The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

DR PTC

Balancing test - comes up in almost every trial.

Evidence is either relevant or not - probative value is relative but not relevant.   

The court should exercise reasonable control how it examines witnesses and presents evidence so as to:

(1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (PET)

(b) Cross-examination limited to specific subject matter of the direct examination and witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

The government and defendants challenged the court's authority to place time limits on various stages of the trial of an action charging defendants with criminal tax fraud.

The Prosecution determined the trial would take a month; court allowed only 10 days

Rule 611(a) in action - avoid needless consumption of time - court can exclude cumulative or duplicative evidence with little added value.  

1. Narratives - what happened on the day of the murder?
2. Nonresponsive - when witness adds info not asked f
3. Facts not in evidence - when a question includes facts not yet established at trial.  
4. Compound questions - did you see him and he mad?
5. Ambiguous - what did you see or not see...
6. Cumulative/duplicative - multiple exhibits/questions 
7. Misstatement of evidence - when counsel asks thuis

  FAMCCNN or NNFCACM

Reading railroad timekeeper falls on ladder, attorney for Reading asked continual leading questions that only required yes or no responses.  Appellate judge orders new trial.  

Can get mistrial when too many leading (or other objectionable questions) are asked and not limited by the court.  

Defense counsel refused the opportunity to cross examination of a prosecution witness after prosecution was allowed to ask multiple leading questions. 

New trial denied because defense refused the opp to cross examine and prove the prejudice of the prosecution's' leading questions. 

Must object contemporaneously and take opportunity to cross examine timely manner

email him if not prepared - he understands.  Do not get behind in this class - moving fast too much - email him if I cannot make class - multiple choice for mid terms - final is combo essay multiple choice.  

Federal rules of evidence are commonly used across all states - get Q&A book - 3rd edition is OK (4th is also) - all exam questions are in the book.  also great for bar exam.  

He clerked for judge mcdermot and diagreed with him.  FELA law, has experience with med malpratice and other areas- 

He is good to help get jobs in PHL and montgo county. 

Judge is gatekeeper of what evidence gets in.  Always think about controlling what jury sees.  

For case recital, he wants, 1) name of case, 2) court, 3) version of law applied/year of case, 4) procedureal posture, 5) facts, 6) evidnciary issue considreed, 7) holding and reasoning. 

1. Be breif - short , succinct - get in and out
2. SHort questions, plain words
3. On cross exam, ALWAYS ask leading questions - always control witness with leading Qs
4. On cross, ask only questions you know answer
5. LISTEN to witnesses answer - 
6. Don't quarrel with the witness - save for summation
7. never never allow witness to repeat what he said on first questioning unless it is supporting your side
8. DOn't let witness explain anything - yes or no or i don't know are only good answers
9. Avoid one question too many - dont ask one Q too many
10. Save the point for summation- better if jury does not understand during cross exam- 

Medmal case - thought there was error with cross exam of expert re standard of care - court permitted plaintiff dr. to be cross examined re SOC - plaintiff claimed error when his Dr indicated that he did things wrong -

Court ruled that the fact that the prosecution witness said things in favor for the defense was still OK.  Prosecution did not prep the expert well and he ended up helping the defense.  Cross exam was OK because SOC was originally addressed in direct exam/questioning. Objection to cross exam was rejected.   

(a) A party may claim error in a ruling re evidence only if the error affects a substantial right of the party AND:

(1) if ruling includes evidence, (A) timely objects or strikes; AND (B) states the  specific ground, OR

(2) if excludes evidence, a party informs the court record of the objection and preserve the stricken answer

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record a party need not renew an objection to preserve a claim of error

Contemporaneous objections - car dealerships laundering money - spriggs was a dealership - the objection from the lawyer was not contemporaneous in requesting objection due to hearsay testimony- objected 1 day later - plain error rule does not apply as it should only be used in special circumstances.  

Need to be timely in the objections - contemporaneous. - if not then the other side cannot correct in real time - allows the opponent to change the question when appropriate.    

Rule 403 case - wilson appealed conviction on the basis of failure to object - all drugs, scale and gun in duffle bag - tries to object that the gun was not relevant - at trial he objected on the basis on non relevance to charge of conspiracy and then on appeal they argued that it should be subject to rule 403 and should be balance test that the prejudicial effect of the gun evidence, but did not raise 403 at trial and unfair prejudice at trial - did not get appeal and was still convicted.  

Objections must be specific and correct (and multiple if applicable) re the why of the objection and timely at the trial.  

Offer of proof - 103 a(2) - case - did not provide an offer of proof.

D attempted to present evidence that was excluded as hearsay. The court agreed that the evidence should not have been excluded, but it found no error because D made no contemporaneous offer to proof (explaination to judge in side bar to preserve what the original testimony would have been).

The Supreme Court has held that the proponent of evidence must make known the substance of evidence unless it was apparent from the context.

A pro se litigant is not excused from this requirement.

A cross-examiner may also be required to make an offer of proof, but it depends on the circumstances.

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. (many jurisdictions have age restrictions for competency - be careful when fed court in supplemental jurisdiction in a state civil case this would apply). 

Even competent if taking drugs during trial.

Only rare circumstances makes a witness incompetent (mental derangement).  All others subject to jury to determine credibility.  

A juror may not testify as a witness at trial.

Juror cannot testify re deliberation, or why they voted in the trial - sacred.  EXCEPT regarding information about 

(A) extraneous prejudicial information (juror does own ballistic test at home) or (B) outside influence was improperly brought to bear on any juror; or

 (C) a mistake was made on the verdict form.

Cannot even testify if other jurors were drinking and abusing drugs.  Tanner v US.  

After verdict, one juror told the defense attny that other jurors were drinking, sleeping and abusing drugs while in deliberations.  

Cannot bring this evidence in due to Rule 606b

Even if true, does not automatically render incompetent jury - should have presented to court at time - right to competent jury is protected by voir dire and observations of counsel and Judge.  

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

Does not need to be on bible or include "oath" "sear" etc - Ferguson vs US re bible lady not wanting to "swear"

FUndamentals of witness competency - 1) must take "oath" 2) must have perceived something relevant 3) must recollect that item, and must 4) be able to communicate to Jury.  (Witness must ROAR)

An expert witness’s source-attribution statement is admissible if it indicates that a defendant is the source of DNA evidence to a reasonable degree of scientific certainty.

Davis convicted of robbery and murder, DNA evidence on wheel and hat matched Davis but was a cold hit.  Moved to suppress b/c FBI only accepts DNA data if 1 in 300 billion.  Three other measures shown statistically valid.  DNA evidence allowed.  

F: Cop testified that D was drunk after having seen him for only a few seconds while they were in cars passing each other.  Is testimony acceptable?

H: Non-expert W may state his opinion without first detailing the facts on which he bases such opinion, where the matter testified about is not of a complex nature.  testimony should only be precluded when cross-exam reveals that the W had no reasonable basis for the conclusion reached.  Here it was slight, but there was opportunity for observation.  The JURY has to determine his capacity for observation.

Solved by cross examination and Jury judging credibility

D was convicted of murder and robbery.During trial, the judge did not allow D’s counsel to use the report of one officer in cross-examining another officer.

The appellate court held this was error. - Rule 612.  

a.The court thought that the trial judge confused present recollection revived and past recollection recorded.

b.Present recollection revived does not require that the writing be introduced in evidence.

c.Writing is only used for a witness to refresh his memory and then testify from that refreshed memory.

d.The writing does not have to be made by the witness.

e. The only requirement is that opposing counsel be allowed to view the writing and show it to the jury.

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or (2) before testifying, if the court decides that justice requires the opposing party have ability to review the writing, cross examine,  and enter into evidence.  

