Relevance.docx

RELEVANCE- ARTICLE IV Case Rule Issue Rule Holding Relevance Generally Definition of Relevance Evidence having any tendency to make the existence of any fact that is of consequence more probable or less probable than it would be without the evidence Relevant Evidence Admissible Irrelevant Evidence Inadmissible All relevant evidence is admissible except as otherwise provided by the Con Congress FRE or other rules prescribed by Supreme Court Ev not relevant is not admissible Exclusion of Relevant Ev on Grounds of Prejudice Confusion or Waste Although relevant evidence may be excluded if its probative value is substantially o w by the danger of unfair prejudice confusion of the issues or misleading the jury or by considerations undue delay waste of time or needless presentation of cumulative evidence Old Chief v US Prior Convictions and is entitled to prove its case by evidence of its own choice and a may not stipulate his way out of the full evidentiary force Beyond the power of conventional evidence to support allegations and give life the moral underpinning s of law s claims there lies the need for evidence in all its particularity to satisfy the juror s expectations about what proper proof should be If jurors expectations are not satisfied they may penalize the party who disappoints them by draw negative inferences against that party Shannon v US Consequence of verdict irrelevant The jury s job is to function as a fact finder consequences to the verdict are irrelevant to this duty Prob A Was he going too fast Evidence of speed is admissible contingent on further proof Prob B Flight Guilt Evidence of flight generally admissible but does not create the presumption of guilt or suffice for a conviction Prob C Waxy Floors Evidence of the same thing happening before is relevant b c makes the present instance more probable State v Chapple Balancing Test for To be admissible prejudicial ev must have probative value which means it must be relevant to the disputed fact Old Chief v US II Balancing Test for In balancing probative value vs prejudice where evidence of prior conviction is likely to support conviction on improper ground judge should consider availability of ev alternatives Standard of review is abuse of discretion Prob D Battered Wife Ev relevant if it contributes to a pattern of inferences probative value of D state of mind may o w prejudice But may be barred because jury would see him as a batterer Limits of Admissibility Limited Admissibility Limiting Instructions When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly Prob F My Insurance will cover it Can have statement redacted or can have judge give limiting instruction under Completeness Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which out in fairness to be considered contemporaneously with it Prob G Power Rollback Caused the Crash Based on Beech Aircraft v Rainey Must submit entire document if necessary to avoid confusion or prejudice or exclude entirely under Conditional Admissibility Conditional relevance a Questions of admissibility generally Preliminary questions concerning the qualification of a person to be witness the existence of a privilege or the admissibility of evidence shall be determined by the court subject to the provisions of subdivision b In making its determination it is not bound by the rules of evidence except those with respect to privileges a Hearing can take place before or during trial and happen away from the jury b Relevancy Conditioned on Fact When the relevancy of evidence depends upon the fulfillment of a condition of fact the court shall admit it upon or subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition b Jury is told not to consider ev unless satisfied with additional info I E Letter from Y admitting guilt can be admitted subject to proof that Y actually wrote the letter c-e Hearing of Jury Testimony by accused Weigh Credibility c Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury Hearings on other preliminary matters shall be so conducted when the interests of justice require or when an accused is a witness and so requests d The accused dos not by testifying upon a preliminary matter become subject to cross examination as to other issues in the case e This rules does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility Prob -H The Bike Brake Based on Romano v Anna s Hope Factory Outlet Experts testimony on bike brake s condition can come in provided that the condition of the bike had not substantially changed Thus this is a b instance Character Evidence Character Evidence not Admissible to Prove Conduct Exceptions Other Crimes Applicable only to Criminal Cases Ev of character is not admissible to prove current action conforms with this character except Accused- D can offer ev of pertinent trait on his behalf and prosecution can respond Alleged Victim- D can offer ev of pertinent trait of alleged victim and prosecution can respond Also prosecution can offer ev to rebut ev that victim was the first aggressor in a homicide case Witnesses- both can offer ev of character of witnesses under and Ev of other crimes wrongs or acts is only admissible to prove motive intent preparation opportunity modus operandi plan design etc NOT conformity This ev is only available if prosecution gives reasonable notice UPON REQUEST b Test- Is the ev offered for the proper purpose Is ev relevant for that particular purpose Does probative value o w risk of prejudice Give limiting instruction if requested Methods of Proving Character a Reputation or opinion- in all cases in which evidence of character or trait of character of a person is admissible proof may be made by testimony as to reputation or by testimony in the form of an opinion On cross examination inquiry is allowable into relevant specific instances of conduct b Specific instances of conduct In cases in which character or a trait of character of a person is an essential element of a charge claim or defense proof may be also made of specific instances of that person s conduct I E Case like custody battles and corruption charges Prob -A and B Fight in the Red Dog Saloon Opening the Door Prosecution can t offer ev that D has violent character because D hasn t opened the door by placing his character into controversy a D does not have to testify to lay foundation for other character witnesses that would violate th Prosecution cannot put on ev that victim is not the fighting type cause this is not a homicide a D would have to put on ev re Victims nature before prosecution could rebut a If D witness testifies re Victims aggressive nature prosecution can ask for specific instances a Prob D What price Truth Cross examination and rebuttal of character witnesses Can the prosecution ask D s character witness Do you know that D beats his wife Yes as long as question has basis assume basis for truth of thing being asked about not basis for witness knowledge of it character witnesses may be x-examined about arrests Jury is instructed that this goes only to the reputation opinion But under judge has discretion not to permit Prob F Drug sale or scam Angry Girlfriend Prob Prior Bad Acts- Proving Intent b Prior bad acts can come in under b to show intent or modus operandi this would be the prosecutors best arg for admissibility But this may be to close to propensity evidence D could argue more prejudicial than probative in this case Modus operandi- when prior bad acts are a signature of the actor the courts admit the evidence in the case in chief Ev of prior bad acts may be just as prejudicial as character ev but may be more probative so more liely to be admissible Prob -I It was an accident Prior Bad Acts Preemptive strike on ev Can prosecution admit ev of previous child abuse in manslaughter case to spike out accident defense Yes Evidence of previous bad acts can be admitted See US v Bowers admitting doctor s testimony that decease child suffered numerous previous injuries as proof that parents explanation of other injuries was a fabrication permitting inference that parent in sole custody deliberately harmed child Prob -J I didn t know they were stolen Proving the Prior Act Interaction of a b Huddleston two part test Rules do not require preliminary finding by ct that govt has proved prior act by a preponderance Judge makes threshold decision Admitting E of prior acts raises a question of relevance conditioned on a fact under b which jury must decide If jury finds govt has proven that TVs were stolen and defendant knew it preponderance of ev then the jury may consider that prior bad act relevant as to guilt in knowingly selling stolen tapes beyond a reasonable doubt Character in Sex Offense Cases and Child Molestation Sex Offense Cases Relevance of Alleged Victim s Past Sexual Behavior or Alleged Sexual Predisposition Applicable to Civil Cases as well Ev that victim engaged in sexual behavior and ev of sexual predisposition generally not admissible in crim and civ cases Exceptions Crim A spec instances prove it was someone else B spec instances w accused prove consent C avoid violating constitutional rights Civ Impeachment of P only if door is opened Procedure To get exceptions under b must A file motion days before B serve motion on all parties Must conduct hearing in camera allow victim opp to be heard and place all hearing records under seal Evidence of Similar Crimes in Sexual Assault Case Evidence of Similar Crimes in Child Molestation Same as provisions In crim where D accused of sex assault ev of D s other offense or another sexual assault admissible and may be considered for bearing on any matter its relevant to Prosecutor must disclose intent to use to D including statements of witness or summary Does not limit other ev rules Sex offense defined Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation Civ cases for damages or other relief prior bad acts under and can come in Must disclose Does not limit other ev rules Prob K Orderal for Leslie or Fred Interaction of FRE Date Rape Case Issue Did Victim Consent D evidence They had consensual sex last summer Admissible relevant non-prejudicial D has right to raise b B admissible to prove consent Victim Promiscuous Not Admissible non-prejudicial D has right to raise a predispositions barred Another guy night of crime non-prejudicial D has right to raise b A if could prove different guy Habit and Routine Practices Habit Routine Practice Habit Individuals Routine Organization custom Evidence of the habit of a person or the routine practice of an organization whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice Remedial Measures Subsequent Remedial Measures Event Event Causing Injury Evidence of subsequent remedial measures not admissible to prove negligence culpable conduct defect in a product or design or need for warning Rule does not bar ev of subsequent remedial measures when offered for another purpose i e ownership control feasibility of precautionary measures if controverted or impeachment Feasibility tricky cause can be used to prove negligence D can stipulate feasibility to avoid this This can be outcome determinative thus has forum shopping Erie implication Tuer v McDonald Feasibility of Precautions D filed motion in limine to exclude ev of subsequent remedial measure under Trial ct agreed unless Ds controvert feasibility or open themselves to impeachment Settlement Negotiations Compromise and Offers to Compromise Ev of furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising etc is not admissible to prove liability for or invalidity of claim or its amount Rule does not requires exclusion of ev otherwise discoverable merely because it is present in the course of compromising negotiations Also does not require exclusion when ev is offered for another purpose i e proving bias or prejudice of witness negating a contention of undue delay or proving an effort to obstruct criminal investigation or prosecution Prob P Two Potato One Potato- Hearsay Evidence not excluded under unless there is a claim controversy and a dispute about amount or validity Pesticide company rep tells farmer that company will take care of any problem - No hearsay issue admission of party opponent -relevant - may cause confusion rep is only trying to keep customer - Not excludable not formal offer Test Is there something to be settled Is there a dispute on amount or validity Policy is to encourage private parties to settle Plea Bargains Inadmissibility of Pleas Plea Discussions and Related Statements Generally in any civ or crim case the following is not admissible against defendant plea of guilty which is later withdrawn plea of nolo contendere statements made in the course of any proceeding under Rule of FRCP pleadings or comparable state procedure with an attorney for the prosecuting authority which do not result in a plea of guilty or which results in a plea of guilty which is later withdrawn However statement are admissible when i another statement from the proceeding has been introduced and fairness means plea should be considered or ii in a crim proceeding for perjury or false statement if the statement was made by defendant under oath on record and in the presence of counsel Prob Q I used his stuff D offers plea bargain but then withdraws Can prosecutor use contents of conversation Does setting up meeting btwn attorneys get around requirement that statement be made with counsel I hope to god not Proof of Payment of Medical Expenses Payment of Medical and Similar Expenses Evidence of furnishing or offering or promising to pay medical hospital or similar expenses occasioned by an injury is not admissible to prove liability for the injury Good Samaritan Rule Liability Insurance Liability Insurance Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose such as proof of agency ownership or control or bias or prejudice of a witness Prob F My Insurance will cover it Statements by party admitting liability are generally admissible FRE d A but ev of insurance excludable FRE Can have statement redacted or can have judge give limiting instruction under HEARSAY- ARTICLE VIII Case Rule Issue Rule Holding Generally Definitions Statement- an oral or written assertion or nonverbal conduct of a person if it is intended by the person as an assertion Declarant- a person who makes a statement Hearsay- a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted Hearsay Rule Hearsay is not