Professor
Jeffrey H. Hartje
Spring 2003
EVIDENCE OUTLINE
I. INTRODUCTION
A. A
trial is a dispute resolution mechanism.
1. Define the issues (pleading function)
2. Gather information on issues (discovery
function)
3. Decide which information to consider in
resolving issues (evidentiary function)
B. Evidence
law is both substantive & procedural.
C. Definition
- Sworn testimony, writing, material or objects or other things presented to
the senses offered to prove the existence or non-existence of a fact.
1. Includes:
a. Sworn testimony
b. Genuine/authentic documents
2. Material is relevant if it tends to
prove/disprove a fact.
D. Basic
evidence law issues:
1. Admissibility
2. Sufficiency
E. ADMISSIBILITY
(threshold question)
1. Evidence must originate from competent
witness - FRE 601 - [Witness
Competence]
2. Logical relevance
a. Materiality (to prove a fact of
consequence) 401
(1) Logically connected to case - tendency to
prove or disprove - 401
b. Plus authenticity, genuineness and
first-hand knowledge - 901, 902, 602
3. Legal relevance
a. Probative v.
prejudicial value - 403
b. Logically relevant but subject to abuse or
misuse
4. Social policy relevance/competence
a. Exclusionary Rule - fruits of poisoned tree, as example
b. Privileges
5. Trustworthiness Competence
a. Substantive rules insure reliability
b. System based on skepticism - thus
requirements for Foundation, Cross
Exam and Testing by motion.
F. Adversarial
System Issues
1. Evidence Rules designed for jury
system. Other values in a structure of
evidence are:
a. Reduce time and confusion - 403
b. Order proof - and require logical and
legal relevance - 611
c. Fairness to witnesses and test their
credibility
d. Assure genuineness and trust and
reliability
e. Jury issues probative value v. prejudicial
effect - 403, 404, 405, 406, 408, etc.
G. History
of Federal Rules of Evidence (1975)
1. Sometimes treated as restatement of Common
Law Evidence Rules
2. Collection of Common Law precedent.
3. Still use Common Law
4. Large legislative history. Priority:
a. Rules prescribed by Supreme Court
b. Advisory Comm notes
c. Congressional materials
H. Sources
of Evidence
1. Constitutions (e.g. Article 3 (treason)
4th, 5th, 6th, and 14th amendments)
2. Statutes
3. Court rules
4. Common Law
a. Absent controlling statute or court rule,
use Common Law
I. Interpretation
of Evidence Rules
1. First legislative history - intent vs.
plain meaning - until recently, [last 15 years of Rehnquist and Scalia],
strong contradictory legislative history would trump plain meaning?
2. Witness demeanor and other uncontrolled
experience as evidence in interpretation of other evidence. Issue:
Appellate Court loses power to control the rationality of the judgment.
J. Reoccurring
Question: Do the rules sweep away common
law doctrines not mentioned? Answer: Sometimes...seems a case-by-case
interpretation.
K. Substitutes For
Evidence/Establishing fact, Judicial Notice.
II. ORGANIZATION [STRUCTURE] OF TRIAL AND
CHRONOLOGY
A. Pre-Trial
1. Motion
in limine: Requests court to rule on
admissibility of evidence in advance of trial.
a. For planning
voir dire, opening statement, tactics in introduction of evidence.
b. Judge may overrule, enter absolute order
prohibiting intro of evidence, or may enter preliminary order awaiting trial
developments. Must get
court's permission prior to presenting evidence in question.
c. Split of authority if judge rules against
you; may have to object in court to get on record in a few jurisdictions.
d. Elements:
(1) Opponent moves to exclude.
(2) Opponent has reason to believe proponent
will introduce the evidence.
(3) Opponent states grounds for
inadmissibility.
(4) Opponent explains why an ordinary trial
objection won't insure protection.
(5) Opponent presents legal argument. Also, see Imwinkelried, Evidentiary
Foundations, 4th ed., pp. (hereafter Evid. Foundations)
B. Jury
Selection
1. Trend is toward voir dire by judge.
a. More efficient, quicker
b. May not effectively explore juror
biases. Only insures "warm
body." Practiced in all Fed Cts. although the court will
accept written questions or may allow a short lawyer voir dire.
2. Other uses by lawyers:
a. Factual indoctrination
b. Legal indoctrination
c. Lawyer ingratiation with jury.
C. Opening
Statement
1. No inferences or conclusions allowed only
can state what the evidence will show.
2. Can't allude to anything that will not be
supported by admissible evidence.
D. Plaintiff's
Case-in-Chief
1. Can't lead on direct, generally see FRE 611
a. Prejudicial suggestions from counsel
distort truth.
2. Methods of introducing evidence:
a. Formal, by a party (where rules screen)
through witnesses and authentic exhibits
b.
Stipulation
c. Judicial notice
3. Completion of Case-in-Chief, defendant
tests by motion for:
a. Directed verdict/acquittal (jury trials)
b. Non-suit.
Dismissal (bench trial) Judgment of acquittal (criminal)
c. Test for Sufficiency:
(1) Civil: There is no legally sufficient
evidentiary basis for a reasonable jury to have found for the non-moving party.
(2) Criminal: No reasonable jury, taking
evidence most favorable to non-moving party (defendant), could find plaintiff
has proved elements beyond reasonable doubt. FED.R.CIV.P. 50.
E. Defendant's
Case-in-Chief
1. Burden for excluding evidence on opponent.
2. Objections must be accurate, timely, & specific - FRE 103
a. Foundational objections are premature
until questioning atty attempts to elicit objectionable material.
b. Elements:
(1) Address judge
(2) Indicate objection
(3) Specify what
objecting to
(4) Specify legal ground
(5) Lay explanation; e.g., Stand: Objection, question calls for (e.g.)"
out of court hearsay”.
F. Plaintiff's
motion for direct verdict
1. In effect, the plaintiff claims that its
evidence is so overwhelming that no reasonable juror could find for defendant
very rarely granted.
G. Plaintiff's
Rebuttal
1. Must stick to issues raised by defendant.
a. Scope is left to Trial Court's wide
discretion.
2. Prosecutor's rebuttal case not subject to
discovery since the Prosecutor doesn't know specifically what testimony or
Exhibits will be required to rebut.
H. Defendant
Surrebuttal
1. Limited to new ground covered in rebuttal.
I. Judges
may call/question witnesses.
1. FRE
614 A&B
2. US v. HICKMAN (judge went overboard - 250 interruptions)
4. Sometimes necessary where testimony needs clarification;
witness provides an ambiguous answer; helping with difficult witness, but Judge
must use w/care; avoid appearance of advocacy.
J. Six
(6) types of jury instruction - each raising Evidence issues.
1. Admissibility Instruction
Before
evidence is admissible, judge gives jury a test to use. See e.g., dying declarations confessions -
really a weight issue - very rarely are juries allowed to subsequently toss
out otherwise admissible material.
They can discount it, find it not credible but generally
judge rules on admissibility.
2. Corroboration Instructions
Also
rare - e.g., infant complainant or accomplices
testimony needs corroboration in the evidence in some states.
3. Limiting Instruction
Very
common example - prior convictions only for credibility may not use for any
other purpose - concept of limited admissibility. See Rule
105.
"restrict to proper scope and instruct jury accordingly"
Notice
advisory comments.The Relationship
between this rule and 403 is
significant- effectiveness of a jury instruction is a factor in deciding to
exclude for unfair prejudice or confusion re: 403 Comments, 404(b)
Comments.
4. Cautionary Instructions (combined with limited purpose
instruction)
Miller Case - An example
of cautionary
instruction. Regarding flight: caution; flight is one circumstance tending to
show guilt. Bazelon states common
approach; flight alone not
sufficient evidence of guilt, a fact from which a jury may infer - if believed,
that one is leaving scene under consciousness of guilt and to evade
arrest.
5. Curative - Disregard something
already admitted. Appellate Court will
need to determine if sufficient to correct error.
Example on p. - 12
prior arrests - instructions to disregard may prove ineffective. If so, mistrial.
6. Sufficiency Instructions
Burden of proof on issues of fact; credibility instructions;
sufficient quantum of proof - civil or criminal. E.g., "If you find by
a preponderance of the evidence" (civil). "If you find by proof
beyond a reasonable doubt" (criminal).
Real
effect of cautionary, curative and limiting instructions - do they work on
jury? See pp. .
7. Thus:
Prime Questions:
a. What is real effect of cautionary,
curative, &
limiting instructions?
b. Will
instruction adequately purge damage, limit jury misuse, or direct jury in the
right direction? Read in connection
w/403.
8. Sufficiency instructions always given,
burdens always given, elements always given.
K. Closing
Argument
1. Attorneys can argue inferences/conclusions
& credibility
2. May argue how jury should apply facts to
law.
3. Atty may not:
a. assert personal
knowledge
b. assert personal
opinion; re: any witnesses credibility.
"I believe X to be a liar."
L. APPLICABLE
FEDERAL RULES OF EVIDENCE:
1. 103:
After sustained objection, motion to strike & ask for curative instruction
if evidence already admitted. See Evid.
Foundations, p. .
a. KNOW 103
See Evid. Foundations, p. .
2. 105:
Limited Admissibility
a. When evidence which is admissible as to
one party or for one purpose but not admissible as to another is admitted, the
court, upon request, shall restrict the evidence to its proper scope &
instruct the jury accordingly by limiting instruction.
3. 106:
Rule of Completeness
a. Opponent has right at that time to
introduce any other part of document in fairness. That should be considered to get a complete
picture.
b. Does not apply to conversations
(1) Common Law Rule applies to conversations to
get full understanding- no need for “in fairness”.
c. Can enter via credibility/prior
inconsistent
4. 403:
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Will look at
this rule in detail, but see 6(b) above).
a. Although relevant, evidence may be
excluded if its probative value
is substantially outweighed by
the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.
III. EXAMINATION OF A SINGLE WITNESS - Order,
Scope and Form of Examination Rule
A. Exclusion
of Witnesses - Rule 615 -
Issues: can?t exclude a party, may restrict parties
attendance if destructive.
1. Representative of a party - police officers represent city,county,state or feds.
2. Assistance necessary for presentation of
evidence - experts - police or other experts.
3. Power to disqualify a witness is implicit in Rule 615. Also 611(a) bolsters.
4. Elbow experts not a matter of right
- see
B. SCOPE:
1. Court has jurisdiction to exercise
discretion
a. 611:
Mode & Order of Interrogation & Presentation
b. Control by Court: The court shall exercise
reasonable control over the mode and order of interrogating witnesses . .
. See also 772
c. Scope of Cross-Exam: Cross-Exam should be
limited to the subject matter of direct exam & matters affecting the
credibility of the witness . . . [plus courts discretion]
d. Leading Questions: . . . should not be
used on direct . . . except as may be necessary to develop the witness'
testimony. Ordinarily permitted on
cross. May be used for adverse party or
a witness ID'd with adverse party.