Opposing counsel can request to delete unrelated matter

If writing is not produced by prosecution, can strike witness testimony or declare mistrial.  

For test, focus on assigned readings and not just what discussed in class. 

Harmless error vs plain error - harmless error standard applied differently across jurisdictions - still needs to preserved at time of trial by objection - plain error standard dopes not need to be preserved at trial - so egregious that it is obvious - very rare for plain error - will not be tested on this though.  

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Evidence is either relevant or not - probative value has is a spectrum.  

Relevant evidence is admissible unless any of the following provides otherwise:

• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.

CROS

Irrelevant evidence is not admissible

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Balancing test of probative/proving value vs prejudicial effect, confusing, delay, time, cumulative evidence

Mis PTC DR

One of the most important rules to know and apply

D was convicted of possession with intent to distribute. During trial, an officer who observed D with the drugs testified.D asked the officer if he observed another passenger in the car, but P objected, sustained.

The court found these rulings to be error.Both questions sought to elicit relevant evidence. if the officer could not identify the person in the back seat, it makes it less likely that he could identify the person in the front seat (allegedly D).  Evidence is either relevant or not, not "highly" or marginally relevant. Very  low standard for relevant evidence

D successfully moved to suppress the testimony of co-conspirators who had made plea bargains with the government. Trial court held that the agreements violated a federal law prohibiting giving anything of value in exchange for testimony.

Lowery overturned - Plea bargains have existed for a long time, and no one challenged them until recently. Other courts who considered the question had upheld plea bargains. Court also said that the Rules of Professional Conduct could not keep the testimony out.  Federal evidence law, not state law, governs the admissibility of evidence.

P was going to present an eyewitness, and D deposed the W. D found out that W had not been aboard the ship when the accident happened and told this information to the judge.P immediately withdrew his intent to use the deposition.

D wanted to present the deposition to show that P had supported perjury, but the trial court denied this.

The court held that the district court abused its discretion.Clearly the evidence was relevant, since one who suborns perjury is less likely to have a strong or valid claim.It makes it less likely that P told the truth.

403 balance test in action.   

Admit evidence if:

• There is no particular showing of unfair prejudice.
• Can be prejudice that is not unfair. Every contrary evidence is prejudicial. It’s not unfair to show that P suborned perjury.
• The unfair prejudice or confusion must substantially outweigh the probative value.
• The probative value is extremely high.
• There would not be any confusion of the jury here.

D was convicted of sex assault and abuse of children. P introduced testimony re gay porno magazines found in D’s house. P wanted to admit the evidence because P didn’t want to rest the case on boys’ testimony alone.  

The court first stated that the magazines were not relevant thinking that possession of the magazines would not make it more or less likely that D did the acts. Does an murder mystery book make a murderer more likely. 

How-to manuals for making a bomb may be different.

Courts should conduct a balancing test on the record.= and leave the credibility of the evidence to the jury.

D was convicted of armed bank robbery and escaped from prison. P presented evidence relating to the escape during trial. The court held that the evidence admissible.

The jury could make all four inferences required for escape. D tried to offer other reasons why he escaped, but there was still enough evidence to make the inferences.  The court noted that escape is usually of marginal probative value, and that more testimony than necessary was given on the subject, but it did not constitute an abuse of discretion.

Not much value for us

D was convicted of murdering his infant son.P put on photographs of the boy’s body, an X-ray, and the body after the autopsy.

403 in action, x-rays and bruise photos admissable, autopsy not admissable too prejudicial and  showed more evidence of the autopsy ratherr than relevent information. 

D was convicted on several charges relating to the Oklahoma City bombing. D attempted to put on evidence that a group known as Elohim City committed the bombing, but it was excluded.

He wanted to call Carol Howe to testify that the group had discussed plans to blow up a building in Oklahoma City.He also wanted to show that the government had a shoddy investigation because they stopped investigating other possible leads once he was arrested.

403 in action - little probative value, confusing to jury, The court held that the evidence was properly excluded - some relevance, because the evidence has a slight tendency to make it less likely that D committed the acts. But very speculative and limited probative valuse.  

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent (subsequent to injury) measures is not admissible to prove:

• negligence; culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

Court will broadly define remedial measures

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

P was injured by a prosthetic leg made by D.During trial, P attempted to introduce letters sent by D to customers after P’s injury, specifying torque levels.P claimed that the letters would show the feasibility of precautionary measures or control.

The court held that the letters were properly excluded under 407. D did not controvert the feasibility of precautionary measures or control.The exceptions only apply if the issues are controverted.

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible. 

Bargaining in settlement is not admissible as evidence of liability

P sued D for patent infringement.  P moved to prevent D from presenting evidence of settlements and compromises concerning the patent. The court held that evidence of unsuccessful offers to license the patent was inadmissible.  D argued that there was no dispute when P sent letters informing companies that they were infringers.

The court said that there was a dispute, which was the infringement.The court then held that evidence of licenses agreed to without litigation was inadmissible.

All the negotiations were compelled by the threat of litigation.The court said that P did not waive its privilege by disclosing terms of the settlements to other parties.

Rule 409.  Payment of Medical and Similar Expenses

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

No dispute is necessary for the rule to apply.

The Rule does not cover statements made in the course of an offer to pay medical expenses. ????

Evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant:

(1) a withdrawn plea of guilty, nolo contendere

(3) any statement made for any rule 11 plea deal 

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussion has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

D was charged with possession with intent to distribute.

D admitted his guilt in a Rule 11 pleading.D later moved to withdraw his guilty plea and then moved to exclude evidence of his admission for impeac.  

The court granted the motion - no impeachment exception to the rule that does not allow pleas to be entered in as evidence.  The court thought that the prospect of a perjury prosecution will ensure truthfulness.A defendant may be impeached with a prior conviction that resulted from a plea.

If a defendant makes a confession not in the course of a plea bargain, it is admissible.

Deals made with those other than a prosecutor may still be subject to the rule if the person acted with the authority of the prosecutor

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.  This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

There is no impeachment exception - insurance cannot be proffered to show lack of credibility, but evidence may be used to show the bias or prejudice of a witness

This applies to civil and criminal cases. Opinion testimony, reputation testimony in community, specific acts or instances, actions, crimes, conduct by defendant

(b) Exceptions - can be used to establish:

1. Character of D or V (criminal aggression/sex cases)
2. Impeach of witness - puts own credibility at issue

However, if D makes it an issue, Prosecution can exploit

DIff between substantive character evidence (victim or defendant) vs evidence to impeach witness (discrediting the witness is allowed)

Always by reputation and opinion.

When an essential element of a crime, proof is allowed by specific instances - more probative value as element.

If it’s circumstantial (not allowed in civil cases, allowed in criminal cases), only by reputation and opinion.

FOr civil cases, only applicable to defamation - which is an essential element of this tort.  

P sued D for payment on a life insurance policy.D defended by claiming there were material omissions on the application.P moved to allow testimony that the decedent had good character and thus would not have submitted a false application.

The court held that the character evidence was inadmissible - barred the use of character evidence in any civil case.

Some courts have permitted character evidence in civil cases where the case is based on a criminal act.

P sued D for defamation over an article saying P was the pan am 103 terrorist (wrong picture included in magazine).  P argued that D should not have been permitted to ask questions of P during cross relating to specific acts of misconduct.

The court held that the line of questioning was proper.

P’s reputation is a central issue in a defamation case because P is seeking recovery on the ground of damage to P’s reputation.

The court stated that character evidence is an essential element only if “it alters the rights and liabilities of the parties under the substantive law.”

