1
Q
Hearsay?
A
out of court statement other than one made by declarant while testifying at trial offered to prove the truth of the matter asserted
- Statement is either: oral or written assertion OR conduct intended as an assertion [pointing]
- Caveat: I testify at trial, “I told the police officer at the scene, ∆ drove through red light.” Hearsay. [in court witness attempting to introduce his own out of court statement]
- Non-assertive conduct non-hearsay. [Conduct not intended to communicate] Ex: (1) video tape showing demeanor, (2) walking with a limp, (3) slurred speech & (4) hiding, fleeing scene, destroying evidence
- Statement must be a human statement, not one made by an animal or machine. [Not a statementà print out of wind speed, not if it is processing human input]
- Animal actions may be admissible as circumstantial evidence of ∆’s guilt. Animal behavior can be introduced circumstantially.
2
Q
Declarant?
A
person making out of court statement
3
Q
Evidence Offered for Non-Hearsay Purposes:
State of mind
A
circumstantial evidence offered to show knowledge, intent, attitude or belief of either declarant or listener
4
Q
Evidence Offered for Non-Hearsay Purposes:
Statements which are not hearsay?
A
: “CA PPP Rule”
- Co-conspirator’s statements
- Admissions
- PINS
- Prior consistent statements
- Prior identifications
5
Q
Evidence Offered for Non-Hearsay Purposes:
Co-conspirator’s Statements
A
whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware a conspiracy exists
Statement which is not hearsay
- Requirements:
- Existence of conspiracy preliminary fact to be proven to court by POTE;
- Declarant was member of conspiracy;
- Statement was made in furtherance of conspiracy; &
- Statement was made during existence of conspiracy
6
Q
Evidence Offered for Non-Hearsay Purposes:
Admissions:
Types?
A
- Direct admission;
- Adoptive admission [either by conduct or silence];
- Authorized admission &
- Vicarious admission
**MBE tips: Admissions are preferred over hearsay exceptions **
7
Q
Evidence Offered for Non-Hearsay Purposes:
Admissions:
Direct Admission
A
statement of a party offered against him
by his opponent
Characteristics:
- statement of fact or opinion
- personal knowledge is not required for admission
- party need not be available
8
Q
Evidence Offered for Non-Hearsay Purposes:
Admissions:
Adoptive Admission
A
there must be evidence sufficient to show the party heard & understood statement & adopted it as her own
Characteristics:
- admission by silence requires RPP would have denied statement
- Caveat: does not apply after ∆ given Miranda warnings
- **Ex: Distributor says, “I want you to sell these drugs for me.” Defendant reaches out his hand & takes drugs **
9
Q
Evidence Offered for Non-Hearsay Purposes:
Admissions:
Authorized Admission
A
statement by party’s agent or representative
- Ex. Lawyer for client. Agent for principal. Ceo for company.
10
Q
Evidence Offered for Non-Hearsay Purposes:
Admissions:
Employee/Vicarious Admission
A
statement of a party’s employee offered against the party by the opponent
Elements:
- during existence of relationship
- must concern a matter w/in the scope of employment
11
Q
Evidence Offered for Non-Hearsay Purposes:
Prior inconsistent statement [PINS], permitted if:
A
It’s “sworn” - subject to penalty of perjury at a trial, deposition or other PROCEEDING. If not sworn then rule 613 & only to impeach.
- 2 key requirements: (i) Declarant must testify at the trial or hearing. (ii) Declarant must be subject to cross-examination concerning statement.
- Ex. (i) Grand Jury: sworn (ii) Coroner’s inquest: sworn (iii) Affidavit: not sworn
12
Q
Evidence Offered for Non-Hearsay Purposes:
Prior consistent statements:
A
permitted to be offered for its truth if:
- Declarant testifies at trial or hearing;
- Declarant must be subject to cross-examination concerning statement;
- Offered to rebut a charge of recent fabrication or improper; &
- Prior consistent statement predates alleged motive to fabricate
13
Q
Evidence Offered for Non-Hearsay Purposes:
Prior Identifications:
A
prior statement of identification of a person made after perceiving him
- Declarant: has to testify at trial;
- Be subject to cross-exam; &
- I.D. of defendant in a lineup, show-up, photo ID; sketch.
14
Q
Hearsay Exceptions:
Declarant Unavailable:
Unavailability
A
PRISM
- Privilege - assertion of privilege based on judge’s ruling
- Refusal - refusal to testify despite a court order
- Incapability - incapacity due to death/then existing mental/physical illness
- Subpoena - absence despite GF attempt to procure witness’s attendance
- Memory - testifies as to lack of memory
Note: Proponent of testimony: bears burden to proven declarant unavailable, & cannot act wrongfully to cause witness to be unavailable
15
Q
Hearsay Exceptions:
Declarant Unavailable:
List Exceptions
A
- Former Testimony
- Statements Under Belief of Impending Death/“Dying Declaration”
- Statements Against Interest
- Statement of Personal or Family History/“Pedigree Exception”
- Forfeiture by Wrongdoing
16
Q
Hearsay Exceptions:
Declarant Unavailable:
Former Testimony
A
May be used for its truth if:
- declarant made statement under oath
- given by witness in same or different proceeding or in a deposition
- Note: former action must involve same subject matter, not necessarily same CoA.
- party against whom evidence being offered must have had an opportunity and similar motive to examine witness and develop testimony, on direct, cross-examination, or redirect.
- deposition of a witness taken in a civil case may be admissible in a criminal case arising out of earlier civil case.
- Note: Preliminary hearing: Testimony against accused from a preliminary hearing MAY be admitted as former testimony at trial if: plaintiff witness is unavailable. No confrontation clause problem. Grand Jury testimony: No, cause no opportunity to confront witness. Then have confrontation clause problem.