admissible except as provided by these rules or by other rules prescribed by the SC pursuant to statutory authority or by Act of Congress Prob A Three see a robbery p Indirect Hearsay Indirect hearsay they ought to put Higgins in jail for this is hearsay if it speaks to the matter in question under a If it speaks to some other issue then its not relevant under Assertive and Non-Assertive Conduct Two Step Test for Hearsay Is there an out of court assertive statement Is the statement being offered to prove truth of the matter asserted Assertions Verbal and Non Verbal a ACN- nothing is an assertion unless intended to be one Verbal assertions clearly fall under hearsay and are barred Non-verbal like pointing at a lineup or nodding also fall under hearsay Non-Assertive Verbal and Non Verbal Verbal- Social courtesies singing acting or reciting if not intend to assert Non Verbal- usually not an issue unless fails two step test since actor did something she must have though some event occurred and since she thought it it must have actually occurred Prob B Kenworth and Maserati Non-assertive conduct Is truck pulling into intersection a nonverbal statement that light was green What are logical steps to say its hearsay Truck driver saw the light thought it was green pulled forward truck drivers usually don t pull forward unless light is green light must be green Note Truck driver did not mean to make assertion thus not hearsay but could be in light of the test Wright v Doe d Tatham Broad Interpretation of Hearsay Held Proof of a fact relevant only to implying an opinion on the matter at issue is inadmissible as hearsay Letter offered to show competence of testator but letter was not written with that intent Writer not available to testify dead Letter hearsay because require inference that w n have been sent unless testator was competent Failed two step test Cain v George Evidence of Non-Complaint Admissible Testimony that a lot of people who had stayed in the same room w no problem was admitted as ev that poison gas had not come from heater Indirect Hearsay Machines and Animals Indirect Hearsay Testimony about conversation that would be hearsay is hearsay Exception Testimony offered to prove why declarant did what he did US v Sanchez but see Commonwealth v Farris US v Check Indirect Hearsay Testimony about hearsay hearsay Witness testified re conversation w informant who refused to testify Prosecutor asked him to testify about what he said to the informant w o saying what the informant had said Judge decided this was an artifice intended to get around the hearsay exception US v Sanchez Indirect Hearsay Exception- Motivation of Declarant Testimony by detective that he used JA to b c JA said he got coke from was admitted to explain why the detected acted as he did Comm v Farris Implied Assertion I interviewed X as a result of which I arrested Y Implied assertion that X said something that implicated Y hearsay Problem is that X is not available for x-exam Machines and Animals Not people under b thus no hearsay Unless output of machine such as a computer is merely a recapitulation of human statements Non Hearsay Uses of Prior Statements These fall outside of a-c cause not offered to prove truth NOT because they fall into one of the exception in d Impeachment Impeach Prior Inconsistent Statement not hearsay when used to rebut or impeach None of the limitations of the d exceptions but cannot be offered for TOMA Prob C Blue car ran the red light Limited admissibility of prior inconsistent statements can only be used to Impeach Courts universally admit prior inconsistent statements offered to impeach under d but cannot be used for truth of matter asserted Witness testifies that light is red Prior statement says green Inferences witness unreliable witness thought light was green Cannot be used to prove light was green Note None of the restrictions of d A but cannot be used for TOMA while statement under d A can be Verbal Acts Assertion that is not offered for TOMA w legal significance independent of the content I E X sues Y for damaging child s vocal cords W testifies that the child said Moon is green Statement admitted not to prove moon is green but to prove brat can talk Prob D Any way you like Determination of whether something is a verbal act dependent on purpose intent not content See ACN Statement not intended to prove TOMA she was versatile but to offer sex Admissible as verbal act Prob E Whose Corn K is example of a verbal act not given to show truth of words in making K but what terms of agreement were Clarifcation from Mags needed Effect on Listener or Reader Prob F I m from the Gas Company X tells Y he s from gas company Y then gets burned in explosion Y offers X statmetn to prove vicarious liability and Y s actions reasonable Hearsay because offer for TOMA that X works for company Not Hearsay cause not truth only motivation Sanchez Verbal Objects Words like symbol used as identifiers used to identify w out relying on assertive content of words not hearsay Prob -G Eagle s Rest Bar and Grill Cup which reads I belong to Whitter not hearsay could be distinctive in other ways But cannot be used to prove cup belongs to Whitter Circumstantial Ev of state of Mind Memory or Belief Statement with Performative Aspects- Generally Admissible Purpose is to use words to get at something that seems to be on speaker s mind but is not asserted n the statement but CAN notes to suggest this use is inadmissible US v Singer Performative Letters Held Envelope containing letter from LL addressed to s not hearsay unless submitted to assert the implied truth of its written contents Purpose is to prove that lived there It is admissible for purpose of implying from LL s behavior that LL believed s lived at address Prob K My Husband is in Denver Is her statement hearsay No b c not offered to prove the truth of wife s stmt that husband is in Denver Offered to show that wife was lying about husband s whereabouts inference for factfinder to draw is that she was helping him out and he was fleeing from offense then they can infer that he did it Performative aspect is that wife is helping husband evade police But the stmt may only be performative if it s true US v Weeks Performance vs Assertion Use of name is performative act that outweighs assertive aspects Warden testifies a guard told me is called Gato Is this different from the bar scenario or different Yes guard s stmt is clearly assertion Warden testifies a guard called him Gato and he responded Cts treat this as a performative act His name is John hearsay Hey John hearsay b c performative Statements to Prove Matter Assumed- Generally not Admissible US v Pacelli Statements to prove unspoken thought The purpose of ev was to et before the jury the fact that D s fam thought he was guilty Since this was an extra-judicial statement clearly implied knowledge and belief of fam not available for cross testimony about their statements inadmissible Prob M I didn t tell you anything Prosecution wants statement in to prove crim activity Hearsay because statements probative value depends on truth of an assumed fact it implies US v Perez Guy speaking to R on the phone Exception Implied assertion using R s name admissible as non-assertive conduct Freak Case Krulewitch v US Us two girls should take the blame Kay couldn t take it Reversing Kay s conviction the hearsay declaration attributed to his companion plainly implied Kay was guilty of the crime for which he was on trial Betts v Betts Attitude Ev Exception Child s statement about foster mom s husband is nonhearsay when offered not to show husband s actions but to show child s attitude toward him regardless of truth of statements Hearsay Exceptions Case Rule Issue Rule Holding Prior Statement Exceptions for Hearsay Under d d Statement which are not hearsay Prior Statements by Witness Prior statement by witness Declarant testifying at trial or hearing and subject to cx re the statement and statement is A inconsistent with testimony and was given under oath subject to perjury at trial hearing other proceeding or deposition B consistent with declarant s testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive or C one of identification of a person made after perceiving the person or See d Reasons to depart from preferences for live testimony Necessity- this may be the only evidence available Note This is what the Seanate Committee was concerned about a single witness who does not stick with her story Reliability- Formality of proceeding gives confidence How formalized should the proceeding be Prior Inconsistent Statements d A Prior Inconsistent Statement PIS Requirements W is now cxable on the prior statement Prior statement is inconsistent w current testimony Prior statement was made under oath another proceeding State v Smith d A Sworn witness statements taken at police station qualify as proceeding -Minority View Ct decides yes b c other methods of starting a criminal case are proceedings and this one serves the same function But statement at a station is iffy no judge or lawyers even present Stmt is being offered to impeach also for TOMA that committed assault Ct finds totality of circumstances of this prior stmt satisfy rule qualify as a proceeding b c Formal process of witness statement in criminal prosecution used to establish probable cause Reliable b c witness wrote stmt herself signed under penalty of perjury Prob A I got amnesia Turn Coat Witness Prior Inconsistent Statement admissible when witness forgets Most cts say yes this is inconsistent cross-examination is OK Witness testified at grand jury about robbery committed by witness and Later at trial denies memory of robbery claiming he was under the influence of Valium Is prior statement inconsistent if he doesn t deny it just doesn t remember one way or the other Cts differ evasion or forgetfulness inconsistency th Cir forgetfulness inconsistency only if feigned CA if he could remember witness might not make inconsistent stmt Is he really cross-examinable given that he can t even remember testifying Sup ct says yes for FRE d C which also has cross-examination requirement FRE witness is unavailable if has no memory so ev comes in Prior Consistent Statements- d a B Prior Consistent Statement PCS Requirements W must be cxable at trial concerning prior statements Statement must be consistent w present testimony Must be offered to rebut a charge of recent fabrication improper influence or motive No oath requirement PCS must be made before corrupting influence Tome Tome v US SC FRE d B applies only to testimony made before influence or motivation was convicted of sexually abusing his daughter daughter testified against him but was not compelling years old quiet On cross-exam defense asked girl whether her testimony against her dad was motivated by a desire to live with her mother Prosecution introduced testimony by others about the girl s prior consistent statements Sup Ct throws out conviction b c prior stmts do not rebut the alleged link b w her desire to be w her mother and her testimony Prior Statement of Identification d C Prior Statement of Identificatin PSI Requirements Declarant is subject to cx on prior statement Statement is one of identification of a person made after perceiving the person Doesn t seem to matter if previous ID was consistent or inconsistent Wade-Gilbert Doctrine Wade- Accused is entitled to counsel in post-indictment lineup Gilbert- Identification not admissible where there is a Wade violation State v Motta SC Sketch was hearsay but admissible because fits into prior identification exception Robbery at gunpoint of a coffee shop Victim gave description to police after crime also met with artist who drew composite of suspect Victim then identified Motta picked out of lineup - photos identified at preliminary hearing identified at trial Admissions by Party Opponent- d d Statements which are not Hearsay Admission of party-opponent offered against party-opponent and is A party s own statement in either individual or rep capacity B statement which the party has manifested an adoption or belief in its truth C statement by person authorized by party to make a statement concerning the subject D statement by party s agent or servant concerning a matter w in scope of the agency or employment during said relationship E coconspirator statement during the course or in furtherance of conspiracy Contents of statement shall be considered but alone are not sufficient to establish declarant s authority under subdivisions C D and E Party s Own Statement d A Reasons to Bar Admission by Party Opponent th Amendment issues When Declarant s statement unreliable Statement involuntary drunk injured lacks capacity Opinions which have no foundation in fact Age of declarant minor Prob B Fire in the warehouse No Personal Knowledge Req Employer tells insurance dude that his employee set the fire Can guy who lost his car use insurance dude s testimony Yes not hearsay under d A Doesn t matter that Carter wasn t present at time of fire since there s no personal knowledge requirement Burton v US SC Spill-over Confession Limiting Instruction not sufficient to deter assumptions of guilt caused by confession No Confrontation Clause issues in Civ cases Judge must st determine whether confession was voluntary before jury can decide the confessor s guilt b c jury cannot be expected to later ignore a confession if it turns out to be involuntary Similarly prejudicial effect of admitting Evans stmt against Bruton could not be erased by instruction to ignore since prejudicial effect c n be avoided trial should have been severed Fed R Civ P other ways for prosecution to use the confession w o prejudicing the co Confrontation clause Bruton cannot force Evans to take the stand and be cross-examined on the statement So no remedy after the confession is admitted Prob D His master s Car Admissions Civil case no confrontation clause Deliveryman runs over P later gets fired and tells P that he was speeding and the brakes failed Admission of speeding can go against delivery man d A but breaks is hearsay against company since statement made outside of scope of employment d D Spill over ok since can be checked by cx Adoptive Admissions d B Suggested Elements for Tacit Admission Doctrine Party heard statement The matter asserted was within his knowledge The nature of the statement was such that he would have