evidence course outline

7/23/2019 Evidence Course Outline

http://slidepdf.com/reader/full/evidence-course-outline 1/44

Introduction

• Three types of evidence:

o Testimonial—someone on stand testifying

o Physical—something you can hold

o Demonstrative—used to illustrate when you don’t have actual item

• Three types of objections:o Form—ask uestion in different way

o !ontent—keep out evidence altogether

o Process—something else must come in before the evidence

"#"—$cope% Definitions

• &ules apply in Federal !ourts

"#'—Purpose

• (dminister hearings fairly

• )liminate unjustifiable e*pense and delay

• Promote the development of evidence law to ascertain the truth and secure a just determination

""#"—(pplicability of the &ules

• +ncludes the courts of bankruptcy, admiralty, maritime and magistrates

• +ncludes -uam and the .irgin +slands

• Does not include: pretrial hearings, grand jury hearings, e*tradition, search warrants, sentencing,

probation, revocation, board meetings, fact determinations by the judge

o &ules of privilege still apply during these

"



Relevance

• Three rules of relevancy—/#", /#', /#0

• 1ne housekeeping rule—"#/2b3

• 4ine e*clusionary rules—/#/5/"'

• (ll admissible evidence is relevant, but not all relevant evidence is admissible

/#"—Test for &elevant )vidence

+s it 6aterial7 Does it move the ball along7

• )vidence is relevant if:

• (ny tendency to make a fact more or less probable than it would be without the evidence and:

o Probative value— relationship between the evidence and some fact to be proved 2/#"2a33

28a brick is not a wall93

as to make a fact more or less likely than it would have been without this piece of

evidence

6ust 8move the ball along9—very low threshold

(dmissibility, not sufficiency to prove

;udges have discretion• The fact is of conseuence in determining the action

o Materiality —relationship between fact to be proved and case 2/#"2b33

<hat are you trying to prove7 2<here are you going with this73

• Party seeking to admit evidence must specify what issue it relates to and

how it rationally advances the issue of that inuiry

<hy does that matter7

• Does it help decide the ultimate uestion7

• =ook at substantive law—does it go to an affirmative defense or element of

the cause of action7

6ateriality is influenced by worldview—judges may differ

/#'—-eneral (dmissibility of &elevant )vidence

• &elevant evidence is presumptively admissible unless prohibited by:

o The >nited $tates !onstitution

o ( Federal $tatute

o These &ules 2F&)3

o 1ther $upreme !ourt rules

• +rrelevant evidence is not admissible

'



104—Preliminary Questions

"#/2a3 judge makes the call, in or out?"#/2b3 14=@ time jury makes call on admissibility

• "#/2a3: The court makes the initial determination on admissible evidence in addition to whether a

witness is ualified or a privilege e*ists

o

!ourt only bound by Federal &ules of Privilege, no other Federal &uleso ;udge must believe a rational fact finder could be influenced by the evidence

o &elevance is different from sufficiency to findAconvict

o ;udges have discretion and are rarely overruled

• 104(b) “Conditional Relevance! <hen the relevance of evidence depends on whether a fact e*ists,

proof must be introduced 8sufficient to support a finding9 2reasonable jury could find the piece of

evidence to be relevant3 that the fact does e*ist?the court may admit the proposed evidence on the

condition that the proof be introduced later

o ;udge plays a 8screening role9—if it is admitted and never connected at the end, make a

8motion to strike9

o &elevance 2whether it 8moves the ball along93 and conditional relevance 2whether it needs

another piece of evidence to 8move the ball along93 are under the same standard

o ;ury decides whether the connecting piece of evidence actually 8tied it up9o This rule is not widely5accepted, &hode +sland leaves to judge discretion

Romano v. Ann & Hope Factory Outlet, IncB: 1ver a relevancy objection, party wanted to introduce e*pert

testimony to 8connect up9 that a bike’s condition had not changed over the time it sat in a basement for twoyearsB The judge refuses to use F&) "#/, which would allow the testimony to be a jury uestion as to weight

of that e*pert’s testimony and the condition of the bikeB

• 104(c) “Conductin" #earin"s so t$e %ury Cannot #ear It! ( motionAhearing in limine outside

the presence of the jury can be used for the judge to make a relevance determination

o 1ften in the conte*t of "3 admissibility of a criminal confession—'3 defendant can reuest it

or 03 as justice so reuires

• 104(d) “Cross&'aminin" e*endant in a Criminal Case! Cy testifying on a preliminary

uestion, a defendant in a criminal case does not become subject to cross on other issues of the case

• 104(e) “'vidence Relevant to +ei"$t and Credibility! +f judge admits evidence conditionally,

opposing party can put in evidence telling jury to disregard it—goes to weight and credibility

0



Pre,udice and Probative -alue

/#0—)*cluding &elevant )vidence for Prejudice, !onfusion, <aste of Time or 1ther &easons

8The court may e*clude relevant evidence if its probative value is substantially out.ei"$ed by a dan"er

of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidenceB9

• (pplies all t$e time, can be used at any point

• Calancinf is key to the rule, 8substantially outweighed9

o )vidence with a low probative value could be 8kicked out9

• 8>nfair prejudice9 is the most common

o >ndue tendency to suggest the decision be made on an improper basis

o >sually emotion

o 8>nfair9 is the key—all evidence is prejudicial

it has to hinder jury’s ability from making a just determination 2find facts and applythe law3

• !onfusion—high chance jury will make an error

• 6isleading—jury could give evidence more weight than it is worth

• !umulative evidenceAundue delayAwaste of time

• 4o protection here for unfair surprise—maybe other objection

• <hen considering a F&) /#0 objection, the court must consider other measures that could limit

unfair prejudice such as an F&) "# =imiting +nstruction

United States v. Yahweh en Yahweh: +n a case of very brutal murders, the prosecution tries to introduce a

very large picture of the victimsB The defense objects under F&) /#0, claiming the photos are overly

prejudicial, but the court admits the picturesB The judge said they were not blown up just to be gruesome, butto showAcorroborate the details of the relatively craEy crimeB ( diagram would 8steriliEe9 the offenseB

United States v. !cRae: (pplication of F&) /#0 is not designed to permit the court to 8even out9 the weight

of evidence to mitigate a crimeB

• $tipulations

o +n .irginia, a prosecutor can prove their case however they want

o +n Federal !ourt, a judge can reuire stipulations to be accepted

=ain prefers this rule

Old "hie# v. United States: ( prosecutor wants to introduce evidence of a prior violent crime at a firearm

possession caseB The defendant wants to stipulate to it, saying that the specific identification of the earlierviolent crime would be unfairly prejudicial, increasing the chance that he would be convicted of the present

crimeB ;udge rules that the introduction of the prior violent crime is too prejudicialB Prior conviction was

only a 8check off9 element of the current offenseB !ase has been interpreted narrowlyB