17
Q
Hearsay Exceptions:
Declarant Unavailable:
Statements Under Belief of Impending Death/“Dying Declaration”
A
Requirements: Mnemonic: CUBA
- Testimony concerning cause of death
- Unavailable declarant
- Belief by declarant that death is imminent
- Admissible in criminal homicide case or any civil case
- Caveat: Attempted murder, not homicide
- Judge determines whether belief in imminent death was just
18
Q
Hearsay Exceptions:
Declarant Unavailable:
**Statements Against Interest **
A
RPP in declarant’s position would only make statement if believed it to be true, b/c was so contrary to declarant’s proprietary/pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability when made; supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose declarant to criminal liability. [Do not confuse w/ admission].
- unavailability of declarant [non-party]
- against proprietary/pecuniary interest when made
- corroborating circumstances [assures trustworthiness]
19
Q
Hearsay Exceptions:
Declarant Unavailable:
Statement of Personal or Family History/“Pedigree Exception”
A
Statement concerning declarant’s own relationship by blood, adoption or marriage or other similar fact of personal or family history.
20
Q
Hearsay Exceptions:
Declarant Unavailable:
Forfeiture by Wrongdoing
A
statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by Hearsay Rule).
- Ex: Eyewitness gives statement to police. Accused then causes witness to disappear; witness’ statement will be admissible.
21
Q
Confrontation Clause
A
6th Amend Confrontation Clause: In criminal case where declarant unavailable, “testimonial” hearsay statements inadmissible unless ∆ given opportunity to cross-examine declarant
- primary purpose of police interrogation is to prove past event relevant to later criminal prosecution
- “Non-testimonial evidence” includes situations where primary purpose of the statement is to aid police during an ongoing emergency
- If hearsay turns out to be “testimonial,” cure is ∆ must be given an opportunity to cross declarant absent forfeiture
- Hint: Look for ongoing emergency v. police-building their case.
- criminal ∆ forfeits Confrontation Clause rights if he causes unavailability of declarant w/ intent to prevent that declarant from testifying.
22
Q
Hearsay w/in Hearsay/Multiple Hearsay
A
When faced w/ 2+ out-of-court statements, both primary statement & included statement must have separate basis for admissibility. Otherwise, entire statement inadmissible.
- Common situations: business records; medical records or charts.
- EX: π is suing an auto shop for personal injury after a hydraulic pump burst. π and ∆’s employee are injured. π offers an official OSHA report wherein defendant’s employee (also injured) is quoted as to the cause of the accident. Public record hearsay records. OSHA. For employee statement, vicarious admission
23
Q
Residual Exception
(Equivalency) [often the wrong answer]
A
statement not otherwise covered by an exception to hearsay rule is nevertheless not excluded by hearsay rule under certain circumstances:
- statement must be more probative on point than any other evidence
- statement must contain circumstantial guarantees of trustworthiness equivalent to other exceptions
- party must give notice to opposing party.
- statement must concern a mat’l issue.
- judge ultimately determines whether, in interest of justice, statement should be admitted.
24
Q
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:
“Best Evidence Rule”
A
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
- “Contents of a writing are in issue.”
- Legally operative documents (LOD) - writing has independent legal significance; writing itself creates or destroys a legal relationship
- Where Testimony reliant on writing, not on personal knowledge.
- *
25
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:
“Best Evidence Rule”
**Independent Source Rule**
BER does not apply.
* ***Where a fact to be proved has a source independent from writing*** (i.e., fact occurred regardless of whether writing exists), then contents are NOT in issue & BER does not apply. Exist independently.
* Caveat: if however the witness testifies my records show I paid the bill, then receipt would be required [if receipt/certificate is offered as evidence to prove something then original has to be produced]
* Caveat: BEST evidence rule does not apply to inscribed chattels. Policeman’s badge, license plate, sign on a bus, speed limit sign, etc [not writings for purposes of best evidence rule]
26
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:
“Best Evidence Rule”
**Original includes either the original itself or:**
1. duplicate
2. certified copy of a public record
3. summaries of voluminous records
* Admissibility of Duplicates - duplicate is admissible to same extent as an original unless there is a genuine question of authenticity. There are no degrees of secondary evidence under federal rules
* Duplicate is any counterpart that accurately reproduces original.
* Any negative or print of a photograph is view as an original
27
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:
**Admissibility of Other Evidence of Contents:**
**original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if mnemonic LOCS applies.**
* **Lost** – where all original lost/destroyed original not required unless proponent lost/destroyed them in bad faith
* **Opponent** – has possession of original and refused to deliver it even upon notice of pleading from/by the court
* **Collateral** – is not closely related to a controlling issue
* **Subpoena** – original cannot be obtained by any available judicial procedure
**Secondary Evidence is any alternative to the document. [e.g., testimony, handwritten duplication, once good cause shown for non-production]**
28
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:
**Public Records**
contents of an official record may be proved by copy, certified as correct in accordance with Rule 902 or by witness testimony upon comparison with the original
29
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:
**Summaries**
contents of voluminous writings, recordings or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.
1. originals SHALL be made available for examination, copying (or both) by other parties at a reasonable time and place. The court may order production in court also.
2. Foundation [requirement]: admitted substantively
* showing that original themselves would be admissible hearsay
* opponent must be given reasonable pretrial access
* summaries themselves must be authenticated by preparer
30
CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:
**Testimony or Written Admission of Party**
Contents of a writing may be proved by the testimony, deposition, or admission of the opposing party without accounting for the nonproduction of the original writing
31
**Functions of Court**
* Judge determines preliminary facts
* whether the BER applies to a writing
* whether a writing is an original or a duplicate
* whether “good cause” exists for nonproduction of the original
* whether summaries are admissible
* its a judge decision whenever admissibility depends on the fulfillment of a condition of fact
32
Functions of Jury
Finder of fact (usually the jury) decides
* whether the asserted writing (the original) ever existed
* whether another writing produced at trial is the original
* accuracy of the writing
* whether the item is genuine & how much weight to give it
33
AUTHENTICATION AND IDENTIFICATION:
## Footnote
**Authentication or Identification**
a condition precedent to admissibility requires **_evidence sufficient to support a finding_** that matter in question is what its proponent claims it to be
## Footnote
34
AUTHENTICATION AND IDENTIFICATION:
**Sufficient evidence**
reasonable juror could find “genuine” by a POTE
1. judge must admit it & jury has final decision as to how much weight to give it
2. all evidence whether direct/circumstantial can be classified as testimonial or tangible
35
AUTHENTICATION AND IDENTIFICATION:
**Tangible Evidence**
1. **Real Evidence**
* physical evidence actually connected to case. Ex: murder weapon, fingerprints, hair samples
2. **Documentary evidence:** 1) identify the speaker; 2) establish a showing that machine was in proper working condition; & 3) recording was accurate and not altered
3. **Demonstrative evidence:** its relevance depends on its ability to explain or simulate mat’l facts in the case.