replied if he didn t mean to accept what was said Reasons to Exclude Suggested Exceptions The party did not understand the statement or its significance Some physical or psychological factor explains silence Speaker was someone the party was likely to ignore Silence came in response to questioning post Miranda US v Hoosier Silence Agreement A witness testified that s girlfriend in presence of spoke about sacks of money The statement was made in the s presence and there is little likelihood that his silence in the face of her statements was due to advise of counsel or fear that anything he said might be used against him Human behavior probably would have been for to deny his girlfriend s statement if it hadn t been true Doyle v Ohio SC Miranda and Silence Admission of D s silence as a tacit admission following Miranda warnings violates due process E g You can t tell someone they have the right to remain silent and then penalize them for it Prob E Did you rob that bank Jury decides in tough cases W testifying re conversation btwn D and rd Person rd Did you rob the bank You robbed the bank D ans to both leave me alone Narrow case but would probably come in and jury could decide if statement admission Admissions by Authorized Party d or Employees and Agents d D Requirements Must be w in scope of agency related to employment activity Must be done during employment relationship Exceptions Government- statements by public employees not admissible against the gov because such people do not hav the same sor ot personal stake in the outcome of the dispute and because agents cannot bind sovereign Bit self serving Monell- An individual can make a claim but the D is Liable only if the agent s acts are done pursuant to a policy law or regulation Mahlandt v Wild Canid Survival and Research Center Note to Employer No personal knowledge required Wolf attack the three pieces of evidence were a letter written by the agent to his boss a statement by the agent to his boss and the minutes of the Board meeting discussing the attack The first two pieces of evidence are admissible against both s but the meetings minutes are only admissible against Wild Canid and not against Poos Free Sophie now Prob G I was on an errand for my boss Contents of hearsay exceptions statement alone not enough to establish relationship No bootstrapping Co-Conspirator Statements d E Requirements available in civ and crim cases regardless of whether there is a charge of conspiracy declarant and conspired statement was made during the course of and in furtherance of the conspiracy Do not have to be charged w conspiracy for rule to apply Bourjaily v US Speaking authority must be proved by ev other than statement itself But at a hearing this ev can be hearsay Rules supercede common law Before admission of a coconspirator s statement the court must resolve whether there was a conspiracy in which the was involved under FRE a The preponderance of the evidence standard ensure that the court will find it more likely than not the concerns have been afforded consideration before admission FRE allows the court to make the preliminary factual determination by considering any evidence it wishes unhindered by questions of admissibility Therefore a Court may look at the cumulative evidence in making its FRE a determination Prob H Drugs across the border Does Witness have to be conspirator Connie non-conspirator Arlen Paid - In if can prove in furtherance Declarant must be member of conspiracy Don cop Bud went south- In if can prove Bud member of conspiracy Carol conspirator Bud made the buy said to cops- Out not in furtherance of conspiracy and Burton Issues US v Russo Association other than conspiracy not enough To be admit coconspirator statements the court in each instance must find the existence between the and the declarant of a specific criminal conspiracy to do that criminal act A declarant's statement made in furtherance of a criminal act is not admissible against the under the coconspirator exception unless the was associated with the declarant in a conspiracy or joint venture having that criminal act as its objective An association between the defendant and the declarant in some other venture will not suffice but the objective of the joint venture need not be the crime charged in the indictment Hearsay Exception Availability of Declarant Immaterial Case Rule Issue Rule Holding Present Sense Impressions A statement describing or explaining an event or conditions made while the declarant was perceiving the event or condition or immediately thereafter Nuttall v Reading Co Immediacy Witness must perceive Statement must be descriptive Sick Conductor the wife s account of her husband s conversation with his boss the morning of tends to show that he was being forced to do something The characterizations made substantially at the time the event they described was perceived are free from the possibility of lapse of memory on the part of the declarant lessening the likelihood of conscious misrepresentation Excited Utterances Firmly Rooted Exception A statement relating to a startling event or condition made while the declarant was under stress or excitement caused by the event or condition Requirements External stimulus- must be an exciting event person must be excited as they speak related to the event- connects and Excited utterances can be used to prove Agency see Prob G US v Iron Shell No immediacy requirement so long as declarant still excited Characteristics of Declarant age Rape Lucy told people about the event afterward and in response to the cops question about what happened The lapse of time between the event is relevant but not dispositive nor is it that the statement was in response to an inquiry Other factors to consider are the age physical and mental condition of the declarant and the characteristics subject matter of the event What happened and a lapse of one hour are not enough to remove the evidence especially not when the declarant is a small child Prob I I felt this sudden pain Excited utterance can be only ev of event extrinsic ev not necessary Then Existing Mental Emotional or Physical Conditions Firmly Rooted Exception 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 execution revocation identification or terms of declarant s will Mutual Life v Hillmon SC Jury can infer from declarant s state of mind whether something is more or less likely Insurance fraud letters by one man show he intended on traveling with When the intention to be proved is important only to qualify an act its connection with that act must be shown in order to warrant the admission of declarations of the intention But whenever the intention is of itself a distinct and material fact in a chain of circumstances it may be proved by contemporaneous oral or written declarations of the party US v Pheaster Present intent can be taken as ev that event occurred He intended to meet in the parking lot the evidence is admissible if it bears on the state of mind of the declarant and that state of mind is an issue in the case Hillmon doesn t require this but only that the state of mind of the declarant is used inferentially to prove other matters at issue Hillmon requires the jury infer from the declarant s state of mind the probability of a particular act both by the declarant and the The ACN intended to uphold Hillmon but the House wanted to limit the exception to a declarant s own intent and inferences of his own acts Prob K Fright Points the Finger D accused of murdering his girlfriend Knife is found in kitchen Pros wants statements by victim in I m afraid D is going to kill me I m going to my mothers Victims stayed in battered womyn s shelter Can come in under but only as to Vics state of mind so may not be relevant Not relevant too many different inferences Maybe hearsay assertive act but would bet in under but may be too prejudicial under Statements for purpose of medical diagnosis or treatment Firmly Rooted Exception 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 The Renville Test Whether the patient s motive was consistent with the purposes of promoting treatment and Whether the content of the statement is such as is reasonably relied on by a physician in treatment or diagnosis Blake v State Exception b c of nature of sexual assault of child Growing trend NY now does this for child abuse Sexual assault of stepdaughter in situations involving physical sexual abuse of children statements by a child victim to a medical professional may be admitted because of the special character of diagnosis and treatment in sexual abuse cases Problems ACN says statements as to fault do not ordinarily qualify Diagnosis and treatment are not concepts that readily embrace steps like removing a child from an abusive home and physicians are not experts in remedies of this sort Case Rule Issue Rule Holding Recollection Recorded Firmly Rooted Exception A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify full and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness memory and to reflect that knowledge correctly If admitted the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party Requirements witness can t remember the statement must accurately reflect memory that witness once had he made or adopted the statement while the matter was fresh in his mind It is read into evidence but cannot be taken into jury room unless offered by the adverse party Ohio v Scott Present Recollection Refreshed vs Past Recollection Recorded In the present recollection refreshed situation the witness looks at the memo to refresh him memory and he then continues to testify In the past recollection recorded he cannot remember so his old statement is admitted US v Booze Must be able to verify accuracy If the agent can verify the accuracy of his transcription and the observer can testify that he related an accurate recollection the evidence is admissible Records of regularly conducted activity Biz Records Firmly Rooted Exception Elements Regular biz regularly kept record only records of a biz and only those it regularly generates A record fits the exception only if each person involved in its preparation was acting in the regular course of her business activities It reaches self owned businesses illegal enterprises school churches Must have personal knowledge and must be acting in the course of employment Contemporaneous- gathered at the time or close to the time of the event Foundation Testimony by the custodian of the records need not have made the record nor observed its preparation Petrocelli v Gallison Record must be traceable to source Hernia malpractice there is no indication where this information came from To be admissible the record would have to represent either the opinion or diagnoses of the medical doctors who made the notations This evidence could merely have been relayed by and that would not satisfy the personal knowledge requirement Norcon Inc v Kotowski Investigatory Records Exxon Valdez harassment the investigator acquired the information as part of a regularly-conducted business activity The speakers were employees and therefore agents for purposes of FRE d so the evidence was admissible Absence of entry in records kept in accordance with provisions of Public records and reports The following public records that are admissible unless there is a lack of trustworthiness Mundane documents describing activities of the office or agency Matter observed by public officials i e building records except crim cases Factual findings from official investigations used in civil cases or suits against gov Baker v Elcona Homes Corp Police records admissible in civ cases A police report is a public record within the meaning of FRE and the ACN accepts evaluative reports as being within the meaning of C Factual findings admissible under C must be prepared from disputed evidence different than where there s a duty to report B Trustworthiness four factors to consider timeliness special skill experience of the official whether a hearing was held and possible motivational problems The report was timely and Sgt Hendrickson possessed special skill Though no formal hearing was held the absence is not a sine qua non of admissibility when other indicia of trustworthiness are present There was no indication of improper motive New York does not permit a police report of an accident within the exception to the extent that it rests on statements obtained by the officer from onlookers US v Oates Gov ment Chemist s Report not admissible in Crim case cause it doesn t fit any of the Aceeptions Good notes on ACN and Congressional intent Chemist report in criminal case there is no exclusionary shield by C as the government is using findings as result of police investigation in a criminal proceeding against the The evidence can also not receive protection from B The chemist constitutes other law enforcement personnel because any officer or employee of a government agency which has law enforcement responsibilities is included Moreover a chemists duties do not end with completion of the chemical analysis participation continues until the chemist has testified Moreover the ACN and Congressional record make clear that the rule was created to ensure that criminal s can confront their accusers It was the clear intention of Congress to make evaluative and law enforcement reports absolutely inadmissible against s in criminal cases and these reports that do not satisfy FRE may not qualify for admission under FRE Other Exceptions Records of statistics Absence of Public Records Records of Religious Organizations Marriages baptisms and similar certificates Family Records Property Records Ancient Documents Market reports Commercial publication Learned treatises Rep concerning personal fam history boundaries gen history Rep as to character Previous convictions Personal Fam or Gen history Hearsay Exceptions Declarant Unavailable Case Rule Issue Rule Holding a Definitions of Unavailability Unavailability as a witness includes situations in which the declarant- is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the of the declarant s statement or persists in refusing to testify concerning the subject matter of the declarant s statement despite an order of the court to do so or testifies to a lack of memory of the subject matter of the declarant s statement or is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity or is absent form the hearing and the proponent of his statement has been unable to procure the declarant s attendance or in the case of a hearsay exception under subdivision b the declarant s attendance or testimony by process or other reasonable means A declarant is not unavailable as a witness if his exemption refusal claim of lack of memory inability or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying Prob M The government let her go If witness is unavailable goct is not at fault and D had motive and opt to cx ev comes in Here the Gov screwed up so testimony not admissible Court overturned the conviction- suspected gov ts motives b c they made no attempt to keep in touch w the witness Ct also found that deposition is nto as good as preliminary hearing b c no judicial officer Barber v Page SC Prosecution must make good faith effort to obtain witness for trial Cx should be contemporaneous but prior cross will suffices Codefendant testifies in a preliminary hearing against and at trial prosecution offers the testimony and not the witness A witness is not unavailable for purposes of the exception unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial The State made no such effort here the sole reason the witness wasn t present to testify was because the State didn t attempt to procure his presence The State argues that waived his right when he failed to cross at the earlier hearing However was not aware that the State would utterly fail to procure his presence at trial Such a failure hardly establishes an intentional relinquishment or abandonment of a known right or privilege The same result would occur if had crossed previously because the right to confrontation is a trial right including the right to cross and to let the jury weigh the demeanor of the witness b Exceptions Case Rule Issue Rule Holding Former Testimony b Testimony given as a witness at another hearing of the same or a different proceeding or in a deposition taken in compliance with law in the course of the same or another proceeding if the party against whom the testimony is now offered or in a civil action or proceeding a predecessor in interest had an opportunity and similar motive to develop the testimony by direct cross or redirect examination Reaches depositions and preliminary injunctions But gov t can t offer ev against a D if D didn t have a previous opp to cross confrontation clause even if predecessor in interest did See Green Lloyd v American Export Lines Defining Predecessor in interest as community of interest - party to prior proceeding is a predecessor to a party in present proceeding if former represents interest of latter Very broad A party to the prior proceedings is a predecessor to a party in the present proceeding if the former represent the interest of the latter In license revocation proceedings against seaman L Coast Guard was predecessor in interest to seaman A proceedings against L arose from a shipboard altercation between L and A and there was sufficient community of interest between Boast Guard and A to satisfy predecessor in interest requirement Predecessor in interest Generally can only be used against someone who was a party in a prior proceeding there are exceptions but limited to predecessors in interest - close or formal link Runs gambit from legal privity to community of interest Dying Declarations Firmly Rooted Exception b Dying Declarations In a prosecution for homicide or in a civil action or proceeding a statement made by a declarant while believing that the declarant s death was imminent concerning the cause or circumstances of what the declarant believed to be his impending death Generally Goes to cause and circumstance of death a Hearing can determine legitimacy of belief that you re dying Bad wounds and Imminence of death preferred Usually survives confrontation clause challenges Shepard v US SC Factors include length of time patient s improvement btwn statement and death illness not enough At the time her mind had cleared up and her speech was rational and orderly and was moving forward to recovery Fear or even belief that illness will end in death will not avail itself to make a dying declaration There must be a settled hopeless expectation that death is near at hand the patient must have spoken with the consciousness of a swift and certain doom Case Rule Issue Rule Holding Declarations Against Interest b Declarations Against Interest A statement which was at the time of its making so far contrary to the declarant s pecuniary or proprietary interest so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another that a reasonable person in the declarant s position would not have made the statement unless believing it to be true A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement Williamson v US SC Criminal Cases Statement implicating the accused Self-exculpatory statements made in combination with statements against interest do not fall w in b O Connor the important determination is whether statement includes a report narrative or only a single declaration remark The narrower reading is more accurate because the fact that a person is making a broadly self-inculpatory confession doesn t make more credible the confession s non-self-inculpatory parts Mere proximity to other self-inculpatory statements doesn t increase the plausibility of the self-exculpatory statements We view these statements with suspicion because there s motivation to implicate the and to exonerate oneself The question whether the statement was sufficiently against the declarant s penal interest can only be answered in light of the surrounding circumstances Note Kennedy s Three sources give guidance the CAN shows that some collateral statements are admissible Congress intended the exception to apply as it did at common law meaningful effect This last point means that the exclusion of collateral statements would cause the exclusion of nearly all inculpatory statements it s rare that the statement without more also inculpate the State v Schiappa Dual inculpatory statements come in Applying Williamson dual inculpatory statements fit into the exception Dude said that he and his girlfriend killed a guy to his friend Confrontation clause issues Not really since it was the friend testifying at trial Prob N He had Noting to Do with It b - Need for corroborating ev Relationship between parties Courts look at whether there is a motivation to save the other- makes the statement less reliable Looks at the relationship b twn the people In this example they just worked together didn t really know each other Statements against interest not under a firmly rooted exception means higher standard for corroborating ev Needs something other that extrinsic ev Other b Exceptions b Statement of personal or family history b Transferred to Rule b Forfeiture by wrongdoing Hearsay within Hearsay Case Rule Issue Rule Holding Hearsay w in Hearsay Hearsay included w in hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules Mahlandt FRE exceptions to H rule operate only if every H stmt falls w in an exception except when the statement has been define as not H because it s an admission Message from keeper to Sexton same analysis as note and minutes of Board of Dir meeting both admissible against company but not error to exclude it b c was cumulative as to corporate plenty of other ev Residual Exception Catchall Exceptions Case Rule Issue Rule Holding A statement not specifically covered by Rule or but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule if the court determines that A the statement is offered as evidence of a material fact B the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts and C the general purpose of these rules and the interests of justice will be best served by admission of the statement into evidence However a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it the proponent s intention to offer the statement and the particulars of it including the name and address of the declarant State v Weaver Example of evidence admissible under catchall exception- evaluation of trustworthiness under w out Confrontation Clause Issues convicted of baby s death earlier coffee table incident several affidavits of witnesses state that Mathes said that they baby had fallen before picked her up The factors to consider in making a trustworthiness determination are declarant s propensity to tell the truth whether statements were under oath personal knowledge time lapse motivations to make the statement corroboration reaffirmations credibility of reporting witnesses availability of declarant for cross In addition to other factors that affiants did not socialize with declarant and did not know the was important Child Abuse Factors Rifle Shot Exception Precocious knowledge Age appropriate language Behavior Changes General Demeanor Spontaneity Bias alternative motivation training and techniques of questioner number and consistency of repetition character of child Think Ironshell and Blake Requires a reliability and b i child testifying or ii corroborative ev of act if unavailable Prior Grand Jury Testimony Doesn t fit under FRE b when offered by the government and FRE d A only works if the declarant is available a trial so Courts employed the Catchall Constitution as a Bar Against Hearsay Only Crim cases where ev offered against D Case Rule Issue Rule Holding th Am Confrontation Clause Right to confront witnesses against you Entitles D to be present when witnesses testify against him and to cx Also D must be in view of witness unless safety of hild requires other wise Think Barber and Evans Confrontation Clause Theories Minimalist Cross examination of live witnesses at trial is all that s required so prosecutor can introduce prior stmts as long as has right at trial this means CC not satisfied if cannot cross-examine at trial Production if declarant is available prosecution must produce witness for cross Reliability prior stmts can only come in if they are reliable Centrality hearsay E can come in only to corroborate or provide circumstantial proof not as central support for prosecution s case Procedural rights CC does not bar hearsay just bars prosecution from collecting out-of-ct stmts and substituting them for live testimony Other Constitutional Considerations th Am- right against self incrimination Fight at Red Dog Reason that coconspirator testimony can be barred th Am- due process equal protection Doyle California v Green Confrontation Clause satisfied by either prior cx or cx at trial Facts At a preliminary hearing Porter testified against Green but subsequently became evasive uncooperative claimed he was on drugs at the time and couldn t remember the specific facts Held Prior testimony at preliminary hearings is constitutionally admissible where it was given under oath within the presence of the accused who had a chance to cross and conducted in front of judicial tribunal Also held that subsequent testimony would check See below Green Factors Subsequent Cross-Examination the officer at trial repeated a statement Porter made to him The question under the Confrontation clause is whether the jury could adequately evaluate the prior statement at trial It requires Oath the witness must now testify as to truth of the prior statement under oath and the fact that prior statement wasn t given under oath provides him an explanation as to its inaccuracy Cross inability to cross is not of crucial significance where the is assured of full and effective cross at trial The most successful cross one could hope for is when the witness now tells a different inconsistent story as he has already done Demeanor witness who relates a different story necessarily assumes a position as to the truth-value of his prior statement thus giving the jury a chance to observe and evaluate his demeanor as he either disavows or qualifies his earlier statement Denial of Earlier Statement does not mean that cross regarding it is constitutionally inadequate Nelson v O Neil No memory of Earlier Statement does not mean that cross regarding it is constitutionally inadequately U S v Owens Uncross-Examined Statements and Firmly Rooted Hearsay Exceptions Ohio v Roberts SC Standards for assessing whether confrontation clause is violated Rule of necessity unavailability Indica of reliability- Have to show either a firmly rooted exception noting else necessary b particular guarantees of trustworthiness Firmly Rooted Exceptions Coconspirator statements excited utterances med statements biz records and dying declarations Against-interest is NOT firmly rooted Lilly v Virginia and neither is the Catchall Wright Idaho v Wright SC Catchall exception not firmly rooted for Confrontation Clause purposes trustworthiness of Hearsay evidence to be admitted against criminal must be evaluated w o reference to corroborating evidence FRE O Connor the Catchall exception accommodates ad hoc instances in which statements not otherwise falling within an exception are nevertheless sufficiently reliable The use of corroborating evidence to support a hearsay statement s particularized guarantees of trustworthiness would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial which is at odds with the Confrontation Clause requirement that cross of the declarant be of marginal utility Protected-Witness Testimony Children Generally Many states statutes authorize the use of depositions of child victims at trial claiming the child is unavailable because of immaturity or medical reasons psychological impacts Coy v Iowa Face to Face Testimony Better The guarantee of a face-to-face meeting improves the appearance of fairness because something in human nature regards the confrontation as essential and a witness may feel differently when he repeats his story looking at the accused an irreducible literal meaning Maryland v Craig Child s Welfare o w importance of Face to Face Testimony State s interest in the well-being of such victims is important enough to outweigh the right of face-to-face confrontation but this must be decided on case specific basis Hearsay for the Defense Constitutional Grounds to Admit Chambers v Mississippi SC Exclusion of declaration against interest and exclusion of opportunity to cx adverse witness violates D s Constitutional Rights Right to Cross the right of cross is implicint in the constitutional right of confrontation and helps assure the accuracy