Defamation, Child Custody, Negligent entrustment or hiring

(DCE)

Where character is not in play:

Fraud and simple negligence

FN

D was convicted on weak case of transporting stolen motor vehicles. A cop/detective said he was also known as “Fast Eddie.” D argued that P introduced character evidence that implied he was criminal,->unfair prejudice

The court said harmful error -403 bal act should have been used - was not used to show identification; it only suggested a bad reputation or character.

Evidence of an alias, even if prejudicial, may be allowed to show identity, if witnesses or other evidence refers to the alias, rather than the defendant’s name.

D was convicted of bribing an IRS agent; D put on evidence of his good reputation. P asked some of the witnesses if they knew that D had been arrested in 1920 for receiving stolen goods.

D opened door to cross examine character witnesses.  Evidence of honesty and truthfulness was relevant both to bribery and receiving stolen goods. 

Cross-exam can not go farther than 1^o testimony but can be broad when dealing with reputation.  P must show good faith, relevant, good probative value

Two elements

• factual basis - you have good reason to believe that the witness will confirm your question
• Legal basis - evidence must be admissible, must question appropriately, cannot try to weasel in evidence that is improper

Legal basis also relevant to elements - if bribery is charge, then honesty may be relevant (Williams vs US)

Good moral character is a pertinent to criminal actions.

Being law-abiding may or may not be pertinent, but at least one court has allowed it.

D cannot define his own character trait, such as a lack of propensity to engage in drug-dealing.

Honesty/truthfulness is pertinent to bribery and all types of stealing- not pertinent to assault or drug possession.  It is pertinent to determining whether a defendant is insane

D  convicted of assault; said that he reasonably believed brother was in danger of being attacked by the victim.

D attempted to present testimony that the victim had verbally assaulted brother outside the courtroom; violent character was NOT an essential element of D’s defense.

Just because D proves the victim is violent is not relevant where there is no viable self-defense claim.

The new rule allows the prosecution to attack a character trait of the defendant if the defendant offers evidence of the same trait about the victim.

D was convicted of first-degree murder.  P presented evidence showing the peacefulness of the victim. D only objected to one of four witnesses; court held that the objection should have been sustained.

P cannot unilaterally provide evidence of victim peaceful nature - If D tries to say homicide victim was first aggressor, P can provide rebuttal evidence.  

Remarks made in D’s opening statement about the victim’s reputation did not open the door for P to rebut.  D never presented evidence of self-defense or the victim’s character.

D was convicted of knowingly and intentionally transferring an automatic weapon. D presented character witnesses that testified to his reputation as a honest and law-abiding individual. P cross-examined the witnesses and asked if they knew that D was behind on child support and had been accused of sexual harassment.

Character witness can be cross examed if relevant

The court thought that the questions were relevant to show the witnesses familiarity with D’s reputation and character. This was admissible under 405(a) since D opened the door to his character. 

D was convicted of aggravated sexual abuse.D presented witnesses that testified that D was a good father. On cross-examination, P said D was found neglectful by the Department of Social Service.

P permissibly cross-examined the witnesses as to the bases for their opinions under 405(a); P must have a good-faith basis and should discuss in side bar before presenting

However, a hypothetical that assumes facts admitted by D is usually, permissible. D must be careful about opening the door to rebuttal of character evidence.

D was convicted of armed robbery of a credit union. P presented evidence on D’s prior conviction for armed robbery in order to show a plan and identity.

Cannot use prior bad acts to show character - 404 b 1 - but can use it to show motive, plan, design, ID, etc. (404b2)  or when part of a larger criminal scheme including the act charged (e.g., stealing a car to rob a bank) OR when prior bad act was similar and in proximity of crimes.  "signature crime". 

In this case, prev crime was too generic and not specific to show plan, motive, or signature crime.  

D was convicted of unlawfully distributing controlled substances.  P presented evidence that D made the prescriptions in return for sexual favors.Evidence was properly admitted because it was used to show motive for writing the prescriptions.

The evidence had significant probative value because the motive for prescribing the drugs was unclear.

Affiliation with a gang has been admitted as probative of a motive for murder of a stranger. 

D was convicted of armed robbery.D argued that she was under duress. P introduced evidence that D participated in armed robbery of a sporting goods store one month after the bank robbery.

The court held that the evidence was properly admitted.

because it rebutted D’s defense of duress - showed D willingly participated in the criminal acts of the group. 

If this were used to show plan or identity, it would probably not be admitted

Martinez drove Serrano to airport; claimed he had no knowledge of drug trafficking. P presented evidence of Martinez a 10-year-old heroin importing conviction and a cocaine conviction to show knowledge.

The court also held that the prev. conviction was properly admitted for Martinez- close case, but it still explains that he knew why he drove Serrano to the airport.

Prior acts mus be used to something other than propensity (such as lack of knowledge)  If the acts are too dissimilar, they may not be probative of intent or knowledge and may be only for propensity purposes.

D was convicted of murder and other charges related to mistreatment of her foster son.  P introduced evidence that 7 children had died under D’s supervision; court held that the evidence was properly admitted.

Although the evidence against D for any particular child’s death was insufficient, the combination of events was overwhelming.  This is essentially probability or pattern evidence (normally disfavored in criminal trials).

Rule 404(b) is open-ended. 403 balancing in this case.

D convicted of possession with intent.  P sought to put in evidence of Crowder’s sale of crack to undercover officer after his arrest for this prosecution in order to show knowledge and intent. D offered to stipulate to the element of intent but P wanted actual evidence of arrest to show intent, knowledge, MO.  

Court allowed the evidence even though offer to stipulate given because probative value of evidence was good to show knowledge and intent and possession.  

D was convicted of selling stolen property . P called a witness who testified that D had sold him televisions for very inexpensive prices a couple of months earlier.

Court allowed W because evidence of prior acts was relevant and “jury can reasonably conclude that the act occurred and that the defendant was the actor.”

Evidence of a prior bad act for which D was acquitted is also OKas is prior arrest but only if there is more evidence that D actually committed the act arrest alone will not be sufficient.

There is a four-part test for bad acts evidence:

1) Must have a proper not-for-character purpose.

2) Must be relevant for that purpose.

3) Must be assessed under 403.

4) Limiting instruction must be given.

When the probative value and prejudicial effect are even, the evidence should be admitted.

Prosecution must inform D that it will use prior bad acts

404(b) can be used to get character evidence in civil case

Two requirements:

1) The evidence must be habit evidence, in other words a regular response to a certain repeated situation.

2) The habit must be tied to conduct in the case.

The more general the evidence, the more likely it is to be character; more specific it is, more likely to be habit.

Voluntary, conscious, moral choices = character.  Automatic, unconscious behavior = habit.

Habit – “non-volitional activity with substantial regularity.”

P sued D for wrongful death arising out of an incident where D shot P when questioning him about a traffic accident. D presented testimony from four police officers that they had been involved in violent encounters with P on several occasions. D used the testimony as both character and habit evidence.

c.The court held that it could be admitted as habit evidence.

i. P had a habit of reacting violently when confronted by police officers.

ii. The number of incidents was small (5), but the trial court prevented D from showing several more incidents.

d.This may be character evidence masquerading as habit.

e.Methods of proving habit:

i. Testimony that a person acted in a particular way on several occasions and did not act differently on similar occasions.

ii. It is probably beAndest for a witness to testify to personal knowledge of the conduct of the person on several occasions.

f.There needs to be enough sampling and a uniformity of response.

g. If the instances are few or spread out over a long period of time, habit is less likely to be found.

h. As the court in Ginter noted, the Advisory Committee Notes reject the circumstantial use of character evidence in civil cases.