* a) Exhibit must fairly & accurately represent the scene & witness must be substantially familiar w/ the item shown.
* b) Ex: maps, charts, diagrams, scale models, visual aids
36
AUTHENTICATION AND IDENTIFICATION:
## Footnote
**Real evidence may be authenticated by:**
1. Testimony _from personal knowledge by showing familiarity w/ the object_
2. Distinctive characteristics – gun w/ pearl handle
3. Chain of Custody – accounting for an item’s wheraeabouts from time at issue up until trial
* must be used when dealing w/ fungible items
* party entering item must account for any change in evidence.
4. Test for a photograph (crime scene, autopsy) or an x-ray: it must be an ACCURATE PORTRAYAL OF WHAT IT DEPICTS.[how to authenticate]
* **Note: don’t need photographer there or picture taker …witness need only be familiar w/ the scene**
37
AUTHENTICATION AND IDENTIFICATION:
**Documents may be authenticated or identified by:**
* **Someone who had first-hand knowledge of the document, such as:** the custodian; one who prepares the doc or report; an eye witness to the signing of a doc; an opinion by an expert witness [handwriting, fingerprints, ballistics]; by the jury [upon comparing samples]
* **Circumstantial evidence:** Reply doctrine: Doctrine can be used to authenticate the fact that a respondent’s reply was written by him.
* **Ancient documents (AD):** sufficiently authenticated if proponent shows the judge the writing is more than 20 y.o. & found in proper place
*
38
AUTHENTICATION AND IDENTIFICATION:
**How to authenticate Handwriting: **
1. lay person w/ familiarity;
2. by expert; OR
3. comparison by trier of fact
* Familiarity is a weight issue.
* Caveat: familiarity w/ handwritten cannot be acquired solely for purposes of litigation
39
AUTHENTICATION AND IDENTIFICATION:
**How to identify Voices: **
**All voices must be identified when a phone conversation or recording is offered in evidence.**
* Generally, direct evidence is offered by testimony of a witness who recognizes the voice.
40
AUTHENTICATION AND IDENTIFICATION:
**How to authenticate Telephone Calls: **
* Showing call made to # assignedà call assumed to have gone to that person
* Showing call made from assigned #à assumed to have come from person assigned that #
* Speaker has a knowledge of specific facts known only to him.
* In case of a business, showing call made to business and convo related to business reasonably transacted
41
AUTHENTICATION AND IDENTIFICATION:
**Experts**
may testify to describe how a scientific or technical method produces a specific result and may show how such a process is accurate
* Expert may authenticate a scientific device under *Daubert*
42
AUTHENTICATION AND IDENTIFICATION:
**Self-Authentication**
**Certain documents need no foundation witness to prove they are genuine.** Rule 902 lists 12 areas, 6 of which are sometimes tested on the MBE: CONTAC
1. **Commercial paper:** bills of laden, negotiable instruments
2. **Official publications**: books/publications issued by a public authority
3. **Newspapers & periodicals**
4. **Trade inscriptions**: signs, tags, labels that are affixed in the ordinary course of business indicating ownership, control or origin
5. **Acknowledged** **documents**: notarized, doc’s accompanied by certification in manner acknowledged by law (Note: The hearsay rule could apply to render a notarized affidavit inadmissible)
6. **Certified documents:** docs bearing a seal of U.S., a state, or any public documents under seal); no seal, if public officer certifies under seal that signer has official capacity to sign & that the signature is genuine; certified foreign docs: genuiness of signature and authorized person’s official position is required; certified copies of (official) public records must be filed or recorded in a public office and certified as correct by either the custodian or other qualified person – could include document under Public Records Exception FRE 803 (8).
43
AUTHENTICATION AND IDENTIFICATION:
## Footnote
**Subscribing Witness’ Testimony Unnecessary**
Testimony of subscribing witness is not necessary to authenticate a writing unless required by laws of governing jurisdiction
## Footnote
44
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Present Sense Impression**
statement describing or explaining an event or condition made *_while or immediately after proceeding it_*
## Footnote
45
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Excited Utterance**
statement relating to *startling event* made while declarant *under stress of excitement caused by event or condition*
**Unlike present sense impression, doesn’t have to be immediate**
46
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Then-Existing Mental, Emotional, or Physical Condition**
statement of declarant’s ***then-existing physical, emotional, or mental condition*** is relevant to show declarant’s state of mind.
* Includes statements to prove intent, motive, design, mental feeling, pain, or bodily health.
* Statements of memory or belief are generally inadmissible.
47
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Statements for Purposes of Medical Diagnosis or Treatment**
**statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation or cause thereof as reasonably pertinent to diagnosis or treatment**
* Statement can be made to any medical personnel or family member [Caveat: it only goes one way not both]
* Caveat: statements that admit fault are not included
48
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Recorded Recollection Rule/“Past Recollection Recorded”**
**Used where witness has a present memory problem**
Requirements:
1. Refreshing (Rule 612) by a Leading Question or a Writing must have been attempted and failed.
* memorandum must have been made while matter as fresh in witness’s mind
2. **Authentication** – Witness must testify **writing accurately reflects** his prior knowledge [i.e. Witness made/adopted statement]
3. Writing/record READ into evidence but writing itself is NOT received as exhibit, unless offered by the adverse party.
**Rights of adverse party: (i) inspect writing; (ii) cross-exam w/ writing; (iii) show it jury to comparison purposes; & (iv) opposing counsel can introduce relevant portion into evidence**
49
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Records of Regularly Conducted Activity/****“Business Records Exception”**
**Memorandum, record, report of acts or events**
**made in the regular course of business**
**by a person w/ knowledge**
**or custodian who had business duty to record**
**kept in course of regularly conducted business activity**
* Trustworthiness determined: by the judge
* Caveat: records in question may not be made solely in anticipation of litigation.
