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Case where Jury members drank and smoke during trial. The jury testimony was inadmissible on motion for new trial. Under 606(b), you cannot use evidence of jury testimony to move for new trial or verdict. What happens in Jury room stays in Jury room.
TAKEAWAY: Jury testimony is generally not admissible under 606(b) |
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This was the very recent case, where one of the members of the jury told other jury members "you know the defendant did it, he's a Mexican." Court allowed these statements despite 606(b), because of Equal Protection Clause issue. Therefore you cannot use jury testimony at trial UNLESS there is an equal protection clause issue
TAKEAWAY: Jury testimony in motion for new trial can be admissible if not allowing it violates the Equal protection clause |
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This governs Jury Testimony
(a) A jury member cannot testify at trial before other jurors EVER
(b) Jury testimony after a verdict has been issues, to determine the verdict was invalid, is NOT admissible unless
1) Prejudicial Information was brought t jurors' attention (heard evidence they werent suppose to)
2) An outside influence was improperly brought to the juror
3) They made a mistake on the verdict form
** Also from Colorado v. Rodriguez, we know this may be admissible if not allowing statement would violate the EP Clause. |
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This Defines Relevance
Evidence is relevant if:
(a) it has a tendency to make a fact more or less probably than it would without the evidence.
(b) The fact is a consequence in determining the action.
"Does it move the ball?" |
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Girl shot her mom's boyfriend. The mother gave her the gun, claiming she needed it for self-defense. Court held that the pen stabbing incident occurred prior was relevant to having her fear more credible, and was relevant to her self-defense claim.
The pen-stabbing incident police report was admitted into evidence under FRE 401, stated that it was relevant to show her fear of her boyfriend Odgen.
TAKEAWAY: Relevance is based on what you are trying to prove. Pen stabbing wasn't relevant to Odgen being shot, but was related to the credibility of Jame's state of mind for her self-defense claim. Made it "more likely than not" she actually feared for her life. |
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TAKEAWAY: When a fact is needed to determine if something is relevant, the court can make a determination by the preponderance of the evidence what a reasonable jury would find whether or not that fact is true, under 104(b)
In this case, the Court was allowed to determine by a preponderance of the evidence whether a reasonable jury could find that Cox knew about the hearing his mother attended, and that the victim did charge his friend with molesting his daughter.
This is CONDITIONAL RELEVANCE |
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There are a few instances where Judges will need to determine that by a preponderance of the evidence that a reasonable jury could find a fact to be true. These instances are:
- Conditional Relevance (Cox v. State, Huddleston)
- Authentication
- Prior bad acts (determining if prior bad act occurred)
All other preliminary determinations made by a Judge are made using 104(a) |
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The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
- unfair prejudice
- confusion of the issues
- misleading the jury
- wasting time
- undue delay
- needlessly presenting cumulative evidence
The unfair prejudice must substantially outweigh the probative value in order for evidence to be inadmissible under 403 |
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TAKEAWAY: When determining if something is admissible under Rule 403, one must weigh the probative value against the risk of unfair prejudice against the defendant.
In this case, the gruesome photos of the Women's body were unfairly prejudicial. There was no dispute in how she died, so photos were just to prejudice defendant.
Capers says "if you don't think a juror would lose their lunch, a photo is likely coming in." |
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TAKEAWAY: Evidence of Flight, which is probative of guilt, is admissible if it supports the inferences that
1) the defendant was fleeing
2) He was fleeing for because of a consciousness of guilt
3) His consciousness of guilt was for the charged crime
4) His consciousness of guilt for the charged crime, is due to actual guilt of the charged crime.
- If you satisfy those inferences, flight evidence comes in
In this case, could not determine that flight was from charged crime or a previous crime, and the defendant couldnt say "I was fleeing because of other crime," because that would be unfairly prejudicial. Flight evidence did not come in. |
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TAKEAWAY: Mathematical Odds are not admissible to identify a defendant is the odds validity has not been demonstrated, or the math results distort the jury's ability to determine innocence/ guilt
In this case, the prosecution could not introduce the mathematician who said there was a 1/10,000 chance they were innocent. They just multiplied all the probabilities together! Court stated this was unfairly prejudicial/ not relevant |
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Bank robber was found in Georgia with fake license, and guns, and ended up escaping from jail. In New York, on bank robbery trial, the evidence was both highly probative but in some parts highly prejudicial
Judge Weinstein "made" the parties stipulate, agreeing that the Judge would read to the jury the information about the license and being in Georgia, but not include the information about the guns or escaping from jail
TAKEAWAY: Judges cannot make parties stipulate, but can say "I won't let this in unless you stipulate." Parties can agree to let stuff into evidence but not other stuff, typically when some parts are probative and others are prejudicial |
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| Old Chief v. United States |
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TAKEAWAY: When determining if something is probative or prejudicial under 403, a judge can consider everything in order to maximize the probative value and minimize prejudice.
In this case, court maximized probative value by allowing parties to stipulate there was a prior conviction, but not about the fact the conviction was for aggravated assault.
While this ruled for the defense, this is now typically cited by prosecution! This is because it allows prosecution to try and bring evidence, and Judges trying to make it fit with most probative way possible under "old Chief" holding. |
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Subsequent Remedial Measures
When measures are taken after an injury occurs, and those measures would have made that earlier injury less likely to occur, evidence of those measures are not admissible to show:
- negligence
- culpable conduct
- a defect in product or design
- A need for warning or instruction
- Basically, remedial actions are not admissible to show negligence. Think of the tiger-wall example |
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A tiger jumped over the 10 ft high fence and attacked the frat boys who heckled it. It was standard zoo procedure to make tiger walls 10 feet.
When they raised the wall height, the fact that they did was inadmissible under 407 in the civil trial by boys families. Under 407, remedial action is not admissible to show negligence (don't want to not incentivize fixing things) |
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TAKEAWAY: Settlement negotiations are inadmissible to show liability. However, they can be used for other reasons, such as explaining the defendant's actions, per rule 408.
In this case, Universal wanted to show that they went after Bankcard's clients because of what Bankcard said in settlement negotiations. They weren't bringing it to show liability, but to show why they acted a certain way, so it was admissible! |
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Settlement negotiations/ offers to compromise
(a) (1) Furnishing, promising, or offering, or accepting and offer, in an attempt to compromise on a claim, is INADMISSIBLE to show liability or to impeach someone
(2) If the negotiations were made by a public officer, while exercising their regulatory authority, they CAN be used to show liability.
(b) This evidence can be used to show a DIFFERENT purpose than liability, such a bias, prejudice, negating a contention, proving obstruction, etc.