1. circumstantial use of character evidence is not permitted in civil cases - only in defamation
2. In a criminal case, prosecution may not offer character evidence of def or victim to prove conformity (fast eddie) unless offered by defendant (cross in good faith - arrested 10 years ago)
3. If defendant argues deceased was first aggressor, prosecution can offer cross of deceased character
4. Character evidence can be used for motive, signature crime, intent, preparation, knowledge, ID (Gomez).   
5. Habit evidence allowed to show conformity to habit

Gomez objects cocaine evidence based on 404 b1 (evidence of a crime is not admissible to prove character or propensity).  P argued that it shows Gomez's identy as Guero rather than Reyes; cts rule it should not have been admitted, but was harmless error because Gomez met undercover cop and had cocaine when arrested - identity evidence which is allowed in 404b2 only when ID is at issue.  

403 balancing test still required to see if too prejudicial

(a) General Provision.  The requirement of authentication or identification is satisfied by evidence showing that the matter in question is what its proponent claims.

(b)some examples include:

(1) Testimony that a matter is what it is claimed to be by someone with knowledge (yes, this is my house...)

(4) Distinctive characteristics and the like.  Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

D was convicted of aggravated robbery argued that his counsel should have raised a chain of custody objection for the wallet he robbed - police did not have full chain.

The court held that D was not prejudiced by the failure to object; Proper chain of custody shows:1) tracing item from arrest to property envelope, 2) establishing security and limited access to the envelope, 3) Tracing the item from the envelope to the court.

full chain of custody not always needed when object cannot be easily altered or substituted (like a wallet with girlfriend pictures and IDed by police and victim) 

Barry bonds accused of perjury when he swore to police he did not use PEDs.  His urine showed that he did.  Challenged chain of custody.  

Trainer Greg anderson would not authenticate the blood and urine samples came from Bonds -0 breaks chain of custody - log sheets showing these are Bonds samples full of PEDs was not admitted.  

Evidence that can be easily substituted must have full chain of custody including testimony of person with knowledge 

Rule 901 says evidence sufficient to support what the item is claimed to be is required.  

Cop downloads photos from cell phone, appeared to be Mr Gray holding handgun, cops testifies as such, good enough evidence because cop knows Gray sufficiently enough and it is clear he is holding gun.  

Jury can always put more or less wieght but the evidecne is validated. 

(b)(4) Distinctive characteristics and the like taken in conjunction with circumstances.  

(5) Voice identification.  Identification of a voice whether heard firsthand or recording, by opinion 

(6) Telephone conversations.  Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (b) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

Example of the voice can be heard at any time

wiretaps may be harder to hear, must provide foundation for recording, can the jury reasonably conclude what was said?

A person identifying himself during a recording is not sufficient alone to prove it was him saying it.  other evidence required such as reply technique, number dialed or where number originated.  

D’s were convicted on drug charges, argued that tape recordings of intercepted phone calls and the transcripts should not have been used at trial.

The court held that they were properly admitted b/c voices were properly identified because 1) witness had several conversations with D’s. 2) recording was intelligible enough to be admitted. 3) transcripts given with limiting instructions to be used to assist in hearing the tapes., 4) witness only needs minimal familiarity with a voice to be able to identify it.  Low bar of admissability of evidence. 

901 then 401 then 403 is the proper analysis

Not admissibility and authentication are different things

D was convicted of bribery, one witness testified to a telephone conversation allegedly had with D. D argued that the witness could not properly identify D because the witness could not identify his voice and had never met him.

The court held that the authentication was sufficient.  The witness had been speaking to D’s wife earlier in the conversation; D referred to the lady as his old lady.

Does not take much to be able to ID voice by witness. 

do not always need handwriting expert.  

2) Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

3) Comparison by the trier of fact (JURY) or by expert witnesses with specimens which have been authenticated.

4) Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

D was convicted of conspiracy to commit extortion and several other charges. P introduced testimony as to the contents of a note allegedly written and passed by D at a meeting.. D argued that the note was not authenticated.

The court held that the trial court properly admitted the testimony. A writing does not need to be authenticated by handwriting. Wide variety of Circumstantial evidence may be used to authenticate a writing.  

Evidence that proves a public record or report includes

evidence that a document was recorded or riled in a public office as authorized by law 

or 

Evidence that a purported public record or statement is from where the items of this kind are kept.  

These are examples of evidence that needs no additional evidence of authenticity - they are self authenticating. 

Document with a seal or a signature

Certified official records, official publications, newspapers, product labels, notary public signed documents.

Note even if document is authenticated, it still may inadmissible under other rules.  

Emails may be authenticated under Federal Rule of Evidence 901 using the same ways for paper documents.

Key factor for authenticating emails is that jury must be able to reasonably find that the email is what it is said to be and from who it is from.  

If email address is not clear who the person is such as  (merritdc@aol.com) the ID can be reasoned from body of email.  

Same standard for text message - can jury reason.  

US vs Caldwell

Wanted to exclude prior conviction for possession of firearms when under charge of illegal possession of gun

4 part analysis for any 404 b2 evidence - must be 1) a purpose that is "at issue", 2) must explain how evidence is relevant to that purpose, 3) have chain of inferences and how it connects evidence to the issue and not related to propensity, and 4) court must articulate their reasoning for admitting evidence.  

403 balancing then still performed for all motions in liminea.  

Allowed exceptions only allowed when there is something in contention 0- like ID - motive, plan, etc. serial activity is when 404 b witnesses come into play  

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Chatroom evidence was acceptable even though they were not complete and had opportunity to be altered - 

Only need prima facia case that chat room logs were authentic

These objections and concerns go to the evidentiary weight of evidence rather than their admissibility

P sued D, alleging that D owed P commission on products sold after P was terminated. The trial court allowed testimony on the contract between P and D. The court said that the testimony was properly allowed b/c the contents of the written contract were being proved. However, P conducted a good faith search for the originals and could not find any.  Thus, the 1004(1) exception applies.

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—

(1) Originals lost or destroyed or not obtainable, unless the proponent lost or destroyed them in bad faith; or 

(3) Original in possession of opponent.  At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing.

Proof of marriage without marriage certificate.

Proof of payment without check or receipt.

Proof of salary without the books.

These are questions of substantive law.

If a witness is not trying to prove the contents of a writing, the document need not be produced and testimony can be used instead. to show things like Existence, Delivery. or Execution of the document.

P sued D for copyright infringement. P had no originals and attempted to show post-infringement reconstructions of his copyrighted materials.The trial court held that the best evidence rule applied.

The court said that the drawings were material to assess infringement, so their content must be proved.

P could either produce the originals or show that they were unavailable through no fault of his own

Because P could not make this initial showing, he could not get to the jury to determine the accuracy of the

D was convicted of transporting a motor vehicle known to be stolen. An FBI agent testified that in the car was found a shirt that had “DUF” written on it. D argued that the t-shirt should have been produced under the best evidence rule.

The court held that the testimony was properly allowed.

When an item is both a chattel and a writing, a judge has discretion whether to apply the rule. Here, the laundry mark was simple, so there was not a great chance that the witness would err. and was not central to the case. 

D was convicted on a drug charge. A witness testified to a conversation between D and another person that was tape recorded and monitored by the witness.  D argued that the best evidence rule required the original recording.

The court held that the testimony was proper. The best evidence rule does not apply here because the witness was proving the content of the conversation, not the contents of the recording, based on personal knowledge

Is the evidence offering:

A writing to prove the contents thereof?

Is there a genuine dispute to the authenticity?

If not the original or a duplicate, is the party justified for non-production?

i.Lost or destroyed?

ii.Unobtainable?

iii.In possession of opponent?

iv.Collateral matter?

P sued D for negligence and breach of warranty for a fire that allegedly resulted from D’s product. P testified to literature given by D that had been lost in the fire.