• !ircumstantial Proof

o 6ay seem more relevant than it actually is

o >nfairly prejudicial under F&) /#0— ris/ o* ,ury overvaluin" evidence

o )vidence of flight

/



Fact that defendant fled the scene could suggest guilt

!ould also suggest fear of a wrongful conviction

=ain thinks flight is relevant, but courts could go either way

o )vidence of non5flight

Does not get past F&) /#" 2&elevance3

Too many inferences besides innocence

o $imilar happenings $hould come in if juror could decide that the past evidence and the litigated event

are similar enough that the information from the past event could help jurors

determine what really happened in the current litigated event

+f a like event occurred under 8substantially similar9 circumstances, information is

relevant to causation, dangerous condition or notice

(ccident victims who e*perienced the same thing

• $tatistical )vidence

o Defendant should not have guilt determined by odds

o Proportionate damages are allowed in some cases

$eople v. "ollins: <itness testifies that a black man and white girl in a yellow car attacked the victimBProsecutor makes up the statistical chances of it being any other people 2aside from the defendants3 andmultiplies them by all the other individual details of the scene, allegedly resulting in essentially statistical

impossibility that anyone but the defendants committed the actB

• !ourt says that this is wrong for two reasons:

o Foundation

Prosecutor essentially told the jury to make up probabilities

4eeds an empirical basis for assigning values to events

o $ufficiency

)ven if admissible, rarely sufficient on its own

Distracts juries from facts, not enough to find likelihood

;ury needs to find facts, not chance

D4( e*ception—because the probability is so strong, this can be considered forsufficiency to convict—individualiEed guilt

Smith v. Rapid %ransit, Inc.: Party tries to find a bus company guilty based on their bus route schedule—

your busses drive this street at this time, meaning it is likely that you caused the accidentB !ourt says this is

not enoughB

$rison Yard $rolem: The whole prison yard e*cept for one guy jumped another prisonerB (t trial, every

defendant claimed to be the one guy who walked awayB This evidence is admissible, but not enough to

convict or e*onerateB



"#0—&ulings on )vidence

• 8(buse of discretion9 standard for reviewing rulings on evidential issues

• .ery de*erential to.ard trial court’s opinion or decision

• (B !an only 2successfully3 claim error and get a reversal if decision affects a substantial right of the

party and:

o +f court admits evidence, party must preserve error on the record by:

1bjectingAmoving to strike as soon as apparent

$tating specific ground

o +f court e*cludes evidence:

+nforming court of substance by an offer of proof or 8proffer9

)ssentially tells judge you’re going to appeal

o Decision actually influenced the verdict

• CB +f court makes decision on evidence before trial, you don’t need to object again at trial to preserve

your objection

• >se motion in limine to keep jury from hearing inadmissible evidence

Ohler v. United States: Prosecution wants to put in defendant’s criminal record, motion in limine grants thisB

+n order to 8take the sting out,9 defendant introduces the record himself, then tries to appealB This is not

allowed, you can’t appeal your own evidenceB Invited 'rror

"#0b says you dont need to renew your objection at trial if youve lost on the record and the court

has made a definitive ruling in a motion in limine but that doesnt mean you can put in the evidence

yourselfB +f you put in the evidence yourself, you may not complain about it on appeal because of the

doctrine of invited error

"#—=imiting )vidence that is not (dmissible (gainst 1ther Parties or for 1ther Purposes

• 4otion of limited admissibility: <hen evidence comes in for one reason, but not for another

• +f reuested, the judge must grant it

• +f opposing party makes an F&) /#0 objection, counter with this

• !an be given at the end of the trial with ;ury instructions 1& when the evidence is introduced 1&

both

G



Cate"orical Rules o* 'clusion

• F&) /#H5/""

• ;udges have no discretion for these rules

• Parts of recurring F&) /#0 objections

• !&)s are rules of =imited (dmissibility—remember "#

• 1ften for one purpose, but not for another

/#H—$ubseuent &emedial 6easures

8<hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of

the subseuent measures is not admissible to prove: negligence% culpable conduct% a defect in a product or its

design% or a need for a warning or instructionB Cut the court may admit this evidence for another purpose,

such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary

measuresB9

• Casically says measures taken after an injury or harm that would have helped if they had been taken

beforehand !(4T be used to show faultB

• Policy incentive—we want the dangerous stuff to be fi*ed instead of worrying about what mightshow up in court

• (llowable purposes are illustrative, not comprehensive

• Iualifier on admissible purposes—8if disputed9 2other than impeachment3

• &emember F&) /#0 as an objection and F&) "# =imiting +nstruction

• Firing someone counts—not admissible

• (lso applies to 8strict liability9 crimes

o Does not depend on negligence, applies to both

• 6ust be subseuent

• &hode +sland did not adopt it

• !ourts are split on 8recall letters9—often from defendant, sometimes a regulatory agent makes them

send the letterso Defendant could also want to admit these to show the plaintiff should have been 8on notice9

about a defect

• Third party actions are admissible—only actions of the defendant are not

Anderson v. !alloy: 4o latches on hotel room doors, plaintiff got attacked and wanted to admit evidence

that peep hopes and latches were added afterwardB Defendant said those features only provide 8false sense of

security,9 opening the door for plaintiff to ask why they did it 2essentially highlighting that it would have

prevented the attack and was done afterwards3B

'("ra#t Airplane "rash: Plaintiff believes the fuel system malfunctioned on a planeB Defendant has an

e*pert that will testify otherwise, but the company replaced the fuel system shortly after the crashB !ourt

rules that evidence of the replaced fuel system would have been protected, but can be used to impeach thee*pert because he said the system was safeB

/#J—!ompromise 1ffers and 4egotiations

• 4ot used unless there is a bona *ide dispute of claim or amount

o <hen debt is admittedly due, rule does not apply 2no controversy3

• Prohibited uses:

H



o !annot use these to show fault or non5fault, validity or amount, or to impeach by prior

inconsistent statement or contradiction

o 4ot an e*haustive list

• Permitted uses:

o Prove a witness’ bias or prejudice

o 4egate a contention of undue delay

o Prove effort to obstruct criminal investigation• <ant to encourage compromise and settling disputes

• (lso protects collateral statements2admissions3BBanything said during negotiations

o !ollateral statements outside negotiations are admissible

• +f you make an admission at one time, you cannot make it during negotiations just to protect it

• !an’t use to protect attempted bribing of a public official

• 6ost courts include mediation

/#K—1ffers to Pay 6edical and $imilar )*penses

8)vidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar e*penses resulting

from an injury is not admissible to prove liability for the injuryB9

• Prevented only when trying to prove liability, admissible for any other purpose

• Does not protect collateral statements

• Driver in a car can’t admit evidence that you settled with passenger

/"#—Pleas, Plea Discussions and &elated $tatements

• 2a3 &estricts admissibility of prior pleas of nolo contendere, later withdrawn guilty pleas, offers,

statements made during plea negotiations

o 4ot admissible against a defendant 2civil or criminal3 to show liability for the charged

offense

o )vidence of pleas cannot be used to show bias or any ot$er purpose 2more restrictive than