NOTE: This is only barred once a claim has arisen AKA there is a clear pending lawsuit
OVERALL: Settlement negotiations and offers to compromise are inadmissible, once a claim arises, to show liability, except against public officers in criminal cases, or if offered to show something else. |
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| Bernie Madoff 408 Example |
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The government indicted Bernie Madoff for fraud. He was also sued by his clients and the SEC
At the criminal trial, the government wants to introduce negotiations from the civil settlements, can they?
For the SEC negotiations, they CAN, under 408(a)(2) statements made to government officials. Those can be used at a criminal proceeding.
However the clients negotiations would be inadmissible under 408(a), unless being offered to show something else (under 408(b)). |
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Offers to pay medical expenses
Evidence furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury, are NOT Admissible to prove liability for the injury
Congress does not want to discourage people for offering to help the injured. If you offer to pay medical expenses, it will be inadmissible at trial to prove you caused the injury |
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TAKEAWAY: Under Rule 411, you cannot bring evidence that the other party has insurance to show liability or negligence. You can however show they have insurance for other reason, like in this case to explain your actions.
In this case, women had conversation with the insurance companies' claims adjuster that went very bad, so she decided to hire an attorney. A few days after she saw chiropractor. Court admitted evidence that she talked to adjuster and defendant had insurance, not to show that he was liable, but to show why she got attorney (and show she wasn't just suing him because she was litigious) |
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Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove the person acted negligently
But, the court may admit the party had liability insurance for another purpose, such as proving bias, prejudice, proving agency, ownership, or control. |
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TAKEAWAY: Rule 410 generally bars plea deal negotiations. However, it does not bar evidence of immunity negotiations when the probative value outweighs the unfair prejudice. This is a very NARROW case that only allows in evidence of immunity negotiations, 410 bars all other plea discussions.
In the case, guy wanted to show he denied immunity to prove his consciousness of innocence. Court held that ALL plea negotiations are inadmissible, except when you are negotiating immunity and deny it, to show you have a consciousness of innocence. Extremely narrow holding |
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Plea Discussions and Related Statements
Pleas that are later withdrawn, or statements made during the course of plea discussions with the prosecutor, are inadmissible against the defendant (ALSO against the prosecution, just does not state in statute)
Overall, plea discussions are inadmissible. Only discussions about immunity are admissible and that is the narrow exception from Biaggi |
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TAKEAWAY: Evidence of a prior bad act or prior behavior by the defendant is inadmissible to demonstrate his propensity or likelihood to have committed a crime, and inadmissible to prove defendant's guilt. (This was later codified by rule 404(b)).
In the case, the fact Zachowitz owned other guns was inadmissible to show he "criminally inclined." That is propensity evidence, does not get around 404(b) "box" |
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TAKEAWAY: You can bring other bad act evidence for other reasons than propensity/ bad character. To do this, you need to get around the "propensity box" by presenting the other reason why, and then show it does not violate 403.
In this case, the court allowed the evidence not to show bad character but to show identity of the defendant!
In this case itself, Trenkler made a bomb for someone in past. The court wanted to admit the fact he made that bomb, to show similarity to the bomb design in case that was at bar. This was not to prove Trenkler is a bad character, rather it was to show Trenkler was the identity of the bomber. |
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TAKEAWAY: You can get around the "propensity box," or admit evidence of other acts if it is to show narrative, and does not violate rule 403.
In this case, DeGeorge had sank many other boats in the past and collected on the insurance polices for the boats. The court allowed the prosecution to admit the evidence of the past insurance policies and boat sinkings, not to prove his bad character, but to show the narrative for why he sank the boat in the case that was at bar. |
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| Rex v. Smith (Doctrine of Chances) |
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TAKEAWAY: You can introduce prior bad act evidence to show a current crime was not a mistake or accident, and get around the propensity box of 404(b).
In this case, the defendant had 3 wives prior who had died in the bathtub. He was on trial again cuz he current wife died in the bathtub. The court allowed the prosecution to present evidence of the prior wives' deaths, in order to show that this was not an accident or mistake. Under the "doctrine of chances," it allows you to bring up past "accidents" in order to show that the current case is not an accident. |
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| Huddleston v. United States |
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TAKEAWAY: In order to prove a bad act occurred, the prosecution must demonstrate under rule 104(b) that by a preponderance of the evidence, a reasonable jury could find that the prior act occurred.
ALSO, you can use knowledge as a way to get in prior bad act evidence under 404(b).
In this case, court allowed prosecution to show that Huddleston stole TVs in the past, to show that he knew the cassette tapes he was caught with were also stolen. The court stated that they needed to prove, by a preponderance of the evidence that a reasonable jury could find, that Huddleston stole the original TVs, to prove he had knowledge the tapes were stolen. |
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Prior Bad Acts
(1) You cannot use evidence of a crime, wrong, or other bad act to prove a person's character, in order to prove they committed a new crime in accordance with that character (can't show propensity to have committed current crime)
(2) Evidence of a prior bad act may be admissible for another reason, this is "getting around the propensity box." These reasons include:
-identity (Trenkler)
-MO (Trenkler)
-Narrative (DeGeorge)
-Knowledge (Huddleston)
-Absence of Mistake (Rex v. Smith)
-Lack of Accident (Rex v. Smith)
-Preparation
-Plan
-Intent
Once you have proven you are bringing for a non-propensity reason, you need to still show it is not unfairly prejudicial under rule 403! (this is from Trenkler case) |
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Character Evidence
(1) Character evidence is generally inadmissible to prove that someone acted in accordance with a character trait.
(2) (A) Criminal Defendants may offer evidence of a pertinent character trait. If the evidence is admitted, prosecution is allowed to rebut the character evidence.
(B) Exceptions: Prosecution can introduce character evidence that a victim is peaceful in homicide cases, to show the defendant was the first aggressor. THe prosecution can also offer evidence to rebut character traits of the victim that are offered by the defendant, subject to rule 412.
OVERALL, criminal defendants can bring character evidence of pertinent character traits, but prosecution cannot. Once character evidence is brought, prosecution can rebut it with other character evidence and cross. |
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Rules for Sexual Assault and Child Molestation Character Evidence
For cases that involve sexual assault and child molestation, the Prosecution IS ALLOWED to offer character evidence of the defendant and propensity evidence of prior bad acts
Congress wants to crack down on these types of cases. |
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| Michelson v. United States |
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TAKEAWAY: After a defendant has brought evidence of his positive character trait, it opens the door to the prosecution to rebut that evidence, which includes the ability to cross examine witnesses about a defendant's reputation and providing their own witnesses.
In this case, defendant brought 5 character witnesses, and prosecution wanted to cross them about prior arrests. Court allowed prosecution to cross examine them, stated they were allowed to under 404(a) once a defendant has "opened the door." |
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The methods for proving character
(a) By Reputation or Opinion. When a person's character or character trait is admissible under 404(a), it may be proved by testimony about the person's reputation or testimony in the form of an opinion. However, on cross-examination of a character witness, you can CROSS by ASKING QUESTIONS of knowledge of specific instances.