The court held that the testimony was properly allowed. The court said that there are no degrees to secondary evidence.  Thus, once 1004 is invoked, any secondary evidence may be used.

A trial judge has much discretion under 1004.

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness may state an opinion regarding the mental state or condition constituting an element of the crime charged or of a defense thereto.  Such ultimate issues are matters for the trier of fact alone.

D was convicted of distributing controlled substances. Three "lay" witnesses (2 nurses and a doctor) were asked if they thought D intended to issue the prescriptions for a legitimate medical purpose. P objected, sustained.

The court held that the objections were properly sustained.  None of the witnesses had been present when the patients met with D; - they had not rational basis of perception.The government’s introduction of expert testimony on the subject does not mean that D can rebut with lay witnesses. 

D was convicted for statutory rape.  D argued that he had a reasonable belief that the 15½ year-old victim was over 16.  Several witnesses were not allowed to testify that they believed the victim to be over 16. But should have been allowed.  

The witnesses clearly have a basis for their perception and their perception helpful to the jury in determining whether D had a reasonable belief. Also, age is something that any lay person can assess.  Finally, the beliefs of the witnesses were extremely relevant to determining whether D’s belief was reasonable.

D was convicted of tax evasion.  A witness testified that D "must have known" that he was evading taxes, Which  should have been excluded.  Harder to meet the 701 standard when the opinion concerns intent or knowledge.

If a witness must have objective factual bases for his opinion; Lay opinions to knowledge and intent will be most helpful when it is based in part on the person’s experience or history.

Was testifying re state of mind (subjective) vs opposed to physical appearance in Yazzie. 

P sued D for an injury on an oil rig. A co-employee testified that P caused the accident himself; P argued to not allow testimony because it did not assist the jury.

The court held that the testimony was improperly admitted b/c it tells the jury what result to reach (legal conclusions/ultimate issue).  causation, which is something for jury to rule on - took the decision out of jury hands - therefore inadmissible lay opinion.  

However, testimony that a police officer was out-of-control and that another officer was going to file an excessive force report was admissible.

D was convicted of possession with intent to distribute.D set up an elaborate drug deal where he used two cars, only transferred small amounts of the drug at a time, and circled the parking lot several times.

Law enforcement officers testified as lay witnesses that these actions constituted those of a big-time drug dealer. The court held that this was really expert testimony and should have been excluded under 701.  However, the officers based their testimony on their training and experience.

P sued D for wrongful death of P’s son.  D, a police officer, shot P during an altercation. P presented an expert witness who was in law enforcement for many years.  He had some education, was fired twice. He didn’t have training but rather experience.

The court held that he should not have been allowed to testify as an expert. Because his knowledge was based on experience and not training, he needed firsthand experience with the effect of discipline and deadly force training.

Because of the leeway given experts on what they can base their opinions, courts go far in requiring experience and training. qualification of an expert is decided under 104(a).

a.The court decides for itself.

v. Experience alone can be sufficient for qualification.

vi. Courts can be strict on the subject areas on which an expert can testify.

vii. Courts may require a specialized expert if the testimony is on a specialized subject matter.

a. However, too strict a requirement means that the only people who can testify will be ones who work for industry defendants.

viii. Experts may be permitted to switch sides, but usually not if other experts are available.

a. Ordinarily, an expert will not be able to refer to the fact that he was hired by the other side unless that party attacks his qualifications.

koonts fleeing from po po - police stomped on his head, running kick in stomach - multiple injuries.  did not preserve evidence for appeal because plain error should have allowed the specific issues in the lay opinion. 

Key lay opinion was if there was any reason for the violence - other officers testified as lay wintness that it was reasonable force.  

had expert testimony who was not there and said reasonable force, and the 701 officers who were there to see and can provide preception that force was reasonable. 

P sued D for slip and fall at Sears sidewalk.  P presented a human factors that the sidewalk was an accident waiting to happen.The court held that human factors experts could be experts under Rule 702.

The court held that her testimony that the broken part of the sidewalk could not be seen was common knowledge (not proper testimony for expert witness) 

Her testimony as to the color of the sidewalk causing the eye to fill in discontinuities was proper expert testimony. Her testimony that it was an accident waiting to happen was prejudicial

D was convicted of murder; given a polygraph and sought to present the scientist who conducted the test, but the trial court did not allow the testimony because was not accepted (at that time) as generally accepted by relevant community.  

old standard - Daubert now is the current standard. 

Under Frye, the polygraph would still not be allowed today. One problem with this test is defining the relevant community -You don’t want to define it too narrowly or too broadly.

Expert witnesses scientific knowledge does not need to be "generally accepted" to be admissible.  New rule is flexible.

Bendectin could cause birth defects in Daubert kids, daubert had 8 experts saying it "could" cause defects based on techniques that were not "generally accepted" in vivo and vitro testing - must  assist the trier of fact and be "scientific knowledge"

First need to prelim determine validity with Rule 104(a) with weighted factors for testability of methodology, peer review publications, potential error rate, if it is generally accepted

(a) Statement. an oral or written or nonverbal assertion - even a recipe book for making meth 

(b) Declarant.  a person who makes a statement.

(c) Hearsay.  is an out of court statement made by someone else 

(d) offered in evidence to prove the truth of the matter asserted - 'its raining in vermont" can be used to show someone was in vermont but not that it was raining

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

P got in a car accident with someone who P claimed was insured by D. D said policy holder verbally terminated insurance and took back the check.

This was not hearsay.  The statements were used to show the oral canceling of an agreement - not to prove truth of what the policyholder said or the terms of the contract only that he made the statement.  Oral agreements needs to allow hearsay and prolly admissible

 Does not matter what the parties were thinking when they entered into contract - plain and obvious meaning -   similar rule to contracts.  

D made threatening statements to a judge and an attorney. The court held the statements to be non-hearsay.

They were not offered to prove the threats, only to describe what threats were made.  

Even though statement was in court, still potentially hearsay because was not under oath. 

Fraudulent statement is also not hearsay if offered against the Def as proof of fraud.  

Not just when you hear something and then restatement - can also include non verbal conduct if intended as an assertion (such as pointing a finger at the attacker)

Try to get in the statement in court in another way - not sure how - such as not to prove the truth of the matter asserted.  is it a statment, and did declarant intent it to prove the truth of the matter.  

COmmon alibi scheme or conspiracy for murder for hire - statement offered to prove alibi was false - that they made alibi up and it was therefore a false alibi - but was not entered into trial to prove an element of the crime.  

tripped in dimly lit parking lot that was slippery

plaintiff tried to bring in evidence that D knew that the parking lot was slick when wet - D objected re hearsay

cts ruled was not hearsay because trying to show that the def knew that it was slick - not to prove that it was slick. 

was NOT included to show that the Def knew or should have known that it was slipery - but was presented because to show that there was evidence of complaints of slickness

imprisoned for murder, 99 year sentence, 

wanted to include hearsay to show state of mind of husband who knew his wife was having affair - not to prove that he killed her - it was his state of mind/intent.  

The prosecution offered evidence of a drug recipe.

The court held this not to be hearsay because it was not used to prove the truth that he was a drug trafficker - was entered for inference to be drawn that wicks knew how to make meth as part of drug trafficking.

Drug ledgers have been admitted as non-hearsay.

Testimony may be excluded when it s probative value is dependent on the truth of an out of court statement upon which the witness relies.

found guilty of murder - potential hearsay evidence of his bloody shirt worn on day of murder - some nonverbal conduct was admitted that the shirt given by wife saying that the murderer wore this on day of murder

Ct ruled that this was hearsay as it was offered to prove the fact of the matter that this was the shirt he was wearing on night of murder

implied assertion here with the nonverbal motion re that the shirt was worn on day of murder

video evidence - conviction of posession of cocaine - 

video evidence was not hearsay because it was not the persons intent to make the assertion - videocamera does not have the ability to make an assertation - video is not hearsay.  

therefore video evidence is not indended as assertion and therefore allowable and not hearsay.  If there is audio that shows a fact of the matter, they can mute it so that it is not hearsay.  

