only to her state of mind, which is not an element of the violation. It would be relevant if she did not know she was transporting a firearm. |
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Term
| 1.5: Officers discover 2 dead men with gunshot wounds, and one man extremely drunk with a gun. The charge is "purposely" or "knowingly" causing their deaths. This includes awareness of a high probability that conduct will have that result. Defendant wants to introduce evidence of his BAC. Statute says that evidence of intoxication may not be introduced to show a mental state. Admissible? |
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Definition
| Evidence of intoxication is relevant (goes to his state of mind), but not material due to the statute. |
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Term
| 1.2: Ehle testifies against the defendant. Mills testifies that Ehle told him he planned to falsly testify against the defendant. Prosecutor asks Mills if he and the defendant belong to a gang that requires members to lie for one another. By what chain of inferences is this question relevant? |
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Definition
| Character of untruthfulness --> untruthfulness in this instance (see problem []); OR gang membership --> general bad character |
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Term
| Union Paint & Varnish v. Dean: Dean buys 2 batches of paint from Union with a 10 year warranty. After 6 months, the first batch has started peeling. Union refuses to let him return the second batch. Is it admissible that the first batch of paint peeled in 6 months when it had a 10 year warranty? |
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Definition
| Ct: yes, the second batch should be expected to perform as poorly as the first. Argument for no: it wouldn't be rational for the store to sell bad paint with a 10-year warranty. |
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Term
| Hypo: Carter charged with murder. Witness: "I saw Carter standing over the body holding a gun saying 'I'm sorry, I'm sorry, I didn't mean to do it." Admissible by what chain of inferences? |
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Definition
| holding gun --> having just fired the gun --> fired gun at victim --> hit the victim --> caused the victims' death; apology --> belief that he had something to apologize for --> consciousness of guilt --> consciousness of shooting victim --> actual guilt |
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Term
| Types of prejudice of concern for Rule 403 determinations: |
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Definition
| Inferential error prejudice (reasoning prejudice)—jury gives excessive weight; Nullification prejudice (moral prejudice)—jury decides to punish defendant or victim for facts unrelated to the offense |
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Term
| Hypo: Carter accused of burglary. Prosecution wants to enter evidence that Carter is a drug addict. Admissible? |
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Definition
| Unlikely. Inferential error: jury may give too much weight to the fact that drug addicts commit more burglaries; nullification: jury may think drug addicts are bad people who deserve to be punished |
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Term
| State v. Flett: defendant is accused of murdering her husband. State has evidence of her infidelity. Admissible? |
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Definition
| The evidence is relevant because it gives a motive. For older infidelities, this relevance is slight and the risk of nullification prejudice is high. The court allows more recent instances of infidelity to come in. |
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Term
| Rath Salvage v. Browning Sons: Admissibility of polygraph tests. |
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Definition
| Court: scientific reliability of tests is irrelevant. They inherently lead to inferential error prejudice (juries give too much weight to them). |
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Term
| US v. Yahwah Ben Yahwah: prosecution wants to intruduce evidence that includes photos of dismembered body parts. Defense objects on Rule 403 grounds. |
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Definition
| Court: admissible on theory that testimony is so incredible that the jury won't believe it unless they see the photographs. |
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Term
| Evansville School Corp. v. Price: Boy is struck by ball at baseball game and dies. Plaintiff enters photos of the corpse in the casket, claiming they are relevant to show the physical characteristics of the victim ("nice looking and healthy chap") and the fact that funeral expenses were incurred. |
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Definition
| Potential nullification prejudice, but court doesn't focus on this aspect (more likely when photos are gruesome); court finds the photos to be of little probative value |
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Term
| 1.8: Question at trial is whether gun could fire rapidly (gov't test showed it could). To show the gun was clean and in good repair when tested, gov't wants to introduce a photo of the gun amidst an aresenal of guns belonging to the defendant's housemate. Admissible? |
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Definition
| Probative value is slight (inference of clean exterior --> clean interior); outweighed by unfair prejudicial effect |
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Term
| Hypo: defendant charged with assault with a gun. Prosecution wants to admit evidence that he often carried a firearm. Admissible? |
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Definition
| Court: yes. Probative value (inference from often carrying a gun to more likely carrying a gun in this instance) outweighs risk of unfair prejudice. Counterargument: risk of nullification prejudice (people who often carry guns are bad people); inferential error (inference that people who carry guns are more likely to use them) |
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Term
| Grundy case: Construction firm sues union for illegal secondary boycott. Defendant wants to show that activity did not involve illegal boycott by showing a film that the union plays to explain the limits on activity to its members. Admissible? |