2. American Rule
a. Limit cross to subject matter of direct
& matters affecting credibility of witness.
b. More orderly presentation
3. British Rule
a. Much broader scope; any matter relevant to
any issue in the case.
b. Judicial economy
C. Sequestration
of witness. [FRE 615] See "A"
above.
l. All may be excluded except:
a. Party
b. Representation of corp (party)
c. Essential person (e.g. expert/"elbow"
witness)
D. Violations
can result in:
1. Declaring witness incompetent
2. Cautionary instruction
3. Contempt of court
E. If
defendant takes stand & testifies to preliminary matters, does he waive all
self-incriminating protection? NO.
1. However, if defendant testifys to merits
of case, he is open to full scope on cross.
F. Scope
of Examination - Rule 611(a)(b) and advisory comments
1. First understand that court discretion =
reasonable control over mode
and order of questions with
respect to presentation of evidence so that:
1) effective for truth finding; 2) needless consumption of time; 3)
protect witness from undue humiliation.
2. Scope - Cross limited to subject
matters? of direct and credibility. Note policy of orderly presentation
- American Rule. Scope Arguments turn on
definition of subject matter - See list of possible definitions p. Note 2.
a. Historical topic of direct exam
b. All matters that flow inferentially from
direct
c. Only transaction and occurrences testified
about on direct
d. All matters and elements upon which party
has the burden or defense
G. Direct
Exam
1. "First exam of a witness upon a
matter"
2. Most crucial part of trial
a. Simplicity, brevity, preparation
b. Ideal direct is
flowing & uninterrupted
3. Proof/facts presented here
a. X-exam is testing process
b. Tie facts to legal theory
4. Problem of FORM:
a. Questions must be asked in proper form
b. Questions must not elicit substantively
improper answer
5. Two kinds of objectionable material
a. Question itself is distortive (e.g.
leading) - form problem
b. Question calls for improper/untrustworthy
information - substance problem.
6. FORM problems:
a. Narrative v. Q & A
(1) Judge has complete discretion under 611.
(2) Q&A format designed to test evidence by
single topics then objections.
(3) Better control
(4) Less likely to lead to inadmissible
evidence
(5) Narrative is more persuasive & probably
more accurate.
(a) If objecting to a narrative response: claim inability to object during W.'s
narrative. Must object
at earliest convenience.
(6) Courts more likely to accept narrative from
expert witnesses or in bench trials.
(7) Goal: ask questions that set agenda beyond
yes/no but not free-form narrative - topic open questions.
7. Leading Questions (FRE 611)
a. Leading question "suggests an
answer."
(1) Would reasonable person get impression that
examiner wanted a particular answer?
b. When can Leading Questions be used?
(1) Cross exam
(a) Don't go beyond the scope of direct when on
cross.
(2) Preliminary/non-disputed matters -
"placing" a witness.
(3) Adverse witness
(4) Hostile witness
(5) Witness "associated with" adverse
party
(6) Incompetent witness
(a) children
(b) mentally
handicapped
(c) language problems
(7) Exhausted memory
(a) may use documents,
etc (anything)
(b) thing need not be
admissible itself
(8) Ex Parte (to save time)
(9) Tactically: use during cross to avoid
losing control. Don't ask witness
"Why?" or "describe" unless you know answer and it's helpful or harmless.
(10) If bringing in new information on cross-exam,
must use direct exam (e.g. no leading). Discourages attempts to bring in new information. See 611(c).
8. OTHER DISTORTIVE QUESTIONS
a. Argumentative:
(1) Question asks witness to draw inference
(2) The questioning lawyer foists her own
opinion on witness and asks witness to agree.
(3) Juries sympathize with the lay
witness. So use judiciously. Thus, elicit historical facts you are sure
witness will concede and draw inferences in closing.
b. Questions that assume facts not in
evidence
(1) Questions that go to credibility of witness
may assume facts not in evidence
c. Repetition ("Asked &
Answered")
(1) Only applies to your direct exam testimony
[Rationale witness only entitled to one bite concerning facts or matters of
testimony]; OK on cross regarding questions on direct. The X-examiner can
repeat as much as she wants.
d. Misleading
(1) Mistake/misquote prior evidence
e. Questions calling for speculation/conjecture
f. Ambiguous
- question not susceptible to interpretation.
g. Multiple - more than one topic.
h. Compound - more than one question
about the topic.
i. (Answer) is non-responsive to
your question generally on cross exam.
9. CROSS EXAM
a. Testing device
b. Constitution (6th Amendment- right to
confront) & Due Process
c. Basis of Hearsay Rule is that declarant
can't be crossed.
d. What if witness not available for
cross? Judge has discretion depending on
nature of unavailability.
(1) Strike direct testimony
(2) Recess until available
(3) Mistrial (especially criminal) - In
Criminal, can't foreclose defendant's right to cross: Davis
v. Alaska - critical witness had juvenile record ordinarily not
admissible - but showed bias - the lower ct. by limiting cross to enforce the
"juvenile conviction" rule denied Dfs. 6th amendment rights.
10. SCOPE OF
CROSS EXAM
a. American (limited) rule
(1) Limited to "subject matter" of
direct
(2) Attorneys control events
b. English (wide open) rule:
(1) Any relevant matter
(2) Encourages broader search for truth
(3) Perhaps avoids time/expense of recalling
witnesses but takes much time and is difficult to contact.
c. There is no rule prohibiting intro of
evidence on cross.
d. "Subject Matter of Direct"
(1) Any issue properly a part of the case of
the party calling the witness
(2) Any issue raised by test already received
from any source
(3) Any issue or inference raised by witness
presently being crossed
(4) Parts of any action testified to by that
witness
(5) Avoid problem by using credibility
in 611.
11. IMPEACHING A WITNESS - Will see in detail in
Credibility Topic
a. Normally done on cross
b. Witness should not be believed because of:
(1) Inconsistent prior statements
(2) Witness is biased/prejudiced
(3) Witness has defects in ability to recall
(4) Witness has character defects affecting
truthtelling
(a) Prior bad acts that reflect on truthtelling
(b) Conviction of crimes
(c) Reputation bad
(5) Contradicts testimony
(6) Different techniques depending on whether
witness is a party defendant.
c. If you impeach a witness, move for
instruction from judge telling jury that they must disregard all/part of
testimony (at close of trial).
12. Re-Direct
a. Function is to re-habilitate witness
b. Prime objections: generally occurring during re-direct
(1) Leading
(2) Goes beyond scope of cross
(3) Asked & Answered
IV. OFFER OF SINGLE ITEM OF EVIDENCE
A. MOST
IMPORTANT: proponent must lay foundation before offering the item into
evidence.
B. Pre-trial
Motion in limine can also be used
offensively to plan strategy.
1. Rule on evidentiary issue in advance.
2. Protect from surprise.
C. Pre-trial
motions are better than objections
1. Tend to lead to settlement
2. Help with tactics
3. Eliminates prejudicial surprise and
potential mistrial - See
4. Stipulations, See FRCP 16
5. Motion to suppress for violation of
constitutional Evidence Rules 4th, 5th, 6th and 14th amendments.
D. Offer
of Evidence in Trial
1. Requires a Sponsoring witness:
a. Competent Witness
b. Attests to personal knowledge
c. Lays the foundation for authenticity and
genuiness where item is document, thing, result etc. See Authenticity Analysis handout(attached).
E. Procedure:
1. "Request" this exhibit be marked
plaintiff's exhibit #X for identification.
2. Show to opponent counsel
3. Show to witness for identification.
[FOUNDATION] Can you I.D.? etc. How?
4. "Offer plaintiff's exhibit #X for
identification into evidence as Plaintiff's exhibit #X." See e.g., Evid. Foundations p. .
a. Objections are made when evidence
"offered".
b. If objections are sustained, make
"offer of proof" for appeal and to persuade judge. (FRE
103)
5. Request permission to publish to jurors.
F. ROLE
OF OPPONENT OF ITEM OF EVIDENCE
1. Motion to suppress-
a. Assert constitutional grounds
(1) Virtually never harmless error if
constitutionally protected evidence [search and seizure, confession
etc].admitted wrongly during trial.
2. Motion
in limine [at the threshold]to
exclude
a. Non-constitutional grounds to control
generally prejudicial evidence.
3. OBJECTION!! Motion to strike and request for curative
instruction.
a. Often attacks question (question distorts
truth)
b. May attack answer when answer is not
trustworthy
c. Must
be:
(1) Timely
(2) Specific (if not apparent from context) - See 103.
4. MOTION TO STRIKE (after objection
sustained and answer was given)
a. Normally attacks the answer.
b. If granted, get curative instruction. Move that jury be instructed to disregard.
5. Both must be timely & specific. See Evid. Foundations, pp. 12-16.
6. Voir
Dire of Witness [" May I voir dire
the witness in aid of an objection on foundation?"]
a. Question witness (out of hearing of jury)
before judge rules on admissibility of evidence to show:
b. E.g., 602 lack of personal knowledge 901, 902 lack of authenticity, 701-705 claimed expert is non
expert. See Evid. Foundations
p.
7. Offer of Proof 103(a)(2) - After an objection sustained
against the proponent of evidence.
a. Proponent states, for the record, what the
witness would have testified to & why the proponent wanted to elicit that
testimony and grounds for admissibility.
b. Judge may change mind; and basis for
appeal.
c. Out of hearing
of jury
(1) At the side bar conference, or to make a
more thorough record, in a Question and Answer session with the witness to show
precisely what the evidence is. See
Evid. Foundations p. 18.
(2) 103(b)
- for appellate courts - last sentence
103(c) - out of hearing of jury - read
rule - last sentence
(3) Chapman v.
(4) Plain error - criminal "errors of a
constitutional magnitude" could never be treated as harmless - even though
no record - objection or offer of proof.
(5) Constitutional error - harmless only where
the court can conclude harmless beyond a reasonable doubt.
G.
1. FACTS: Fendley was convicted of tax
evasion. Contests certain business
records admitted into evidence.
2. ISSUE: Did the cluster of objections made
at trial to the introduction of the exhibit preserve the point for appeal?
3. HOLDING: No. Affirmed
conviction.
4. RATIONALE: Business records are admissible
if 3 conditions are met:
a. Records must be kept pursuant to routine
procedure to preserve their accuracy.
b. Must be created for honorable motives.
c. Must not be collection of
hearsay/opinion. Trial Court has broad
discretion in admitting business records.
"Loosely formulated & imprecise objection" alleges that:
d. Records were hearsay
e. Witness laying foundation was not
preparer.
f. Witness laying foundation could not
personally attest to accuracy. All clearly insubstantial.
Defendant then raised new grounds for objecting. Foreclosed.
5. Case is unduly restrictive but
demonstrates the importance of precise objections.