Guy tried for armed robbery - at trial gov introduced several witness re robbery and cashing of money orders, etc.  Linked by three women who accompanied the defendants said that Livingston stole the money to POSTAL INSPECTORs NOT under an oath statement, then at trial said she did not remember what she said and that she did not understand oath aspect of the statement

Judge gave instructions that either statement could be regarded as the truth.  But previous testimony was found to NOT be under oath, therefore not admissible.  

d (1) Declarant witness prior statement

1. declarant in-trial testimony/statement that is subject to cross examination AND 

(A) Statement is inconsistent with declarant's previous testimony given under oath penalty of perjury

OR

(B)statement is consistent and is offered to rebut and charge that the declarant recently fabricated  the statement OR to rehabilitate declarants testimony

How consistent previous testimony can rehabilitate a witness: 

Declarant recalling statements made by victim AFTER Father implied daughter accused him of sex abuse was motive to lie so she can live with her mother

 statements recalled from declarant were made AFTER motive to lie came up - Ct said that a consistent statement for rehabilitation must come BEFORE motive arises

witness works with prosecutor and statements before working with prosecutor are consistent and admissible

Used to rehabilitate testimony to make it consistent

previous statement IS consistent and is offered:

1. to rebut an expressed or implied charge that the declarant recently fabricated  OR
2. rehabilitate the declarant's credibility as a witness when attacked on another ground

(d) Statements which are not hearsay.  A statement is not hearsay if –

(1) Prior statement by witness.  The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

(C) one of identification of a person made after perceiving the person.

severity of injury kept prison guard from being able to recollect his memory - but he originally indicated in hospital that he was the person who attacked him but could not recall during trial due to head injuries. 

Similar to scared witness who ID attacker in line up but does not point them out in court.  

basis for identification is OK when there is memory loss - 801 d 1 c

801 d 2(d) Statements which are not hearsay.  A statement is not hearsay if –

Admission by party-opponent

The statement is offered against a party and is

(A) the party’s own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 

D was charged with willfully not paying taxes.  D offered the testimony of his accountant who was going to testify as to statements made by D. The court held that this was not hearsay and not excluded.

 The declarant does not have to have personal knowledge of the truth of the statement.  An admission does not need to be incriminatory or against interest.  One defendant cannot use the admission of a co-defendant in his trial.

Moms son dies at hands of police, mom sues popo for excessive force.  Mom and others saw son in jail on day of arrest when he motioned that officer Deeds did this to him.  Deeds saw this did not deny this to Mom or other witnesses.  

Silence can be an admission, but only when the defendant would be induced to respond - proof that he heard, understood and silence was meant to be admission/acquiescence of excessive force

Hoosier’s girlfriend made statements made in presence of Hoosier re money from a bank robbery to a witness.  Hoosier maintained silence.The court held that the silence WAS hearsay - silence is not admission for a criminal trial.  

Test used here was "probable human behavior would have been to promptly deny the allegation rather than be silent

Mahland sued Center for injuries from a wolf attack on child.  Mahland wanted several out-of-court statements such as a note on president's door re wolf bite, words said to president and that incident was also discussed during a board meeting with minutes. 

The court said first two statements were admissible against both D’s because they were the person’s own statements, and were made in scope of employment. 

Minutes also admissible a because they were authorized to make statements on the agenda of the meetin - OK for case against center but not case against Mr. Poos

Hill sued Speigel for wrongful termination based on Hill’s age. Hill introduced the testimony of a district manager re conversations he had had with various employees.

Spiegel  argued that these were hearsay- court agreed because Hill did not show that the employees were in the scope of employment when statements made - district manager was not part of the decision process to fire Hill. 

employee’s statement may be admissible against another employee if there is a principal/agent relationship.

A lawyer’s statements may be admissible against a client.

The Sup Ct said that existence of a conspiracy and membership therein must be established by a preponderance of the evidence and can be shown by:

Hearsay statement itself and other hearsay statements may be admitted to prove the conspiracy - but hearsay statement is presumed unreliable and can be rebutted.

Individual pieces of evidence may be insufficient alone to prove a point, but they may be sufficient when taken together.

Ciresi was a lawyer convicted of bibery, statments made by a council board member about Ciresi was offered. There were two bribe schemes, one for supermarket another for a mill.  

Statement made in furtherance to the bribe scheme were admissable, 

NEED MORE

City sued Harcros for engaging in a conspiracy to fix prices of chlorine.City sought to introduce admissions of the former president of defendant that he was engaged in price fixing through the testimony of two friends of the declarant.P also sought to introduce the testimony of a widow of a sales manager of a defendant, who had told her about what the vice-president said.

The court held that the former president’s testimony was admissible under 801(d)(2)(D) as an admission by an agent to a matter within the scope of his testimony.

The court held that the widow’s testimony was double hearsay.

A declarant is considered to be unavailable as a witness if the declarant is:

1. exempted from testimony of subject matter by court -normally after 5th amendment is presented
2. refuses to testify despite a court order to do so
3. testifies as not remembering subject matter
4. death, physical infirmary, mental illness
5. proponent has not been able to get declarant in court

Pelton was charged with violations re prostitution.  prostitutes testified at a grand jury proceeding in return for use immunity, but her testimony caused her to be indicted.

Pelton  sought to use her grand jury testimony and assumed that she would invoke her privilege - but she did no. The court held that D failed to show that she was unavailable because she had not already invoked the priv. It was totally speculative that she would invoke

More is required than just the witness asserting the privilege; the judge must allow the privlidge.

One court has held that a defendant may not assert his 5th amendment privilege and then produce prior testimony under the unavailability exceptions.

declarant suffered memory loss from an accident after the event but never proved that lack of memory was permanent - 

witness remembered some general issues of conversation but not specific details.  court agreed that the witness was unavailable and allowed the hearsay statement.  

witness was not available becuase in hospital - judge refused to allow continuance due to desire for speedy trial and allowed the testimony under temporary disability.  

Court said that judge should have adjourned for reasonable period and should consider:

• importance of the witness
• nature and extent of cross in earlier testimony
• nature of the illness and expected time of recovery
• reliability of the evidence during the illness
• special circumstances

Mathis was convicted for armed robbery.  A witness testified at a previous trial, but she was inadvertently released from prison before the second trial and could not be located.The court held that this was not procurement of wrongdoing by the government.

The government made reasonable attempts to find her. The prison guard didn’t know she would need to testify.  The government’s refusal to immunize a witness does not constitute wrongdoing by the government to make the witness absent.

1. Former testimony given as witness in trial and now offered against someone who could have cross examined witness in earlier trial
2. Statement under the belief of imminent death
3. Statement against own interests
4. Statement of personal or family history
5. Statement offered against party that wrongfully caused the declarant's unavailability

P sought to use depositions from earlier cases of a Johns Manville doctor who had since died. The court held that the depositions were admissible under 804(b)(1).The defendant in that was a predecessor in interest because it was a subsidiary of D.

This is a broad reading, but not as broad as some courts have read it.The parties had a similar motive, issues were the same - irrelevant that P sought recovery on a different theory.

Quintana was convicted of voluntary manslaughter.

The victim, while in the hospital and near death, told an attorney about the circumstances surrounding the shooting.The court held that this was a dying declaration.