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Definition
| Slight relevance outweighed by risk of unfair prejudice: video was produced to forward the union's view of matters |
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Term
| Lewis v. Chicago PD: officer bringing gender discrimination claim and retaliation claim appeals trial court exclusion of testimony regarding an incident in which a coworker struck her with a sledge hammer. Should it have been admitted? |
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Definition
| If this had been her only evidence, it would be admissible. But she had much more evidence of retaliation, so this would have been unfairly prejudicial and not terribly probative. |
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Term
| Problem 7.2: Prosecution wants Laci Peterson's facialist to testify that her husband never told her she had purchased a boar. Hearsay? |
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Definition
| Not communicative: not attended by gestures or made under circumstances where silence might be communicative |
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Term
| Hypo: Issue is whether defendant's headlights were on. Defendant wants to introduce document showing that his car was equipped with automatic headlights. Hearsay? |
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Definition
| Argument that it's hearsay: asserts the truth of the fact that the car had the feature. |
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Term
| Assertion Problem 3: agents find papers with a formula for making methamphetamines in defendant's hotel room. Prosecution wants to enter the documents with expert testimony that they contained a meth recipe to show defendant knew how to make meth. Hearsay? |
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Definition
| No. The piece of paper itself is not an assertion. Courts will always admit this sort of evidence |
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Term
| Assertion Problem 4: Officer Liberty is shot while trying to control a crowd. At trial, prosecution wants to offer testimony of witness who saw Liberty on the ground bleeding and then fire his gun a the defendant. Hearsay? |
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Definition
| In order to be hearsay, firing the gun would have to have communicative intent. Probably not. |
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Term
| Assertion Problem 5: Officers searching a suspected gambling den answer the phone. The caller tries to place a bet. Prosecution wants to enter evidence of the call to show the premises were a gambling den. Hearsay? |
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Definition
| Not hearsay. Caller makes an assumption, not an assertion. |
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Term
| Regina v. Korley: Police searching house of defendant ("Chippy"), answer the phone. Caller says, "Is Chippy there? I want to buy meth"… this happens 10 times. Admissible? |
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Definition
| House of Lords: inadmissible, because the calls have no tendency to prove anything except the state of mind of the caller, which is irrelevant. U.S. courts would probably admit |
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Term
| Assertion problem 6: Stabbing victim is shown a lineup of suspects. Victim looks at defendant and says, "why did you stab me?" Is this an assertion? |
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Definition
| There seems to be an implied assertion. But it depends on who he is communicating with. If assertion is made to the detective, then it's hearsay. But the defendant already knows whether he stabbed the victim, so there wouldn't be communicative intent. Court likely to call this an excited utterance. |
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Term
| Assertion Problem 8: is a diary entry an assertion? |
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Definition
| Probably not an assertion: you don't expect anyone to read it. You could argue, though, that they are written as if they are intended to be read. |
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Term
| Assertion Problem 7: R is arrested in a bank attempting to cash a stolen check. P walks by R, R says, "I didn't tell them anything about you," which is overheard by a postal worker. Would worker's testimony about the statement be hearsay? |
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Definition
| There could be an implied assertion (i.e. that there is something important to tell about P). Hearsay determination depends on whether he thought anyone was listening. If R knew that the employee was listening, there was communicative intent. |
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Term
| A is arrested on elder abuse based on statement that B made to medical professional (A had pushed him). Defense wants to admit 1) B's attorney's testimony that B, the day after the injury, told him, "I fell and hit my head"; 2) Doctor's testimony that B told him he had fallen and hit his head; 3) Doctor's testimony that B told him A had pushed him. Which, if any, are admissible? |
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Definition
| 1) Inadmissible (not made to a medical professional; not an excited utterance); 2) Admissible. Clearly relevant to the diagnosis; 3) The fact that he was pushed is diagnostically relevant (i.e. he didn't just fall); most courts would redact the identity of the pusher (you could argue that identity is relevant to prevent a vulnerable elderly person form being released back into the care of a violent person) |
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Term
| Problem 7.35: Defendant (father) tells a doctor that he slapped his child and the child fell. The child tells the doctor that he made his father mad and his father twisted his arm. Is the doctor's testimony about what the child told him admissible? |
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Definition
| The child's statement that his arm had been twisted by someone is admissible. The court did not find the identity of the twister relevant, but dissent argues that it was (in order to protect the child from further harm). Medical diagnosis testimony regarding statements by young children are strengthened when doctors explain to the child the importance of candor during examinations. |