H. LUCE
v. US (1984)
1. FACTS: Finely moved to exclude use of 1974
state conviction to impeach him if he testified. U.S. District Court held that prior was
admissible for impeachment under FRE
609(a) .
Because of this finding, defendant did not testify. Found guilty. 6th Circuit Court of Appeals
affirmed holding that when defendant does not testify,
the Appellate Court cannot adequately review lower court's in limine ruling because the record is not sufficient.
2. ISSUE: Whether a defendant who does not
testify at trial is entitled to a review of Trial Court's ruling denying his
motion to forbid
use of prior conviction to impeach his credibility.
3. HOLDING: Defendant must testify to raise
& preserve the claim for appeal.
4. RATIONALE: To perform the weighing of
probative value of testimony v. the prejudicial effect, the court must hear the
testimony.
5. Defense counsel should, in a motion in limine procedure have called
defendant elicited testimony so a record was available to the trial judge to
make the decision on the propriety of impeachment by this prior conviction.
I. ROLE
OF TRIAL JUDGE
1. Balance probative worth of evidence v.
danger of prejudice. FRE 403, 104
2. FRE
104:
a. Question of admissibility generally 104(a) -- legal questions concerning
qualifications of person to be witness, whether person is an expert, existence
of a privilege, or admissibility of evidence shall be determined by court. In making its determination, it is not
subject to the Rules of Evidence except those with respect to privileges. Judge rules on relevance
& relevance plus unless they are conditional on facts (104b).
b. Relevancy conditioned on fact -- When the
relevancy of evidence depends on the fulfillment of a condition of fact,
the court shall admit it upon, or subject to, the intro of evidence sufficient
to support a finding of the fulfillment of the condition. Court makes threshold determination (is there
"some evidence)." Then jury
decides if the underlying fact does exist.
Issues like personal knowledge, identity, authentication &
genuineness judge will decide under 104(b).
Then jury will hear facts & determine if authentic under 104(b).
c. Burdens:
(1) 104A:
Legal questions by preponderance
(2) 104B:
Factual questions by some evidence
d. Examples of 104(a)
i. Competence of witness. E.g., lack of mental capacity, qualification
of expert, lay opinion
ii. Determination of legal privileges
iii. Hearsay exceptions - excited utterances,
dying declarations
iv. Best evidence whether by law excuse for
secondary evidence (non-original) is sufficient.
e. Examples of 104(b)
i. Conditional fact relevance - statements
of agent not factually relevant or binding on principal unless first factually
shown that she is agent of principal
ii. Personal knowledge - "some
evidence" sufficient for admissibility to jury under 104(b) - tested by voir dire of witness or cross
iii. Authentication factually "some
evidence" of genuineness jury ultimately determines.
J. BOURJAILY
v. US (1987)
1. FACTS: Drug deal. Defendant's co-conspirator testified against
him. FRE 801 (d) (2) (E) provides that a "statement is not hearsay
if...the statement is offered against a party and is... a statement by a
coconspirator of a party during the course & in the furtherance of the
conspiracy."
2. ISSUE: Must the ct determine by
independent evidence that the conspiracy existed & that the defendant &
the declarant were members of the conspiracy?
3. HOLDING: No. In making preliminary factual
determination, the court may examine the hearsay statements sought to be
admitted and use them to prove the conspiring.
When the preliminary relevant facts are disputed, the offering party
must prove them by a preponderance of the evidence.
4. RATIONALE: Court is not bound by Rules of
Evidence (except privilege) when making its determination. Court can authenticate hearsay by using other
hearsay. Court can use hearsay to
establish the existence of conspiracy.
5. DISSENT: The ct may examine hearsay, just
not the specific hearsay in question.
History of Rules show intent to keep "bootstrap" rule - e.g.,
can't prove conspiracy by the same statements claimed exceptions to hearsay.
6. NOTE:
Bourjailly, Luce, Huddleston -- all
examples of "plain meaning" zealots ignoring 200 years of evidence tradition , the language and legislative history of the
Rules of evidence.
K. APPLICABLE
FEDERAL RULES OF EVIDENCE:
1. FRE
103: RULINGS ON EVIDENCE
a. Effect of erroneous ruling: Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial
right of the party is affected, and
(1) Objection: ... a timely motion to
strike appears of record, stating the specific ground of objection ... or
(2) Offer of proof: (if the evidence was
excluded), the substance of the evidence was made known to the court by offer
of proof or was apparent ...
b. Protects "substantial rights"
(1) Reasonable possibility that evidence
objected to might have contributed to conviction. E.g.,
Chapman.
c. Plain
Error
(1) Errors of Constitutional magnitude that
are so basic that they could never be treated as harmless & therefore do
not need to be preserved via FRE 103.
L. ROLE
OF JURY 104(b)
1. Jury still has some power to resolve
questions of preliminary or foundational facts.
2. With respect to those facts, the judge
decides only whether the proponent's evidence is legally sufficient to support
a finding that the fact exists. If it
is, the judge admits it and the jury exercises its ultimate fact-finding power
(e.g. was the letter genuine?).
3. Items of evidence governed by this
procedure are "conditionally relevant"; they are logically relevant
only on the condition that they are genuine.
See earlier 104(a) or 104(b) discussion.
V. WITNESS
COMPETENCY
A. General
Competency Rules
1. "Competent" = witness is
eligible to testify.
a. Privilege does not keep a witness off the
stand.
(1) It may preclude testimony about a specific
subject.
(2) Compare spousal immunity or incompetence
rules in criminal cases.
2. ALL WITNESSES MAY TESTIFY EXCEPT:
a. Moral
capacity (witness must take oath to tell the truth; real reason is to
punish for perjury).
(1) Requirement excused for children.
b. Capacity
to observe.
c. Capacity
to remember.
d. Capacity
to narrate.
e. FRE 601: GENERAL RULE OF COMPETENCY
Every
person is competent except as otherwise provided in these rules.
3. See
second sentence of 601 where state law provides rule of decision in civil cases
- competence determined by state law. (Erie v. Tompkins issue).
4. Mental & moral qualifications for
testifying as a witness are not specified.
Modern Trend - Question is one particularity suited to the jury as one
of weight & credibility because presumed to be competent. But see very young children, mentally ill
persons, etc. - judge will use 104(a)
if competency challenged. Theory: Better
to allow a witness to tell what she knows & let jury assign weight &
credibility.
5. Competency of jurors as witness:
a. FRE
606 (b): Juror may not testify as to any matter during deliberation except
in regard to extraneous prejudicial information improperly brought to juror's
attention.
VI. LOGICAL
RELEVANCE: Relevancy & Materiality - See attached "Analytical
Process: Logical Relevance permitted
uses and limits, legal relevance; relevant credibility."
A. First
question: What is the
Purpose of the offer of evidence?
1. Does evidence go to a material fact?
2. Is it probative?
a. If yes: logically relevant.
3. Analysis:
a. Purpose of offer?
b. Fact of consequence?
(1) In pleadings
(2) Substantive issues of law
(3) Credibility = facts that help jury/judge
evaluate the rest of the facts
c. Have any tendency to increase/decrease?
Thus: Purpose and Legal Relevance = +/- probative
and material (fact of consequence = plead law credibility) plus
FRE
402: RELEVANT EVIDENCE GENERALLY
ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE.
4. Doctrine
of Curative Admissibility - If court allows wrong evidence to come in,
opponent may adduce evidence to counter.
See 3 rules, minority makes sense - if you didn't object, you can't cure
by other problematic evidence.
B. Logical Relevance means that the item
supports a particular inference.
1. It must either increase or decrease the
probability of the desired inference to be logically relevant.
FRE
401: RELEVANT EVIDENCE
"Relevant
evidence" is evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more or less
probable.
2. LEGAL
IRRELEVANCE - Logically relevant evidence may be inadmissible if there is a
significant risk of:
a. Unfair prejudice, confusion, jury misuse -
See FRE 403.
3. MATERIALITY
a. Evidence must prove/disprove an item that
is at issue in this case.
(1) E.g. Evidence that tends to establish
sanity immaterial if sanity is not an issue.
4. Determining the logical relevance of
evidence is a two-step process:
a. Proponent must ID all material facts.
b. Proponent must convince judge that the
item of evidence is logically relevant to one of the material facts.
C. CIRCUMSTANTIAL V. DIRECT LOGICAL EVIDENCE
1. Evidence is "direct" if the
immediate inference from the evidence is the existence/non-existence of a
material fact.
2. Circumstantial evidence requires a jury to
draw an intermediate inference but the item can serve as a link in a chain of
reasoning to the ultimate, desired inference.
E.g., rain/snow on street example.
3. Circumstantial evidence is intrinsically
no different from direct evidence.
VII. LOGICAL
RELEVANCE "PLUS"
A. "Relevance Plus" = logical
relevance plus personal knowledge and authenticity.
a. Pleadings develop facts concerning a car
wreck. Witness testifies to observing
the wreck - wreck is logically relevant
(1) Must also show witness was in position to
see wreck - personal knowledge.
b. Witness testifies that he can identify
document by author
(1) Must show foundation for that I.D. (several
methods of authentication) that "this is the document that was signed by
the author."
B. Logical
relevance: IF the item is what the proponent claims it to be, then the
item increases or decreases the probability of one of the material facts.
1. The proponent must still show the
underlying relevance or probative value of the item. Remember the "knife in bushes"
example. Must be
materially correct. E.g., this
knife is similar to the one seen by Ms. Patterson.
2. The proponent must prove the item is what
she claims it to be. E.g., "This is
the knife I found."
C. Personal
Knowledge:
1. Ordinarily, lay witnesses must base their
testimony on personal observation. But
see 701 lay opinion.
D. Authentication
- See attached summary - "Authentication Analysis"
1. The proponent must authenticate as a
matter of inherent logical necessity.
Without authentication, the evidence is not relevant.
2. General Concept: The nature of the authentication process
varies from item to item. See
FRE
901: AUTHENTICATION
A)
General: Requirement for authentication
is satisfied by evidence sufficient to support a finding that the matter
in question is what the proponent claims it to be.
VIII. AUTHENTICATION
OF WRITINGS
A. When
thinking evidence, THINK:
1. Logical Relevance = +/- prob value and
material fact of consequence
2. Personal knowledge/authentication
3. Best Evidence Rule
4. Hearsay
5. For example, every document has to
go over all four hurdles.
B. 3
ways of authentication
1. Direct
a. By person with
knowledge
2. Circumstantially - See above definition in
D (2).
a. Rational inference that item is
genuine. See illustrations in FRE 901.
3. (Don't forget stipulation - by agreement)
C. Evidence
will be admissible if there is sufficient evidence to support a finding that
the matter in question is what the proponent claims. 901(a)
D. Private
Writings - Courts use a lax standard for authentication of writings.
1. Private Writings - Documents - Lay witness
can ID handwriting.
a. Familiar with handwriter's style - See
Evid. Foundations pp. .