A decedent does not need to say he is dying or be told hat he is dying, as long as it can reasonably be inferred that he knew of the danger.

b. The victim knew that he was very seriously injured, and he died soon thereafter.

c. He was also hooked up to a lot of machines.

Rule 801 corroborating evidence for C D and E

NEED TO ENSURE THIS IS IN NOTES

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Must have corroborating evidence under C D and E for it to be admissible as non hearsay

An attorney's previous opening statement on behalf of a criminal defendant is not per se inadmissible against that defendant in a subsequent criminal trial.

To be admissible, the earlier statement must: (1) assert a fact clearly inconsistent with one asserted in the subsequent trial; (2) be clear such that jury does not need to review previous trial, (3) be the equivalent of what the defendant would have testified on his own ; (4) establish, by a preponderance of the evidence, the fairness of whatever inference the prosecution hopes the trier of fact will draw from the inconsistency; and (5) establish, by a preponderance of the evidence, that there is no innocent explanation for the inconsistency.

Only Self-inculpatory statements are admissible via hearsay (self interest rule) - statements that also include incriminating statements against others not admissible - 

Harris arrested when cocaine found in rental car, said to DEA that he was taking cocaine to williamson, who was travelling in front in another car.  Williamson was subsequently charged, harris refused to testify but judge allowed DEA to testify re Harris statement due to rule allowing statements against own interests.  Sup Ct said only self-inculpatory statements allowed

Paguio charged with falsifying loan application, Paguio father filled out loan application and tried to say that he as father was responsible, son had "nothing to do with it".  Father then fled and was not able to testify.  Court allowed testimony of father implicating himself but not exculpatory testimony for his son.  

Court said both self incriminating and other-exculpatory testimony regarding son should be allowed.  CIRCUMSTANCES OF EACH CASE MUST BE CONSIDERED - JUDGE CAN DETERMINE - KEY TO ALL ANALYSIS - JURY CAN DECIDE IF BELIEVABLE - is it trustworthy?

 Hamas made postsings saying they were responsible for bombings -Website postings are statements - and when they are made against interest of defendant they are admissible.  

This was not a criminal trial - civil suit - still allowed statements against own interest

Even though there are other motives to claim responsibility of crime - motives for boasting of crime still allows the statement as a exception to hearsay

804 b 4 - statements are allowed related to birth, adoption, marriage, divorce, death etc.  

804 b 6 - statements are allowed that are against a party's interest that wrongfully caused the declarant's unavailability (if you said you murdered so that he could not testify). 

Statements are allowed even when declarant unavailability when

(1) a statement describes or explains an event or condition made while or immediately after the declarante perceived it.  

Still need corroboration

Brewer convicted of robbing bank - eyewitness evidence of car and plate - but four eyewitnesses in the bank did not ID him in lineup - 

Def was not able to cross mccabe police officer and thought rule 801 applies, he should be available.   Wanted to rely on 803 present sense and was allowed - compare bank employees present sense impression and the lineup which was not a present sent impression - therefore 803 present sense impression does NOT apply for lineup.  needs to be contemporaneous immediately after event. 

Polidor was convicted of possession crack; two 911 calls were admitted into evidence.  One was anonymous. 

These were present sense impressions and therefore allowed in 803 even though is traditional hearsay. 

911 calls were made while or immediately after the event - was allowed. must have personal knowledge of event.   

Case by case determination, but 15-45 or more minutes after event is not contemporaneous - did they have time to think about the event and misconstrue the facts. 

803 (2) - Exceptions to hearsay due to excited utterance

stopped

A statement is not excluded that related to a startling event or condition made while the declarant was under the stress of excitement that it caused. 

duration of time when the exited utterance occurs can be longer than that considered in present sense impression

get key notes undrelined on page 770 - said good for test

four circumstances to determine if excited utterance is allowed after a period of time on page 771 - get into note. 

Marrowbone was convicted for having sex with a 16-year-old boy while the boy was unconscious.  After the incident, the boy was arrested for drunkenness, at which time he made statements to the police about the incident.

The court held that the statements were inadmissible.

due to 1) Lapse of time, 2) if statements were a response to an inquiry, 3) Age of decl.4) reason to lie

Other side would argue that it was fact driven and made still under the stress of the event - and embarrassing - should have been allowed.  

Boyce arrested for illegal possession of firearm.  Boyce said that 911 calls from wife saying he had weapon should not be allowed as it was not an excited utterance.  She recanted and tried to block 911 call.

Court allowed under excited utterance. 

Broader scope of subject matter coverage standard and easier requirement of excited utterance allows the call to be admissible in court.   excited utterance is "related to the event" whereas present sense impression is" limited to describing or explaining the event"

Hillmon sued Insurance to collect insurance proceeds from her dead husband.  D thought her husband had shot someone else and then pretended to be dead.D offered a letter from a third party that said that he was going on a trip with hillmons husband (supposedly after hillmon died). The Court held that the letters were admissible because present state impression.

Letters could be used to prove that the victim had the intention of going somewhere with D’s husband. This made it more probable than not that he actually did go with D’s husband.

Shepherd was accused of poisoning his wife. P sought to put on evidence of statements by the ex-wife shortly before she died that he poisoned her.  The Court held that this was not a dying declaration because there was no proof of a reasonable expectation of imminent death.

The Court also held that it was inadmissible as a present state of mind because it related to past acts.

An exception to the statement of memory or belief is for a continuing state of mind.

made for and related to medical diagnosis or treatment 

AND

describes a medical history, past or present symptoms, inception of symptoms, or general cause of symptoms

Rock sued Huffco for an injury suffered during employment. Rock made statements to doctors about his injury that including how he received the injuries at work and how it was the fault of Huffco.  

The court held the statements about how he received the injuries were not admissible. The court looked at the testimony of doctors who said that the statements were not reasonably pertinent to diagnosis or treatment.

The statements do not need to be made to a physician or the injured person.  Statements attributing fault are not admissible.

• timing and circumstances under which the statement was made
• declarants motive in making the statement and if there was a reason to lie
• did declarant repeat the statement
• the party of parties to who the statement was made - if they trusted the party makes it less reliable
• relationship between declarant and the opponent of the evidence
• nature and strength of the independent evidence relevant to the conduct in question

Forfeiture by wrongdoing exception - when the statement is allowed because it implicates self or acquiescence/agreement of conspiracy of the killing of the declarant. 

Drug gang in baltimore - non gang drug dealer was murdered - gang member said that another gang member was assigned to kill him - shot him multiple times but did not kill non gang drug member.  Was killed the second time

Statement was admissible because consipracy work of gang to silence the declarant by killing him.  

THis is not excluded as hearsay: A record that 

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; AND

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Williams was convicted for intentionally cashing government checks with forged endorsements. One witness had adopted a statement that he contradicted during his testimony. The statement was read by the witness to the jury.

The court first held that even though the witness didn’t write it, it could be admitted under 803(5) because the witness adopted it by signing it contemporaneously. Any of the inconsistencies should have gone to weight.

Dotson convicted of drug charges & he objected to the admission of a police report detailing the statement of a government witness to the police. Sergeant Anderson said (first level) that Young (gov witness) said that he carried marijuant for Dotson (second level).  

First appeal rejected the claim because ct said that 805 (hearsay within hearsay) does not apply to prior consistent statements (801(d) 1).  

The court reversed its opinion and said the report was inadmissible because the second level of hearsay (the witness’s statement to the police) did not qualify for any exception - this one part of the combined statement did not qualify, therefore must reject as hearsay.

Towns convicted of manufacture meth and possess psuedoephedrine.  Logs of buying pseudo-e were introduced from pharmacies and combined by popo.  

Towns said should be rejected because not true business records (RULE XX) and not properly admitted by someone with actual knowledge of records (popo).  