F&) /#J and F&) /#K3

o 1nly protects discussions with any prosecuting attorney

4ot law enforcement officials

o $ituation of a 8plea bargain9 depends on whether the defendant thought he was in one

$ubject to objectively reasonable

o Pre5arraignment conference statements

=ain would admit this 2not a plea deal3, some courts protect them

• 2b3 Two limited e*ceptions

o Part of the plea discussion is admitted, rest should be admitted out of fairness 2should be

seen together3

F&) "#G 2&ule of !ompleteness3 when 8door is opened9o +n criminal proceeding for perjury or false statement—if defendant made the statement under

oath, on the record, with counsel present

United States v. !e))anatto: Defendant caught trying to sell drugs, agrees to cooperate under the condition

that anything he says during meetings with the prosecutor can be used to contradict any inconsistent

statements he gives at trialB (t trial, the defendant lies and the prosecutor impeaches him with what he said

at their meetingsB The court finds this to be proper—defendant had waived his F&) /"# protectionB

J



!riminal defendants can knowingly and voluntarily waive fundamental !onstitutional protections 2unless theagreement was made involuntarily or unknowing3B

/""—=iability +nsurance

8)vidence that a person was or was not insured against liability is not admissible to prove whether the person

acted negligently or otherwise wrongfullyB Cut the court may admit this evidence for another purpose, such

as proving a witness’s bias or prejudice or proving agency, ownership, or controlB9

• 4o evidence of insurance to prove liability *ault or ne"li"ence

o (dmissible for other reasons

• Doesn’t distinguish between plaintiff or defendant, applies to both

• Flagrant violation could lead to mistrial

• <ords suggesting presence or absence of insurance could still implicate this rule

• $ettings where issues may arise:

o Defendant tries to introduce proof that a plaintiff was already paid

4o evidence of collateral source payments

o Plaintiff tries to introduce evidence that defendant is insured for the loss

o Defendant tries to introduce evidence that they have no insurance

4o 8poverty pleas9

St. $ierre v. Houde: Defendant admits liability for a car crash, the trial is on damages onlyB (t trial, counsel

for the defendant says she will have to 8pay damages out of her own pocketB9 Plaintiff counsel objects, thetwo attorneys approachB The judge says plaintiff attorney has the option of correcting the defense attorneyB

e does, but defense attorney objects and moves for a mistrialB 6istrial is granted—the jury had been 8too

tainted9 and a new trial is neededB -eneral rule is that courts only reverse on F&) /"" when there is a

flagrant violation, $upreme !ourt says it was proper not to order a mistrial, instead letting Plaintiff’s attorney

make a correctionB Trial court is in a better position because they can see how the evidence prejudiced the

juryB

K



C$aracter 'vidence

/#/—!haracter )vidence% !rimes or 1ther (cts

8)vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the

person acted in accordance with the character or traitB9

2F&) /#/2a32"33

• !haracter evidence cannot be used to show conduct in accordance with a character trait on that

occasion 2F&) /#/2a33

o !haracter evidence can’t be used for any person’s character, not just limited to defendant or

victim

o 'ceptions for defendant or victim in criminal case—when character evidence can be used

for propensity evidence 2F&) /#/2a32'33

Defendant puts on evidence of own pertinent character for propensity 2F&) /#/2'3

2(33

• 28+’m honestAnot violent, + couldn’t have done itB93

• Prosecutor can rebut

Defendant puts on evidence of victim’s pertinent character trait for the propensityinference:

• Prosecutor can put in same character trait against defendant 28+’m not

violent, he’s violent93 2F&) /#/2a32'32C32ii33

• Prosecutor can also rebut it 2F&) /#/2a32'32C32i33

+n a homicide case only, if defendant puts on evidence that the victim was the first

aggressor, prosecutor can put on evidence of the victim’s peaceful character 2F&)

/#/2a32'32!33

• !an’t introduce evidence of crimes $arms and ot$er acts on a different occasion to show that the

defendant would do it again 2F&) /#/2b32"33

o Permitted uses: 2F&) /#/2b32'33

!an be used to show motive, opportunity, intent, preparation, plan, knowledge,identity, absence of mistake, lack of accident, presence of a certain skill

• 4ot an e*haustive list

• !an be presented in any form—reputation, opinion, specific acts

• Permitted uses are never for the propensity

$hould get advance warning if planning to use

• Prosecution can’t preemptively put on evidence of their good character, has to wait for it to be

uestioned

• !onsider F&) "#—judge should instruct jury not to consider evidence for anything other than the

permitted use 2don’t consider for propensity3

• !onsider F&) /#0—while possibly relevant, a potential 8stretch9 inference could be very prejudicial

•

!odus Operandi —when evidence is that of identity, must be uniue and distincto Think 6ark of Lorro

o F&) /#0 can always kick it out, especially if identity is not in dispute

• ow close does a 8prior bad act9 have to be to current contested event7

o +f trying to establish a modus operandi, should be e*act same

o +f common scheme or plan—looser standard, depends on what is relevant

• Res *estate —evidence with independent relevance because it gives necessary factual conte*t

o $uch evidence can be admitted if necessary to tell 8whole story9 of events at issue, even if it

shows criminal character

"#



o (pplies if case is unintelligible without it, jury would be confused

o =imited to the litigated event

• 1verlap between Res *estae and evidence of planApreparation

o +f defendant had been carrying all his guns, that fact would have been 8part of the entire

event9 2 Res *estae3

o !arrying the guns would also have been evidence of preparation

• Doctrine of !hanceso Prior bad acts should really be called 8other bad acts9—can be subseuent

o $imilar happenings that might be only marginally probative if considered in isolation, but

highly probative if considered together

o )vidence introduced to show absence of mistake or accident

o 4ot propensity inference, not saying 8he did it before so he did it again,9 saying the

8occurrence of the strange events is likely to be more than bad luck9

• Curden of proof for F&) /#/2b3 prior bad acts

o ( conviction is easy to show

o <ithout conviction, standard is 8sufficient to support a finding9 that defendant committed

the earlier act—could jury find it

$eople %rampled to 'eath at "oncert : Fact that there is always a 8mad rush9 for the best seats might go to8notice9 for the defendant 2and not propensity3—venue should have been aware there is an issueB 6ight hurt

though, people that knew this happened assumed the riskB

$eople v. +acowit) : 6an’s wife is catcalled, so he gets a gun and shoots one of themB +ssue at trial is

whether killing was premeditatedB Prosecutor tries to introduce evidence that he owned multiple gunsB