(1) Post
litem motam exemplars are inherently suspect but acceptable under FRE.
b. Reply Letter Doctrine
(1) Facts that only that person would
know. Circumstantially shows knowledge
of prior document.
c. Distinguishing knowledge/characteristics
d. Witnesses - See
E. Business
Writings - See Business Records Acts in many states. See Evid. Foundations pp. .
1. Can authenticate by proving document came
from the proper custody.
a. Witness had personal knowledge of
business' filing system kept in ordinary course of business.
b. Witness removed record from file.
c. Witness recognizes exhibit.
d. Witness tells why she recognizes exhibit.
F. Computer
printouts - FRE 901(9) Evidence
describing a process or system that produces an accurate result. See e.g., 803(6) - Evidence of regularly
conducted activity as exception to hearsay, like Business Records Acts.
1. Susceptible to deliberate alteration
without a trace.
2. Likely to be admitted if business relied
on them.
3. Elements of foundation
a. Business uses a computer in regular course
of business.
b. It's reliable.
c. Entry procedure exists and
d. Safeguards for accuracy in entry
e. In good repair.
f. Witness prepared readout.
g. Witness used proper procedures. See Evid. Foundations pp. .
h. Witness recognizes the exhibit.
G. Simplified
Procedure for Admission for banks and hospitals and business records in several
states. See
1. Custodian may certify records rather than
testify.
2. Similar in policy and procedure to public
records self authentication (supra).
H. Self-Authentication - Official Public
Records. See Evid. Foundations p. .
1. FRE
902 - primarily 902(2) and 902(4)
a. Made at the time
b. In official custody, authorized by law
c. Public office or agency
d. Custodian has duty to hold
e. Custodian has personal knowledge of
correctness of original and authors and so certifies
2. Official records presumed to be authentic,
required to be accurate.
3. Custodian can send certified copies.
a. Certified copies of public records are
most important category. See 1 above
and 902(4).
b. Meets Best Evidence Rule and Hearsay
Exception.
4. Full faith & credit procedure
established by Federal Law for admissibility of court and non court records in
one state to another.
I. Judicial Notice
1. When a judge takes judicial notice of a
fact, that fact is conclusively presumed to be true. See FRE
201(a)-(9). See also Evid.
Foundations pp. .
See for "old science" judge takes judicial notice of accuracy
of a particular technical or scientific process.
2. Judicial notice only of
?Adjudicative Facts?
a, Commonly known
b. Accurate so as
to be beyond reasonable dispute
IX. IDENTIFICATION
OF PHYSICAL EVIDENCE
A. Necessary
in many cases.
1. Helps jury understand & remember
a. May take to jury room
B. Must
lay foundation to demonstrate a tie to historical nexus of case.
C. Demonstrative
physical evidence must be "substantially similar." If a physical
representation. See Evid. Foundations pp. E.g.,
if using for illustrative purposes a pistol like the pistol in question. See later discussion of demonstrative
evidence.
D. TYPES
OF IDENTIFICATION
1. Ready Identifiability
a. Unique item or
b. Separate circumstances, each of which is a
feature of many objects, when added together make it more probable that they
exist in a single object only.
c. Elements of foundation:
(1) Object has unique characteristic.
(2) Witness previously observed characteristic.
(3) Witness ID's exhibit.
(4) Exhibit in same condition as when seized.
2. Chain of Custody
a. Used when:
(1) Item is not readily identifiable and is
fungible, fragile, malleable - subject to
contamination, change or alteration.
(2) Witness failed to note identification marks
of a readily identifiable item.
(3) Delicate item whose condition at time of
seizure is an issue.
b. Time:
(1) Seizure to trial chain or
(2) Seizure to lab analysis chain
c. Proof
(1) Lax standards - PROBABILITY STANDARD
- Courts all over in articulating burden to show chain and when chain
has to be employed.
(2) Negative probability of tampering
(a) "Substantial opportunity" to
tamper.
(b) If fungible (e.g. blood),
chain of custody must account for all who may have had momentary contact.
(3) Most common burden: show "reasonable
probability" of authenticity.
d. Concept of inference if:
(1) Affirmatively: probable that the item
offered is the same item in substantially the same condition.
(2) Negatively: improbable that tampering
occurred.
e. May have double authentication:
(1) Show tape recording is OK and Chain of Custody
and
(2) Voice is what proponent claims.
(3) Other Example: Ready identifiability of jewelry box and chain
of custody because of nature of finger prints and when they were placed
X. IDENTIFICATION
OF SPEAKERS & PHOTOGRAPHS
A. Speakers
- See Evid. Foundations pp. 54-66.
1. Telephone Directory Doctrine - 901(b)(6).
a. Presumes directory to be accurate call to
the number assigned.
b. Presumes party to be correct if
self-identified (person) or identified by content of conversation (business) or
other circumstances.
2. Lay witness can ID voices [FRE 901(b)(5)]
after hearing prior or after
3. Similar to I.D. handwriting the number of
times goes to weight.
4. Voice print or sound spectograph to I.D.
voices. Courts split
on admissibility usually depends on expert testimony whether or not
accepted in scientific community. (Frye Standard). See Evid. Foundations pp.
5. Audio Tape Recordings - well accepted
accuracy thus judicial notice.
a. Generally courts require complete
foundation.
b. Operators qualifications, equipment in
good working order, custody unbroken, I.D. the speakers and someone who heard
conversations that tape is accurate reproduction.
c. Trend toward relaxation of foundation
because new techniques to detect alteration and liberal approach to FRE 104(b) - "evidence sufficient
to support a finding" of authenticity.
B. Photographs
1. Two Theories - Depending on "purpose
of the offer"
a. Pictorial
Testimony: photos are demonstrative only & admissible only when witness
testifies to their accuracy. The witness
testimony is the evidence.
b. Silent
Witness: Substantive use photo speaks for itself and testifies to
facts.
(1) X-rays usually admitted by judicial notice
but technically silent witness. See
Evid. Foundations p. .
2. Most courts use lax standards & admit
photos.
C. DEMONSTRATIVE EVIDENCE - See also
pictorial testimony theory
1. The "Real" evidence is witness
testimony
a. Demonstrative evidence doesn't prove
anything but aids testimony.
b. Thus: A diagram merely augments the witnesses
testimony and helps jury understand. See
Evid. Foundations pp
(1) Proponent can not put anything on a
chart for which foundation has not been laid.
c. Motion pictures and video tapes virtually
same foundation as audio tapes. See
Evid. Foundations pp. . Stricter foundation is for substantive use.
d. Computer animation - both;
(1) Demonstrative use
(2) Substantive use. See Evid. Foundations pp. .
2. Demonstrative evidence must fairly
represent testimony - See summary of complex expert testimony (as one type of
demonstrative evidence).
3. Demonstrative evidence must help jury
understand testimony
4. Charts & Graphs
a. Either to scale or not-to-scale
b. For illustrative
purposes (same as demonstrative)
c. Code Word in laying foundation: "fair
& accurate representation"
CHAPTER VALIDATION OF SCIENTIFIC EVIDENCE (A SPECIALIZED ASPECT OF LOGICAL
RELEVANCE OR RELEVANCE +)
A. Scientific
Evidence requires special authentication because evidence law is skeptical.
1. Judicial notice for old science generally
needs a reporting or evaluating aspect - See Authentication Analysis (attached). New science rules.
a. Depends on since a process or technique Frye standard or Daubert standard.
b. "Soft science" need not be
subject Daubert/Frye since
jury is already skeptical because based on "subjective" is testifying
analysis of an expert - rather than the product of a machine. However, where expertise is claimed- even
though in experts ?experience?- science, technology,
etc. has to be validated under Daubert,
Kumho, & G.E.
B. "Expert":
[FRE 701, 702 (See 2000 Amends. to 701, 702, 703)
1. Qualified by education, training, or
experience.
2. Purpose is to help trier understand
specialized technical or scientific evidence.
3. May give opinion
C. Types
of Experts
1. Teaching witness
a. Educates trier on scientific theory or
operation of a specialized technique.
b. Generally high academic credentials
2. Reporting witness
a. Gives test result
b. May be lab technician
c. Testifies that equipment was in good
repair, gives reliable and accurate result.
3. Interpreting/evaluating witness
a. Explains significance of tests, results,
techniques or processes.
4. One expert may do all, if necessary, or
may need all 3 types if the evidence requires.
5. Computer reconstruction is either science
or demonstrative evidence.
D. FRYE STANDARD
1. "Gained general acceptance in the
scientific community"
a. Conservative approach
b. Still used in almost all of states in both
civil and criminal new science.
c. NOT in FRE.
E. DAUBERT
RULE: In connection with FRE 702
1. Superseded Frye in Federal civil cases.
2. TEST; New science admissible under 702-705 if:
a. Theory/technique can be/has been tested?
b. Theory/technique subjected to peer review?
c. Known/potential rate of error?
d. Standards of operation are known.
e. "General acceptance" like Frye
(1) Shows reliability
f. Court is concerned with an opponent?s ability to test, critique and explore new science.
g. Places more emphasis on workings of FRE 702-705 rather than some extrinsic
evidentiary rule like Frye. See new
cases in Advisory Comments to 702 and
G.E. & Kumho cases.
3. Daubert
v. Merrell Dow
a. Subject of scientific evidence need not be
"known" to certainty to be admissible.
b. Scientific validity for one purpose is not
necessarily scientific evidence for another.
c. Expert may give opinions not based on
first hand knowledge. See 703.
d. Qualifications of expert:
"preponderance." 104(a)
e. Scientific theories that have reached
status of "law" may be admitted by judicial notice.
(1) May want to use expert testimony for persuasion.
(2) Expert must in many states find a result
to a "reasonable medical/scientific certainty"
f. Scientific evidence is always subject to
cross-exam, presentation of contrary evidence, & challenge.++ Thus the thrust
of ?information for examination by opponent? in
Daubert.
4. FRE
702: If scientific evidence will assist
trier, expert may testify & give opinion, or otherwise.
5. Daubert
Rule applies as well to experts from experience and technically specialized
information- not strictly pure science.
See Kumho Tire v. Carmichael,
526 U.S. 137 (1999); rigorous standard for reliability, judges- ?gate keeping? applies to such information, although there is no single
formula or set of factors to apply- flexible although Daubert factors helpful.
Here tire testers approach and theory not reliable enough.
6. Gen.
Elec. v. Joiner, 118 S.Ct. 512 (1997) established that in its gate keeping function a court can
examine the reliability and relevance of expert conclusion based upon animal
studies.
XII. LEGAL
IRRELEVANCE
A. An
item of evidence is prima facie admissible if the sponsoring witness is
competent & the item has probative value on a material fact. "Legal irrelevance" denotes the
judge's authority to exclude logically relevant evidence when the evidence's
probative dangers or risks substantially exceed its probative value. The judge can evaluate on the face of the
evidence; she need not consider the credibility of the source of the
evidence. See Balancing Analysis of p. 2
of "Analytical Process . . . Legal Relevance" (attached).