OVERALL, to bring character witness evidence it must be in the form of a reputation or opinion under 405(a). When crossing a character witness, you can ask them about specific instances of the defendant's conduct. |
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Habit Evidence
Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion, that person or organization acted in accordance with that habit.
It needs to be a REAL HABIT. AKA it needs to be something someone does without thinking about it. |
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| United States v. Whitmore |
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TAKEAWAY(S): Under 608(a), you can impeach a witness by attacking his character for untruthfulness by using reputation/ opinion evidence.
ALSO, under 608(b), you can cross examine any witness based on specific instances of their own conduct that is probative of untruthfulness.
In this case, Whitmore was not allowed to bring 3 character witnesses to impeach Soto's character or cross examine him about him driving with expired license/ not paying child support. The higher court did not let him bring the witnesses, because he did not establish the witness's knew Soto's reputation enough in his community (they didn't talk to him in years). However, the court stated he should've been able to ask him questions about the license/ child support, under 608(b) crossing examining questions of specific instances probative of untruthfulness. |
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Impeaching a Witness for Truthfulness
(a) Any witness on the stand, their credibility may be attacked/ supported by testimony about the witnesses reputation for having a character of being truthful or untruthful. Evidence of truthful character is admissible, BUT only after a witness's character has been attacked.
AKA, you can impeach a witness by introducing evidence of his untruthful character with reputation or opinion
(b) Specific instances of conduct. Except for convictions under Rule 609, you cannot prove specific instances of a witnesses conduct to attack or support a witness's character for truthfulness. BUT, the court allows, on CROSS, to allow them to be QUESTIONED about specific instances that are probative of truthfulness/ untruthfulness.
OVERALL, you can impeach a witness for truthfulness with character evidence under 608(a), OR you can question them about specific instances about untruthfulness on cross (608(b)). You cannot introduce specific instances of being untruthful ever though! (Except for convictions under 609) |
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(a) Any witness on the stand, their credibility may be attacked/ supported by testimony about the witnesses reputation for having a character of being truthful or untruthful. Evidence of truthful character is admissible, BUT only after a witness's character has been attacked.
AKA, you can impeach a witness by introducing evidence of his untruthful character with reputation or opinion |
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| (b) Specific instances of conduct. Except for convictions under Rule 609, you cannot prove specific instances of a witnesses conduct to attack or support a witness's character for truthfulness. BUT, the court allows, on CROSS, to allow them to be QUESTIONED about specific instances that are probative of truthfulness/ untruthfulness. |
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Impeaching a witness for Prior Convictions
609(a)(1)(A): For witnesses that are not the defendant, evidence that the witness committed a felony (a crime punishable by death or imprisonment for more than 1 year), must be admitted to attack a witness's character for truthfulness, unless there is a real risk of a 403 violation.
609(a)(1)(B): For witnesses that ARE the defendant, evidence that a defendant committed a prior crime can be admissible if the probative value outweighs the prejudicial risk, using the Special Balancing test from the Brewer Case!
(Nature of crime, time of conviction and witness's history, similarity between crimes, importance of testimony, the centrality of credibility).
609(b): Time limit. From Brewer, we know that in order to admit a crime the witness must have been RELEASED within the past 10 years. If they were released over 10 years ago, can only be admitted if required for interests of justice, VERY high standard to meet.
609(c): Crimes where the witness was pardoned, annulled, got a certificate of rehabilitation, or equivalent, are inadmissible.
609(d): If the witness is the defendant, crimes committed when they were under 18 are inadmissible, and all witnesses for civil cases. For witnesses not the defendant in criminal cases, crimes a witness committed when they were under 18 CAN be admissible, if they are "necessary to determine guilt or innocence" (very high standard). |
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609(a)(1)(A): For witnesses that are not the defendant, evidence that the witness committed a felony (a crime punishable by death or imprisonment for more than 1 year), must be admitted to attack a witness's character for truthfulness, unless there is a real risk of a 403 violation.
609(a)(1)(B): For witnesses that ARE the defendant, evidence that a defendant committed a prior crime can be admissible if the probative value outweighs the prejudicial risk, using the Special Balancing test from the Brewer Case!
(Nature of crime, time of conviction and witness's history, similarity between crimes, importance of testimony, the centrality of credibility). |
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| 609(b): Time limit. From Brewer, we know that in order to admit a crime the witness must have been RELEASED within the past 10 years. If they were released over 10 years ago, can only be admitted if required for interests of justice, VERY high standard to meet. |
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| 609(c): Crimes where the witness was pardoned, annulled, got a certificate of rehabilitation, or equivalent, are inadmissible. |
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| 609(d): If the witness is the defendant, crimes committed when they were under 18 are inadmissible, and all witnesses for civil cases. For witnesses not the defendant in criminal cases, crimes a witness committed when they were under 18 CAN be admissible, if they are "necessary to determine guilt or innocence" (very high standard). |
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TAKEAWAY(S):
(1) The 10 year time limit on using prior convictions for impeaching witnesses is 10 years from when the witnesses is RELEASED, not charged.
(2) In order to impeach a defendant-witness (when the defendant takes the stand), you need to prove the conviction is more probative than prejudicial using the special balancing test, which weighs
1. The nature of the crime: the more a crime is related to dishonesty/ untruthfulness, the more likely it will be let in.
2. Time of Conviction and Witness's History: The court looks at how long ago the crimes were and what the criminal history of the defendant is. The more crimes committed in past the worse it looks for the defendant.
3. Similarity between past crime and charged crime: The more similar the crimes are, the less likely they are to come in, this is because it may confused the jury and would be too prejudicial against the defendant in the current charge.
4. The importance of the testimony;
5. The centrality of Credibility: Factors 4 and 5 typically with counteract each other. A defendant's testimony may be of some importance, but his credibility is usually a central issue of the case. Just state these usually cancel each other out!
For Brewer, he was convicted of kidnapping. The prior kidnapping charge he had was not allowed into evidence, because it would be too unfairly prejudicial. The other crimes he was charged with, the assault crimes, were allowed into evidence and prosecution was allowed to impeach him with them. |
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The Rape Shield/ The Victim's Sexual Behavior or Predispositions
Evidence offered to prove that the victim engaged in other sexual behavior, or evidence offered to prove a victim's sexual predisposition, are both inadmissible, except:
- In Criminal Cases
(A) Evidence of specific instances of sexual behavior to prove someone other than the defendant was the source of the injury, semen, or other physical evidence.
(B) evidence of specific instances of a victim's sexual behavior, if offered by the defendant to prove consent
(C) Evidence whose exclusion would violate their constitutional rights
In Civil Cases
The court may admit a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice.