* Foundation witness may not have personal knowledge of contents
* Caveat: person who prepared the report must be able to testify in court in court and subject to cross-examination by ∆
50
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Absence of Entry in Records **
Evidence that a matter is not included in records or data compilations kept in accordance with business or public records Rules, may be admitted to prove non-occurrence of event or non-existence of the matter
* **Foundation: Witness must testify he is familiar w/ the records, that he diligently searched, and that he found no record of the event.**
51
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Public records and reports **
**Similar foundation as business records, except proponent need not show record was routinely made at or near the time**
1. activities of the public office or agency
2. matters observed pursuant to duty imposed by law as to which there was a duty to report [e.g., W2 not police reports in criminal ok in civil]
52
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Records of Vital Statistics **
Records or data compilations of *_births, death, marriages_* are admissible if *_report was made to a public office pursuant to reqs. of law_*
53
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Family Records**
Statements of fact concerning personal or family history contained in *_geniology charts, inscriptions on family portraits, engravings on tombstone, urn, crypt_*
54
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Judgment of Previous Conviction **
**Final judgment of previous convictions for felonies admissible. [certified copy of final judgment needed]**
* Judgment cannot be used except as to accused.
55
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Learned Treatises/“Expert Exception” **
**statements may be read into evidence once authoritativeness has been met judicial notice, expert testimony, or by both parties stipulation all prove authoritativeness**
* Subject area: MASH: medicine, art, science & history
* Caveat: The treatise being used must be read to the jury.
56
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Statements in Ancient Documents **
**Includes statements in a document in existence 20 years or more whose authenticity is established.**
57
Hearsay Exceptions:
Availability of Declarant Immaterial:
**Least** **Popular Exceptions**
1. **Market Reports, Commercial Publications:** Includes statements of objective facts, not opinions Ex: telephone directory, credit reports, Kelly blue book
2. **Reputation Among Associates, Family Members Concerning Personal or Family History **Ex: A witness may testify as to his name or date of birth without having to rely on his birth certificate.
3. **Jdgmt as to Personal, Family, or General History, or Boundaries** Final judgments, if essential to a particular case, are admissible.
4. **Records of Religious Organizations**
5. **Marriage, Baptismal, and Similar Certificates**
6. **Records of Documents Affecting an Interest in Property**
7. **Reputation Concerning Boundaries or General History**
8. **Reputation as to Character **
58
OPINIONS AND EXPERT TESTIMONY:
**Opinion Testimony by Lay Witnesses must be:**
1. Rationally based on perception of the witness
* Testimony must be based on personal knowledge.
2. Opinion has to be helpful to a clear understanding of witnesses testimony or portion of case [relevant]
* IMPROPER SCOPE: ***Opinions stated in conclusory terms are not appropriate; Legal conclusions must be avoided***. [e.g., he’s an alcoholic]
* Proper scope of non-expert opinion includes: VEMPSS
* Value of a person’s own land
* Emotional state of others
* Measurements [speed of a vehicle]
* Physical states
* Sensory descriptions (smells, taste, etc)
* Sanity of a testator
59
OPINIONS AND EXPERT TESTIMONY:
**Testimony by Experts - requirements**
**Skills; Knowledge; Education; Experience; Training**
* Judge determines qualifications by POTE (Rule 104).
* Opposing party may *voir dire* expert, outside jury
* Note: experts may not speculate.
* Opinion must be reliable: **based on reliable methods, devices, or techniques to determine reliability of scientific tests**, 4 methods:
1. other expert testimony; 2. by stipulation; 3. by judicial notice; & 4. general acceptance in the community
* **Reliability of Scientific Tests**: 1) Testing: has theory been tested, if so, how extensively; 2) Acceptance: in relevant community; 3) Peer review: of that method; 4) Error: degree or rate of
60
OPINIONS AND EXPERT TESTIMONY:
**3 bases for expert opinion testimony:**
1. personal knowledge at or before the trial
2. facts presented to the expert at the trial
3. facts presented to the expert outside of court
* **“Reasonable Reliance rule” these out-of-court facts must be of the type reasonably relied upon by other experts in the particular field & include: (a) assumed facts; (b) facts not in evidence & (c) inadmissible hearsay**
61
OPINIONS AND EXPERT TESTIMONY:
**Rule 703 Balancing Test**
**Underlying data that’s otherwise inadmissible at trial can’t be revealed**
Unless:
1. proponent shows probative value of evidence substantially outweighs prejudicial effect
* limiting instruction may be required (FRE 105)
2. used if expert opinion based on inadmissible evidence[hearsay]
3. burden is on proponent
**[703 test favors exclusions, unlike 403]**
62
OPINIONS AND EXPERT TESTIMONY:
**Opinion on Ultimate Issue**
**expert may give an opinion or inference that embraces an ultimate issue** [cause of an accident or illness, but not π contributorily negligent]
* Criminal cases expert canNOT give opinion as to whether ∆ did/not possess mental state, which constitutes element of crime charged. Left for the jury.