;udge rules that this was improper and the jury had been overly prejudicedB !haracter evidence should not

be admitted unless the defendant 8starts itB9 The door was not openedB

Re- v. Smith: Defendant marries a woman who is found dead in the bathtub, which also happened to his

prior two wivesB e is convicted at trial and appeals whether the evidence of his prior two wives’ deaths is

admissibleB !ourt rules that this was not introduced to say he would do it again 2propensity3, but is actually

introduced to show 8methodB9 (pplies the 8doctrine of chancesB9

%ucer v. State: )vidence of a prior bad act is kept out because the prosecutor allegedly did not establish the previous crime to the reuisite standardB The lower court got it wrong—standard is 8sufficient to support a

finding9 for prior bad acts, not 8clear and convincing evidenceB9

Huddleston v. United States: uddleston had allegedly tried to sell stolen videotapesB (t trial, prosecutors

try to admit evidence that he had sold other stolen things in order to prove he knew the tapes were stolenB

!ourt rules this is proper—8similar acts9 can be admitted to show opportunity, intent, preparation, plan,

knowledge, identity or motive, even without the prior acts being proven—just 8sufficient to support a

findingB9

• !ollateral )stoppel: +f something has been litigated and a finding has been made as to a particular

fact, you are stuck with that result

'owlin v. United States: Plaintiff tries to put on prior bad act, of which defendant was acuitted in a prior

trialB $ince the standard of proof for a criminal trial is 8beyond a reasonable doubt9 and standard for prior

bad act is 8sufficient to support a finding,9 this evidence was admitted to prove identity—a defense that the

defendant was not acuitted underB The jury in the first case could have acuitted for any number of reasonsB

o ow to get F&) /#/2b3 evidence in:

""



&elevance under F&) /#" and F&) /#'

Does F&) /#/ e*clude it7

Possible F&) /#0 objection to kick it out

>se an F&) "# limiting instruction

/#—6ethods of Proving !haracter

• Tells you 1< to admit character evidence

• &eputation or opinion 2F&) /#2a33—must first have an F&) /#/2a3 e*ception i* *or t$e propensity

2if not for propensity, no e*ception needed3

o &eputation—collective opinion about a person in their community

Party putting on witness defines the 8community9

<ay of proving character by showing what others think

Technically hearsay, but there is an e*ception

o 1pinion—what one particular person thinks about someone

1ften used when someone isn’t well5known in a community, someone who knows

you well

!an only ask 8what is your opinion of this person’s character,9 not 8he wouldn’t dothis, would he79 2 !ichelson3

o !ross e*amination clause

!an cross on specific instances of conduct to impeach a reputationAopinion character

witness 28<ell, did you know about when he did this793

• <hen character is essential element, claim or defense—8in issue9 only in civil cases 2F&) /#2b33

o +n certain cases, character is an essential element of the charge, claim or defense—fitness,

custody, slanderAlibel

!haracter evidence is not for propensity, is independently relevant

Does not violate propensity inference

o Trait can be proved any 2relevant3 way you want—including specific acts

• Does not apply to habit 2F&) /#G3

• Does not apply to F&) /"0, F&) /"/, F&) /"

!ichelson v. U.S.: !riminal defendant calls character witnesses to say they know him and that he has a good

reputationB Prosecutor cross5e*amines witnesses asking if they know about the defendant’s arrest for stolen

goods 'H years agoB Defendant appeals, saying this uestion should not have been admittedB !ourt says the

uestion is not about the defendant’s acts or propensity, but about the witness’ knowledge of the

defendantAthe accuracy of his reputationB

'vidence o* #abit

/#G—abit% &outine Practice

8)vidence of a person’s habit or an organiEation’s routine practice may be admitted to prove that on a

particular occasion the person or organiEation acted in accordance with the habit or routine practiceB9

• (dmission is not reuired, says it 8may9 be admitted for propensity

• &outine and regular response to a specific situation— virtually automatic

• Distinguished from character evidence by:

o $pecificity, freuency, regularity, similar circumstances

o (llowed for the propensity inference 2not allowed for F&) /#/3

>sed to prove the habit was followed on this occasion

"'



• ow to prove habit:

o (ny relevant evidence

&eputation, opinion, specific acts

o 6ust lay the foundation by showing:

abit e*isted 2can be proved by anyone with first hand knowledge3

!ircumstances that bring about the response were present at time

• abit is not conclusive, jury can still decide whether to believe it of not• +ntemperate abits:

o Drinking, smoking, 8bad habits9

o 2ot admissible because they usually aren’t refle*iveAresponse to a condition

• 2ot ,ust *or people —corporations, businesses, organiEations

o 8-enerally9 usually isn’t a high enough standard

• (s opposed to modus operandi, which goes to identity, this goes to propensity

C$aracter 'vidence in 3e Cases

/"'—$e*51ffense !ases: The .ictim’s $e*ual Cehavior or Predisposition

• 4o character evidence of victim when the 8character9 is a se*ual disposition

• 4ot admissible in criminal or civil cases *or any reason 2not just propensity3

• !an’t introduce evidence of 8se*ual behavior,9 even if unrelated to litigated event

• !an’t show 8se*ual disposition9 in any way—reputation, opinion, dress, speech

• (pplies to any alleged victim, but does not protect witnesses

• )ven with criminal e*ceptions, cannot put on general se*ual character in criminal cases through

reputation or opinion, only specified acts

• Criminal )*ceptions:

o

8+t wasn’t me9 defense 2F&) /"'2b32"32(33 (llows introduction of evidence of alleged victim’s se*ual conduct if it could

support a claim that someone other than the defendant was the source of an injury,

semen or other physical evidence

$e*ual acts with someone else to indicate that it was someone else on the occasion

of the litigated event—when identity is an issue

6ust be used with some physical evidence—semen, pregnancy, etc

!an prove this any way—cross5e*amination, testimony, D4(

o 8!onsent9 defense 2F&) /"'2b32"32C33

Past conduct involving defendant can be introduced to support a claim that the

victim consented to se*ual behavior or to support a claim that defendant engaged in

pattern of se*ual misconduct with the victim

Prior specific se*ual acts can be shown to prove consent, but only with defendanto !onstitutional 8Trump !ard9 2F&) /"'2b32"32!33

.ictim’s se*ual behavior may be admitted if the !onstitution reuires it

(ccused may claim this deprives his right to present an effective defense—$i*th

(mendment !onfrontation !lause

(lso may claim it influences his 8&ight to a Fair Trial9

• !ivil )*ception: 2F&) /"'2b32'33

"0



o -eneral 8balancin" test9 comparing probative value of any se*ual conduct evidence with

dangers of unfair prejudice to the victim

o &eputation still only comes in when victim 8opens t$e door9

• Procedural (dmissibility: 2F&) /"'2c33

o 6ust give notice to all parties and victim of any evidence coming in under any of the F&)

/"'2b3 e*ceptions

o 6ust be given "/ days in advanceo 6ust have an in5camera hearing—victim should have right to be heard

o !onsider res estae —is this too fundamental to the case to e*clude7

"ommonwealth v. *ouveia: .ictim had se* with another person the night of the alleged rapeB Defendant

tries to introduce evidence of the first guy to prove consent with himB !ourt says consent with one is not

consent with another and that res estate does not apply—this is not all part of one eventB