OVERALL, this protects evidence from being brought about a victim's sexual behavior/ history, when they are victims in sex-offense cases.
NOTE: Victim also means alleged victim |
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TAKEAWAY: Rule 412 bars admission of a victim's prior sexual behavior, but does not bar evidence that the victim made prior false accusations. That goes against the victim's credibility, not sexual behavior.
In this case, the victim apparently had made prior false allegations that other people were molesting her in the past. Court stated that these were admissible under 412, because it was not about her sexual behavior, rather it was about prior false accusations. |
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TAKEAWAY: A defendant has a constitutional right to confront witnesses via the confrontation clause. In sexual assault cases, the defendant can impeach that witness for bias in cross examination on issues that are not barred by rule 412.
In this case, the court stated the defendant should have been able to cross examine the victim about her living situation. Her living situation has nothing to do with sexual behavior, and therefore he should've been able to cross examine about it.
Defendant has a constitutional right to cross examine witnesses against him, including victims in sexual assault cases. Wanted to cross examine victim for bias, because she was living with the defendant's brother. |
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TAKEAWAY: Evidence regarding a victim's sexual history must be weighed against a defendant's constitutional right to testify. The court must protect the public interests of the Rape shield, which is to not harass or embarrass the victim.
In this case, the defendant was not allowed to testify that he said to the victim that she liked "doing it doggy style," and "switching partners." The court allowed a limited instruction, which allowed the defendant to say he said something that angered the victim. |
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TAKEAWAY: Evidence of a victim's sexual history or reputation is BARRED under 412, and can only be brought when it is exceptionally relevant or constitutionally required.
In this case, the court did not allow Knox to bring evidence that the victim sleeps around a lot, to prove why he thought she she was consenting to having sex with him. Court disallowed this, because they found The victim was asleep. |
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The officer tells his British friends that his wife likes being raped as a weird sexual fantasy. He asks his friends to rape her as a sick birthday present, and it turns out he was lying.
At the trial, the British friends introduced evidence that the officer told them that she was into rape. The court did NOT allow this evidence, stating it was barred by rule 412. Sexual history and reputation are not allowed. |
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Witness Competency in General
"Every person is competent to be a witness unless rules 602-606 apply"
There are very few limitations, almost everyone can be a witness |
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Need for personal knowledge for a witness to be competent
A witness is only competent enough to be a witness if the person has personal knowledge on the matter. This can be demonstrated by a testimony of the witness.
AKA some random person can't just be witness |
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Oath or Affirmation to Testify Truthfully
Before testifying, a witness must give an oath or affirmation to testify truthfully |
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Judge's competency as a witness
A presiding Judge may not testify as a witness at trial |
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Jurors Competency as a witness
(a) A juror may not testify as a witness in front of other jurors
(b) During a question of the validity of the verdict, jury deliberations cannot be brought as evidence (from US v. Tanner) |
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Hearsay Defined
Hearsay is (1) a statement that is made out of court, or while not testifying at the current trial or hearing, and (2) is offered for the trust of the matter asserted.
Hearsay is an out of court statement offered for the truth of the matter asserted. |
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Definition of Statement
"Statement" means a person's oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.
It can be verbal, written or otherwise, as long as they are ASSERTING something
Capers Definition: A statement is something that is "intended to be communicated."
Finding someone's secret diary would not be considered hearsay, and subject to the other FRE, would be admissible because it is not a statement! |
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Declarant Defined
The declarant is the person who made the alleged statement |
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The Rule against hearsay
Hearsay is not admissible as evidence, unless allowed by
-a federal statute
-the federal rules of evidence exceptions
-other rules prescribed by the Supreme Court |
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The Part Opponent Exception to Hearsay
A statement is not hearsay if the statement was made by the party in an individual or party capacity
Statements made by the opposing party are admissible as non hearsay! |
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Adoptive Admissions
A statement is one the party manifested that it adopted or believed to be true, is not hearsay.
These are adoptive admissions. It is an admission to something the party could have denied but chose to be silent.
There are 4 factors in order for something to be an adoptive admission
1. The declarant heard the statement
2. The declarant could have responded
3. The circumstances naturally called for a denial or response
4. The declarant failed to deny the statement |
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Statements made by authorized persons
A statement is not hearsay if the statement was made by a person who the party authorized to make a statement on the subject
EX: From the Mahlandt case, the board of directors speaking at the meeting on behalf of the company. The board was authorized to make statements on behalf of the company. |
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Statements made by a party's agent or employee
A statement is not hearsay if the statement was made by the party's agent or employee on a matter within the scope of that relationship while it existed.
Good example from the Mahlandt case, Mr. Poos was the employee of the company making statements to his boss. The statements were in the scope of his employment |
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Statements made by a co-conspirator
A statement is not hearsay if the statement was made by the party's coconspirator during and in furtherance of the conspiracy.
From Bourjaily, we know that the existence of a conspiracy must be proven first, by a preponderance of the evidence under 104(a). Once that is proven, a coconspirator's statements are admissible against the defendant. |
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| Mahlandt v. Wild Canid Survival & Research Center, Inc. |
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Little Daniel Case!
TAKEAWAY: Statements made by an employee are admissible against the company he works for if they are made in the course of their employment, under 801(d)(2)(D). Statements made by the board of directors at company functions are statements made by authorized persons, and are admissible non-hearsay under 801(d)(2)(C).
In this case, after the wolf attacked Daniel, Mr. Poos made a statement to his boss and wrote a note. These were admissible against the company, under 801(d)(2)(D). The board of directors had a meeting on how to address the situation. The meeting minutes were admissible as the board of directors were speaking on behalf of the company, under 801(d)(2)(C). |
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| Bourjaily v. United States |
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Definition
TAKEAWAY(S): (1) In order to bring coconspirator statements against the defendant under 801(d)(2)(E), a preliminary determination must be made first to figure out if there was in fact a conspiracy.
(2) In order to determine if there was a conspiracy, the moving party must prove by a preponderance of the evidence that a conspiracy existed under 104(a)
3. When determining if a conspiracy existed, a Judge during the preliminary determination can consider the potential hearsay statements themselves, because they are typically very valuable in determining if a conspiracy existed.
In this case, Lonardo's statements were admissible against Bourjaily, after Lonardo agreed to buy drugs from the cop, and give them to Bourjaily to sell, and Bourjaily showed up with Lonardo to pick the drugs up as planned. Showed that there was a conspiracy under 104(a), and also showed these were statements made during and in furtherance of the conspiracy to sell drugs, admissible under 801(d)(2)(E) |
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Term
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Definition
104(a): This is when the Judge decides that by a preponderance of the evidence, that THEY can find a fact exists
104(b): Whether or not a judge can find by a preponderance of the evidence that a reasonable jury could find that a fact exists. This is a lower standard.