63
OPINIONS AND EXPERT TESTIMONY:
**Disclosure of Facts or Data Underlying Expert Opinion**
Expert may testify & give reasons w/o 1st testifying to underlying facts or data. Expert may, however, be required to disclose these facts on cross-exam
* **Rule helps avoid using expert as conduit for inadmissible evidence & limits use of hypothetical ?s**
64
OPINIONS AND EXPERT TESTIMONY:
**Court-Appointed Experts**
court may, on its own, or at the request of either party, appoint expert witnesses
* **appointed expert witness must advise parties of his findings, allow either party to depose him, and may be called to testify & cross-examined by either party.**
65
Rulings on Evidence (Rule 103):
ADMITTED EVIDENCE:
**\_\_\_\_\_\_\_\_\_\_\_\_ to preserve issue for appeal**
timely & specific objection
* If evidence already introduced, _motion to strike required_
* General objection (“I object”) does not _preserved issue for appeal_
66
Rulings on Evidence (Rule 103):
EXCLUDED EVIDENCE:
**If ruling excludes evidence, _______ is required, unless substance of evidence \_\_\_\_\_\_\_\_\_\_\_\_\_\_.**
offer of proof
apparent from the context
* Offer of proof made outside presence of the jury
* Motions in Limine: pretrial ruling on admissibility
* If error not prejudicial to outcome, then HARMLESS ERROR [error w/ no effect] rule applies
67
Rulings on Evidence (Rule 103):
**Only time reversal will result from admission of evidence despite an no objection is?**
**plain error rule**
**you have plain/prejudicial/reversible error which effects a substantial right**
1. obvious error
2. substantial right effected
68
Preliminary Facts:
**Preliminary Questions of Admissibility**
** SHALL be determined by court/judge**
**outside jury**
**by a preponderance of the evidence [POTE]**
* **Competency** – witness/expert qualifications
* **Admissibility** – technical evidentiary rules, whether or not hearsay
* **Privilege** – whether or not a privilege is applicable
69
Preliminary Facts:
## Footnote
**Conditional Relevancy**
**admissibility of evidence conditioned upon relevancy of another item of evidence, once condition met judge SHALL admit evidence**
70
Limited Admissibility (Rule 105):
**LIMITING INSTRUCTION**
If evidence admissible for one party/purpose but not admissible as to another party/purpose is admitted,
*Court, Upon Request, SHALL restrict evidence to its proper scope & instruct the jury accordingly*.
However, **Counsel must request limiting instruction.**
71
Remainder of or Related Writings or Recorded Statements (Rule 106):
**RULE OF COMPLETENESS**
If writing/recorded statement or part thereof introduced by a party, adverse party may require introduction at that time of another part/writing/recorded statement that ***in fairness should be considered contemporaneously w/ it. ***
* Caveat: N/A to spoken conversations, only writings [e.g., police reports describing area, not if it has someone’s testimony b/c Hearsay would trump Completeness Rule]
72
JUDICIAL NOTICE (JN) RULE 201:
## Footnote
**JUDICIAL NOTICE**
**substitute for proof if court accepts adjudicative facts as true *w/o requiring formal presentation of evidence***
* Once fact is JN: no contradictory evidence is permitted on that issue
* Judge may NOT take JN of a fact merely b/c it is w/in her knowledge.
* **Effect of jury instruction on JN**:
* **Civil** jury: MUST accept a JN fact as accepted
* **Criminal** jury: MAY, but is not required to accept JN fact as accepted
73
JUDICIAL NOTICE (JN) RULE 201:
## Footnote
**JUDICIAL NOTICE REQUIREMENTS**
1. **Commonly known: Not subject to reasonable dispute & generally known w/in jurisdiction of court** [Ex. 5th street heads north & south];
2. **Facts capable of readily ascertainable determination by sources of unquestionable accuracy.** [Ex. radar, DNA profiling, father’s day in 1984 was June 19]; **OR**
3. **JN MANDATORY if: 1) requested by a party & 2) supplied w/ necessary info**
* Issues w/ JN may be raised: pretrial, during trial & on appeal
* Opposing party does not need notice, but can dispute taking of JN
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Presumptions in General & Civil Actions & Proceedings:
## Footnote
**Presumptions**
[basic] **facts if established give rise to another set of facts called presumed facts** [often in civil cases] [mailed letter; therefore, you received it]
* **BURSTING BUBBLE/Thayer Theory:** once opponent present sufficient evidence that presumed fact is not true, then presumption disappears & bubble burst. Then it becomes jury issue to determine credibility and weight. [Wasn’t in town, so couldn’t sign for letter]
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Presumptions in General & Civil Actions & Proceedings:
Presumptions:
**Burden of Persuasion?**
**Burden of Persuasion**: Degree to which the evidence must be proven
* **POTE** [civil standard, criminal case dealing w/ voluntariness of statement or venue] (more likely than not that a fact which the plaintiff is presenting is true).