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Term
| Problem 7.36: Prosecution wants to offer testimony by doctors that the alleged victim (5 years old) told them she was sexually abused. Neither of the doctors explained to the child that they were there to help them, the importance of telling the truth, or the consequences of not telling the truth. Admissible? |
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Definition
| Will probably come in unless the child appears to have had any motive behind her statements besides medical diagnosis. |
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Term
| Problem 7.36.1: Prosecution wants to offer testimony by doctor that the alleged victim (5 years old) told her she was sexually abused.The doctor did not tell the child she was a doctor, and did not confirm that the child understood this was a medical examination. Admissible? |
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Definition
| Doctors are encouraged to make sure that children know they are doctors in these sorts of situations. |
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Term
| Problem 7.37.1: Monica comes home, sees her husband lying sick in bed. He says, "I think I ate some bad meat" and gestures toward a container from the Downtown Deli. He later dies of arsenic poisoning. Is this gesture and statement admissible to show that he had eaten food from the Downtown Deli? |
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Definition
| Likely admissible—statements made to close family members about the cause of illness or injury may be treated as analogous to statements made to doctors if the purpose is to get diagnosis and treatment. |
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Term
| Problem 7.37.2 : Monica comes home, sees her husband lying sick in bed. He says, "I think I ate some bad meat" and gestures toward a container from the Downtown Deli. She calls the doctor's office and tells the nurse, "My husband told me he ate some bad meat from the Downtown Deli." He later dies of arsenic poisoning. is Monica's statement to the nurse admissible to show that he had eaten food fron the Downtown Deli? |
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Definition
| Hearsay within hearsay is admissible as long as each layer is admissible. If the husband's statement to Monica is admissible, then Monica's statement to the nurse is admissible (Monica's statement will be treated as made for the purposes of diagnosis, since she is a close family member) |
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Term
| Problem 7.37.3: Monica comes home, sees her husband lying sick in bed. He says, "I think I ate some bad meat" and gestures toward a container from the Downtown Deli. The doctor says, " this has all the signs of arsenic poisoning." Is the doctor's statement admissible? |
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Definition
| No. A doctor's delivery of a diagnosis to a patient to not treated as having the same motivation for truthfulness as a patient's statement to a doctor. A doctor's statement about a patient's symptoms and their causes to another doctor may be admissible if made for the purposes of advice or consultation in making a diagnosis. |
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Term
| Hypothetical: A is suing B for allegedly hitting him over the head with a bottle in a bar fight. Can a nurse testify that when A was treated for the injury, he told her that he was drunk and fell down and hit his head 1) to impeach A's testimony; 2) to show the true cause of the injury? |
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Definition
| 1) Yes 2) Probably admissible, since the cause of the injury is diagnostically relevant. However, some courts have held that exculpatory statements are inadmissible because they go to fault, but other courts have held that the motivation (diagnosis and treatment) is the same for both inculpatory and exculpatory statements. |
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Term
| Hypothetical: A sues B for beating him up in a bar fight. Defense wants the nurse who treated A to testify that A told her during examination that C beat him up. Admissible? |
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Definition
| Harder question. Does the identity of the assailant matter for the diagnosis? Arguably not. |
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Term
| Hypothetical: A is on the witness stand and doesn't remember a fact. Can the examining attorney show her an inadmissible item to refresh her memory? |
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Definition
| Yes, but it can't be shown to the jury. |
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Term
| Hypothetical: A is on the witness stand and does not remember a fact asked about on direct examination. The attorney shows her a document, she says, "yes that's my handwriting and signature, but I still don't remember." Admissible? |
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Definition
| Yes, under 803((5), but it can only be read into evidence |
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Term
| Hypothetical: A is on the witness stand and does not remember a fact asked about on cross examination. The attorney shows her a document, she says, "yes that's my handwriting and signature, but I still don't remember." Admissible? |
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Definition
| Yes, it can be entered as an exhibit. |
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Term
| Hypothetical: Baker v. State. Baker is convicted of robbing a man and beating him to death. Defense wants to offer testimony that the victim said, "she didn't do it" to a cop before he died. But the cop doesn't remember. The defense wants to use a report written by another officer who wasn't there. Admissible? |
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Definition
| Not admissible as a recorded recollection (writer never had personal knowledge of the facts); admissible to refresh a present recollection. |
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Term