104(a) is used for preliminary questions for almost everything. 104(b) is used for:
-conditional relevance (cox v. State)
-Prior bad acts (did the prior bad act occur, Huddleston)
-Authentication (can a reasonable jury find by a preponderance of the evidence that the evidence is authentic) |
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Term
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Definition
TAKEAWAY: Under FRE 613(b), you can bring evidence of a witness's prior inconsistent statement for impeachment purposes, even if the statement is hearsay.
In this case, Barrett was indicted for stealing stamps. The Court ruled Barrett was allowed to bring evidence that Kelley heard Buzzy Adams say that "Barrett didn't do anything," in order to impeach him, when he said at trial Barrett did it. Even though it was hearsay coming from Kelly, it was admissible to impeach Barrett. |
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Term
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Definition
Bringing evidence that a prior inconsistent statement was made
Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny making the statement, and an adverse party is given an opportunity to cross.
In other words: A testifying witness may be impeached with a prior inconsistent statement. In addition, if the witness denies making the statement, you are allowed to bring evidence that they did in fact say it, even hearsay evidence (like in Barrett). |
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Term
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Definition
TAKEAWAY: When deciding to allow hearsay evidence for impeaching a witness, the court must determine if the evidence being brought would be unfairly prejudicial under FRE 403. In other words, the court must decide if the evidence is being brought to actually impeach someone, or being brought to get around the hearsay rules.
In this case, the prosecution wanted to introduce the officer's testimony that Neumann told him that Ince was the shooter. Neumann at trial stated that she did not remember what Ince stated. Court stated that this was not to impeach Neumann, because they're not proving her inconsistent, she said she didn't remember. This was just getting around hearsay rules, 613 can only be used for impeachment purposes! |
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Term
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Definition
Under FRE 801(d)(1)(B), you can bring evidence of prior inconsistent statements to rebut a claim that someone is lying, but only if the statement was made prior to the alleged motive to lie arose.
In the case, A.T. was Tome's daughter. AFTER A.T. said that she wanted to go live with her mom, A.T. Allegedly made statements to her doctor and babysitter and mom that Tome had molested A.T. Tome argued that she was lying, and prosecution wanted to bring evidence she told the other people to show she wasn't lying. Court did NOT allow admission of these statements, because they all happened after the motive to lie arose, AKA after she told her mom she wanted to live with her. |
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Term
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Definition
Admitting Prior Consistent Statements
If the declarant testifies and is subject to cross-examination about a prior statement made, a prior statement the declarant made is not hearsay if it is offered to rebut an express or implied charge that the declarant recently fabricated their testimony, lied in their testimony, or had prior influence or motive.
In other words, if a declarant takes the stand, testifies, and is subject to cross, and then they are accused of lying, you can introduce prior statements the declarant made to show they are not lying. (This is admissible as long as they are not made after the alleged motive to lie arose, from Tome). |
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Term
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Definition
Out of Court identifications
If the declarant testifies and is subject to cross examination about a prior statement, then the statement is admissible if it identifies someone the declarant perceived earlier.
NOTE: this includes sketches of what a person saw, if someone is at trail testifying about what the sketch looked like and is subject to cross (weichell) |
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Term
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Definition
| TAKEAWAY: (1) A sketch is considered an out of court identification. (2) Out of court identifications are admissible under 801(d)(1)(C), if they are made by a witness at trial and they are subject to cross. Someone can use a composite sketch to corroborate their identification testimony at trial. |
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Term
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Definition
TAKEAWAY: According to 801(d)(1)(C), a witness being able to recall the exact details of an identification does not mean it can be admitted into evidence as a hearsay exception. So long as a witness is cross examined at trial, they can introduce statements made in order to identify someone.
In this case, Owens was charged with murder after the prison psychiatrist was beaten with a pipe. The psychiatrist later was able to identify Owens as the one who attacked him, but said he could not see him during the attack and he had suffered memory loss. The court stated this was still admissible as a out of court identification under 801(d)(1)(C), so long as the defense was allowed to cross examine him (they could ask about his memory loss and not seeing him!) |
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Term
| Hearsay Exceptions for when a declarant is testifying, during cross you can bring up prior statements the declarant made, regardless of hearsay, under... |
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Definition
613(b) - The statement is inconsistent with the declarant's current testimony
801(d)(1)(A) - the statement is inconsistent with a statement made when the declarant was under oath (completely covered by 613)
801(d)(1)(B) - The statement is consistent with the declarant's current testimony, to rebut a claim the declarant is lying, and the statement was made after the reason to lie arose.
801(d)(1)(C) - The statement identifies someone the declarant perceived earlier |
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Term
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Definition
Statements made against interest
A statement is an exception to hearsay if a reasonable person in the declarant's position would have only made the statement if it were true, because it was so contrary to the declarant's proprietary and pecuniary interest
(b) It is supported by corroborating evidence that supports trustworthiness
Overall, statements against interest are usually so against interest, it wouldn't make sense why anyone would say it that it must be true and therefore an exception to hearsay.
Statements against interest allow declarant self-inculpatory statements against ANYBODY. But only self-inculpatory/ statements against self-interest are admissible (from Williamson) |
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Term
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Definition
TAKEAWAY: 804(b)(3) statements against interest, are only admissible if they are statements against the declarant's OWN interest. Only self-incriminating statements are admissible.
In this case, Harris made statements that he and Williamson were driving the drugs to Georgia. The statements that said HARRIS was driving the drugs were admissible, because those went against his own interest. The statements against Williamson's interests were NOT admissible, because only statements against self interest are allowed under 804(b)(3) |
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Term
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Definition
Criteria for being unavailable
A declarant is unavailable as a witness if the declarant:
(1) is exempted from testifying because the court rules a privilege applies
(2) refuses to testify about the subject matter despite a court order
(3) testifies to not remembering the subject matter
(4) cannot be present at trail due to infirmity, physical illness, or mental illness
(5) is absent from the trail or hearing and the statement's proponent has not been able, by process of other reasonable means, to procure |
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Term
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Definition
TAKEAWAY: For statements to be admissible under 804(b)(2) as a dying declaration, the person dying/ making the statement must actually believe they are dying. Cannot just be a statement made before someone happened to die.
In this case, Shepard told the nurse that she thinks her husband poisoned her. A few days later, she told the nurse she felt better, and then a few days after that she died. This was NOT a dying declarant about the poison, because it was not made when she thought she was going to die. |
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Term
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Definition
Statements under the belief of imminent death/ dying declarations
For homicide cases or in a civil case, a statement that the declarant, while believe their death to be imminent, made about its cause or circumstances, is admissible and an exception to hearsay. |
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Term
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Definition
TAKEAWAY: Under 804(b)(6), an out of court statement may still be admissible if:
1. the defendant engaged in wrongdoing
2. The wrongdoing was intended to render the declarant unavailable as a witness against them (in any proceeding)
3. The wrongdoing did, in fact, render the declarant unavailable as a witness.
Gray was charged with killing two of her husbands and another man. Statements made by her 2nd husband were admissible because the court found she killed him to render him unavailable to testify against her in another criminal matter. It did not matter which proceeding, so long as you INTEND to render the witness unavailable. |
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Term
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Definition
A statement offered against a party that wrongfully caused the declarant's unavailability as a witness, and did so intending that result, is admissible as an exception to hearsay.