State v. /ac0ues: Defendant is accused of se*ually abusing two childrenB ( motion in limine was granted

denying defendant the right to cross5e*amine the witnesses regarding their prior abusesB !ourt says this

motion denied him of his !onstitutional rightB +mportant because se*ual naMvetN is assumed in children,

assumed they 8could not make this up9—it is very relevant that these kids had been allegedly abused beforeB

• .irginia has no parallels for F&) /"0, F&) /"/, F&) /"

• These rules make evidence of a defendant’s prior se*ual conduct e*pressly admissible in a civil or

criminal action for se*ual assault or child molestation

• 4otice reuirement—proponent must give notice to party against whom evidence is offered

• F&) /#0 still applies—evidence could be kicked out as too prejudicial

/"0—$imilar !rimes in $e*ual5(ssault !ases

• +n a criminal case for se*ual assault, evidence that defendant committed any ot$er seual assault is

admissible even for the propensity inference

o

6ust have " days prior disclosure• $tandard of proof—rule does not say 8convictions,9 but says 8acts9

o (cuittals or 8acts9 can be introduced as long as they meet the F&) "#/ sufficiency standard

—as long as jury could reasonably find that the act happened

/"/—$imilar !rimes in !hild56olestation !ases

• F&) /"0 applies to child molestation

• (nyone under "/ 2according to F&)3

• (nyone under "0 in .irginia

/"—$imilar (cts in !ivil !ases +nvolving $e*ual (ssault or !hild 6olestation

(pplies F&) /"0 and F&) /"/ to civil cases

"/



State v. /ac0ues 2additionally3: <here the victim is a child, lack of se*ual e*perience is assumed in the case,so defendant must be allowed to rebut this inference with any possible other incidents of abuse,

etcBCompetency o* +itnesses

• Four reuirements of competency:

o Perception—how did you see, hear, smell, feel, taste what happened

o 6emory—ability to remember what you perceivedo 4arrationAcommunication—ability to convey and remember what you perceived

o 1ath—understand the oath to tell the truth

• ;udge decides a witness’ competency

• ;ury decides credibility

G#"—!ompetency to Testify in -eneral

• 'veryone assumed competent to be witness unless rules say otherwise

o +n a civil case, state law governs witness competency regarding a claim or defense for which

state law provides the rule of decision

• &ejects 8dead man statutes9—some states say a party cannot testify if the opposing party is dead

• ( witness who is 8wholly without capacity9 is difficult to imagine—typically presume competency

and leave any witness’ problems for jury to consider when deciding weight and credibility of witness

testimony

• ;udge considers F&) /#", F&) /#', F&) /#0 when determining a witness’ competency—

presumption in favor of competency "#/2a3 determination

• 4o minimum mental ualifications

o U.S. v. 1ihtly: adjudication that a person is insane or incompetent to stand trial does not

itself render person incompetent to testify as witness

• !ompetency is judged at the time o* t$e testimony, not time of litigated event

• !ompetency and !hildren

o !ourts can e*clude the evidence under F&) /#0 if it seems the probative value would be

weak due to inability to distinguish between truth and falsehoodo 1ittle Archie e*ample—boy was young when event occurred, but after si* years he could

testifyAwas competent—competency is about your age at the time of the testimony, not the

age of the eventB

o F&)s do not include e*press age for children

• ypnosis

o (rgument is that jury can’t assess witness’ credibility

o !ourts are split,

$ome say it goes to the weight,

$ome say only admissible of certain procedures are followed to protect against

suggestibility

$ome say a hypnotiEed witness is incompetent

o .irginia rule—no testimony of what witness aw while hypnotiEed on or off the stand, but

does not decide whether 8hypnotically refreshed9 testimony is okay

• Cinary responses only—not competent because it’s a 8Eero9 for narration

• (phasic responses only—barely competent, but comes in and goes to the weight

• 6ind reader—not competent

"



G#'—4eed for Personal Onowledge

•

<itness can testify to a matter only if evidence is introduced 8sufficient to support a finding9 that thewitness has personal knowledge of the matter

o )vidence to prove this can consist of the witness’ own testimony

• &ule does not apply to e*perts

• <itness must establish personal knowledge of litigated event before testifying

• Proponent must 8lay a *oundation9 either through witness’ or someone else’s testimony—should

ask name, where they live, etcB

• <itness must 8perceive9 the matter through their own senses

• <ho decides if a witness is allowed to testify7

o F&) "#/2a3 says judge, not the jury decides—presumption in favor

!ourt is not bound by F&)s when determining if person is ualified, as it is a

preliminary uestion 2F&) "#/2a33

This uestion should be conducted away from the jury 2F&) "#/2c32033

• <hether personal knowledge is satisfied is an F&) "#/2b3 determination

o F&) G#' is an easy standard to meet—judge has to find evidence 8sufficient to support a

finding9 that the witness has personal knowledge

• (ny potential defects in personal knowledge go to the .ei"$t of the testimony

• True check of competency comes through F&) /#0

• !ourt can ask witness uestions even if the party doesn’t 2F&) G"/3

G#0—1ath or (ffirmation to Testify Truthfully

8Cefore testifying, a witness must give an oath or affirmation to testify truthfullyB +t must be in a form

designed to impress that duty on the witness’s conscienceB9

• 6ust promise to tell the truth before testifying

• (nything to make witness to subjectively believe that he has been sworn is good enough

• +f they choose a secular affirmation and not an oath, they can’t be impeached on lack of religious

belief 2F&) G"#3

• +f judge forgets to give oath, do it when the judge remembers—prior testimony is adopted as true and

accurate

G#/—+nterpreter

8(n interpreter must be ualified and must give an oath or affirmation to make a true translationB9

• +nterpreter may be a relative so long as F&) G#/ is satisfied

G#—;udge’s !ompetency as a <itness

8The presiding judge may not testify as a witness at the trialB ( party need not object to preserve the issueB9

• Does not say they are incompetent, they just can’t testify at their own trials

"G



• (lso applies to lawyers—can’t be witnesses and advocates at same trial

G#G—;uror’s !ompetency as a <itness

• Person cannot serve as both witness and juror 2F&) G#G2a33

• ;urors are generally not allowed to impeach a jury verdict by saying what happened inside the 8black

bo*9 2F&) G#G2b33

• Prohibited testimony or other evidence 2F&) G#G2b32"33

o (ny statement made or incident that occurred during the jury’s deliberations

o The effect of anything on that juror’s or another juror’s vote

o (ny juror’s mental processes concerning the verdict or indictmentB

o !ourt may not receive a juror’s affidavit or evidence of a juror’s statement on these matters

• ;ury may testify about whether 2F&) G#G2b32'33:

o )*traneous prejudicial information was improperly brought to the jury’s attention%

o (n outside influence was improperly brought to bear on any juror

)vents described in this testimony will be clear and easy to establish

o ( mistake was made in entering the verdict on the verdict formB

• Does not provide substantive grounds for impeaching a verdict, just that it can’t be done using a

witness’ testimony

%anner v. U.S.: ;ury convincing a defendant was totally craEy, 2drinking, doing drugs, partying3 but the court

said jurors could not testify to any of this because it happened in the 8black bo*B9 The drug and alcohol use

did not constitute an 8outside influence9 because it’s similar to being tired, eating bad food or sicknessB