| Hypothetcal: U.S. v. Ricardi. Defendant charged with stealing items entrusted to him. At trial, victim needs help remembering what the items were. The prosecution shows her a copy of the indictment with a list of items illegally sold. She says, "now I remember" and reads the list. Defendant is convicted and appeals. What result? |
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Definition
| Court: it would be a waste of time to keep handing her the list, having her recite a few items, forget, and then show her again. Problem: was her memory actually refreshed? Judges don't like to make these determinations. In this case, there were so many items that it is plausible she would forget them. |
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Term
| Problem 7.38.1: Hit-and-run witnessed by Menandier, who saw the license plate and called out the number to Sullivan. Sullivan wrote what Menandier called out on an envelope. The number was the number of the defendant's car. Sullivan testifies that she was certain that she wrote down the number Menandier called out, but doesn't remember it now. Plaintiff's attorney shows her the envelope, but she still does not remember on her own. Is the envelope admissible as an exhibit to prove the license plate number? |
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Definition
| Contents may be read into evidence, but the envelope is inadmissible as an exhibit (not offered by an adverse party). Nested hearsay: Menandier's shout to her is admissible as a present sense impression, her recording of a past recollection is admissible. |
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Term
| Problem 7.38.2: Hit-and-run witnessed by Menandier, who saw the license plate and called out the number to Sullivan. Sullivan wrote what Menandier called out on an envelope. The number was the number of the defendant's car. Menandier testifies that he memorized the number by repeating it over and over, but doesn't remember it at trial. Plaintiff's attorney shows him Sullivan's envelope, and Menandier says his memory is refreshed, and then recites it without looking. Defense objects. What result? |
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Definition
| Objection should be overruled—you can refresh a present recollection with anything, and courts are usually unwilling to say that a witness's memory is not actually being refreshed. |
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Term
| Problem 9.5: At issue is whether a shipment of marijuana was from outside the U.S. Witness has extensive experience smoking marijuana and identifying its origins. He will testify that the marijuana was from Colombia. Is he qualified as an expert? |
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Definition
| He could be qualified. Rule 702 does not require any specific source or knowledge, and he was in a trade where accuracy is important. Court admits it in real life, even though defense expert witness testifies that identification of orgigin through smoking is impossible |
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Term
| Example: Ellis v. State: defendant charged with cattle theft, defends that the calf belonged to him. Prosecution shows evidence that when the calf was taken to someone else's pasture, it was rebuffed by many cows, but one came running up to it and let it nurse. Expert who did not observe the incident testifies that this is an accepted test for determining maternal lineage in cows. Was this testimony properly admitted? |
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Definition
| Yes. Unlike lay witnesses, experts can testify about things they have not seen themselves, as long as there is a basis for the hypothetical in the record. |
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Term
| Problem 9.6: Detective testifies as an expert on drug dealer slang based on his extensive undercover work and wiretapping experience. He interprets cryptic recorded statements by defendant. Was this properly admitted? |
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Definition
| He could be qualified, but it would help if he had experience with the specific slang terms and code words involved in the case. |
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Term
| Problem 9.7: In a trademark infringement case, an expert English professor is prevented from testifying about English pronunciations of "match" and "macho" because the factfinder could figure this out for itself. Was this correclty decided? |
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Definition
| Yes. Testimony of this kind is more likely to be admitted is from a language not familiar to most Americans. |
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Term
| Problem 9.8: Plaintiffs allege that ads for apartments are discriminatory in that they only feature white people. Plaintiff wants expert, a professor fo psychology and marketing, to testify as to how white-only ads affect African Americans based on focus group studies. Admissible? |
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Definition
| Lower court said the testimony represented common knowledge. 7th circuit ruled it admissible. Carter: the expert is qualified, but is he qualified to give this specific testimony? |
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Term
| Problem 9.9: Slip-and-fall case. Expert will testify that floor had "inadequately low coefficient of friction" and was "not reasonably safe." Plaintiff has to show that defendant was negligent, and that the negligence was the cause of the fall. Is the expert witness's testimony admissible? |
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Definition
| "low coefficient of friction" doesn't come in: not helpful (juries know tile floors are slippery when wetIf the slipperiness—more likely to come in if the case involved comparing different surfaces to one another); "not reasonably safe" just states a legal conclusion. |
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Term
| Problem 9.10: Defendant and other woman drove together around Spokane, made various purchases in various stores. Purchases (together) largely consisted of materials to manufacture methamphetamine. However, separately the purchases would not have communicated intent to manufacture meth. Defendant claimed to be unaware of woman’s purchases and gave alternate reasons for his purchases. Was forensic chemist’s testimony that, considered together ,the purchases communicated intent to manufacture meth, admissible? |