Ned to INTEND to render them not a witness at trial |
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Term
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Definition
Past Testimony of an unavailable declarant
Statements are not barred as hearsay if:
(A) They are former testimony, given at a trial, hearing, or lawful deposition; AND
(B) is now being offered against a party who had an opportunity and similar motive to develop if by direct, cross, or redirect examination.
AKA, if the declarant said something at a prior hearing/ trial/ deposition, and the opposing party got an opportunity to question them about it, then it is admissible |
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Term
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Definition
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it, is not hearsay.
It needs to be something said that explains something AS IT IS HAPPENING. Needs to be in the moment. These statements are viewed as trustworhty |
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Term
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Definition
Excited Utterances
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that caused it.
Look for exclamation points on the exam! Statements made while excited are an exception to hearsay |
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Term
| Mutual Life Insurance v. Hillman |
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Definition
TAKEAWAY: Statements made about someone's state of mind at the time they made the statement are admissible as an exception to hearsay (now codified as FRE 803(3)
The insurance company, to prove the body found might not be Hillman's husbands, introduced 2 letters that Walters had wrote before the fishing trip, stating that he intended to go on the trip. The Court allowed the statements to show he INTENDED to go on the trip, not that he actually went, under 803(3)*
*case was before FRE |
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Term
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Definition
A statement of the declarant's then existing state of mind (such as motive, intent, or plan), or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health) are admissible.
This does NOT include statements of memory or belief of what someone felt (unless related to the declarant's will)
In other words, you can include statements about what you were feeling or intending to do that were made at the time. They do not include statements RECALLING what you felt.
NOTE: these statements are only admissible for the DECLARANT's Feelings or mental state |
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Term
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Definition
Statements made for medical diagnosis or treatment
A statement is admissible as an exception to hearsay if:
(A) it is made for - and is reasonable pertinent to - medical diagnosis or treatment
(B) It Described either medical history; past or present symptoms or sensations, their inception, or general cause.
If a statement is reasonable pertinent to medical diagnosis, and describes medical history, sensation, or general cause of injury, it is admissible. |
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Term
| United States v. Iron Shell |
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Definition
TAKEAWAY: Statements that are reasonably pertinent for medical diagnosis or treatment, and describe history, a past or present sensation, or the general cause of an injury, are admissible as an exception to hearsay.
In this case, Iron Shell allegedly raped a girl named Lucy. Lucy told her doctor where Iron Shell touched her and attacked her. The court held that these were reasonably pertinent to her treatment, and related to the cause of her injury, and therefore admissible under 803(4) |
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Term
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Definition
Recorded Recollections
A record is admissible as an exception to hearsay if:
(A) it is on a matter the witness once knew, but cannot recall well enough to testify fully and accurately
(B) was made/ written or adopted by the witness when the matter was fresh in their memory
(C) Accurately reflects the witness's knowledge
In other words, if the statement was recorded or written down near the time of the event, the witness had firsthand knowledge of the event, and no longer remembers the event fully, and the witness vouches for its accuracy, then it is admissible. |
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Term
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Definition
TAKEAWAY: A past recorded recollection of a witness is admissible under FRE 803(5) if the witness had firsthand knowledge of the event, the written statement was made at or near the time of the event, the witness lacks a present recollection of the event, and the witness vouches for the accuracy of the statement.
In this case, prosecution tried to use 803(5) to get in a recorded statement of an eyewitness named Taylor. Taylor allegedly saw Johnson murder someone. Taylor at trial said he had first hand knowledge, but he said that the recorded statement did not accurately represent what he saw that day. Therefore, the court held the statement was INADMISSIBLE, because Taylor did not vouch for the statements accuracy at trial. |
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Term
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Definition
Writing Used to Refresh a Witness's Recollection
(a) This rule gives an adverse party certain options when a witness uses a writing to refresh memory either (1) while testify) or (2) before testifying
(b) Those options include having the writing introduced to inspect it, to cross examine the witness about it, and introduce into evidence any portion that relates to the witness's testimony. |
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Term
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Definition
| 612 allows a party to show a witness a record of something they don't remember, and 803(5) makes the record admissible into evidence if they can vouch for the record's accuracy. |
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Term
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Definition
TAKEAWAY: Under the business records exception to hearsay, you can admit statements that are made in the regular course of business and it is regular course to make such a statement. It must be regular course of the business in general, not to that specific business.
In this case, plaintiffs brought suit after a train crash to collect damages. Defendant RR company tried to bring evidence of statements made by the engineer after the train accident in a post accident interview. It was common practice of the RR company to interview engineers after crashes. However, this was not common of all RR companies. The court stated that is is INADMISSIBLE, because it was not common for the RR business in general. For FRE 803(6) evidence to be admissible, it must be made in the regular course of business, AND it must be regular course to make such a record. |
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Term
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Definition
A record is admissible as an exception to hearsay if:
(A) the record was made at or near the time by someone with knowledge
(B) The record was kept in the course of regularly conducted activity of a business, organization, occupation, or calling
(C) Making the record was a regular practice of that facility
(D) All these condition are shown by the testimony of the custodian or other qualified witness
In other words, if a record is kept in the ordinary course of business, it is ordinary of the business to have such a record, and someone with personal knowledge of the record can testify to that record's information, then it is admissible! Can only be based on the extent of the employee's personal knowledge. |
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Term
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Definition
TAKEAWAY: In order for a record to come in under the business record exception to hearsay, 803(6), the source of the information must be trustworthy.
In this case, Vigneau was charged with money laundering and the prosecution sought to introduce several "to send money" forms into evidence that all had Vigneau as the sender. The court did not allow the prosecution to introduce the fact it had Vigenau's name on it, because the records were never verified by anyone that it was Vigneau who sent them.