of the truth-finding process s request to cross McDonald was denied based on the voucher rule a party who calls a witness vouches for his credibility he was forced to call McDonald because the State didn t We reject the notion that the right to cross is depending on whether the witness was initially put on the stand by the accused or by the State Declarations Against Interest the hearsay statements in this case were made under circumstances that provided considerable assurances of their reliability They were made to close acquaintances were corroborated by other evidence were self-incriminatory and unquestionably against interest and the declarant was under oath and available to the State for cross WITNESSES- ARTICLE VI Case Rule Issue Rule Holding Competency of Witnesses General Rule of Competency Every person is competent to be a witness except as otherwise provided in these rules However in civil actions and proceeding with respect an element of a claim or defense as to which Stat law supplies the rule of decision the competency of a witness shall be determined in accordance with State law Factors Judge decides- Will usually permit witness to take stand unless other side objects Children under presumed not competent Children over presumed competent Insanity major mental defect and being under influence of alcohol not a bar Hypnotically refreshed testimony is often not received b c real memories get conflated with suggestion Rock v Arkansas Hypnotism Allowed accused of killing her husband her lawyer suggested she undergo hypnosis b c she had no memory Rule against allowing this in conflicts w s right to defend herself Lack of Personal Knowledge A witness may not testify to a matter unless ev is introduced sufficient to support a finding that the witness has personal knowledge of the matter Evidence to prove personal knowledge may but need not consist of the witness own testimony This rule is subject to the provisions of rule relating to opinion testimony by experts Other Gen Rules - Oath or Affirmation - Interpreters - Competency of Judge as Witness - Competency of Juror as Witness Direct Examination Mode and Order of Interrogation and Presentation a Control by court to achieve effective ascertaining of truth avoid wasting time and protect witness from harassment and undue embarrassment b Below c Leading questions should not be used on direct of the witness except as may be necessary to develop witness testimony Ordinarily they are permitted on cx and to interrogate hostile or adverse witnesses Leading Questions c a Necessary to Develop Testimony witnesses who are very young timid ignorant or unresponsive or infirm Where the choice is to run the risks posed by leading questions or to do without the knowledge the risks become acceptable b Uncooperative Witness c Utility preliminary matters and matters uncontested saves time d When memory is exhausted witnesses forget and lawyers usually are permitted to attempt to refresh their recollection by handing a statement to the witness asking him to read it and then asking whether his memory is now refreshed Writings Used to Refresh Memory Can use anything to refresh witness memory Must mark it even if is not received in evidence If thing used to refresh memory is a document must provide it to the other side Thing to refresh witness need not be something of which witness has personal knowledge under Document doesn t have to be admissible as ev doesn t even have to be accurate Baker v State Past Recollection Recorded vs Personal Recollection Revived Criminal entitled to use document not authenticated by witness to refresh witness memory on issue that could exculpate him One officer s report not admitted to refresh another testifying officer When a party seeks to introduce a record of Past Recollection he must establish that the record was made or adopted by the witness at the time and that the witness can vouch that he knew it was accurate when made the reason for the strict standard is understandable because the evidence itself speaks to the jury Present Recollection Revived is completely different it s the difference between evidence and non-evidence Even if the stimulus is a writing the witness speaks from a memory thus revived his testimony is what he says rather than the writing The catalytic agent is put aside one its worked its psychological magic It need not be adopted or made by the witness or within a time frame all that is require is that it spark the memory James Julian Inc v Reytheon Co Documents used to refresh witness memory-even before trial-under must be disclosed to opposing party despite work product privilege Julian s witnesses used a binder to prepare for the depositions and Raytheon wants to admit the binder as evidence Julian claims that the binder contains work product Courts have generally agreed that the use of protected documents to refresh a witness memory prior to testifying constitutes a waiver of the protection modern views favor broad access in part because of a recognition of the unfair disadvantage cross examiner s would face by the exclusive use of privileged material to refresh recollection Cross Examination Mode and Order of Interrogation and Presentation Cross Examination b Scope of examination- cx should be limited to the subject matter of direct examination and matters affecting the cred of the witness Court may exercise discretion in permitting inquiry into additional matters c See above leading questions generally allowed Note Cross-examination as an entitlement If opposing party not available e g witness dies direct testimony will often be struck at least part on which there has not yet been any cross-examination Note on Julian v Raytheon Co Opposing party may generally request to see documents used to prep witness for cx Impeachment of Witnesses Case Rule Issue Rule Holding Who may impeach The credibility of a witness may be attacked by any party including the party calling the witness It would be an abuse of FRE for the prosecution to call a witness it knew would not give useful evidence merely to introduce hearsay evidence against the in the hope that the jury wouldn t distinguish between substantive and hearsay use US v Webster Evidence of Character and Conduct of Witness a Opinion and reputation evidence of character The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation but subject to these limitations the evidence may refer only to character for truthfulness or untruthfulness and ev of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation ev or otherwise b Specific instances of conduct Specific instances of the conduct of a witness for the purpose of attacking or supporting the witness credibility other than conviction of crime as provided for in rule may not be proved by extrinsic evidence They may however in the discretion of the court if probative of truthfulness or untruthfulness be inquired into on cx of the witness concerning the witness character for truthfulness or untruthfulness or concerning the character for truthfulness or untruthfulness of another witness as to which character the being crossed as testified The giving of testimony whether by an accused or by any other witness does not operate as a waiver of the accused s or the witness privilege against self-incrimination when examined with respect to matter which relate only to credibility Ways of Attacking a Witness show witness has some bias animus motivation or corruption that might lead him to fabricate mental or sensory defect untruthful disposition FRE b nonconviction conduct that casts doubt on his honesty Can only do this in cross not with a later witness FRE criminal convictions FRE a character witness testimony Ways to call specific parts of testimony into doubt FRE show witness has made prior inconsistent statements witness must have chance to explain contradict the witness to show he is just plain wrong Note Supporting party can then repair witness credibility FRE Nonspecific Impeachment- Bias and motivation Examples Witness status as paid govt informer Expert fees Relationship to US v Abel SC Testimony admissible to show bias when relevant under can be proved through extrinsic evidence even if such evidence to show character of witness would be limited to cross-examination It is permissible to impeach a witness by showing his bias under the FRE just as it was to do so before their adoption The testimony about the prison gang made the existence of Mill s bias towards respondent more probable Proof of bias is almost always relevant because the jury as finder of fact and weigher of credibility has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness testimony Their membership in the Aryan Brotherhood supported the inference that Mills testimony was slanted A witness and a party s common membership in an organization even without proof that the witness or party has personally adopted its tenets is certainly probative of bias The jury may be permitted to draw an inference of subscription to the tenets from members alone Moreover the type of the organization is also relevant to show bias because with a tightly knit group bias is more likely Last arg t o concerns Prosecution Deal Often key prosecution witnesses have committed crimes themselves and makes deals and promises for their testimony These deals must be disclosed and may cross these witnesses on those points P -A The Hired Gun CX of paid witness Routinely permitted for atty to ask do you always testify for the or the Most cts allow more than per diem In general payment and allegiance to a particular side are fair game Most will allow total earnings even total earnings last year for this party BUT line starts to get drawn here at questions regarding witness earnings from whole industry Nonspecific Impeachment- Sensory and mental Capacity Generally Weaknesses may be proven by extrinsic evidence including evidence that the witness was under the influence of drugs alcohol or questions about stays in mental facilities But no witness is incompetent because of mental illness drunkenness psychiatric history See An area of great personal privacy may be invaded in cross only when required by the interest of justice and the impairment must have existed at the time of the relevant perception or it will run afowl of c Character for Truthfulness Generally FRE generally bars use of character E but FRE a makes exception you can try to show the witness is untruthful to show that he may be lying on the stand FRE authorize this But limits it Special rules when witness is also a party or when becomes witness then subjected to character attacks Witness can be cross-examined on prior bad act that did not result in criminal conviction only where examiner has factual predicate for the question bad act bears directly on the veracity of the witness w respect to the issues involved in the case Murphy v Bonanno Murphy v Bonanno If ev of non-conviction prior bad acts meets easy relevance threshold judge has desctretion to admit if factual predicate is met and act bears directly witness veracity w respect to the issue in the present case These considerations are then balanced with considerations sought to question witness about three things that bore on veracity and motive lying on a loan statement filing false insurance and sexual harassment claims the trial judge refused A witness may be crossed on a prior bad act where the examiner has a factual predicate and the bad act bears directly upon the veracity of the witness The trial court may asses the questioner s offer of proof to determine whether a factual predicate exists and then may either impose reasonable limits on cross to limit prejudice or may entirely exclude the line of questioning if the danger of unfair prejudice will outweigh its probative value A trial judge abuses his discretion when he fails to exercise choice in this situation and because the trial judge barred the cross on relevance grounds he never exercised his discretion Strength of the factual proffer comes into play when the judge proceeds to balance the probative value of the impeachment against its potential for prejudice Case Rule Issue Rule Holding Impeachment of Witness Evidence or Conviction of Crime Generally Can ask about evidence that a witness other than the accused has been convicted of a crime punishable by death or years imprisonment evidence that any witness was convicted of a felony or misdemeanor involving dishonesty or false stmt For convictions of crimes punishable by death or one year in prison cross of witnesses other than the is subject to FRE and for the it is only admissible where probative value outweighs prejudicial effect s in many criminal cases avoid taking the stand if they have a prior record that will come out during cross Applying FRE a Robbery is generally less probative than crimes that involve deception or stealth But it does involve theft and is a serious crime that shows conscious disregard for the rights of others a courts take the position that crimes involving violence prostitution and narcotics don t involve dishonesty or false statement Theft is in the middle and the facts involved do count Prob D Time Loser Hearsay exemption for prior conviction only if years or death restrictions only kicks in if dealing with accused or victim in crim cases Gordon Factors nature of conviction time- recent or remote similar to the charged offense is s record otherwise clean how important are credibility issues raised importance of getting s own testimony US v Lipscomb In balancing whether evidence of prior conviction is more probative or more prejudicial under a judge has discretion to look at facts and circumstances beyond the name of the crime Though all felony convictions are probative of credibility to some degree the evidence can also seriously prejudice the Instructions to the jury that it may only consider the evidence on the issue of credibility is known to be an unmitigated fiction Plain Meaning FRE b requires that the probative worth supported by specific facts outweigh the prejudice but FRE a doesn t require specific facts and the district court has discretion whether or not to consider them Policy Considerations The burden on the government to obtain this information is slight and there will be no delay if the government makes a regular practice of obtaining the information pre-trial Prob B Hit the deck Witnesses