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Definition
| No. he would be opinion on intent, a mental state that is an element of the crime, which is forbidden by 704(b). Witnesses are also not allowed to testify, even implicitly, that they thing another witness is lying (here, the expert would be saying that he doesn't believe the alternate explanations for the purchases) |
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Term
| Problem 9.11: Civil rights action based on incident where defendant was shot in the back by NYC police officer. Fact at issue was truthfulness of officer’s testimony that plaintiff was turning to face him with a gun, and that officer shot him in the chest. Medical expert testified to police officer’s truthfulness, saying that police officer would not lie because would know that there would be a big investigation and if lying he would get caught. Properly admitted? |
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Definition
| No. Expert invaded the province of the jury in testifying as to another witness's credibility. |
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Term
| Hypothetical: Bynum. Child porn case where there is a question as to whether pictures of adults have been transformed to appear to contain children. FBI analyst offered as expert (had years of experience, has checklist of criteria, never been proven wrong). Should he be qualified? |
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Definition
| Court allows qualification as expert—cites case where cop translates drug dealer codes. |
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Term
| Hypothetical: Celebrity Cruise. Plaintiff contracts a disease in a cruise ship's spa. Plaintiff's expert testifies that he examined the filter and found a defect. Defense objects that tere is no consensus in the scientific community on how to test filters for defects (no peer reviewed publication or experiment). What result? |
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Definition
| The issue is of a type unlikely to be published on. Look to flexible Daubert standards. |
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Term
| Problem 10.1: Government needs to show that "to send money" forms with the defendant's name were really filled in by the defendant. What could authenticate them? |
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Definition
| non-expert handwriting identifiers (e.g. family & friends); video surveillance of him signing the forms; if similar forms found in his possession, submit those |
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Term
| Problem 10.2: RICO charges. During the investigation, a postal inspector claimed to have become familiar with the defendant's handwriting. She is called as a witness and identifies writing samples as having been written by the defendant. Defense objects that the samples aren't properly authenticated as having been written by the defendant and therefore aren't admissible. What result? |
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Definition
| 2d Cir.: the postal inspector can authenticate the doctor because she was not part of the litigation. S.Ct.: when the government is undertaking an investigation with an eye toward prosecution, the inspector understands that what they are doing is for the purposes of the prosecution. |
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Term
| Example: Nazi war crimes case. Prosecution offers objects from former Soviet archives that document defendant's involvment in war crimes. Defendant is arguing that he was framed, and that the objects aren't trustworthy (Soviets destroyed evidence of their own wrongdoing and preserved records of Latvian wrongdoing). What result? |
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Definition
| 901(b)(8): documents are where you would expect them to be if they were authentic. Defendant would need to present some theory that someone was planting documents. |
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Term
| Problem 10.3: Armed truck robbery. Police find the getaway vehicle with a note saying the perpetrators changed vehicles, with the new car's license number. Defendant is stopped in that car and is carrying lots of small bills. Prosecution wants to admit the note on the theory that a bystander saw the robbers switch cars and left an anonymous note. There is no other way of identifying the author of the note. Is the note sufficiently authenticated? |
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Definition
| To authenticate something, you only need to show it is what it purports to be. Here, the object is purported to be a note left in a car. You could show this by presenting testimony that it was found there, showing chain of custody, or another note that says the same thing. The note is still not admitted on hearsay grounds. |
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Term
| Hypothetical: Smith finds her car in a parking lot with the fender bashed in. There is a note with a phone number that says the writer will pay for the damage. The number belongs to Jones. Is the note admissible? |
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Definition
| You could authenticate it as a note found on the car, but this would not get around a hearsay objection. |
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Term
| Hypothetical: McCoy is walking his dog and wants to call his mistress. He accidentally dials his wife and refers to her as "Maria." Wife wants to know why he was calling Maria during his walk. If the wife wanted to introduce the phone call at trial, could it be authenticated? |
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Definition
| 901(b)(5): opinion about a voice. Is it hearsay? May be an admission against interest (implied statement that "I intended to talk to Maria") |
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Term
| Example: Keagan v. Green Giant. Plaintiff alleges he but his hand on a defective can of peas. He wants to offer the can and its label as evidence. Can this be properly authenticated? |
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Definition
| Court: not the label. It is not unique (901 cases are all over the place) |
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Term
| Example: plaintiff alleges a lightbull caused an injury. He doesn't preserve it. Later, he claims to have found it in a cabinet in his house. Authenticated? |