* **C&C** [validity of deed/will or criminally related civil issues, such as **fraud**]
* **Reasonable doubt** [criminal]
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RELEVANCY & ITS LIMITS:
**Relevant Evidence**
**must be both probative** (any tendancy to make a fact more or less probable than it would be without that evidence) **and material** (it is a fact of)
* Logical relevance - probative value, that has some logical tendency to prove/disprove a fact of consequence
* Legal relevance - has to be helpful in deciding the case
* Other types of evidence include: Direct evidence [no inference required]; Circumstantial evidence [inference required]; & Real evidence [tangible evidence, e.g., murder weapon]
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RELEVANCY & ITS LIMITS:
**Exclusion of Relevant Evidence**
403 BALANCING TEST FAVORS ADMISSION
**IF PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHED BY:**
1. **danger of unfair prejudice**
2. **confusion of the issue**
3. **misleading the jury**
4. **considerations of undue delay**
5. **waste of time**
6. **needless presentation of cumulous evidence**
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RELEVANCY & ITS LIMITS:
**Character Evidence**:
**Civil Cases**
CE inadmissible to prove conduct in conformity therewith
* **Exception**: character at issue [essential element of COA, claim or defense]
* **3 forms of character admitted:**
* **Reputation** – witness is aware of relevant community
* **Opinion** – witness has sufficient knowledge to form an opinion
* **Specific acts**
* **CoA w/ character at issue:** (a) defamation►π, (b) deceit/fraud►∆, (c) negligent hiring►employee, (d) negligent entrustment►entrustee, (e) child custody►parents
* Caveat: ∆ claims self-defense, victim’s character rarely at issue
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RELEVANCY & ITS LIMITS:
**Character Evidence:**
**Criminal Cases**
**prosecution may not initially introduce evidence of ∆’s bad character, Unless, ∆ has 1st opened the door**
* **∆ opens door by:** reputation or opinion evidence of his good character to prove his innocence [statement must relate to crime]
* If door open, prosecution can **ONLY rebut w/ reputation or opinion evidence. [NO SPECIFC ACTS] **
* **EXCEPTION: May use specific acts on cross-exam of ∆’s witness that opened door, b/c merely challenging credibility of ∆’s witness not ∆’s character. [Ex. Witness says he’s never lied. Free to ask, did you know that he was convicted of fraud?]**
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RELEVANCY & ITS LIMITS:
Character Evidence:
**∆ offers evidence about bad character of victim**
**prosecution may rebut w/ evidence of Π’s good character OR attack ∆’s character for same trait.**
* **EXCEPTION**: ∆ may offer specific acts (π pulled gun on me last year), b/c it’s not character evidence, b/c it isn’t addressing any pertinent trait victim’s character, rather what caused ∆’s fear of victim
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RELEVANCY & ITS LIMITS:
Character Evidence:
**Mimic Rule**
**Circumstantial evidence of other crimes, wrongs or acts generally inadmissible, but may be offered to prove:**
**MIAMI KOPPS**
* Motive Knowledge
* Intent Opportunity
* Absence of Mistake Preparation
* Identity Plan/scheme
**Never admissible show CRIMINAL PROPENSITY OR DISPOSITION**
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RELEVANCY & ITS LIMITS:
**Habit**
**Routine Practice - Evidence of habit of person/organization, whether corroborated or not & regardless of presence of eyewitnesses, is relevant to prove conduct in conformity of the habit.**
* Admissible in form of opinion or specific acts. [NOT REPUTATIONAL]
* Words like always, regularly, instinctively, w/o fail, habitually, ***Not usually, often, frequently***
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RELEVANCY & ITS LIMITS:
Legal Relevancy:
**Subsequent Remedial Measures **
Evidence barred due to public policy, despite relevance
* EXCEPTIONS: ***_to show ownership or control, impeach, or prove feasibility of precaution_***
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RELEVANCY & ITS LIMITS:
Legal Relevancy:
**Compromise & Offer to Compromise**
Need DISPUTE of AMT/FAULT/LIABILITY
**Evidence of offer to settle a claim in dispute as to validity or amount, *_inadmissible_* to prove liability or impeach**
* Offer admissible as admission if BOTH FAULT & DAMAGES admitted
* Exceptions: **admitted to show bias or prejudice, negate contention of undue delay or to show efforts to obstruct a criminal investigation**
* **NO Severance**: not applicable under rule 408. Ex: Fault dispute & X says to Y, “I may have been driving a little too fast (admission). Anyway, I’m willing to settle this matter with you. (offer to settle)” Result: Offer will not come in, but ***cannot sever to bring in admission.***
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RELEVANCY & ITS LIMITS:
Legal Relevancy:
**Liability Insurance**
**evidence a person was/not insured inadmissible to prove negligence or fault**
* Exceptions: Evidence of insurance may be admitted for: proof of agency, ownership or control, bias or prejudice of a witness
* limits of insurance coverage are NEVER admissible
* pretrial discovery of insurance coverage are generally allowed
* **Severance**: applicable under rule 411.
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RELEVANCY & ITS LIMITS:
Legal Relevancy:
**Payment of Medical & Similar Expenses**
evidence of offering to pay medical bills is
***inadmissible to prove liability for injury***
* **Severance**: applicable under rule 409.
* Ex: Fault dispute & X says to Y, “I may have been driving a little too fast (admission). Anyway, I’m willing to pay your medical bills (offer to pay medical bills).” Result: Admission will be severed
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RELEVANCY & ITS LIMITS:
Legal Relevancy:
**Inadmissibility of Plea, Plea Discussion, & Related Statement**
**plea & any statement made during plea negotiations by ∆ during a civil or criminal proceeding inadmissible against ∆ in a later proceeding**
* **Applies** **to**: (a) pleas of guilty later withdrawn, (b) pleas of nolo contendere (no contest); & (c) offers to plead guilty
* **Not**: (a) statements made to the police, ONLY to prosecutor, OR (b) if ∆ pleads guilty the guilty plea may be admitted substantively as an admission in any subsequent civil or criminal case
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RELEVANCY & ITS LIMITS:
Sexual Conduct:
**RAPE SHIELD LAW**
**in any civil/criminal proceeding involving alleged sexual misconduct evidence offered of alleged victim’s sexual behavior, predisposition, or other sexual history are *EXCLUDED***
* rep & op evidence of alleged victim inadmissible
* Admissible, IF: (I) NOTICE GIVEN TO OPPOSING PARTY, (II) EVIDENCE REVIEWED IN CHAMBERS, or (III) EVIDENCE ALLEGES MISCONDUCT
* **EXCEPTIONS: Criminal: Specific acts admissible, if:** **(i) past acts w/ ∆ tending to show consent, (ii) past acts w/ other men to show ∆ not semen source, OR** **(iii) evidence permitted if exclusion would violate constitutional right of ∆**
* Balancing test used in civil cases, where evidence offered to prove sexual behavior/predisposition of any alleged victim admissible (absent other reasons for inadmissibility) if probative value substantially outweighs harm to victim or danger of unfair prejudice to any party.