For business records to be admissible, they need to be verified by an employee testifying and proven to be trustworthy and reliable. These were not, no way of telling who wrote Vigneau's name |
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Term
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Definition
Public Records Exception to Hearsay
A record or statement of a public officer is admissible as an exception to hearsay if it
(A) sets out the officer's activities in a manner while under a legal duty to report
(B) The opponent does not show that the source of the information or other circumstance indicate a lack of trustworthiness
Essentially, ALL public records are admissible EXCEPT police reports. Those are typically not as trustworhty as other public records. |
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Term
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Definition
Reputation Concerning Character Exception to Hearsay
A reputation among a person's associates or in the community concerning the person's character is admissible as an exception to hearsay
This is why all character evidence is NOT hearsay. It fits within this exception |
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Term
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Definition
The Residual Exception to Hearsay
(a) A hearsay statement is not excluded by a rule against hearsay, even if the statement does not fall within a hearsay exception, if:
(1) the statement has equivalent circumstantial guarantees of trustworthiness
(2) it is offered as evidence of a material fact
(3) It is more probative than any other evidence that can be offered
(4) Admitting it will serve the purposes of these rules and the interests of justice
This is basically the LAST RESORT exception, only works when other exceptions will not allow evidence that is critical for the interests of justice (VERY high standard to meet) |
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Term
| Dallas County v. Commercial Union Assurance Company |
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Definition
TAKEAWAY: When no other exception to hearsay applies, a court may still admit hearsay evidence under the residual exception 807. In order to do this, you need to prove the evidence is trustworthy, necessary to offer evidence of a material fact, more probative than prejudicial, and in the best interest of justice to allow it. It is a VERY high standard.
In this case, the court allowed the article of the newspaper from over 50 years ago, because that was the only evidence that a prior fire occurred. All witnesses who could have seen the fire were likely dead. It was hearsay, but admissible under 807. |
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Term
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Definition
Hearsay within Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay 802, if each part of the combined statements conforms with a hearsay exception.
Need to have exceptions for both statements in order to be admissible |
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Term
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Definition
Attacking the Declarant's Credibility
When a hearsay statement has been admitted into evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant testified as a witness.
Therefore, you can bring evidence that to "impeach" a declarant, even if the declarant is not present at a trial, if evidence is brought in through a hearsay exception! |
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Term
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Definition
TAKEAWAY: There is a right under the confrontation clause of the 6th amendment to confront witnesses. A criminal defendant has a right to confront witness's that provide testimonial statements against him, by giving that defendant a reasonable opportunity to cross examine them.
In this case, the court stated that in order to introduce the tape of Sylvia's interview, Crawford needed a chance to cross examine Sylvia. Crawford could not cross examine her due to a martial privilege. Therefore, the tape could not come in, because he had a right to cross examine her! |
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Term
| Professor Capers's Crawford Confrontation Clause Analysis |
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Definition
1) Are we in criminal Case?
2) If yes, is a party seeking to introduce evidence under a hearsay exception?
3) If yes, Is that evidence "testimonial" or its functional equivalent? (AKA is the statement's primary purpose for future testimony at trial?)
If yes, then it is inadmissible under the confrontation clause. Unless the declarant testifies, or has testified and the defendant had an opportunity to cross at a prior proceeding, this is inadmissible
If no, then there is no confrontation clause issue, and it may be admissible under the hearsay exception. |
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Term
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Definition
| TAKEAWAY: From this case, we know that a statement is not testimonial if its primary purpose is to deal with an ongoing emergency. |
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Term
| Melendez-Diaz v. Massachusetts |
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Definition
TAKEAWAY: In a criminal case, laboratory reports prepared by government analysts are inadmissible against defendants who have no opportunity to cross examine the analysts who prepared the reports.
In this case, Melendez-Diaz was charge with trafficking cocaine. When he was caught, the drugs went to a government lab to confirm that they were drugs. They were introduced at trial, and Melendez-Diaz argued this violated his confrontation clause right to confront witnesses. He wanted to be able to cross examine the drug analyst. The court stated he should have been able to! This was a testimonial statement, brought against him, and he didn't have an opportunity to cross. |
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Term
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Definition
TAKEAWAY: Statements made to assist police in addressing an ongoing emergency are non-testimonial, because they were not made with the primary purpose of creating a record at trial.
In this case, statements to the police stating that who shot him, and where the shooter were, and how he shot him through the doorway of the shooter's home, were all admissible and did not violate the confrontation clause. They were in response to the "emergency" of the possible shooter at loose, could have still been danger to others. |
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Term
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Definition
| TAKEAWAY: From Footnote 6 in this case, a testimonial statement means a statement whose primary purpose is to establish or prove past events that are potentially relevant to later criminal prosecution. |
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Term
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Definition
| TAKEAWAY: A criminal defendant can forfeit their right to confront witness under the confrontation clause if they commit a wrongdoing that was intended to make the witness unavailable as a declarant. |
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Term
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Definition
TAKEAWAY: A statement is testimonial when its primary purpose is to establish or prove a past event that is potentially relevant to later criminal prosecution. In order to determine a statement's primary purpose the court can use ALL available factors, including whether or not this was in response to an emergency.
In this case, the pre school teacher was allowed to repeat statements made at trial of the 3 year old saying that "Dee" gave him bruises. The court stated that her telling the police these statements were non-testimonial, taking into account the fact she was concerned about the child's safety, was a mandatory reporter, and how her questioning was very informal, by just asking "what happened?" |
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Term
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Definition
| In joint trials, where one of the co-defendants makes a statement the prosecution wants to introduce under the party opponent rule, the statement must be "Brutonized" or redacted to make it sound like it only includes information about the declarant-defendant. |
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Term
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Definition
TAKEAWAY: In extreme Cases, where a defendant has evidence that is very convincing and necessary to their defense, but it is not allowed by the Federal Rules of Evidence it may still be admissible, in order to violate a defendant's right to compulsory process and due process.
In this case, Chambers wanted to introduce was McDonald had said to 3 different people confessing to the murder. The trial court denied all of these statements as hearsay (there was no 804(b)(3) at the time, statements against penal interest). The Supreme Court allowed these witnesses to come, stated that not allowing them would not have been in best interests of justice and took away Chamber's constitutional right to "make his case by bringing witnesses," or his right to compulsory processes. |
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Term
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Definition
Authentication in General
To satisfy the requirement of authenticating or identifying an item, the proponent must produce evidence sufficient to supporting a finding that the item is what the party claims it to be.
This standard is depicted by 104(b)! A judge must find, that a reasonable jury would find, by a preponderance of the evidence that what you are presenting into evidence is what you are claiming it to be |
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Term
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Definition
901(b) lists ways of how you can authenticate something. It includes:
(1) Testimony of a witness with knowledge
(2) Non-expert Opinion about Handwriting (like from a relative)
(3) Comparison by an expert witness or the Trier of Fact (comparing an authenticated piece of evidence with the one trying to be brought)
(4) Distinctive Characteristics and the Like
(5) Opinion about a Voice
(6) Evidence about a telephone conversation
(7) Evidence about Public Records
(8) Evidence about Ancient Documents/ Date Compilations
(9) Evidence describing the process of system of something
The standard for authenticating something is 104(b)! |
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Term
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Definition
Rule 902 lists items that are "self-authenticating" or documents you do not need to present evidence to authenticate
The list is:
(1) Domestic Public Documents that are sealed and signed.