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Definition
| court says yes. (901 cases are all over the place) |
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Term
| Problem 10.4: Man wearing Pizza Hut uniform robs a Pizza Hut. After getaway, he calls from another Pizza Hut to make sure everyone is ok. Manager dials *69 How can the call be authenticated? |
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Definition
| Would have to show that the call is what the prosecution claims it is—i.e. a call from the defendant. Could be authenticated by having the manager testify that she recognized the voice. Contents of the call can be taken into account for authentication purposes, but can't be dispositive on their own (conditional relevance question) |
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Term
| Problem 10.10: Defendant charged with importing drugs. State wants to enter testimony of agent who will say that he used the GPS system on defendant's boat to see that the boat had come from Mexican waters. Admissible under the best evidence rule? |
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Definition
| 9th Cir.: not properly admitted (should have been downloaded printed out or otherwise recorded); this sort of government incompetence should be considered "bad faith" for the purposes of Rule 1004(a) |
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Term
| Hypothetical: deportation trial. At issue is whether defendant filed an application for residency. Government witness testifies that the database doesn't show that an application was filed. Defendant objects on Best Evidence Rule grounds. What result? |
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Definition
| The defendant wants the government to produce a printout of the database. Court: best evidence rule is not applicable if your claim is that a record does not show something. Best evidence rule applies only if you claim the record shows something. |
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Term
| Hypothetical: parents are accused of abusing their kids. Government wants to introduce photos of the kis that seem to show signs of abuse. Defense expert claims that the way the photos were taken, scanned, and downloaded only makes it look like the signs are there. Are the photos admissible under the best evidence rule? |
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Definition
| Court says yes: defense argument goes to weight, not admissibility (free to argue that the process distorts colors) |
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Term
| Hypothetical: Bonita v. Yamaha. Motorcycle manufacturing defect case. Defense wants to introduce evidence that plaintiff has twice been convicted of speeding. Is this evidence of character or habit? |
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Definition
| Character. Habit is "one's regular response to a repeated specific situation." The evidence does not establish this. Rather, it could establish his tendency to drive reklessly, which is inadmissible character evidence |
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Term
| Problem 3.1: Two separate indictments for fraud for two instances of computer hacking. Defendant pleads guilty to the second charge (caught red-handed), but not to the first. In the trial for the first instance, prosecution wants to enter evidence of the guilty plea to the later theft. Admissible? |
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Definition
| Court would probably admit the evidence to show he had the knowledge and skills to hack (404(b)(2)). If there were more incidents of hacking on the record, this would look more like inadmissible propensity evidence. Also relevant is how wide-spread such knowledge is. |
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Term
| Problem 3.2: Police arrest Davis for drug dealing an hour after claiming to observe him do a deal. He claims they got the wrong guy. State wants to introduce evidence of a prior drug dealing conviction as evidence of his knowledge of the drug trade. Admissible? |
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Definition
| Inadmissible. This knowledge is not narrow enough, and there are concerns about inflaming the passions of the jury. It might make a difference if he was known to be the only drug dealer in this particular neighborhood. |
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Term
| Problem 3.3: Train crash injury suit. Plaintiff alleges that the cause of the crash was a drunk employee. Plaintiff wants to offer evidence of specific instances in which company employees and managers observed him in a drunken state. Admissible? |
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Definition
| Admissible only to show that the company had knowledge that he was potentially a danger, not that he was more likely to have been drunk at the time of the incident. |
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Term
| Problem 3.4: Agents follwing a van, which stopped at a fork in the road. Agents radioed that they were about to be fired on by van occupants. Government wants to introduce evidence that defendant was charged with attempted murder in another state 3 years prior, pleaded not guilty, and never showed up for trial. Admissible? |
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Definition
| Argument for admissibility: there is a strong motive to flee when you're charged with murder, and there's a motive to kill to continue your escape, so admissible under 404(b)(2) (court agrees). Argumet against admission: charge was from 3 years prior, he probably wasn't worried (not strong); risk of prejudice is quite high. |
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Term
| Problem 3.5: Streetcar pulls off as passenger is exiting, and she's injured. Plaintiff wants to testify that she rang the bell several times, and was ignored. Admissible? To show what? |
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Definition
| Could be admitted under 404(b)(2) to show that the driver had a motive to rush that day (not that he was generally careless or in a hurry) |
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Term
| Example: Presumed Innocent. Prosecutor is accused of killing another prosecutor with whom he was having an affair. Is evidence of the fact they were having an affair admissible? |