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RELEVANCY & ITS LIMITS:
Sexual Conduct:
**Evidence of Similar Crimes in Sexual Assault & Child Molestation Cases**
* **CRIMINAL**: ∆ accused of child molestation or sexual assault: specific acts by ∆ admissible & may be considered as they bear on any relevant matter
* **CIVIL**: claim for damages or other relief predicated on a party’s alleged commission of sexual assault or child molestation: same as above
* These prior acts used in criminal cases: need not have been tried [can be allegations that meet POTE] or previous to current matter
* 2 Limitations a-c: (1) Subject to discretion of judge, or (2) Advance notice must be given to ∆
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PRIVILEGES:
**No person has a privilege to:**
1. refuse to be witness,
2. refuse to disclose any matter, or
3. refuse to produce any object or writing
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PRIVILEGES:
**Atty-Client Privilege**
**Holder (client) may refuse or prevent others from disclosing confidential *communications made for purposes of seeking professional legal advise or services.*** [Not fee arrangement/billing]
* Lawyer: any *person* *authorized* OR *reasonably* *believed* by client to be authorized to engage in the practice law in any state or nation
* Exceptions: Situation where there is no privilege:
* **(a) future crime or fraud; (b) suits b/w atty & client; (c) Joint Client Exception: 2 clients hire same atty & clients become involved in suit against each other earlier communications are no longer privileged; & (d) Caveats: Client I.D. not privileged, Unless: disclosure will lead to privileged matters & Duration of the privilege is: from initial contact & SURVIVES client’s death**
**Communications made in public are never confidential**
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PRIVILEGES:
**Physician/Psychotherapist-Patient Privilege**
* **Doctor-patient** privilege: statutory/not common law privilege; fed'l rules never recognized this privilege; thus, it must be created by a state law to be recognized by fed’l law.
* **Fed’l psychotherapist-patient** privilege: Extends to license social workers, mental health specialist, marriage counselors, psychiatrist, psychologist. Not education & vocational counselors.
* a) Privilege protects **confidential communication b/w licensed psychotherapist & patient seeking diagnosis or treatment for a medical condition** [Ex: X-ray, lab report Not: autopsy report]
* (b) **Exceptions**: (i) statements regarding commitment proceedings, (ii) statements dealing w/ court ordered examinations, (iii) medical condition is part of claim, & (iv) future crime or fraud
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PRIVILEGES:
Husband-Wife Privileges:
**Spousal Privilege**
Testimonial; **protects all communications regardless of confidentiality both during & before marriage, includes testimony, observations & impressions**
* Holder: witness spouse
i) **criminal**, not civil
**ii) during & before marriage**
iii) lost upon divorce
* **Exceptions**: suits b/w spouses & suits involving child of either spouse
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PRIVILEGES:
Husband-Wife Privileges:
**Marital Communications Privilege**
* **Holder**: either spouse
* i) **civil & criminal** cases
* ii) only protects particular kinds of communications
* ***communications intended by parties to be confidential***
* iii) applies **only during marriage**
* iv) Remains protected after divorce/death of spouse
* **Exceptions: (i) Divorce proceedings [any adverse civil proceedings]; (ii) Crimes committed by one spouse against the other or the children; & (iii) Joint Participant in criminal activity**
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PRIVILEGES:
Husband-Wife Privileges:
**Religious Privilege **
**protects confidential communications made from penitent to clergymen in his capacity as spiritual advisor**
* (a) Holder: both parties
* (b) Statement been made under conditions of confidentiality
* (c) Evidence of religious beliefs are inadmissible to impair or enhance credibility.
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PRIVILEGES:
**Waiver of Privilege**
* 1) expressly, when holder voluntarily discloses privileged info, OR
* 2) impliedly by failure to timely object to testimony
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PRIVILEGES:
## Footnote
**Political Vote?**
**Trade Secrets?**
**Secrets of State & Other Official Info?**
**Identity of Informer?**
* **Political** **Vote** - Every person has a privilege to refuse to disclose his vote, unless compelled by state election laws.
* **Trade Secrets** - privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such info unless concealment will create fraud or injustice
* **Secrets of State & Other Official Info** – gov’t secret relating to nat’l security or intern’l relations; applies to intergovt’l opinions & policy decisions, investigatory files, & other government mat’ls
* **Identity of Informer** - privilege to refuse to disclose identity of a person funneling information vital & relevant to law enforcement.
* Holder: Gov’t
* MBE note: news person has no 1st amendment privilege to refuse to disclose identity of his sources, but it has a chilling effect on the 1st amendment right on the freedom of the press [some states give greater protection]
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WITNESSES:
**Who can be a witness?**
**every person competent to be a witness, but presiding Judge**
[no need to object to judge being witness its automatic]
* **Lay**: must have PERSONAL knowledge
* **Expert**: personal knowledge NOT required
* **Oath/Affirmation:** witness must declare to testify truthfully by oath or affirmation in a form to awaken his conscious or judge SHALL not allow testimony
* Juror may not testify as a witness before the jury of which he is a member.
*
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WITNESSES:
**Juror may testify to?**
1. extraneous prejudicial information improperly brought to juror’s attention
2. whether any outside influence was improperly brought to bear on any juror
3. any clerical or secretarial era [mistake in juror verdict form]
* **Invalid inquiries into validity of a verdict or indictment:** manner jury reached its decision; Affidavits by jurors are also excluded; any statements made during deliberations; thought processes about how they reached their decisions; votes taken to reach decisions
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WITNESSES:
**Impeachment**
**credibility of witness may be attacked by any party, where witness’ testimony surprises & damages the examining party**
* **Collateral Matter Rule** - extrinsic evidence on collateral matters inadmissible to impeach [derives from rule 403]
* **Extrinsic v. Intrinsic: IN: questioning from the mouth of the witness on the stand. All other forms of impeachment are EX, such as showing former testimony, calling another witness, et cetera.**
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WITNESSES:
Impeachment:
**Methods of Impeachment**
1. **Bias or prejudice**: no specific Fed’l rule. Always mat’l, never collateral
* Ex: (a) personal or family hostility or relationship; (b) business relationship; (c) financial interest; & (d) fee arrangement
2. **Sensory** **defects**: *inability to observe, communicate or remember, Not references to whether a witness is addicted to drugs or alcohol*
3. **Prior Inconsistent Statements**
4. **Character**: 4 categories under Rule 608 & 609
* (1) Reputation or opinion; (2) Bad acts; (3) Felony convictions; & (4) Convictions of crimes involving dishonesty/false statement
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WITNESSES:
Impeachment:
**Evidence of Character & Conduct of Witness**
**Witness’s character for untruthfulness is always mat’l & may be attacked by using reputation or opinion evidence.**
* **Note**: Witness’ character for truthfulness can be shown by reputation or opinion evidence only if witness’s credibility for truthfulness has 1ST been attacked.