B. FRE
403: Exclusion of Relevant Evidence on
Grounds of Prejudice, Confusion, or Waste of Time:
Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion, waste of time, or
presentation of cumulative evidence.- [Rules- 404-415 are specific applications
or variations of same concept.]
C. Types
of Damages (Prejudice)
1. Probative Dangers (decision on improper
basis . . . "commonly an emotional one"
a. Unfair prejudice - misuse of evidence/over
value, distract
b. Confusion of the issues
c. Misleading jury
2. Trial Concerns
a. Undue delay
b. Waste of time
c. Cumulative presentation of evidence
D. APPLYING THE LEGAL IRRELEVANCE DOCTRINE
1. Evaluate Probative Value of
evidence.
a. Facial vagueness or uncertainty or certain
and clear
b. Availability
of other means of proof- See effect of stipulation of fact. Old Chief v.
c. Strength of inference - usually
circumstantial
d. Number of intermediate steps in inference
- usually circumstantial
2. Evaluate the Countervailing Probative
Dangers
a. Will jury over/undervalue evidence?
b. Can jury make inference outside of
consequential facts?
c. Undue tendency to suggest a decision on an
improper (often emotional) basis?
d. Might jury overly concentrate on marginal
issue such as credibility or character?
See later rules on credibility 608, 609 etc. that control excessive use
of credible evidence.
e. Surprise is not ordinarily a grounds although in combination with other issues it might
be. Normally, is significant, a
continuance is the appropriate remedy.
3. Balance Probative Value v.
Probative Dangers
a. Key:
If "substantially outweighed" evidence excluded.
b. Burden of proof will be on party claiming
that the danger "substantially outweighs" the probative value.
c. Use 403
balancing unless another Federal Rule of Evidence has a specific balancing
test.
E. Recurring
Legal Irrelevance Problems- See Rowe
case, p. 304
1. Inflammatory pictures
a. Admissible if
it makes clear a controverted issue; still requires a proper foundation
after balancing (part of probative value).
2. Out-of-court tests & experiments
a. Proponent must prove that the test
conditions were "substantially similar" to the relevant event. Issue:
jury misuse where no substantial similarity. (tendency
to misuse tests, experiments.)
b. May be admitted if differences can be
explained and helpful to jury to understand facts at issue (like demonstrative
evidence).
3. Jury views & exhibitions,
demonstrations
a. Exhibitions are demonstrative-
illustrating testimony of witness.
b. Lillie
case concluded such appeals to “senses” were evidence
(including jury view) and it was a semantic game to assert
otherwise.
4. Scientific evidence- belief that
scientific results present much potential for overvaluation, distraction and
misuse by the jury. Thus requirement of
validation- see Daubert/Fry plus
the courts power to exclude via 403.
XIII. LEGAL
IRRELEVANCE LIMITATIONS ON CREDIBILITY EVIDENCE
--BOLSTERING,
IMPEACHMENT AND REHABILITATION
A. Witness'
credibility is central to the evaluation of her evidence. Thus, a fact of
consequence.
1. If evidence is logically relevant to the
witness' credibility, the evidence is relevant under FRE 401.
2. Attendant probative dangers may still
outweigh probative value, which is also reduced as the issues move away
from the historical facts.
B. Three
Types of Credibility Evidence:
1. Bolstering:
a. Other evidence presented to increase
witness' credibility.
b. Common Law forbade bolstering
c. Real world:
(1) Most common impeachment techniques can be
diluted by bolstering prior to cross.
(a) Can't bolster reputation for
truthfulness. Most jurisdictions now
require proponent to wait until after the witness has been attacked. FRE
608A: evidence of truthful character is admissible only after the character
has been attacked.
(b) Can bolster when expected attack
will be based on bias (e.g. plea bargain)
(c) Use immunity predicate: Prosecutor can bring
out details of plea bargain/immunity prior to cross by showing that the bargain
requires that the witness tell the truth.
d. FRESH COMPLAINT DOCTRINE
(1) Evidence may be admitted to show that
complainant made complaint shortly after the event. Credibility of witness & complaint
counters potential inferences of delay and fabrication. Usually limited to sexual
attacks.
e. Prior identification of defendant or
wrongdoer on direct allowed again to counter possible
inference of fabrication.
2. Impeachment: attacks witness'
credibility. See FRE 608 & 609.
a. FRE 404(a): evidence of character is
not admissible for purpose of proving action in conformity therewith. Understand in conjunction with 608 & 609 dealing with impeachment
of witness with evidence of non-truthtelling.
b. Impeachment evidence is freely
admitted. Issues going to truthtelling
include:
(1) Demeanor of witness
(2) Truthtelling or non-truthtelling character
testimony
(3) Capacity to perceive, remember, report
(4)
(5) Honesty - reputation or opinion
(6) BIAS
(7) Prior inconsistent statement
(8) Specific contradiction (by extrinsic
subsequent witness)
(9) Specific conduct showing untruthfulness (on
cross)
c. If attack is on prior inconsistent
statements specific contradiction or bias, the target is the specific testimony
in the extant case; not designed to attack character in general.
d. Ad
hominem (general attacks on propensity to tell truth) attacks may show:
(1) Conviction
of crime
(2) Dishonest conduct (prior bad acts)
(3) Dishonest reputation,
or opinion regarding dishonesty
e. You may impeach:
(1) Adverse witness
(2) Hearsay declarant
(3) Own witness
(4) FRE
607: The credibility of any witness may be attacked by any party, including
the party calling him.
f. DIFFERENCE BETWEEN IMPEACHMENT &
CONTRADICTION
(1) Impeachment relies on evidence submitted
for limited purpose of determining witness truthfulness.
(2) Contradiction involves substantive
material, and the inference of untruthfulness.
g. Types of impeachment attack
(1) This case:
. Bias; prior inconsistent statement;
. Specific contradiction "this
case" deficiencies incompetency
(2) General untruthful character 608 (opinion or reputation)
. prior
untruthful acts 608(b) (on cross -
no extrinsic evidence)
. Prior convictions 609 felony crimes of deceit
. Attacks on general
areas of witness competency. See
attached graphics re: Impeachment.
3. Rehabilitation
XIV. BIAS
A. Most
probative impeachment technique not limited by other impeachment protocols -
trumps other evidence rules.
B. Courts
allow broad scope of inquiry.
C. Right
to show bias is so important that it has been used to override other Rules of
Law (e.g. rape shield law).
D. Bias
is not directly addressed in Federal Rules of Evidence.
1. It is permissible to impeach a witness by
showing bias under Federal Rules of Evidence. Basic to nature of cross
and impeachment - although not specifically mentioned.
F. Two
stages of bias impeachment:
1. Cross exam of witness (intrinsic)
2. Extrinsic evidence
a. Evidence outside witness' own testimony
from another subsequent witness or document.
b. FRE
613 - Impeach by a prior inconsistent statement suggests a foundation
(opportunity to explain or deny, at some time during the proceeding - contrast Queen's Case and Colorado version of 613) to be laid unless justice requires
otherwise - particularly re: bias by prior statement as opposed to biased
conduct or inferred bias from a relationship (You're his mom?)
XV. IMPEACHMENT
PROTOCOLS AND ISSUES
A. Prior
Inconsistent Statements & Acts - What constitutes "inconsistent"?
1. Prior silence, present omissions, failure
to recall.
2. Facts and opinions may be used to
impeach prior statements, denials, evasions.
3. Acts may qualify if logically
relevant to credibility (e.g. loaning money to someone witness claims is
dishonest).
4. Failure to assert a fact on the witness
stand that would have been natural to assert amounts to an assertion of the
non-existence of a fact -- which can be used to impeach testimony if the
witness admitted the fact's existence (e.g. failure to tell police that
defendant killed in self-defense). Except for silence by government action
inducement (Miranda), Jenkins makes impeachment by
silence an evidentiary vs. constitutional issue particularly in pre-arrest
setting.
5. Denial of previous recollection may be an
inconsistent statement.
6. Not recalling prior.
7. Evading answers when on witness stand.
8. All may be construed as
"inconsistent" with prior statement.
B. EXTRINSIC
evidence may be presented if:
1. Foundation is laid (fairness issue)
a. Most jurisdiction's require first
showing the witness what you are about to attack (Rule of Queen's Case) . Federal Rules of
Evidence only require that the witness be shown (at any time) before discharge
as a witness.
FRE
613 (b): Extrinsic evidence of prior inconsistent statement is not
admissible unless the witness is afforded the opportunity to explain or deny or
interest of justice requires.
COLO
613: Witness presented prior statement
foundation, where, when, to whom, circumstances, what was said.
C. The
witness' answer must be a denial or evasion or see other
"inconsistencies" above.
1. If witness admits, the extrinsic evidence
would be cumulative (FRE 403) and a
waste of time.
2. Extrinsic:
may be admission of a prior deposition or other document or by a witness
who heard the prior statement.* Ask why not hearsay?
D. SPECIFIC
CONTRADICTION
1. Rather than testifying to a statement by
previous witness, contradicting witness simply gives contrary testimony.
2. Has dual logical
relevance:
a. Relates to historical merits of case
b. Indirectly attacks credibility of prior
witness.
E. COLLATERAL
FACT RULE
1. A matter is collateral if it is relevant
for no other reason than to contradict the prior testimony on issue of
credibility. Usually has no substantive value to prove facts.
2. Attorney may not use extrinsic evidence to
impeach witness on a collateral matter (10 rather than 20 cows in pasture?).E.G. Garish billboard at the crucial intersection. The witness
would have certainly seen it if s/he were there at intersection[example
of linch-pin credibility] vs how many cows in the field--at the
intersection[example of colateral]
a. Must "take the witness' answer."-----" 20
cows". Cannot put on witnesses(extrinsic
evidence) showing 10 cows.
(1) Not required for bias - always important,
may present evidence showing bias.
3. Evidence is extrinsic if it is presented
after judge has excused the witness to be impeached.
4. Rule only applies to prior inconsistent
statements, specific
contradiction, and inferentially in specific misconduct showing
untruthfulness. Because must take the
answer. See 608(b).
5. Evidence that is not collateral:
a. Relevant to
substantive issues in case.
b. Obvious fact that a witness would have to had
known if they were really there (would not be mistaken or missing if story were
really true). "Linchpin
material." (The huge flashing neon sign next to the cow pasture).
c. Bias
d. Convictions
e. Ability to observe, remember,
recall - competence issues (not merely that the observation, remembrances or
recollections are different).
f. Lack of first hand knowledge
XVI. IMPEACHMENT
TECHNIQUES: PROOF OF CHARACTER TRAIT, VERACITY
A. Three
ways to prove that a witness is a liar:
1. Reputation
2. Acquaintance Opinion
3. Acts
a. All 3 are logically relevant to
credibility. Question is jury misuse or
influence re: dishonesty.
b. GOOD
FAITH BASIS (see later).