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Definition
| Prosecutor's theory: she broke up with him and he was mad (404(b)(2)—motive). Part of res gestae (necessary to telling one side's story of the case, though not an element of the crime). There is still a danger that the jury may treat the affair as propensity evidence. |
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Term
| Problem 3.6: Defendant accused of murdering federal agents following him in a van. At a later vehicle stop, authorities recovered 1.) victim's revolver and shells; 2) other firearms, pliers, tools, some of which have labels; 3) an AR-15 that matches firearm believed to have killed the victims. What can be admitted? |
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Definition
| 1) can be admitted to show identity (person with victim's gun more likely to have been at the scene of the crim, more likely to have been involved); 2) probably inadmissible. Only very weak evidence of a plan in place before the incident, since this is 5 months after the incident 3) admissibility as identity evidence depends on how common the weapon is (courts usually admit firearms that match forensic evidence) |
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Term
| Problem 3.7: Police search apartment and find lots of cocaine and bags for packaging. They also find illegal gambling slips. At issue is whether defendant was an occupant of the apartments. The government wants to introduce, along with the gambling slips, evidence of the defendant's prior conviction for illegal gambling. Admissible? |
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Definition
| Inadmissible—no way around the propensity box. The chain of inference is that past conviction makes it more likely he's a gambler today, which makes him more likely to be an occupant of an apartment with illegal gambling equipment in it. |
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Term
| Problem 3.8: Police search apartment and find lots of cocaine and bags for packaging. They also find information about bicycles, and want to introduce evidence that defendant was an avid bicycle racer 3 years prior to the search to prove he was an occupant of the apartment. Admissible? |
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Definition
| Depends on what you think the rationale behind 404 is. If you think character evidence presents a logical hole in inferential chains, then it should be inadmissible. If you think character evidence is inadmissible because it inflames the passions of the jury, it's easier to argue that this comes in. |
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Term
| Example: People v. Fields. Fields is convicted of sex with a minor. Trial court allows evidence of "uncharged" incident of sex with a minor. Defendant appeals, saying this is evidence only concerns a criminal act he's not charged for, and can only serve as propensity evidence. What result? |
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Definition
| Appeals court upholds conviction. Evidence was party of the narrative of his offenses. Evidence of other acts is admissible when they are intertwined with the charges. |
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Term
| Hypothetical: Defendant calls the cops, who arrive and find him drunk with a man on his sofa who has been shot to death. Defendant claims he awoke to find the dead man there. At murder trial, prosecution wants to introduce evidence that 6 years earlier, the same thing happened and he gave the same story. Admissible? |
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Definition
| Court held that it was admissible. The state offered no evidence that the defendant was responsible for the first death, so this could not possibly be propensity evidence. Rather, it's evidence of lack of accident. Problem: if the state isn't claiming he was responsible for the first death, the evidence of the prior incident is irrelevant and, moreover, will likely excite the passions of the jury. |
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Term
| Problem 3.11: Defendant charged with shooting wife, claims he was cleaning his gun when it went off accidentally. State wants to offer evidence that the same thing happened to his previous wife, and that he told the same story. Admissible? |
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Definition
| Could be admitted to show absence of accident (unlikely to happen to anyone twice, so more likely not to have been an accident) |
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Term
| Hypothetical: Police sargent's wife disappears. Investigation leads to exhumation of his previous wife, who had died in the bathtub. The medical examiner changed the cause of death to homicide. Is evidence that the previous wife's death was considered a homicide admissible? |
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Definition
| Can subsequent events show absence of accident? |
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Term
| Problem 3.13: A masked man robs a bank. At the defendant's trial for this crime, the government calls a witness who will testify that a masked man and a man named Christian broke into her home, and that she unmasked and recognized the defendant. The defendant was acquitted of the breakin, but the government wants the woman's testimony to show that he was wearing a similar mask and carrying a similar gun at the bank robbery, and that he was connected with Christian. Does the acquittal bar the testimony? |
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Definition
| As Huddleston suggests, the acquittal has no bearing on admissiblility. The testimony comes in. |
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Term
| Problem 3.15: Defendant on trial for drive-by shooting. On direct examination, she says,"I wouldn't shoot anyone" if she could do things over again (meaning she isn't the type of person to shoot). On cross examination, the prosecutor asks, "you've shot at other people before, haven't you." Should the judge allow the question? |
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Definition
| Defendant offered opinion evidence of her character, allowed under 404(a)(2)(A). Cross-examiner may inquire about specific instances pursuant to 405(a). The quesiton should be allowed. |
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Term