for the Prosecution Would govt prevail on a motion in advance that cannot cross-examine Elmo on his robbery conviction a does not apply on its face a applies b c this is a felony so will be admitted subject to FRE which leans in the direction of exclu Prob C Plaintiff is an ex-con Civil case Can manslaughter conviction of come in Is jury entitled to know this info NOT at liability stage But felony status might make a difference if damages are being calculated based on future earnings Or if it is a crime where veracity is involved As proponent of evidence you would prefer it is in a b c automatically admissible Specific Impeachment Case Rule Issue Rule Holding Prior Inconsistent Statements Prior Inconsistent Statements Examining witness concerning prior statements whether written or not the statement need not be shown nor its contents disclosed to the witness at that time but on request the same shall be shown or disclosed to opposing counsel Extrinsic evidence of prior inconsistent statement of witness Is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon or the interests of justice other wise require This provision does not apply to admissions of a party-opponent as defined in rule d Prob F He s trying to sandbag us Prior inconsistent statements of witness used to impeach after the witness has left the stand - Gives court right to control scope and order of testimony Not hearsay under d A or b but there are restrictions CAN- Judges usually require that witness be confronted with the existence statement while s he is still on the stand b - May not cool witness must have opportunity to explain US v Webster Prosecution cannot call a witness they know ill exculpate D just to introduce hearsay ev- standard is good faith Controlling Rule It would be an abuse of FRE for the prosecution to call a witness it knew would not give useful evidence merely to introduce hearsay evidence against the in the hope that the jury wouldn t distinguish between substantive and hearsay use Impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible However there was no bad faith here and the good-faith standard provides a good balance Constitutional Issues with Impeachment Harris v New York SC Con Limits on impeachment of D When D takes stand and denies guilt his prior statements even pre-Miranda can be used to impeach Post-arrest pre-Miranda statements Miranda does not bar evidence inadmissible against an accused in the prosecution s case-in-chief for all other purposes Though in Walder the statement was used for collateral matters the principle that a should not be permitted to provide himself with a shield against contradiction of his untruths Sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief James v Ill SC Impeachment of D witness with D s statements statement not admitted Violates th Threat of perjury prosecution deters witnesses from lying but not s faced with other charges expanding the impeachment exception would chill some s from presenting their best defense and significantly weaken deterrent effect of exclusionary rule Mincy Difference b w stmts not coerced though perhaps in violation of Miranda and stmts that are coerced Difference for ct is reliability and trustworthiness Angello Question that is first raised on cross-held to be collateral and cannot be used to impeach Using Silence to Impeach Jenkins v Anderson SC Silence inconsistent with claim of self defense can be used to impeach D Pre-arrest silence used to impeach prosecutor attempted to impeach s credibility by suggesting that he would ve spoken out if he d killed in self-defense Once a decides to testify the interest of the prosecution and regard for ascertaining the truth become relevant and prevail in the balance of considerations impeachment follows the s own decision No governmental action induced the to remain silent before arrest the failure to speak occurred before the was taking into custody and given Miranda warnings Court assumes that the innocent babble Weir v Fletcher th Amendment Miranda and Questioning Questioning about post-arrest but pre-warning silence didn t violate the th Amendment Contradictions and Collateral Ev Generally Contradictory evidence is often lumped together w rebuttal evidence Evidence will come in when offered to contradict or rebut testimony of your opponent s witness when it is relevant Also when it contradicts or rebuts and is relevant to bias or motive If it only contradicts it should be excluded on the grounds that it s collateral Collateral ev cannot come in on its own needs additional relevance Prob G That s just collateral Your Honor in Seattle robbery case offers alibi defense Restaurant owner testifies for that was in his restaurant in Portland every night for weeks leading up to robbery Police officer testifies for prosecution that he saw in Seattle during that time Police officer s testimony is probably permissible because it also establishes location of Waiter who testifies that he s never seen at restaurant before Waiter was not at restaurant on day of robbery HM this testimony would be received on the ground that it has independent relevance b c it s offered to contradict Ardiss testimony Repairing Credibility Case Rule Issue Rule Holding Generally FRE courts disallow any attempt to repair credibility before the attack has come and only on the point of attack Rebutting Impeaching Attacks a party anticipating attack can deflect by bringing out the facts beforehand so it s permissible to adduce testimony that the witness is being paid has been convicted of crimes has entered into a plea bargain or has a relationship with the party Evidence of Good Character is allowed under FRE a courts admit opinion or reputation testimony supporting credibility only after character for truthfulness has been attacked Prior Consistent Statements are admissible to rehabilitate provided that the attacking party has suggest that the witness s testimony was tainted by recent fabrication Attack on prior inconsistent statements do not always suggest recent fabrication but may simply reflect confusion A prior consistent that predates the alleged recent fabrication has sufficient probative value to be admitted because it tends to rebut Forbidden Attack FRE disallows impeaching attempts that attack credibility based on beliefs opinion or matters of religion Religious Beliefs or Opinions Ev of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness credibility is impaired or enhanced U S v Medical Therapy Sciences Not precluded from responding to cx just b gov t brought out prior convictions on direct in anticipation of impeachment says you can impeach your own witness However if D s cross had only gone to bias then gov t could not have offered character ev under a argues that on cross he only raised issues of bias that were elicited on direct Government argued it only raised issues in anticipation of impeachment the fact of prior convictions may be brought out on direct for non-impeachment purposes When the tenor or direct doesn t suggest an attack on veracity and when cross can be characterized as such the trial judge retains discretion to permit the use of character witnesses Prob I She handed me the heroine Clair and Arla charged w conspiring to distribute heroin Question is whether Arla is guilty since she never had drugs in her possession During govt s case-in-rebuttal govt wants to get in tape recording of undercover agent who said right after the event that Arla had the heroin in her purse Govt has to show that the prior consistent statement was made before the motive to fabricate arose Tome Here it s hard to know when the govt s motive to get evidence in began If this evidence is not offered under FRE does Tome timing requirement still apply HM Courts are deeply split Some think timing requirement doesn t apply if evidence is offered simply to rehabilitate Other courts think the timing requirement is required across the board OPINION AND EXPERT TESTIMONY- VI Case Rule Issue Rule Holding Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert the witness s testimony in the form of opinions or inferences is limited to those opinions of inferences which are a rationally based on the perception of the witness and b helpful to a clear understanding of the witness s testimony or the determination of a fact in issue and c not based on scientific technical or other specialized knowledge within scope of Generally requires them to have personal knowledge Article VIII always check for hearsay issues says that lay witness testimony isn t objectionable because it embraces an ultimate issue any relevant testimony speak to issues jury must resolve Classic situations where opinion testimony is allowed if there is a foundation laid to show that witness has a basis for the opinion these opinions are allowed speed of a car state of drunkenness mood of a known person dramatic manifestation of unknown person She was screaming and crying She seemed agitated Prob A It was my impression Impermissible Speculation s ex-girlfriend testified for prosecution that it was her impression that he was involved in the car bombings b c showed her an article about the bombings and said he knew someone who would blow up cars for Satisfies she has personal knowledge and no hearsay issues But a lacks rational basis HM this is impermissible speculation Opinion on Ultimate Issue Except as provided in subdivision b testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the tier of fact Lay witness can speak to ultimate issue b No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto Such ultimate issues are matter for the trier of fact alone Expert can t speak to mental state or element if ultimate issue in crim cases Additionally the CAN states that opinions telling the jury what result to reach remain excludable and that the rule does not lower the bar to all opinion testimony Case Rule Issue Rule Holding Expert Witness Testimony Testimony by Experts If scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge skill experience training or education may testify thereto in the form of an opinion or otherwise if the testimony is based upon sufficient facts or data the testimony is the product of reliable principles and methods and the witness has applied the principles and methods reliably to the facts of the case Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing If of a type reasonably relied upon the experts in the particular field in forming opinions or inferences upon the subject the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert s substantially outweighs the prejudicial effect Generally Must have personal knowledge under firsthand knowledge facts learned at trial- costly party has to pay expert to sit through entire trial outside data- does not have to be admissible in a sense the expert synthesizes the primary source material-hearsay or not- into properly admissible evidence in opinion form the trier of fact then judges its credibility May have to be qualified under Daubert and Kuhmo Tires Confrontation Clause- may bar an experts testimony entirely based on hearsay reports and requires that D have access to material relied upon Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data unless the court requires otherwise The expert may in any event be required to disclose the underlying facts or data on cross examination Presenting of Xpert FRE Qualified expert witness can testify without laying the foundation Don t have to ask detailed questions about the research Even if proponent does not raise it the opponent can cross-examine expert on what s he is relying on Steps to Qualifying Expert Witness identity schooling experience w the subject matter opponent may try to stipulate to this but you can still go through it if opponent contests expert s qualifications voir dire happens away from jury But then proponent if expert is qualified by the judge can still puff up the witness Judge alone decides whether the expert is qualified and testimony is admitted a Jury then will assign its own weight Proponent of evidence has burden of persuading judge that the witness is qualified Can lay foundation or go straight to testimony this is strategy Expert can give an opinion on the ultimate issue unless it s the issue of an element of a crime Case Rule Issue Rule Holding Scientific Evidence Frye v US SC Old School Test rejected on fed level by still endorsed in some jurisdictions like NY The thing form which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs Daubert v Merrell Dow SC Scientific testimony or ev must be relevant and reliable Ct decides FRE does supercede Frye Ct relies on Abel and Bourjaily In Abel ct held that common law could aid the application of the FRE In Bourjaily ct held that FRE superceded common law since the rules did not embody any particular common law doctrine The judge must ensure that scientific testimony and evidence is not only relevant but reliable The subject must be scientific knowledge it would be unreasonable to conclude that the subject must known to a certainty In order to qualify as scientific knowledge an inference or assertion must derive by the scientific method and be supported by appropriate validation good grounds The trial judge must first determine FRE a what the expert is testifying to scientific knowledge that will assist the trier of fact s understanding and the requires a preliminary assessment of whether the testimony is scientifically valid and whether its reasoning can properly be applied to the facts of the case Two underlying concerns the free-for-all will be handled by other safeguards vigorous cross and counter-proof screening role for a judge as gatekeeper will prevent the jury on some occasions from learning authentic insights but this is the balance of the FRE Daubert Test Factors Factors for Reliability Publication Has it been subject to peer review an or publication Error What is the potential rate of error Testability Can the knowledge be tested and has it been Acceptance General acceptance in filed Relevance- question of fit of methods to facts Joiner A decision excluding scientific evidence is subject to the ordinary abuse of discretion standard Kumho Tire Applies not only to scientific testimony but to all expert techinical and specialize knowledge testimony it would be difficult if not impossible to differentiate between scientific and technical knowledge