(1) May use evidence that is not admissible in
trial but must do so in good faith in that questioner on cross-examination must
have significant evidence in support of question.
(2) Specific bad acts not resulting in a
conviction have to be probative of truthfulness.
B. General
Permissibility of Introducing Evidence of Witness' Character Trait of
Untruthfulness
1. Trait of truth-telling fundamental to
nature of American adversarial proceedings.
2. That untruthful character trait increases
probability of lying in the present case.
See attached graphics on inferences.
3. The character trait of truthfulness or
lack are admissible on credibility theory but not as circumstantial proof of a
fact on historical merits -- Compare 404(a),
405 - Character trait "in issue"
or placed in issue by criminal defense -- in very specific way.
C. Methods of Proving Character Trait of
Untruthfulness
1. Reputation:
a. Witness can only testify to trait of
veracity: not to general immoral character.
See foundation requirement for reputation
"in the community" modern cases export community to relevant
community, e.g., work, school, associations, etc.
b. Foundation showing an "opinion"
witnesses exposure to the liar would seem to be required before eliciting the
opinion. "And what is your opinion
of X's veracity or truthfulness?"
The rule provides:
FRE
608: (a) Credibility of witness may be
attacked in form of opinion or reputation but (1) evidence may only refer to
character for truthfulness and (2) evidence of truthfulness is admissible only
after the character of witness has been attacked. (b) Specific acts of the conduct of a
witness, for purpose of attacking credibility, other than conviction in FRE
609, may not be proved by extrinsic evidence. (take answer)
The
giving of testimony by the accused or any other witness does not operate as a
waiver of the privilege against self-incrimination when the matters relate to
credibility only.
c. Any past bad act not resulting in a
conviction relevant to credibility may be inquired into on cross exam in
apparent disregard of the privilege against self-incrimination. An ordinary witness may not make a partial
disclosure of incriminating matter and then invoke the 5th. However, merely by testifying, the witness
does not waive the right on matters of credibility only. Those "acts" evidencing
untruthfulness: "deceitful
acts" see p. 390 - Carlson. A defendant has the option of whether to
testify or not; the defendant still does not waive the right merely by
testifying on matters of credibility.
1. If the defendant claims he has not done a
specific act, he then "opens the door" for impeachment as to that act
-- lies, overboard protestations of good conduct allow impeachment by all
criminal activities and convictions.
d. Likewise, a character witness
may be crossed about specific acts of the principal witness which are
inconsistent w/the reputation or opinion to which the character witness
testified. "Did you know"that
{Prof. Zeigler} ( whose character for sartorial
splendor he just supported)buys all his clothes at the Good Will
store." --, but the cross examiner,
again, must take the answer.
e. In each case the cross examiner must have
a good faith basis for the question.
Otherwise questioner could cause substantial "prejudice" by:
"Did you know Defendant was the Boston Strangler?"
2. SPECIFIC
BAD ACTS NOT RESULTING IN CONVICTION
a. Three schools:
(1) Exclude all references. Only a conviction is reliable and can be
easily proved without time waste. Minority.
(2) Allow cross re: any illegal\immoral acts. Minority.
(3) Majority view: permit cross re: acts
directly relating to veracity, i.e. probative of untruthfulness but must take
answer if denial.
XVII. IMPEACHMENT
TECHNIQUES: CONVICTION OF A CRIME
A.
FRE 609: IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
See
attached graphic for process and balance in 609.
1. General: For the purpose of attacking the
credibility of a witness, (1) evidence that a witness other than the accused
has been convicted of a crime shall be admitted, subject to FRE 403 (P.V. not
S.O. by PJ.), if the crime was punishable by death or one year ... and the
evidence that the accused has been convicted of such a crime shall be admitted
if the court determines that the probative value of admitting the evidence outweighs
its prejudicial effect; and (2) evidence that any witness has been
convicted of a crime involving dishonesty or false statement shall be admitted
regardless of punishment.
B. Courts
will admit convictions of any felony with balancing. (Recency, similarity, importance of
credibility issue; importance of defendant's testimony [e.g., deferred by
potential impeachment]). If the crime
involves deceit/falsity, it may be admitted against any witness without any
balancing.
C. Green v. Bock Laundry: Court
looked past plain language & applied 609
to both civil plaintiffs & defendants. FRE 609 (a) (1) requires a judge to permit impeachment of a civil
witness with evidence of a prior felony conviction regardless of unfair
prejudice to the witness or the party offering the testimony. Rule of
construction: a general statutory rule is trumped by a specific rule. Therefore, FRE 403 is trumped by 609. The Rule was amended in 1990 to be
consistent with Green
rationale.
D. EXTRINSIC EVIDENCE OF A PRIOR CONVICTION
1. The collateral fact rule does not apply. May resort to extrinsic evidence of the
conviction, not just on cross examination (after amendment). See amendment.
2. Policy:
a. A witness who has committed a serious
crime may have little regard for the truth.
b. Evidence should not distract the jury; a
conviction is not distracting. It is
quick and proof certain in most cases.
3. FRE
609 basics of credibility evidence:
a. Witness other than defendant: admit
conviction if probative value not substantially outweigh by prejudicial
effect. 403.
(1) Includes all civil & government
witnesses.
b. Against the Defendant only if the
probative value outweighs (note deletion of "substantially")
prejudicial effect.
(1) If conviction is used for impeachment of
the defendant (e.g. "I've never done anything"), the procedures of FRE 609 are not applicable after
opening door.
c. All witnesses: admit if conviction
involves deceit without balancing.
4.
5. a. "Any
felony, any time, proved any way."
Conviction on appeal is admissible.
6. 609
(a), Time limits: 10 years - stale convictions admissible if "facts
and circumstances" show the balance and notice is given to the defendant.
a. May be overridden by interests of justice
if probative value substantially outweighs prejudice.
7. Balancing test
a. Impeachment value of crime - high
probative value if smells of deceit/dishonesty.
b. Remoteness & witness' subsequent
history
c. Similarity of past crime to charged crime.
d. Importance of defendant's testimony (if
defendant is going to be impeached, it may chill his inclination to testify and
therefore he loses a major opportunity to defend himself). See graphic re probative value and prejudicial
effect.See earlier discussion in Luce.
8. May jury hear about the details of the
offense?? (going under the plea bargain or conviction)
- if high probative value better argument -- generally
may not go beneath the conviction on record.
Why? May result
in a Mini-trial on credibility.
XVIII. IMPEACHMENT
TECHNIQUES: ATTACKS ON WITNESS' COMPETENCY
A. Elements
of competency (capacity):
1. Sincerity -- knowledge of truth.
2. Perception -- ability to observe, hear,
etc.
3. Memory -- ability to recall events, etc.
4. Narration -- ability to tell what
observed.
B. Very
few witnesses are excluded on competency grounds because of inadequacies in any
of those elements.
1. But general weaknesses in this case an still be exploited for impeachment value.
C. Sincerity
1 . FRE 610: RELIGIOUS BELIEFS
Evidence
of religious beliefs is not admissible to show that credibility is impaired or
enhanced. The evidence may be
admitted to show interest or bias.
2. Polygraph
a. Evidence that witness offered or declined
to take a polygraph is not admissible, not scientifically validated.
b. Note: objection to introduction of
evidence must normally be made at the time of admission or it will be
waived. However, if its admission rises
to the level of plain error, it may
be grounds for reversal. Plain error
occurs when the defendant was prejudiced to the extent that he was prevented
from receiving a fair trial.
c. Polygraph not admissible because, in
addition to scientific questions:
(1) Risk of confusion & prejudice (403).
(2) Evidence might overwhelm jury.
(a) People
v. Baynes -- discusses issues re:
sincerity, impeachment.
D. PERCEPTION, MEMORY, & NARRATION
1. A most common cause of erroneous testimony
is misperception or misrecollection rather than deliberate lies.
2. Evidence of drug/alcohol use at time of
event or testifying is admissible; chronic condition generally is not.
3. Most jurisdictions liberally admit general
evidence of deficiencies in the witness' ability to perceive, remember, or
narrate for impeachment.
4. Experts:
a.
b. It is traditional duty of jury to
determine credibility of witness.
Experts interfere.
XIX. REHABILITATION AFTER IMPEACHMENT
A. Five methods
1. Use of redirect to deny/explain
2. Prior consistent statements
3. Corroboration
4. Proof of character trait of truthfulness
5. Expert testimony
B. Quaere?
1. Why is this evidence logically relevant?
a. Does it help repair the damage?
2. Apply 403
values:
a. Rehabilitating evidence must have high
probative value because it is two steps removed from historical merits and time
consuming. On credibility
only.
C. Use of Redirect:
1. Scope is narrow.
2. Only questions the examiner may ask of
right are questions raised for the first time during cross.
3. Rehab must match impeachment in kind.
D. PRIOR
CONSISTENT STATEMENTS
1. Triggers for admissibility of prior
consistent:
a. Offered after evidence of an inconsistent
statement
b. Charge that witness' testimony is recently
fabricated.
2. Prior consistent statement must come before
the inconsistent statement and inference suggesting evidence or statement of
bias to include improper influence or motive to fabricate.
3. Prior silence -- impeachment is related --
cross examination suggests prior silence inconsistent with present testimony.
a. E.g., a
witness' failure to speak of the matter now being asserted under circumstances
in which it would have natural for the witness to have done so, may be used to
impeach. This attack by negative
evidence compares to self-contradiction by prior inconsistent statement which
is an attack by positive evidence. When
a witness is charged with having previously remained silent at a time when it
would have been natural to speak, evidence
of a consistent statement may be relevant to repel the impeaching evidence.
4. Prior consistent statements traditionally
have been admissible to rebut charges of recent fabrication or improper
influence or motive but not as substantive
evidence. Under the rule 801(d)(1)(B),
they are substantive evidence.
Issue: whether strict test, e.g.,
recent fabrication -- prior to inconsistency.US v. Tome.
5. Prior consistent statements should
have some probative value -- "rebutting value" beyond simply
repeating what was said in court before admissible for impeachment rehab. or substantively.
E. CORROBORATION
1. May be used to rehab. witness'
credibility.
2. Corroborative evidence is extrinsic by
witness (subsequent) on specific
contradiction re fact in case.
E.g., witness 1 says "X happened," witness 2 says "Y
happened." Corroborating witness 3
says witness 1 is right "X happened."
Corroboration adds substantive weight as well as rehabs witness 1.
F. CHARACTER
TRAIT OF TRUTHFULNESS
1. A form of extrinsic rehabilitating
evidence.
2. Two questions:
a. What type of impeachment triggers the
proponent's right to prove the
witness' truthfulness?
(1) Ad
hominem attacks on truthfulness as opposed to specific acts showing
veracity (collateral)
(2) "or otherwise" an attack in opening statement may
allow evidence of truthfulness in defendant's case in chief.
b. What form must the proof of truthfulness take?