| Problem 3.17: United States v. James. Defendant, claiming self defense, testifies that the victim told her stories of his violent acts. Is the testimony inadmissible character evidence? |
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Definition
| Statements go to the defendant's state of mind (her fear of the victim), not whether the victim acted a certain way on that occasion. |
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Term
| Problem 3.18: Murder defendant claims self-defense. He appeals exclusion of expert testimony by a toxicologists who would testify that the victim was on cocaine, morphine and alcohol. HE would also testify that the combination prolongs the effects of cocaine, which makes aggressive behavior more likely. What result? |
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Definition
| When 405 says character evidence may be offered in the form of an opinion, it's not talking about expert opinion. |
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Term
| Problem 8.2: 911 call, victim is trying to get help, operator wants to know who the assailant was and if he was still there. The man named by the victim, who later died, on the tape claims this violates his confrontation rights. |
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Definition
| The victim is only trying to get help, but the operator is trying to get useful information for a prosecution. It depends on whose point of view you think is more important. The court let the tape in as a dying declaration. |
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Term
| Problem 8.3: 911 call, reporting a drug deal. Caller describes the perpetrator and his activities, and asks the police to be discreet to avoid making it known that he was the informer. If the call is used against the defendant and the caller isn't located, does it violate confrontation rights? |
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Definition
| On one interpretation, the caller and operator could both be contemplating future prosecution. But on another interpretation, the caller is trying to deal with an emergency, since there is a drug dealer in the neighborhood and drug dealers tend to be dangerous |
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Term
| Problem 8.4: Distressed woman goes to her neighbor, hands her a sealed envelope and instructs her to give it to police if anything happens to her. She later died of poisoning. The letter, when opened, said that she was afraid her husband would kill her, and that she loved her children too much to kill herself. If the letter survives hearsay laws, will it survive a confrontation rights objection? |
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Definition
| The letter is testimonial—if she dies, she wants her husband punished. Could only come in on forfeiture grounds (real case decided before Giles). |
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Term
| Problem 8.5: Murder trial. Glanville told his nephew that he and the defendant had broken into the victim's house, that the defendant attacked the victim, and Glanville ran away. Glanville is unavailable to testify (self incrimination), but the court allows the nephew to recount what he told him. Does this violate the defendant's confrontation right? |
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Definition
| Probably not testimonial: Glanville does not appear to have intended this to lead to prosecution. Probably he was just getting it off his chest. (Thomas: lacks somlemnity) |
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Term
| Problem 8.6: Rape case (victim dies for unrelated reason). Police officer drove her to a healthcare facility designed for victims of sexual assault. She signed a document consenting to collection of forensic evidence for the investigation. Nurse prepares a discharge plan, wanting to make sure the victim is released into a safe environment. Victim relates that defendant was her boyfriend's boss, who raped her. Will this testimony survive a confrontation clause challenge? |
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Definition
| Part of the treatment plan is to not send the victim back into a dangerous environment. The victim probably has mixed motives (wants to cooperate and get treatment, but also wants the perpetrator to get caught), but here the victim has already told the story to the police. In practice, courts usually let this sort of testimony in, except when the victim is taken to a second specialty hospital after an initial treatment (all people involved know it's for catching the perpetrator) |
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Term
| Problem 8.7: 4-year-old is being baby-sat. Baby sitter is awakened, and sees defendant leaving the kid's room. Kid tells the baby stter that the defendant abused her. The kid's mother arrives home 30 minutes later, and notices the kid acting strangely. She asks what happened, and kid repeats the story. When an officer arrives, the kid tells her the same story. hours later, the kid tells the same story to medical staff at the hospital. Applying Bullcoming, which statements will survive a confrontation clause challenge? |
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Definition
| Assume the child is too young to have a primary purpose. Babysitter's primary purpose is to make sure the child is ok. Mom's primary purpose is probably the same (she notices the kid acting strangely). The officer's testimony is probably barred, but the statements to the doctor and nurse almost certainly come in. |
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Term
| Problem 8.9: 3 defendants tried jointly for setting a highway fire. Government wants to play one defendant's tape recorded statement, which says that she drove the other two defendants to a gas station to get gas, that the two planned to light a fire to distract workers and steal equipment, and that she dropped them off to carry out their plan. The statement was redacted to include only the words "we" "they" "someone" or "others" in place of names. [read transcript in book]. Does this still violate the other defendants' confrontation rights? |
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Definition
| Court says it does—the jury could still not help but apply the pronouns used to the defendants. |
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