81utside influence9 would constitute bribes, threats, receiving e*trinsic evidence 2like the news3 or talking to

witness, deputies, attorneys or the judgeB

"H



'amination o* +itnesses

G#H—<ho 6ay +mpeach a <itness

8(ny party, including the party that called the witness, may attack the witness’s credibilityB9

•

!an be used to make correctionsAwhen a witness cooperates one day, not the ne*t• !ommon law tradition did not allow you to impeach your own witness

G""—6ode and 1rder of )*amining <itnesses and Presenting )vidence

• The court should e*ercise reasonable control over the mode and order of e*amining witnesses and

presenting evidence so as to:

o 6ake those procedures effective for determining the truth

o (void wasting time

o Protect witnesses from harassment or undue embarrassmentB

• Party who calls witness to testify is called the 8proponent9

• )ither party can call any witness, including opposing parties

o )*ception— state cannot call criminal de*endant as a witness

• Trial !ourt has wide discretion to allow re5cross, re5direct, to call a witness or to allow a party to re5

open its case 2F&) G""2a33

• Direct )*amination:

o 1nly includes F&) G#'—reuirement of personal knowledge

o )stablishing foundational reuirements, telling story

o !annot 8bolster9 witness’ credibility on direct

o !an’t ask leading uestions on direct, e*cept as needed to develop witness’ testimony 2F&)

G""2c33

• !ross5e*amination 2G""2b33:

o

&estrictive—should not go beyond the scope of direct e*amination or attacking matters ofcredibility 2whether asked about or not3

o <ide open—court 8may allow9 inuiry into additional matters as if on direct

• Purpose of cross5e*amination is to impeach the credibility of the witness, give less weight to their

testimony

• =eading uestions should not be used on direct e*amination e*cept as necessary to develop the

witness’s testimonyB 1rdinarily, the court should allow leading uestions in two situations: 2F&)

G""2c33:

o 1n cross5e*amination

o <hen a party calls a hostile witness, an adverse party, or a witness identified with an adverse

partyB

• ( direct5e*aminer can ask to 8treat witness as hostile,9 allowing them to ask leading uestions— cross5e*amination rules apply

• ( cross5e*aminer can ask to 8make witness their own,9 allowing them to ask open uestions about

other topics relevant to the case as if on direct—direct e*amination rules apply—good for uestions

outside scope

• (lways have the 84ine Casis of +mpeachment,9 regardless of scope of Direct

"J



G"/—!ourt’s !alling or )*amining a <itness

• !alling—the court may call a witness on its own or at a party’s reuestB )ach party is entitled to

cross5e*amine the witnessB 2F&) G"/2a33

• )*amining—the court may e*amine a witness regardless of who calls the witnessB 2F&) G"/2b33

• 1bjection—a party may object to the court’s calling or e*amining a witness either at that time or at

the ne*t opportunity when the jury is not presentB 2F&) G"/2c33

• ;udge bears the ultimate responsibility for ensuring truth, so he should be able to get information he

views as essential to a fair determination when parties fail to provide it

• Potential issue—jury may see this as having more .ei"$t than it should

G"—)*cluding <itnesses

• (t a party’s reuest, the court must order witnesses e*cluded so that they cannot hear other

witnesses’ testimonyB 1r the court may do so on its ownB Cut this rule does not authoriEe e*cluding:

o ( party 2confrontation clause3 2F&) G"2a33

o (n officer or employee of a party that is not a natural person, after being designated as the

party’s representative by its attorney 2F&) G"2b33

o ( person whose presence a party shows to be essential to presenting the party’s claim or

defense 2F&) G"2c33 >sually an e*pert witness

o ( person authoriEed by statute to be presentB 2F&) G"2d33

.ictim’s &ights (ct

• 6ake sure your witnesses leave the room or they can’t testify

Impeac$ment

• &ules only apply when you have a witness on the stand

• !ollateral 6atter Doctrine:

o +f a piece of evidence is only relevant to proving a witness wrong, the matter is collateral and

no e*trinsic evidence is allowed to prove it

)*trinsic evidence—any evidence other than uestioning the witness you areimpeaching 2can s$o. them a document, can’t submit the document into evidence3

o +f collateral, you are stuck with the answer

• !ommon =aw 6ethods of +mpeachment:

o !ompetency 2you can 8go fishing93

Perception—ability to perceive adeuately

6emory—witness must be able to adeuately remember

4arration—can they communicate what was perceived

1ath—can only attack by asking if they understand

o $incerityAcredibility 24eed 8good faith9 basis to ask about these, no 8fishing93

+mpeaching Cias—witness has a motive to lie due to relationship to case— never

collateral, e*trinsic evidence can be used to prove• Cias—irrational predisposition in favor

• Prejudice—irrational predisposition against

• !orruption—something wrongAbribe

• $elf5interest—personal interestAstake in the outcome

!riminal !onviction 2F&) G#K3

Cad (ct—showing witness’ immoral, criminal or vicious act

Prior +nconsistent $tatement 2F&) G"03

"K



o !haracter for onesty—use another witness to prove the testifying witness has a bad

reputation for honesty

G#J—( <itness’ !haracter for Truthfulness or >ntruthfulness

• &eputation or 1pinion 2F&) G#J2a33

o <itness’ credibility can be attacked or supported by testimony about their reputation for

8having a character for truthfulness or untruthfulness9 or by testimony in the form of anopinion about that character

+f the evidence goes to trut$*ulness, it is only admissible after having been attacked

—otherwise 8bolstering9

• Reputation or opinion saying 8they are not truthful9 counts 2!ommittee

4otes3

• +ntroduction of conviction o* crime counts as an attack 2!ommittee 4otes3

• >se of inconsistent statements does not, according to a practice problem

2!ommittee 4otes say it depends3

• 6ust say 8you are a liar9—no room for honest mistake on the witness’ part

• (ny impeachment of bias or perception, etcB are not attacking truthfulness

•

$pecific +nstances of !onduct 2F&) G#J2b33o ( witness can be uestioned 2no etrinsic evidence to prove3 about past bad acts that did

not lead to conviction, only if they are relevant to the witness’ c$aracter *or trut$*ulness

o 1n cross e*amination, court can allow specific instances to be asked about if they are

probative of the character for truthfulnessAuntruthfulness

6ust have 8good faith9 basis for asking

@ou are stuc/ with your answer

8Did you know that he plagiariEed a paper79

• +f they say 8no,9 you can s$o. t$em a document to 8refresh their

memory,9 but they can still deny—document cannot be submitted into

evidence

• <itness has to be on the stand

• >ses propensity inference to determine whether witness has 8bad character for truthfulness9