Both arguments rejected.  business records or regular records made conteporaneously no reason to question.  

Also entered properly with affidativ of testimony accurate

Palmer sued Hoffman D over a train accident.Hoff man received a statement by the train engineer two days later. The Court held that this was not admissible - not made in the regular course of business - Rather, it was prepared in anticipation of litigation.

Courts have allowed records prepared in anticipation of litigation when they are unfavorable to the party who prepared it. Records are not admissible just because they are trustworthy.

Computerized records are admissible as long as they are normal business records.

Records showing (A) the activities or matter observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel, or

(C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Rainey sued Beech over a plane accident. Beech sought admission of a report with opinions and conclusions.The Court held that it may be admissible. Reports in the form of opinions or conclusions are not excluded because of that fact under 803(8)(C).

They only must be based on factual findings and trustworthy.

(8) may allow public records that are not kept regularly and contemporaneously and does not required testimony or affidativ certification. 

(6) are for records kept regularly for regular activity - record must be made by someone with knowledge, ordinary course of business, requires testimony or certificate authentic, and opponent does not show lack of trustworthiness.  

(8) may allow public records that are not kept regularly and contemporaneously and does not required testimony or affidativ certification. 

(6) are for records kept regularly for regular activity - record must be made by someone with knowledge, ordinary course of business, requires testimony or certificate authentic, and opponent does not show lack of trustworthiness.  

1. present sense impression
2. Excited utterance
3. Then existing condition
4. Statement of med diagnosis or tx
5. Recorded recollection
6. Regular records
7. Public records
8. Birth, marriage certificates, family records
9. Reputation concerning character
10. Judgement of previous conviction

1. Criteria met: court rules that privilege applies, refusal to testify, does not remember, death, unavailable 

Exceptions when declarant unavailable - testimony allowed

1. former testimony where cross was available
2. imminent death
3. statement against interest that is corroborated
4. family history
5. statement re wrongful cause of declarant unavailability

Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay:

• The statement has equivalent circumstantial guarantees of trustworthiness and it is offered as evidence of a material fact
•  it is more probative on the point AND
• admitting it will best serve the interests of justice.

(b) must give averse party notice to address statement

• Confrontation clause - criminal defendant has right to be confronted with witnesses against him.
• Two purposes - to cross examine witnesses against defendant and to give jury opportunity to determine reliability of witness.  
• Hearsay clauses generally not subject to cross exam, but still hearsay in criminal defense cases get approved regularly.  
• Application of confront clause in hearsay mostly for forfeiture by wrongdoing (D kills witness) or dying declaration

Statements made to assist police in addressing an ongoing emergency are not testimonial for Confrontation purposes (therefore do not need to be able to be cross examined) because they are not made for the primary purpose of creating a record for trial.

Bryant convicted for murder of Covington who said that Bryant killed him when police arrived in response to shooting - Covington then died at the hospital. 

Testimonial statement are related to proving the case and therefore must have ability to be crossed by counsel.  Covington's dying statement was not testimonial because it was made to police to manage an ongoing emergency (is there a gun murder walking around).  

Testimonial statements of witnesses not present at trial are admissible only when the declarant is unavailable and the defendant had a prior opportunity to cross exam.

Crawford convicted of attempted murder of a man who supposedly tried to rape his wife.  Wife gave description of the stabbing to the police who recorded it and the tape was used in trial (wife could not testify against spouse as marital privilege). 

Court said wife's recorded statement was not admissible because it could not be crossed and was used for the primary purpose of creating a record for trial.

Out-of-court statements made to persons other than law-enforcement officers are not excluded from admission into evidence by the Confrontation Clause.

Clark's child said to school nurse that dad hurt him and gave him the bruises.  These statements made by child to nurse were used to convict Clark of child abuse.  

Statement made to non enforcement officers are generally admissible. This is borderline case as teachers have the duty to report abuse to law enforcement.

It is not a violation of the Confrontation Clause to admit a defendant’s confession implicating a co-defendant if the confession has been redacted to omit any mention of the co-defendant and the jury has been instructed not to use the confession against the co-defendant.

Marsh, WIlliams and martin charged with assault and murder.  Marsh said she was innocent, but Williams earlier confession implicated marsh and marsh was convicted.  

if confession implicates another, it can be used if redacted and jury given proper instructions.

Out-of-court statements made by a codefendant that incriminate another defendant are inadmissible at trial even with a limiting instruction or if the name of the defendant is deleted.

Bell confessed to police that he and Gray killed someone.  Bells confession was admitted in court; Gray's name was deleted and jury had limiting instructions. 

If there is only a deletion of a name, then it is inadmissible as the "delete" reference is too closely related to defendant rather than "a couple other guys"...

Any party, including the party that called the witness, may attack the witness’s credibility.

Rule 403 still in effect if probative value is outweighed by prejudice, confusion,etc. 

Can attack a witness's character for truthfulness when:

If witness is def in criminal case or when witness is not defendant in either crim and civil.  CANNOT impeach witness in Civil cases where witness is the defendant 

Can impeach for any crime showing fraud or dishonesty

If conviction >10 years ago, must give advance warning to opposing counsel

(a) witness credibility can be attacked for truthfulness only when first brought up

(b) Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible but can cross examine 

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

The court held that D could not impeach a witness on the ground of his religious beliefs.  no matter how unconventional or unusual the religion is.

Evidence of religion may be appropriate in some circumstances:

a. Employment and damages;

b. Hardship;

c. Motive would you kill someone because of religion;

d. Bias - different than impeachment, related to how someone feels about a topic.  

D was convicted of bank robbery and moved to suppress his conviction for importation of cocaine, but the court refused.D did not take the stand. The court held that the conviction was properly admitted.

The court said that some crimes are automatically excluded under 609(a)(2) that some crimes may fall under 609(a)(2) based on the facts of the crime.

Here, there was no evidence of dishonesty or a false statement. It was nonetheless admissible under 609(a)(1) (was convicted of previous felony)

D convicted of possession of firearm, prior conviction of XXX was not allowed because the probative value of previous conviction does not 

4 factors

(a) When examining a witness about the witness’s prior (consistent) statement, a party need not show it or disclose it but must show it upon request of opp counsel.

Intrinsic statement come from declarant herself

Extrinsic statement from someone else or outside of 

(b) Outside evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and can be cross examined.  

(a) When examining a witness about the witness’s prior (consistent) statement, a party need not show it or disclose it but must show it upon request of opp counsel.  

(b) Outside evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and can be cross examined.  

A hearsay declarant’s credibility may be attacked by any evidence that would be admissible for those purposes if the declarant had testified as a witness.

Can be done regardless of when truthfulness evidence occurred and even if declarant did not have opp to explain/deny previous statement.  

Can be cross examined.  

(a) Only for judicial notice of an adjudicative fact

(b) judicial notice of fact can be given when generally known by public, can be accurately determined from sources.

(c) court may take judicial notice on its own or when asked by party awt any time.  

was used to even prove that women can become pregnant.  no strict proof is needed here.  

600 rules all about impeaching witness - not substantive evidence to prove your case - only to discredit the witness

400 rules all about prior bad acts - these are substantive evidences to prove your case or meet your burden of proof.  

Have the 10 modes of impeaching witness - not direct evidence to prove your case - only to discredit the witness testimony

key for notes

always also note 403 analysis in notes

1. Oath - religious belief
2. perception - visibility could you see
3. recall - did witness recall correctly
4. Communication - did witness really understand
5. Prior bad acts - not 404b - to impeach witness testimony
6. Convictions - rule 609
7. Character of witness
8. Prior inconsistent statement used to discredit witness
9. Contradiction
10. Bias -