(2) Domestic Public Documents that are not sealed and signed by certified.
(3) Foreign Public Documents
(4) Certified Copies of Public Records
(5) Official Publications
(6) Newspapers and Periodicals
(7) Trade Inscriptions
(8) Acknowledged Documents
(9) Commercial Paper and Related Documents
(10) Presumed Authentic Documents under Federal Statute
(11) Certified Records of a regularly Conducted Activity |
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Term
| Common Authentication Methods from Professor Capers |
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Definition
- Signed Confessions: If you are authenticating a signed confession, you can just ask the defendant if he signed it, show him the document, ask him if that is his signature, etc.
- Pictures/ Videos: If you are authenticating a picture or a video, it is very good to ask a witness who saw the scene/ took the picture, “Are these pictures/ videos a FAIR AND ACCURATE DESCRIPTION OF WHAT HAPPENED THAT DAY?” (very good question)
- Chain of Process: If you are authenticating something that is hard to differentiate, you need to demonstrate Chain of Process. For example for authenticating that a bag of weed is the same that a cop found on the defendant, you need an officer to testify that was what he found, and chemist to testify that that same bag contained marijuana. This is typically done automatically anyway, so the officer and chemist will sign it, and they will need to testify that it is their OWN signature on the evidence.
- Process Testimony: In some instances, you can just have the witness testify what they usually do, or what a typical procedure is, in order to prove authentication |
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Term
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Definition
TAKEAWAY: Under FRE 901(b)(8), an ancient document is authentic if
(1) it is in a condition that would not create suspicion of being unauthentic
(2) if it was located in such a place where it would likely be if it were authentic
(3) It has been in existence for over 20 years
You can bring an expert witness to testify to these factors
In this case, the court found that the old documents held by the German and Soviet union historical centers were authentic, and therefore revoked Stelmokas's citizen for lying about being a Nazi |
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Term
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Definition
The best evidence Rule
AKA, the requirement of the original
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
If a writing, recording, or photograph itself is at issue in the litigation, the original must be produced! |
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Term
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Definition
Admissibility of a Duplicate
A duplicate is admissible to the same extent as the original unless a genuine question about the original's authenticity or circumstances make it unfair to admit the duplicate.
This rule allows you to present copies of a document as the original, unless their authenticity is questioned |
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Term
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Definition
Best evidence Rule defintions
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.
(c) A “photograph” means a photographic image or its equivalent stored in any form. |
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Term
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Definition
Star wars case
TAKEAWAY: Drawings and pictures are considered "writing equivalent" under the best evidence rule 1001(a), and therefore when they at issue in the litigation you need to present the original.
Seiler sued Lucas films because his strider drawings allegedly looked like the imperial walkers from Star Wars the Empire Strikes back. He however could not produce the originals of his drawings, and instead wanted to use reconstructions that he made after the movie came out. Court stated this was inadmissible, needed to present the original. |
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Term
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Definition
Instances when the original is not required
An original is not required and other evidence of a writing, recording, or photograph can still be admissible if
(a) All the originals are lost or destroyed, and it occurred not by the proponent of bad faith.
(b) An original cannot be obtained by any judicial process
(c) The party against whom the original would be offered had control of the original, was given notice when they would be required to present it, and failed to produce anything at a trial or hearing
(d) the writing, recording, or photograph is not closely related to a controlling issue.
This basically means if the document is lost or destroyed not in bad faith, or the opposing party has the original and refuses to give it up, you can use other evidence than the original document. |
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Term
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Definition
Privileges in General
The common law, as interpreted by the US Courts in light of reason and experience, governs a claim privilege unless any of the following provide otherwise:
-The constitution
-A federal statute
-Rules prescribed by the US Supreme Court
FEDERAL PRIVILEGES are governed by federal courts common law. STATE privileges are governed by state law, and civil case privileges are governed by state law. |
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Term
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Definition
TAKEAWAY: There is a privilege for communications with your therapist or social worker. The court is allowed to add, lessen, change or modify any federal privilege under FRE 501.
In this case, Redmond shot and killed someone. She saw a therapist 50 times after the incident. The plaintiff requested these therapist communications via discovery, but Redmond refused. The Supreme Court ruled that there is a privileges for communications for social workers and therapists, so Redmond was not required to turn over therapist communications |
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Term
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Definition
TAKEAWAY: In Extreme Cases, for interest of justice, inadmissible evidence from privileges ca still be admissible if
1) the testimony is vital for someone's defense
2) Witness who gave the testimony is unavailable
3) The testimony "bore sufficient indicia" of reliability, or has a showing that it is reliable.
In this case, two teens were charged with killing someone they claim they didnt. Fornes, another teen told his priest and his attorney that he was the one who killed the teen. On the habeus petition, the court allowed the communications with the priest, saying that there wasnt really a priest-penitent privilege because he talked to other people, and the communications with the attorney came in despite the attorney-client privilege in the interest of justice |
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Term
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Definition
| TAKEAWAY: There is not a recognized privilege for testimony between parents and children. Courts have the ability to add, lessen, modify, or change privileges based on reason and experience. |
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Term
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Definition
TAKEAWAY: For the adverse spouse privilege, you cannot invoke the privilege to stop your spouse for giving voluntary testimony. The adverse spouse privilege allows the spouse to not speak, OR to voluntarily speak, if they so choose.
In this case, Trammel could not stop his wife from testifying under the adverse spouse privilege. Elizabeth Trammel was allowed to testify against her husband. |
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Term
| The Adverse Spouse Privilege |
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Definition
Criminal of Civil: Criminal Cases only
Requirement: Valid Marriage
Prohibits Testimony About: Everything
Holding: Witness's Spouse
Waiver: Witness's Spouse
Duration: Marriage Only
Exceptions:
(1) Spousal victim or child victim, victims cannot invoke the adverse spouse privilege, if they are the victim or their child is
(2) Joint criminal activity. Person cannot refuse to testify when they are joint defendants. However, this probably would invoke someone's 5th amendment right against self incrimination
Marriage Communication protects against private communications with spouse, held by both spouses. The adverse spouse privilege protects all communication with other spouse, but only the other spouse holds the privilege |
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Term
| The Marital Communications Privilege |
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Definition
Civil or Criminal: Both types of Cases
Requirement: Valid Marriage
Prohibits Testimony About: Confidential Marital Communications
Holder: Both Spouses
Waiver: Both Spouses
Exceptions: (1) Spouse or Child Victim or (2) Joint Criminal Activity
Marriage Communication protects against private communications with spouse, held by both spouses. The adverse spouse privilege protects all communication with other spouse, but only the other spouse holds the privilege |
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