(1) May be the same type of opinion or reputation opinion as was
used to impeach: RESPONSE IN KIND. Truthful
character cannot be used
to rebut impeachment by prior inconsistent statements or bias. one must rebut either by showing prior consistent statement
or no bias.
3. FRE
608
AGAIN:
CHARACTER
OF WITNESS:
a)
Credibility may be attacked by opinion or reputation but only as to
1)characterfor
truthtelling
2) rebuttal
testimony is only admissible after attack
b)
Specific conduct:
May
not be proved by extrinsic evidence but may be inquired into on
cross.
XII. LEGAL
IRRELEVANCE: CHARACTER & HABIT EVIDENCE & OTHER ACTS & TRANSACTIONS : FREs
404, 405, 406, 412 [Also see New Rules 413-415
A. Central
Principles:
1. A person's general character may
not serve as a basis for denial of rights or imprisonment.
2. Jurors may tend to overvalue this type of
evidence. e.g. person’s character is so vile that he
deserves to be convicted or to be beat up etc.
3. FRE
404: CHARACTER EVIDENCE NOT ADMISSIBLE
TO PROVE CONDUCT:
(a) Not admissible for proving action in
conformity therewith except:
(1) Evidence of character of the accused offered
by the accused or rebutted by the prosecution.
(2) Pertinent character trait of victim.
(b) Other crimes: not admissible to show conformity of action; may be admitted to
show motive, intent, I.D., planning, preparation, absence of mistake or
accident, other independent relevant factors.
B. CHARACTER AS DIRECT EVIDENCE
1. Proper use of character
a. When character itself is at issue, e.g.,
slander.
b. I.e. is an essential element of a charge,
claim defense or significant independent fact in the case.
2. Methods of proof used to establish
character: See FRE 405.
a. Reputation
b. Opinion
c. Specific Acts
(1) Only used where character is an essential
element of a "charge, claim or defense". But see circumstantial use or 404(b) use.
C. CHARACTER AS CIRCUMSTANTIAL EVIDENCE
1. Character is most commonly used as
circumstantial proof of person's conduct to show a trait relevant to case violence,
dishonesty, etc. of defendant or victim.
404(a) use. Generally:
a. A defendant may introduce positive
character evidence at her option to allow jury to infer that she would not be
likely to do the deed, or trait of victim propensity to violence to enhance
self-defense claim, etc.
b. May not be used for purpose of
proving action in conformity therewith on a particular occasion; i.e. cannot
be used as propensity proof other than as above.
c. May question regarding specific acts on cross
to rebut a testimony on truthfulness/ credibility FRE 608
2. Methods of proof (criminal):
a. Particular acts of misconduct cannot be
used to show propensity of accused.
However, they are admissible for specific independent purposes such as
showing guilty knowledge, intent, & identity -- 404(b).
b. General reputation of character is
acceptable.
c. Opinion of character is now permitted in
most juris.
3. Civil cases
a. Most courts ban the circumstantial use of
character evidence in civil cases unless character is at issue. See 405(b).
D. CHARACTER AS CIRCUMSTANTIAL PROOF OF THE
CONDUCT OF A THIRD PARTY
1. Common Law did not permit use of bad
character to attack 3rd parties (including victims). Exceptions: at common law, rape victims were
fair game---df. would show
sexual indiscretions and propensity to be a slut.
a. Victims of violent & sex crimes
(1) FRE
412 now prohibits reputation or opinion evidence of past sexual behavior of
victim except to show source of semen or past consensual sex with the accused.
(a) Proponent must give notice & have
hearing to judge. Probative value must outweigh
(not substantially outweigh) prejudice.
(2) Might be used in showing self-defense: if
Defendant knew of victim's reputation for violence. Issue is Defendant's state of mind, not
character of 3rd party-victim.
(3) However, if defendant did not previously
know of victim’s propensity for violence- then character evidence of that trait,violence, may be admissible on issue of first aggressor and
self defense
E. HABIT AS CIRCUMSTANTIAL EVIDENCE
1. FRE
406: evidence of habit is relevant to prove conduct and action in a
particular circumstance. Habit is unlike
the general character traits- e.g. “honesty, temperance, peacefulness.”
2. Habit is semi-automatic, non-volitional-
“psychological” theory- compare “probability” theory, repetitive specific
behavior, same behavior to same stimulant. Thus- if one opposes habit evidence- argue volitional-
not unconsciously automatic. The Ad. Comm. notes support both types.
3. Habit is highly probative to show routine,
repeated individual behavior or business practice or procedures to show
behavior or procedure followed in this case.
“A regular response to a repeated specific situation.”
4. Judge will decide admission in accordance
with 104a. Compare “character
for care,” a generalized concept- a tendency to act prudently in all varying situations in life- business,
family life, driving, etc.- See McCormick
§ 152.
5. See common law corroboration requrement p. 335 or “exceptional necessity” requirement e.g. no eyewitnesses- still
allowed in four states. Not FRE.
XXI. LEGAL
IRRELEVANCE: OTHER ACTS BY A PARTY
A. Focus
of jurors should be on acts in pleading; risk of distracting them exists. Much skepticism regarding
"other acts" in the law of evidence.
B. "Other
acts" evidence must have an independent logical relevance: the
proponent must be able to articulate a theory of legal relevance other than the
character theory that the party's performance of the other act increases the
probability of the party's performance of the other act alleged in the
pleading. No requirement for
opinion/reputation; must use specific acts.
See
C. TORTS:
Series of false claims by family members vs. trolly co. “merely shows
transactions of a similar nature, unconnected and no necessary element in a
“conspiracy”.
1. The Plaintiff may not offer evidence of
other torts merely to prove that the event alleged occurred.
2. Evidence of prior accident
experience may be admitted to establish:
a. Plaintiff's injury was caused by a
particular instrumentality or condition.
b. That instrumentality was unsafe.
c. Defendant should have known of hazardous
condition or had noticed previously and failed to act.
d. Defendant was negligent in failing to
correct condition.
3. MUST prove circumstances of other
accidents were substantially
similar. Requirement may be lessened
if purpose is to show notice. Requirement is most strict when evidence
is offered to prove defectiveness of product.
4. Contract
Cases - Prior contracts between parties; course of conduct; on open terms;
trade or commercial usage. Comparables
market value etc. to interpret contract terms where ambiguous or to supply "reasonable
terms."
D. "OTHER ACTS" IN CRIMINAL CASES
1. The crime need not be identical to have
independent logical relevance & be admitted except M.O.
2. Need not be a crime: "uncharged
misconduct."
3. FRE
404(b) restricts use of other crimes & acts to other purposes such as
motive & intent (not "conformity therewith" a trait of
character.
4. INDEPENDENT
LOGICAL RELEVANCE
a. US
v. Woods (suffocating children case) Really a M.O. case where number of
events supplanted specificity and detail in the signature.
(1) Overall circumstances show or
(2) Independent relevance.
5. BALANCING PROCESS
a. If uncharged or charged: convicted,
misconduct has independent relevance FRE
404(b) is satisfied but must pass FRE
403:
(1) Plaintiff's need for the evidence:
(a) Courts split on strength of evidence that
the defendant committed the uncharged act - "clear and convincing"
vs. U.S. v. Huddleston - let
jury weigh whether the df. did
it with out a standard. If they don't
think he did it they won't apply it as an independantly relevant factor. Great reasoning!!!!!
(b) Extent to which the uncharged act is
probative of the fact of consequence.
(c) Availability of other, less prejudicial
evidence
(d) Degree to which the fact of consequence is
disputed.
(2) Recall:
The examples given of independent
relevant disputed element or factor under 404(b). Motive, I.D.,
intent, plan preparation, absence of mistake, or accident etc. common scheme or
plan - M.O.or signature, consciousness or guilt opportunity, means - Escaped bank robber, car thief hypothetical.
(3) Remember:
Beecham - possess
"missing" credit cards - where defendant claims possession of
"missing" gold dollar innocent mistake,he was going to return it- did
away with prior rule that Pros. had to show physical identity of elements of
prior crime to show intent, where other offense had independent logical
relevance. Thus only requirement to use other bad acts is to show an
independantly relevant factor other than bad character or propensity. Here -
"absence of mistakes." eg his possession of credit cards tends to
make less likely than not his claim of innocent mistake.
XXII. LEGAL
IRRELEVANCE: SPECIAL RULES
A. Defendant
cannot lessen payments to plaintiff by showing plaintiff has collateral sources
(insurance/workers compensation); therefore, evidence of insurance is logically
immaterial & inadmissible. Called collateral source rule. Different rationale than FRE 411.
B. FRE
411: LIABILITY INSURANCE:
Evidence of liability insurance N/A on issue of negligence. May be offered to show bias
or prejudice.
C. Analogous
to 404(b) and character in issue
cases - (public policy vs. fairness as rationale). Insurance barred but can show if
independently relevant element (disputed) or significant factor. For example to show bias of
an "insurance" witness.
D. Remedial
Measures (subsequent) 407 -
After injury of claimed negligence defect, wrongdoing accused party takes steps
to remedy. Barred unless to show negative
or culp offer to show .... Ault v. Int'l Harvester - Not applicable -
strict liability some recent cases allow - same policy no matter what theory.
E. Negotiation or offers
to pay claims disputed as to validity or amount - barred. FRE 408.
F. Offers
to pay medical expenses - FRE 409.
G. Criminal
plea bargains - FRE 410.
PART THREE:
HEARSAY
I. THE
RULE AGAINST HEARSAY
A. INTRO:
1. Rule rests on the concept of skepticism
and requirement of reliability and necessity.
a. Defects in credibility or competency
- notice dangers go to these competency factors all tested by cross
(1) Lack of sincerity.
(2) Defects in narrative ability.
(3) Inferior perception/opponent to observe.
(4) Bad memory.
2. In determining whether an out-of-court
statement is admissible, ask four questions:
a. Out of court assertive
801(a)
b. Offered for its truth - 801(a) if so
c. Defined non hearsay - reliable - general
subject to cross exam (prior witness - statements party admissions) or
d. Witness in an exception (enhanced
reliability) - spontaneity contemporaity, recency to the event - recorded
routinely under trustworthy circumstances or
necessity: declarant
unavailable and statement reliable.
B. RATIONALE:
1. Skepticism because the declarant was not
subject to cross-exam under oath in presence of trier-of-fact at time of making
the statement.
2. Four dangers:
a. Lack of oath (not a major concern)
b. Concern for error in transmission
c. Demeanor of declarant absent.
d. Inability of opposing party to cross -
(1) Primary factor
(2) Constitutional dimension in criminal cases
regarding 6th Amendment, Right to Confrontation.