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WITNESSES:
Impeachment:
**Bad Act Impeachment**
**Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness’ credibility**
* **Elements:** (1) always in the form of a question, (2) on cross-examination, & (3) delve into prior unconvicted acts bearing on un/truthfulness
* **Form of Question: **
* (a) Opinion witness: Did you know?
* (b) Reputation witness: Have you heard?
* Ex: Proper: Filing false tax return.. Forgery. Using a false name. Lying about age or employment. Cheating at cards. Improper: USE OF DRUGS OR ALCOHOL. FAILURE TO PAY DEBTS. GAMBLING OR PROSTITUTION. SEXUAL MISCONDUCT.
* If witness lies about specific instance: extrinsic evidence is inadmissible to prove prior dishonest act, collateral matter rule kicks in
* Limitations: questions must be
* (a) probabtive of truthfulness; (b) asked in GF; (c) bad acts can’t be too remote in time; (d) only questions of fact are allowed; & (e) judge has discretion to exclude
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WITNESSES:
Impeachment:
Bad Act Impeachment:
**Conviction of Crime worth Addressing**
1. **Felonies**: crimes punishable by death/imprisonment in excess of 1 year.
2. **Crimes involving Dishonesty**: includes felonies & misdemeanors.
* Admissible as matter of right, IF: **\> 10 years old**
* Inadmissible to impeach, IF: **\< 10 y.o.** Unless, probative value substantially outweighs prejudicial effect & Notice provided to opposing party
* 10 years based on the most recent of either: (1) date or conviction; OR (2) date of release from confinement
* Conviction under appeal, Guilty pleas & no contest pleas are admissible to impeach
* ∆ pardoned from a conviction, Arrest records, indictments, & other charges are all inadmissible to impeach.
* ∆ can hide prior convictions by not testifying, but such convictions may be admissible at sentencing _Yes_
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WITNESSES:
Impeachment:
Bad Act Impeachment:
**Juvenile Adjudications**
**generally, inadmissible to impeach anyone**
* inadmissible against the accused
* for all other witnesses its discretionary
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WITNESSES:
Impeachment:
Bad Act Impeachment:
**When a judge chooses to use a conviction that otherwise would be precluded by the rule, there must be:**
1. finding that use conviction is necessary for interest of justice
2. notice must be given to opposing party
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Examination of Witnesses:
## Footnote
**Leading Questions**
1. Direct examination: generally, not allowed
2. Scope of cross-examination: limited to scope of direct & matters effecting credibility
3. Circumstances when leading ?s appropriate: (a) have hostile or adverse witness; (b) child witness' (c) to gain preliminary background information; (d) to refresh recollection; & (e) on cross-examination
4. Caveat: Examiner & witness on the same side, leading questions not allowed.
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Examination of Witnesses:
**Writing Used to Refresh Memory**
1. **On direct, examiner may jog witness’s memory** (i.e., “forgetful witness”): (1) Proponent may not introduce writing into evidence; (2) Neither hearsay or best evidence rule apply; (3) Authentication of writing not required; & (4) Any writing, recording, photograph, further questioning, or other form of evidence will suffice.
2. **Rights of adverse party** (opposing counsel): (1) inspect the doc; (2) cross-examining with it; (3) show writing to jury for comparison; & (4) opposing counsel may introduce relevant portions into evidence [only to impeach]
3. **Steps of refreshing** (procedurally): (1) give copy to judge, opposing counsel; (2) mark it as an exhibit; (3) hand to witness to review; (4) take back the writing; & (5) ask him to testify independently of writing, recording, etc
4. If privileged material used to refresh: court will rule a waiver has occurred & allow adverse party to inspect
5. Caveat: Not same as past recollection recorded.
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111
112
Examination of Witnesses:
## Footnote
**Prior Statement of Witness**
**prior inconsistent statement (PINS) is not “sworn” and is admissible only to impeach**
* **Foundation** **req**: Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided the witness is “afforded an opportunity” to explain or deny the evidence and opposing council afforded an opportunity to examine the witness.
1. **Witness denies PINS, extrinsic evidence is admitted**
2. **Witness admits PINS, extrinsic evidence is inadmissible, but witness has right to explain answer**
3. **PINS relates to a collateral matter, collateral matter rule, and extrinsic evidence is inadmissible**
* If PINS not given under oath, it may only be used for impeachment.
* Note: A party cannot call a witness solely to impeach that witness with a prior inconsistent statement.
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**The scope of cross-examination is limited to two things?**
1. The scope of direct; and
2. Allowed to ask questions about credibility
114
Leading questions exceptions?
* Cross-examination
* A witness who has trouble communicating (i.e., a child).
* Adverse or hostile witness on direct.
* Foundational questions or basic information.
* Ex: “Your name is Major Rathbone?” “You are a Major in the Union Army?” “You were in the viewing box at Ford’s Theater on April 14th?” These are all foundational questions.
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Exclusion of Witnesses: (Rule 615)
**Exceptions?**
**witnesses are excluded to prevent contamination**
* A party;
* Only one party in a criminal case (Defendant)
* An officer or employee who is the designated representative of a corporation;
* Advisory witnesses; and
* Victims
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**The Burden of Production?**
* **The party must make a prima facie case.**
* The party with this burden must present enough evidence that the reasonable trier of fact could infer that the facts had been proved.
* LOVID – Location, Offense, Venue, Identification of the Defendant, and the Date of the alleged crime – sufficient facts to present a prima facie case
* Burden of Production: placed on π [shifted by affirmative defenses & privileges]
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