Syndrome and Social Context Case Rule Issue Rule Holding Generally Expert testimony describing behavioral syndromes and social frameworks has come of age When such testimony describes general behavioral patterns social framework is an appropriate term Yet when it describes the behavior of a victim it s no longer accurate and the evidence becomes closer to character evidence requiring the restrictions of FRE and page Battered Child Syndrome Testimony about Battered Child Syndrome BCS in child abuse prosecutions State v Nemeth Trial of -yr-old for killing his mother Testimony on battered child syndrome What objections might prosecutor have FRE b prohibits ultimate issue testimony re mental status of a crim could get around this by having expert testify as to general traits of syndrome w out speaking directly to s state of mind Rape Trauma Syndrome Testimony about Rape Trauma Syndrome RTS in sexual assault trials Rape trauma syndrome evidence You get around FRE b b c it goes to the state of mind of the victim not the People v Taylor NY holds that expert can t testify about whether she thinks victim was raped Testimony must be couched in more general terms Profiling evidence has the same pitfalls Battered Person Syndrome Testimony about Battered Woman Syndrome BWS in trials of men for beating women or in trials of women for killing abusers Threshold assumptions No separate battered woman s defense whatever it is it s traditional No separate cultural offense She wants us to assume this Possible implication of Rule Social Context Ev Social context evidence is not new remember majority culture is not default everyone is different Be able to apply same rules to new kinds of evidence Prob E They became anxious and guilt-ridden Daubert used to qualify experts testimony Sample Objects to Xpert Testimony None of them are very good in the in the Prob Art charged w sexual assault of his daughter Prosecutor calls a clinical psychologist Daubert applies to expert s testimony You look at PETA factors and also FRE is this the type of analysis that is generally regarded as reliable by experts in the field has objections Model bad No accepted model Invading province of jury Nope rule a says that witnesses can speak to the ultimate question Doesn t go far enough to be prohibited by b Expert s testimony not really helpful Judge might overrule objection b c the jury needs help in this area Juries might have incorrect notions about how abused children behave prosecutor needs to sell this to the jury Credibility issues are for jury to decide Prosecutor should argue that expert s testimony will help jury to decide if the girl is believable But HM says It s rare for kids to make this up would not come in b c credibility is for the jury It will overwhelm the jury That objection will be overruled Daubert shows that judges are inclined not to exclude expert evidence just b c they think the jurors will follow it Note Most cts that held under Frye that soc science testimony came in are reluctant to reexamine the issue State v Kelly Expert testimony on BWS is admissible to show honest and reasonableness of woman s belief that deadly force was necessary to protect her against death or serious bodily harm Wife killed husband who had beaten her for several years Exact circumstances of the killing are disputed but she was convicted of reckless manslaughter NJ Sup Ct reversed b c expert testimony on BWS was improperly excluded BWS testimony was relevant both to the honesty of s belief and to the reasonableness But belief that killing was justified was not enough must be that reasonable person w have believed there was an imminent danger These women become expert readers of their abusers Jaspreet Singh Expert is offered on the basis of her experience She runs an advocacy group for battered women from South Asia She is an activist and a counselor Has a particular interest in the issue Maybe could not testify to the psychological effects of battering but could testify re what s unique to the cultural context Maybe she can explain the failure to call ESL etc depends on jury pool Without an expert they may have no idea of how to evaluate the isolation Cultural defense is never a defense but here may be relevant to s behavior think about how to switch this arg as a prosecutor men beat women where they came from OR could have contrary evidence that these immigrants assimilate etc It bolsters her as a witness Yvonne Wanrow Dong Lu Chen People kill cheating wives in China People v Rhines Black people talk loud Proffered testimony of black psychologist that black people speak to each other very loudly was not shown to be relevant to claimed reasonable belief of consent PRIVILEGE- ARTICLE V Case Rule Issue Rule Holding Generally The primary goal is to encourage the free flow of communication in various relationships Under FRE federal privilege law is governed by principles of the common law as they may be interpreted by the courts of the U S in the light of reasons and experience Rejected Proposals - Lawyer-Client Privilege - Physician and Psychotherapist Patient Privilege - Husband-Wife - Religious Privilege - Political Vote - Trade Secrets - Secrets of State and Other Official Information Governmental Privileges - Identity of Informer - Waiver of Privilege by Voluntary Disclosure - Privileged Matter Disclosed Under Compulsion or W Out Opportunity to Claim Privilege - Comment Upon or Inference From Claim of Privilege Attorney-Client Privilege Generally Protects only confidential communications made for the purpose of rendering professional legal services to the client Assertion of privilege is the beginning of the analysis Also need to satisfy rules Constitution Burdens Party claiming privilege has burden of establishing that it applies atty must lay out what privilege he wants to assert how facts support it Ct resolves under a usually w o requiring disclosure of the material at issue If party seeking info claims an exception applies this party has burden of proving this How to tell whether an atty-client privilege exists use this framework for any determination of privilege Is it a communication not just an observation anyone could have made Was its purpose to obtain advice not just to arrange for dinner Parties to the communication rd parties do not defeat the claim of priv if they are necessary to the obtaining of legal advice Burden on atty to make sure no one overhears Was there some waiver of the privilege If there is a waiver does not mean the privilege NEVER existed A privilege is waived if its holder voluntarily discloses or consents to disclosure of any significant part of the communication NOT waived if atty discloses w o client s consent UNLESS negligence on atty s part Is there an exception Privilege Extends to Communications w others working on case e g investigator Communications w intermediaries interpreters and employees of law office Kovel Observations by atty based on communications from client e g discovery of body Observation of evidence discovered as a result of communications w client Communications in presence of joint client Privilege does not Extend to Moving or destroying evidence discovered as a result of com w client Meredith Observations of client s acts where there is no expectation of confidence or client is not disclosing something specifically to his atty for the purpose of furthering his goal of getting representation Prob C Com in front of a rd party elevator unless reasonable precautions were taken Evidence found in trash Sew Sweep Some jxns require atty to turn evidence over but not to disclose source of information Prob A A bum rap McDonald Atty-client privilege trumps right of crim D to present ev In his favor is convicted of murder and sentenced to death Another atty calls and says his client actually confessed to the killing Barton s testimony Is it privileged Could claim waiver the atty waived the privilege BUT the privilege ultimately belongs to the client who did not consent to the initial disclosure Immunity this strategy has not really gone anywhere but is an example of the kinds of things being proposed Prob B The Bail Jumper Atty-client privilege does not protect communications b w atty and client for purposes of complying with court orders etc Is atty telling the client he needed to be back in court on X date privileged No presumption when a client is released on bail that he agrees to stay in touch with the court so you waive any privilege as far as communications necessary for you to meet your obligation But regardless of content the circumstances would suggest privilege Prob C The tipsy client Atty-client privilege applies only to communications not observations Atty witnesses client drunk sees client get into car and drive Can atty be called as witness against his client Client tells atty he has been drunk Atty also observes client to be drunk Issue is not whether information could have been obtained some other way Generally observations are ok but not info disclosed Prob D Transferred tax record Otherwise unprivileged does not become privileged just becaue you turn it over to your atty Records that you as a client could not protect do not get cloaked by the atty-client privilege just by you turning them over to your attorney But if you have the privilege e g th Am privilege you also don t lose that privilege by sharing a document with your atty Case Rule Issue Rule Holding Communications People v Meredith Moving or destroying ev not protected by atty-client privilege even if atty learned of location of ev in confidential communications w client tells his attorney where the wallet is attorney hires an investigator who takes the wallet The disclosure to the investigator does not wave the privilege because the disclosure was reasonably necessary to accomplish the purpose for which the attorney had been consulted When defense counsel alters or removes physical evidence he necessarily deprives the prosecution of the opportunity to observe that evidence in its original condition and the statutory privilege doesn t bar revelation of the original location or condition of the evidence in question If defense counsel leaves the evidence where he discovers it the privileged communications are insulated if counsel chooses to remove evidence however protection of the privilege is lost Required Confidentiality- Privilege protects only communications intended by client to be confidential Us v Kovel Involving or Disclosing to Communicative Intermediaries Privilege extends to aids of Other Sorts includes paralegals and physicians retained by a personal injury lawyer to diagnose the client for litigation A law firm hires an accountant the complexities of modern existence prevent attorneys from effectively handling clients affairs without the help of others We can see no significant difference between cases where the attorney sends a client speaking a foreign language to an interpreter to make a literal translation of the client s story accounting concepts are foreign language to some lawyers What is vital to the privilege is that the communication be made in confidence for the purposes of obtaining legal advice from the lawyers If what is sought is not legal advice but only accounting service no privilege exists Joint Clients Joint Clients and Pool Defenses If two or more clients retain or consult the same attorney with respect to matters of common interest the communications made between the join clients and the attorney are privileged If they retain separate attorneys but have the same interests they usually may pool information and collaborate same rules apply Leaks and Eavesdroppers Suburband Sew N Sweep v Swiss-Bernia Burden on atty and client to prevent inadvertent disclosure Evidence found in s trash admissible Extreme case not followed by most jurisdictions s searched a dumpster in s parking lot the traditional rule placed near absolute responsibility for maintaining confidentiality on the parties to the communication because the means of preservation were entirely in their hands That policy is outmoded in an era of sophisticated eavesdropping devices against which no easily available protection exists The relevant consideration is the intent of the s to maintain the confidentiality of the documents as manifested in the precautions they took Two considerations are paramount the effect on uninhibited consultation between attorney and client on not allowing the privilege and the ability of the parties to protect against the disclosures If the client or attorney fears such disclosure it may be prevented by destroying the documents before placing them in the trash Bugs and Responsibility Most cts do not follow Suburban and Sew N Sweep too invasive of privacy d n want to give benefit of bad behavior What if your atty s office was bugged No waiver of privilege here easier to guard against trash issue than bug Does this apply to attorneys Here the client waived the privilege Ct are much more careful when attys inadvertently waive the privilege b c not the client s fault and burden on client to check out all atty procedures w b unreasonable Corporate Clients Corporate Clients There are four approaches privilege for all employees privilege for no employees the control group test or the subject matter test Upjohn Co v US SC Employee communications to counsel are privileged- not only w in control group Internal investigation and questionnaires in the corporate context it will frequently be employees beyond the control group as defined by the court below who will possess the information needed by the corporation s lawyers Middle and lower level employees can by actions within the scope of their employment embroil the corporation in serious legal difficulties and its only natural that these employees would have the relevant information needed by counsel if he is adequately to advise the client Moreover the Government is still free to question those employees about the underlying facts Work-product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship A far stronger showing of necessity and unavailability by other means than was made would be necessary to compel disclosure Exceptions to Coverage Generally The privilege gives way in several circumstances Suits between clients and lawyers and lawyers who act as attesting witnesses on documents executed by their client The two others are client identity