C. DEFINITION:
1. HEARSAY:
is a statement, other than one made by the declarant while testifying at trial,
offered in evidence to prove the truth of the matter asserted. FRE 801(c).
a. What purpose is statement offered
b. Types of statements and need for cross-
susceptible of being
false.
c. What are out of court declarants- does
court presence of
declarant elminiate cross necessity.
d. A "statement" is oral, written,
or nonverbal conduct intended by the person as an assertion.
e. Usually a declarative
sentence- assertions about facts, events.
(1) Not
a question, demand, order or exclamation. Look for function - describe, relate
facts.
f. May be conduct that impliedly asserts
something - in a very few non - FRE jurisdictions.
(1) Wright v. Tatham: Letters to
decedent showing that business acquaintances thought him sane. Contents of letters to
prove sanity is not admissible; it is for purpose of showing that
writers believed him sane. Impliedly assertive conduct saying "T must be sane because I
had serious correspondence with him".
D. TESTS UNDER FEDERAL RULES OF EVIDENCE:
1. Is it an out-of-court assertive statement?
a. Once out-of-court, always out-of-court,
traditional view. But see
2. PURPOSE
WHAT IS THE PURPOSE OF THE OFFER?
a. Is it offered for the TOMA?
(1) Does it matter whether the statement's
content is true or false?
(2) Does it put recipient on notice?
(a) i.e. EFFECT on hearer.
(b) Cops may testify as to what they did as a
result of hearing statement.
(3) Does it represent circumstantial proof of
declarant's state of mind.
(4) If the purpose is simply to show that the
statement was made, it is not hearsay.
(5) Does it have independent legal significant
separate from its truth? e.g., verbal
act - contracts "I accept"; extortion - "I will kill you
unless."
(6) If offered for impeachment by prior
inconsistent, it is not hearsay and can be used to prove its truth as well.
3. IF IT IS NOT OFFERED FOR THE TOMA, IT IS NOT
HEARSAY. See non-hearsay uses in Graphic
on hearsay.
4. Is it defined as non-hearsay See FRE 801(d)? Sometimes termed
"exemptions" from hearsay.
FRE
801(d): NOT HEARSAY
(1)
Prior statement by witness: D. testifies
at trial & is subject to cross and the statement is:
(A) inconsistent
w/D's testimony given under oath under penalty or perjury at a prior proceeding
or
(B) consistent w/D's
testimony & is offered to rebut a charge of D's recent fabrication or
(C) ID of person after perceiving the person;
or
(2)
Admission by party-opponent: Statement is offered against a party & is:
(A) party's own statement or
(B) party adopted
the statement or
(C) made by person
authorized or
(D) made by agent or
(E) made by
co-conspirator in course & furtherance of conspiracy. See full text of Rule.
5. Is it an exception?
E. GENERAL CATEGORIES OF NON-HEARSAY USES (See
also 2(a) above)
1. Statements to show defendant said it or it
was false.
2. Statements offered to show effect on
hearer - "mental input."
3. Utterances that are legally operative
language.
4. Statements offered as circumstantial
evidence of declarant's state of mind - "mental output."
F. DEFEATING A HEARSAY OBJECTION
1. Statement is non-assertive.
2. Offered for non-hearsay purpose.
3. No longer out-of-court. But see FRE
801(d) above. Compare
4. Hearsay exemption see
801 (d).
5. Hearsay exception
a) 803- highly reliable circumstances spontaneous
and recent in time, mental state, physical condition for purpose of treatment.
b) Writings- public records or private as
regularly conducted activity
c) Necessity: Where witness unavailable and
record reliable. See 804.
II. ADMISSIONS OF PARTY-OPPONENT
FRE
801(d)(2) 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.
A. Exemptions
to Hearsay Rule
1. Proponent need not show reliability,
necessity.
2. No high circumstantial evidence of
reliability.
B. Admissions
of party-opponent is most important exception.
1. Admissions of party-opponent may be
self-serving & not based on first-hand knowledge. Strength comes from adversary system and
notion that a party is unlikely to make false assertions that can be used
against him.
a. Party can't object that he hasn't had
opportunity to cross himself.
b. FRE
801(d)(2) says that admissions of party opponent
are not hearsay.
c. Unlike
"declarations against interest at time its made". Statement may be neutral at time and still be
used if negative inference at time of trial.
C. Types of admissions:
1. Personal
a. Statement must be inconsistent with a
position of party-opponent
at trial or inferentially against party.
b. May be opinions or even speculations. See Mahlandt
v. World Canid.
2. Adoptive
a. Judge (104(a))
decides whether jury could rationally infer that party-opponent was
manifesting assent to statement or belief in its truth.
b. Negative
adoption (tacit admission):
(1) 3rd party made statement.
(2) Party-opponent heard & understood.
(3) Party-opponent capable of replying.
(4) Party-opponent made no reply.
(5) Statement accused party-opponent of
misconduct.
(6) A "reasonably innocent" person
would have objected.
(7) Sometimes available in written statements
where recipient wrote book didn't deny or business or other relationship where
response ordinarily likely. E.G., Bills or statements of indebtedness.
(8) Doyle
v.
3. Vicarious
a. Based on legal relationship.
(1) Agent, partner, co-conspirator.
(a) Generally can't use statement alone by agent
or co-conspirator to prove agency/conspiracy.
But see Bourjaily case. May use statement as one
factor to prove conspiracy. Goes to jury (104(b)).
b. Legal relationship attributes statement
made by 3rd party to party opponent. Co-conspirators statement made "in furtherance".
c. "Speaking
agents" or agent statement "within scope of employment" and
pursuant to the objectives of conspiracy may be used. Post
conspiracy - "concealment," confessions etc. Generally not admissible unless other indications
of reliability. See Dutton Case, interpreting concealment phase statement.
D.
Admissions do not have to be against the party's interest, if can be
used in any way against party.
III. EXCEPTIONS THAT DO NOT REQUIRE A SHOWING OF
ABSOLUTE NECESSITY
A. Exceptions
are based on theory of inherent reliability.
1. Therefore, no cross required.
B. Does
not require unavailability of declarant.
C. CIRCUMSTANCES
STRONGLY SUGGEST DECLARANT'S SINCERITY
1. Res gestae - at common law - (confusing
overboard concept) meant:
a. Part of a relevant transaction which has
no hearsay aspect.
b. Declaration of presently existing symptoms
to prove existence of those symptoms.
c. Spontaneous statements or statements made
contemporaneously with event.
2. Predecessor concept to Federal Rules of
Evidence oral exceptions.
D. Spontaneous/contemporaneous
statements:
1. Excited Utterance FRE 803(2)
a. Courts are quite liberal in admitting -
proponent must show:
b. Made while Declarant is under influence
of event that's startling.
c. Must be personally experienced by
declarant
d. Need only "relate to"
event.
(1) Broader than present sense impression which
requires "describing or explaining."
e. Excited utterance can be used to show
event occurred. FRE 803(1) When bystander unidentified-
less credible
2. Present Sense Impression:
a. Contemporaity dominates spontaneity
here. See original Houston Oxygen case.
b. No emotion required.
c. Like a recording of the event, describing
it or explaining.
d. Immediacy is required - while perceiving
or immediately after.
(1) More so than excited utterance.
e. Federal Rules
of Evidence seem not to require corroboration of event
although some dispute. See Coleman case: description of situation over the
telephone.To mother "my husband is coming to kill me."
3. Declarations of Bodily Condition (FRE 803{3} & {4})
803(3)
Then existing mental, emotional, or physical
condition. A statement of the
declarant's then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief to prove the
fact remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
803(4) Statements for
purposes of medical diagnosis or treatment.
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations,
or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.
a. Must
relate to an internal reality.
(1) Rarely any doubt as to perception, memory,
or narration from declarant.
(2) Some doubts as to sincerity. Thus:
(a) Courts must analyze declarant's:
(i) Purpose
(ii) Audience
b. 803(3): Then existing condition, mental, physical or emotional
(1) Cannot include present memory of past
events except wills. Can
look forward - Hillman. Can't look back - Shephard.
c. 803(4): Diagnosis or treatment
(1) Doesn't have to be to Doctor.
(2) May be for litigation and include past
symptoms.
(3) May include causation if pertinent to
treatment or diagnosis of injury but not as to fault.
(4) Also statements of medical history and past
(present) symptoms.
4. Declarations of state of mind "then existing" 803(3)
a. Declarant is in best position to know
internal reality.
b. Limited
necessity to test by cross.
c. 4 situations:
(1) State of mind is itself an issue.
(2) Used to prove subsequent conduct.
(a) May even show intent/plan.
(i) Even of another. Hearsay in criminal cases must have
corroboration that 3rd party involved.
See Pheaster case.
(ii) House Committee notes say no. Advisory Committee yes.
(b) Mutual
Life Ins v. Hillmon
(i) Letter stating plan to travel
(3) Declaration of past state of mind or memory
- Shephard case.
(4) Present memory to prove past, remembered
events.
(a) Not under FRE. "Not including statement of memory to
prove fact remember".
(5) Execution of wills - exceptions
E. EXCEPTIONS FOR WRITTEN RECORDS (including
business records, regular conducted activity and absence of records, public
records and recorded recollections -
803(6)(7)(8)(10) & (5)
1. Motive for sincerity:
a. Routine business duty
b. Official responsibility
c. Peer review
2. Reliable because:
a. Routine business practice or procedure in
ordinary course
b. 1st hand knowledge
(1) Similar to authentication rule, same policy
values
(2) Opinions OK if routine in activity and
source, method or circumstances indicate trustworthiness.
3. BUSINESS
RECORDS (FRE 803{6})
803(6) Records of
regularly conducted activity. A
memorandum, report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular practice of
that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness.
The term "business" as used in this paragraph includes
business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
a. Routine
b. Used in regular
conduct of business.
c. Duty (job) to be accurate - business duty
to report. See Johnson v. Lutz - bystander statements in accident report by
cop. Hearsay -no duty.
d. Made at time or transmitted by person with
knowledge.
(1) Palmer
v. Hoffman: records must be kept in regular course of business & for
conduct of business. Not RR accident
reports - for litigation - biased.
4. PUBLIC
RECORDS (FRE 803{8}) - three areas of records.
808(8) Public records and reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth (A) the
activities of the office or agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers 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.
a. Rationale routine and open to public
scrutiny.
b. Concern activities of office - 803(8)(A)
c. Duty to record imposed by law -
observations excluding criminal reports
- 803(8)(B)
d.
(1) Chemist's report NA; he's a cop.
(2) Concern is right to confrontation.
(3) Majority view:
(a) Non-adversarial records are admissible.
(b) Routine, objective observations of law
enforcement offices are normally admissible under 803(8)(c).
e. Beech
Aircraft - 803(8)(c) investigative (evaluative) reports.
(1) Legal conclusions generally not admissible.
(2) Conclusions that are evaluations of fact
are admissible.
(3) Advisory Committee on evaluative
report: to assess issue of "source of
information, method or circumstances of preparation indicate lack of
trustworthiness".