Durant and future crime fraud Phelps Durant Client Identity does not fall under privilege a check made out to the attorney was the subject of an investigation attorney refused to disclose the name of his client Usually the identify of a client is not within th protective ambit of the attorney-client privilege with some exceptions The legal advice exception applies when the name of the client would implicate the client in the very matter for which he sought legal advice The confidential communications exception arises where disclosure of the identity would be tantamount to disclosing an otherwise protected confidential communication The last link exception is recognized when the disclosure would provide the last link of evidence The first two are firmly rooted exceptions the latter is not and hence not justifiable to support the attorney-client privilege State v Phelps Exception to atty-client privilege for communications re future crime and fraud admitted to planned perjury to first attorney who was later called to testify if a client consults an attorney about prior wrongdoing there is no doubt that the privilege protects their confidential communications Where at the time of the communication the crime has yet to be committed the privilege does not stand Prob F Reluctant Lawyer Attorney can either be compelled to testify or held in contempt Assertions and Waivers Asserting The client determines whether it should be asserted or waived The attorney is ethically required to assert the privilege on the client s behalf unless a waiver has been made or authorized Claimant bears the burden of establishing his entitlement resolved by the court under FRE a See page Waiving A privilege is waived if its holder voluntarily discloses or consents to discloser of any significant part of the matter or communication except that that privilege isn t lost if the discloser is itself a privileged communication The privilege isn t waived if the lawyer discloses the communication without the client s counsel MacDonald but is waived if the negligence disclosure waiver by inadvertence Psychotherapist-Patient Privilege Policy Factors Public private interests served Jaffee But must disclose risk of harm Tarasoff Privacy issue Familial privilege- does not exist but Scalia loves his mommy dissent Jaffe Jaffe v Redmond SC Psychotherapist Privilege extends to Social Workers Jury can draw adverse inference from failure to produce privileged material Confirm w Mags Psychotherapist-Patient Privilege effective psychotherapy depends on an atmosphere of confidence and trust and the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment A psychotherapist privilege serves the public interest by facilitating appropriate treatment for individuals suffering the effects of a mental or emotional problem The likely evidentiary benefit that would result from the denial of the privilege is modest Without a privilege much of the evidence sought is unlikely to come into being All states have enacted into law some form of the privilege Moreover state s promise of confidentiality would be undermined by the absence of a similar federal provision Social Workers the privilege should extend to social workers who provide a significant amount of mental health treatment to the poor Adverse Inference Judge instructed jury that they could draw an adverse inference from the failure to produce the information this is the question on appeal At time of the trial there was common law privilege in some states w regard to psychotherapist privilege and proposed FRE But ct did not resolve what to do when there is a conflict b w federal law and state law ERIE Problem Rule says defer to the state but we have claims one federal and one state The resolution of the privilege problem could be outcome-determinative Case Rule Issue Rule Holding Spousal Privilege Generally Trammel v US SC Spousal privilege is vested only in the witness-spouse not in the accused Spouse can refuse to testify but accused cannot bar spouse fro testifying When one spouse is willing to testify against the other in a criminal proceeding whatever the motivation their relationship is almost certainly in disrepair A rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace The rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely the witness may be neither compelled to testify nor foreclosed from testifying Prob G Hit and Run Spousal privilege does not extend to rd parties present for conversation Can a witness who has testimonial spousal privilege under Trammel invoke it to prevent the testimony by a rd party about what the spouse witness said to the rd party No confidential communications b w Pam and Edith so only issue is if Pam testifies as to what Edith said isn t this the same thing as Edith being forced against her will to testify against her husband Spouse could claim privilege and prevent spouse witness from testifying as to confidential communications this was not disturbed by Trammel US v Estes Partnership in crime exception to confidences privilege-spousal confidence does not extend to communications regarding ongoing criminal activity but does apply to communications made as a precursor to joint criminal activity He comes home and tells her of robbery this is a confidential communication b c no exception for ongoing joint criminal activity yet After his initial statement she becomes an accessory after the fact now there is ongoing joint criminal activity Initial burden on party claiming the privilege After prima facie case is made burden shifts to govt to prove ongoing joint criminal act Prob H The child molester Exceptions to spousal privilege Husband is charged w sexually abusing his wife s daughter and a neighbor child Alleged abuse happened before marriage Couple is married at time her testimony is sought so if privilege claimed is disqualification she cannot be compelled to testify against him EXCEPT with regard to crime committed by him against her child would also work if it were his child Witness spouse must be married to the spouse at time of testimony in order to claim this privilege Communication by husband to wife re handcuffs happens after abuse but before marriage NOT protected under communications privilege b c they are not married at the time Mandatory or voluntary if prosecution meets threshold requirements can compel spouse witness to testify even against her his will There is an exception w regard to crime committed by spouse against either spouse witness or child of either FOUNDATIONAL EVIDENCE AND AUTHENTICATION- ARTICLE IX Case Rule Issue Rule Holding Requirement of Authentication or Identification a General provisions A condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims Illustrations b By wasy of illustration only and not by way of limitation the following are examples of authentication or identification conforming with the requirements of this rule Testimony of witness with knowledge-that the matter is what it is claimed to be General Nonexpert opinion on handwriting- as to the genuiness of handwriting based upon familiarity not acquired fro purposes of the litigation Writing Comparison by trier or expert witness- with specimens which have been authenticated Writing Distinctive characteristics and the like- appearance contents substance internal patter or other distinctive characteristics taken in conjunction with circumstance Tangible goods Voice Identification- whether heard firsthand or through mechanical or electronic transmission or recording by opinion based upon hearing the voice at any time under circumstance connecting with the alleged speaker Phone Conversations and Recordings Telephone Conversations- See page Public records or reports Evidence that a writing authorized by law to be recorded or filed in fact recorded or filed in a public office or purported public record report statement or data compilation in any form is from the public office where items of this natrure are kep Ancient documents or data compilation A is in such condition as to create no suspicioun concerning its authenticity C was in a place where it if authentic would likely be and C has been in existence years or more at the time it is offered Process or system Used to produce a result and showing that the process or system produces an accurate result Methods provided by statute or rule Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority Reqs Satisfied by the offering of evidence sufficient to support a finding that the matter is what its proponent claims The required preliminary showing is called laying the foundation Relevance Something is relevant only if the propend meets this initial requirement and the trial judge will play a screening function passing the ultimate decision on authenticity to the jury Can be the subject of a b Steps in Authenti-cation mark exhibit for identification authenticate exhibit offer into evidence permit adverse counsel to examine adverse counsel has opportunity to object submit exhibit to ct for examination ct rules on admissibility of evidence exhibit can be passed to jury Tangible Objects Generally Unique objects- specific object in questionh Fungible- can stand for anything of the type US v Johnson A tangible object can be authenticated by a witness who is pretty sure of its authenticity as long as a reasonable juror could conclude the object is what its proponent claims it to be Although the trial record reveals the identification of the ax may not have been entirely free from doubt the witness did state the was pretty sure that he saw that ax in s hand and that he was familiar with the ax because he d used it in the past A reasonable juror could have found that this ax was the weapon allegedly used in the assault and the doubt goes to questions of the weight to be accorded this evidence which is precisely what the trial court ruled Although the jury remained free to reject the government s assertion that this ax had been used in the assault the requirement for admissibility specified in FRE a had been met Chain of Custody Process which traces tangible object from the scene to the court room All links should be established to show actual legit object but missing link not fatal Howard-Arias Prob A White granular substance Chain of Custody Authenticating substance found on as cocaine Arresting officer I took baggies from gave to chemist Chemist I tested substance in baggies given to me by arresting officer it s coke gave to evidence warden Evidence warden I took baggies from chemist and placed in locked room etc Us v Howard-Arias Missing link in the chain of custody is OK as long as it does not convince the court that the item is not what it is claimed to be The chain of custody rule is but a variation of the principle that real evidence must authenticated prior to its admission into evidence The purpose of this threshold requirement is to establish that the item to be introduced is what it purports to be Therefore the ultimate question is whether the authentication testimony was sufficiently compete so as to convince the court that it is improbable that the original item had been exchanged with another or otherwise tampered with Precision in developing the chain of custody is not an iron-clad requirement and the fact of a missing link does not prevent the admission of real evidence so long as there is sufficient proof that he evidence is what it purports to be Writings Factors Stylistic Patterns- misspelling and handwriting both can be used to authenticate Letterhead Doctrine- being on proper letterhead cuts back on risk of fraud can be used in authentication Gordon all the letters on their face looked like they came from the defendant and had his name address and phonenumber US v Bagaric Under b writings may be authenticated based entirely on circumstantial evidence characteristics of writings itself A letter the requirement of authentication may be based on circumstantial evidence The letter contained references to s alias to a co- and to other facts confirmed by testimony There was ample demonstration that the letter was in fact what the Government claimed Prob B Landsale Contract Methods of Document Authentication K between seeking to quiet title and previous owner original obtained from office of city courthouse could be authenticated under b in many ways Public record under b b old docs But if there is suspicion by other side b can tell what it is from the contents if no dispute about the validity of the known sample possible to authenticate the handwriting self-authenticating General problem w authenticating writings is not so much the fraud forgery problem but proving to jury that it s what you say it is under b Tape Recordings McMillan McKeever Test The party introducing the tape must show a Recording device was capable of taking the conversation now offered b Operator of the device was competent to operate it c Recording is authentic and correct d No changes additions or deletions have been made e Recording has been preserved properly f Speakers are identified g Conversation was elicited voluntarily and in good-faith Generally Used in most Tech authentications May have evidence admitted even if you fail this test US v Biggins US v Biggins Trial court has discretion to admit sound recording where extrinsic evidence supports their authenticity despite government s failure to meet formal burden under McMillian Tape recorded drug bust the burden properly falls on the government it s important that the be informed of any alterations and the judge has broad discretion If there is independent evidence of the accuracy of the tape recordings admitted at trial we shall be extremely reluctant to disturb the trial court s ruling Though the operator of the tape was likely competent there s no way to know whether the person who altered the tape was competent This defect is inconsequential because there was testimony that the re-recording was accurate FRE b makes clear that a witness familiarity with a voice sought to be identified whether developed before or after the time of the recording is sufficient to ensure reliable voice identification Other Exhibits Photographs and Computer Printouts Prob D The photograph Do you need the photographer Not necessarily But generally you need a witness to authenticate a photograph Someone who knows the location is familiar with it during relevant time date Recognizes place based