o +nference that witness has propensity for being untruthful, so they are likely being dishonest

today

G#K—+mpeachment by )vidence of a !riminal !onviction

• ( civil or criminal witness’ felony 2F&) G#K2a32"32(3:

o Comes in subject to F&) /#0 balancing—evidence is only e*cluded if probative value is

substantially outweighed by the prejudicial effect

• ( criminal defendant’s felony 2F&) G#K2a32"32C3:

o !an come in i* probative value out.ei"$s dan"er o* un*air pre,udice

Presumption in favor of e*clusion 2reverse /#03

o )*tra protection for criminal defendant who tries to testify

• is$onest acts or *alse statements as element of previous crime 2F&) G#K2a32'33

o &egardless of felony or misdemeanor, this comes in without any balancing—no discretion,

they are automatically admitted

o Perjury, criminal fraud, embeEElement, false pretenses, larceny by trick, impersonating a

public official—must involve deceit

=arceny and shoplifting do not count

.irginia law says lying, cheating or stealing counts

'#



o 1nly not automatic when the conviction is 8stale9

• $taleness 2F&) G#K2b33

o !an’t admit automatically when "# years has passed from date of conviction or date of

release 2whichever is later3

o $tale convictions are not guaranteed to be inadmissible, judge can admit if he believes it is

substantially more probative than prejudicial

+f conviction is for a same or similar crime, it may not come in because the risk ofa jury being prejudiced is too high

Perjury is always very probative, almost always admitted

+f only asking person testifying about a prior crime, 2not admitting it3 F&) G#J2b3

appliesB

o &easonable written notice and opportunity to contest apply

o (pplies only to F&) G#K convictions

• )ffect of a pardon, annulment or certificate of rehabilitation 2F&) G#K2c33

o Typically don’t count as convictions, can’t be used

o +f a person committed another serious crime after the alleged rehabilitation, the previous

crimes 2previously forgiven3 can be introduced

+f you plan to admit, give reasonable notice to adverse party

• ;uvenile (djudication only allowed if 2F&) G#K2d33:

o Pertains to witness other than defendant 2never comes in for defendant3

o 4ever allowed in civil cases 2only criminal3

o (dult conviction for that offense would be admissible to attack credibility

• !onviction is admissible even if an appeal is pending 2F&) G#K2e33

• &euires a conviction

• Five5factor balancing test for F&) G#K2a32"3 from U.S. v. Ale-ander :

o +mpeachment value of prior crime

o (ge of conviction

o $imilarity between past crime and charged crime

Probably won’t come in i* very similar —danger of unfair prejudice is too high

2U.S. v. $aie3

o +mportance of defendant’s testimony

=ess important, more likely to e*clude

o !entrality of defendant’s credibility

=ess important, more likely to e*clude

• !onviction comes in under F&) G#K, but s$ould be done .it$ a certi*ied copy

o !an also have the bailiff come testify

• Prior convictions only allowed if defendant testifies

• !an introduce prior convictions on direct to 8draw the sting9

• )ven if a prior conviction is e*cluded under F&) /#/, it can be admitted under F&) G#K or on cross5

e*amination under F&) G#J2b3

United States v. 2alencia: Defendant on trial for cocaine distributionB Trial court rules that a prior conviction

for cocaine distribution was too prejudicial under F&) /#/2b3B Trial court then rules that under F&) G#K, the

prior conviction could come inB F&) G#K has to do with the accused’s ability to tell the truth while

testifying% F&) /#/2b3 has to do with proving his guiltB

G"#—&eligious Celiefs or 1pinions

'"



8)vidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’scredibilityB9

• !an be used to show bias, but not to attack or support credibility

G"0—<itness’ Prior $tatement

8$howing or disclosing the statement during e*amination—when e*amining a witness about the witness’

prior statement, a party does not need to show it or disclose its contents to the witnessB Cut the party must,

on reuest, show or disclose its contents to an adverse party’s attorneyB9 2F&) G"02a33

8)*trinsic evidence of a prior inconsistent statement—e*trinsic evidence of a witness’ prior inconsistent

statement is admissible only if the witness is given an opportunity to e*plain or deny the statement and an

adverse party is given an opportunity to e*amine the witness about it, or if justice so reuiresB9 2F&) G"02b33

$tatement must be inconsistent 2witness must have changed story3

o !ommon law—any material variance counts, including omission

8;ustice so reuires9 can mean a guy is deadB

ow to use this rule:

o +f a piece of evidence only has relevance for impeachment, it cannot be used—you can ask,

but cannot put on the evidence and you are stuck with the answer 2!ollateral 6atter

Doctrine3

$pecific contradiction—+ntroduce evidence 2through a witness, document or other testimony3

indicatin" t$e opposite of what the witness just testified

o 1ften just for impeachment

$elf contradictionAprior inconsistent statement—admitted to show the witness had told a di**erent

story at another time, not for the truth of the matter asserted

o This usually passes the !ollateral 6atter Doctrine, as it usually has independent relevance

&ehabilitating the !redibility of an +mpeached <itness

• 5*ter character for truthfulness has been attacked with evidence, you can rehabilitate

• Three ways to rehabilitate:

o ave a bolstering character witness

=imited—can only testify to reputation or opinion

4o witness allowed to give reputation or opinion evidence to show another witness

probably testified truthfully unless character evidence has been introduced saying

they likely gave false testimony

• >nless criminal case where truthfulness is a pertinent trait

!an’t bolster if you have been impeached for competency • Perception, oath, memory, communication are not attacks on truthfulness

!an’t bolster if you have been impeached for bias

• Cias, self5interest, corruption and prejudice are not attacks on truthfulness

o &edirect—go back to scope of cross5e*amination to restore credibility

o $how prior consistent statements

!ourts are split on when you can do this:

''



• $ome say you can rehabilitate a prior inconsistent statement with a prior

consistent statement

• $ome say you can’t do it

• $ome say a prior consistent statement can counter the prior inconsistent

statement, but can’t account for any alleged bias if the prior consistent

statement was made before the alleged bias arose

#earsay

J#"—Definitions that (pply to this (rticle% )*clusions from earsay

• $tatement—person’s oral assertion, written assertion or non5verbal conduct 2if the person intended

the conduct as an assertion3 2F&) J#"2a33

o 6ust be intentionally made by a person —dog alerts, reading of speedometers are not by a

person

• Declarant—the person who made the out of court statement 2F&) J#"2b33o !an be the witness on the stand if the statement was made out of court

• Two reuirements of hearsay:

o ". Out o# court Statement 3 F&) J#"2c32"33

6ade at any time other than the current trial or hearing

!an be written or spoken statement

!onduct as a 8statement9:

• (s long as it is intended to be an assertion

• Curden on the party claiming an intention to assert e*isted

• !onduct such as a nod or finger gesture are not ambiguous

• umor or metaphor does not take away ability to be a 8statement,9 but

relevance is hurt as it is not e*plicit• 4on5assertive conduct is not hearsay—using umbrella is not an indicator

that it is raining, a car driving forward is not indicative of a green light

$ilence as a 8statement9—in a situation where disagreement would have needed to

be asserted 2silence assumed to be acceptance3, you must convince the court that

they .ould $ave spo/e up if they disagreed

o 'B O##ered to prove the truth o# the matter asserted 3 F&) J#"2c32'33

4ot hearsay if any other inference is possible 2other than matter asserted3

<hen a statement is relevant regardless of whether it conveys accurate information,

the hearsay prohibition does not apply

(sk two uestions:

• 4. 5hat is the matter asserted6

o +ntended assertion is usually on face of the statement

o $ometimes no matter is asserted 28<here is the store793

• 7. 5hat are you tryin to prove6

o (re there other inferential patterns7 +f so, not hearsay

• $tatements relevant regardless of truth 2independent relevance3— admissible:

o <hen out of court statement is relevant regardless of whether it conveys accurate

information— non&$earsay

'0



8+ am going to stab youB9—)ven if not true, it has relevance other than the truth of

the matter asserted 2state of mind, intent3

o )ffect on the listener

8+ am going to stab youB9—(dmissible to show the propriety of self5defenseB

)ven if not true, still relevant because it caused someone to do somet$in"

o $tate of mind

8+ am going to stab youB9—(dmissible to show the declarant’s angerB Reveals t$e mental condition of the declarant

o To impeach witness’ testimony as inconsistent

To show the witness told two different stories, not trying to show which is true

For impeac$ment only, not truth—need a limiting instruction

o <ords that have le"al si"ni*icance simply by being spoken

Typically words of contract, gift, transfer, appropriation, marriage

$ignificance is that the words were said, not that they were true

o (nything else where relevance of statement does not depend on truth

"hurch v. "ommonwealth: !hild says 8se* is nasty and it hurtsB9 This is not hearsay because it is not being

offered to prove that se* is gross and painful, but that the child has some impression of se*B The statementgoes to state of mind and the child’s e*posure to se*B The statement is relevant regardless of its truthB

J#'—The &ule (gainst earsay

• earsay is not admissible unless any of the following provide:

o Federal statute

o These rules

o (ny rules prescribed by the $upreme !ourt

• Purpose of the rule is to promote reliable fact5finding

• ( criminal defendant might have a !onstitutional right to present hearsay even if it is not otherwise

admissible 28!onfrontation !lause93

• Don’t need declarant’s identity

• 6onograms, inscriptions and commercial signage

o earsay rule is implicated if a person tries to use this to show true meaning 2like ownership3

—someone put it on to assert something

o +f a person offers an inscription to indicate its e*istence, that is okay, but they would have to

use other evidence to establish ownership

J#—earsay <ithin earsay

• 4ot e*cluded if each 8layer9 of the combined statement fits an e*ception

• appens often with medical records and police statements

o Doctors write down what they saw and what the patient said 2hearsay3o 6edical records contain what patient said 2hearsay within hearsay3

• $tart with 8outer layer9 and work in

o Patients words can’t come in if doctor’s report can’t come in

o 1uter 8layer9 must come in as hearsay—not for effect on the listener, state of mind, etcB

Roommate !urderer : &oommate tells police officer about the defendant saying 8+ want to get the victimB9

Police officer cannot testify about this—call the roommate and then use 8party admission9 to get it inB

'/



J#G—(ttacking and $upporting the Declarant’s !redibility

• <hen hearsay is admitted, any party can impeach the credibility of the declarant

o Done the same way as impeachment of a witness on the stand

o (ll impeachment rules apply

o <hen a witness testified in person, inuiry into 8prior bad acts9 2that may have influence on

credibility for truthfulness3 is allowed 4ot allowed for a hearsay declarant if they are not in court

+f declarant is available and can be uestioned, this is allowed

• +f hearsay comes in, you can call declarant as a witness and cross5e*amine them

• +n the situation of a prior inconsistent statement by a hearsay declarant, you do not have to give them

a chance to e*plain the earlier statement

&ule Defined 4on5earsay

• These do fit the definition of hearsay, but are not hearsay

• Prior $tatement 2F&) J#"2d32"33

o 6ust have been before made by a witness that can be put on the stand and subject to cross5

e*amination

o 6$ree cate"ories:

Prior inconsistent statement used as substantive evidence only if: 2F&) J#"2d32"3

2(33

• 6ade under oath at prior proceeding

• +ncluding implied denials—refusing to cooperate by saying they don’t

remember 2F&) "#/ determination3

• This is used for truth of the matter asserted, not impeachment 2like under

F&) G"03

!onsistent $tatement admissible only if: 2F&) J#"2d32"32C33• <itness’ testimony has been attacked as recently5fabricated or influenced by

motive to lie and

• <itness made prior statement before emergence of fabrication or motive to

lie

%ome v. U.S.: There is a prior consistent statement 2that the child was raped by her father3, but the statement

was made after the child had a motive to testify falsely—parents were getting a divorceB !ourt e*cludesB

$tatements of +dentification 2F&) J#"2d32"32!33

• +dentifies a person as someone a declarant perceived earlier as long as the

identifier can be cross5e*amined• 1fficer can get on the stand and say that the victim identified the defendant,

as long as the victim can be cross5e*amined

U.S. v. Owens: Prison guard is assaulted by an inmate, which causes the deterioration of his memoryB Cy the

time trial rolls around, he can’t remember anythingB (s long as the guard takes the stand and answers

uestions, his prior identification of the attacker is admissible—he meets cross5e*amination reuirement and

8!onfrontation !lauseB9

'



5hitehurst v. 5riht : +mpeachment by prior inconsistent statement is not allowed when trying to get inevidence that is not allowed in any other wayB

• Party 5dmissions 2F&) J#"2d32'33

o 6ust be 8across the vB’9

o $tatements made by a party 2F&) J#"2d32'32(33

Party’s past words relevant at time of trial to an issue in the trial

o (doptive admissions 2F&) J#"2d32'32C33

Party adopts another’s statement 2by agreeing3

Party’s reaction to a statement or action when it is reasonable to treat the party

reaction as agreement to something stated or implied by the other party—original

statement comes in with agreement

$ilent admission—if reasonable person would deny or speak up if they disagreed

'oyle: +f 86iranda9 was given, silence cannot be used as an admission 2substantive evidence3B

Fletcher v. 5eir : -uy stabs another guy in a nightclubB (t trial, the stabber claims accident and self5defenseB<hen he was arrested, he was not read his 86iranda9 rightsB The prosecutor cross5e*amines him about why

he never said that when he was first arrested, he is convictedB This court says that when 86iranda9 has not been read, it does not violate Due Process for a prosecutor to cross5e*amine about post5arrest silence, letting

the finder of fact assign probative valueB +f no 86iranda9 and no uestioning occurred, pre5arrest and post5

arrest silence can be used for impeachment, but not as substantive evidenceB

/enins v. Anderson: $ilence can be used before or after arrest to impeach, but not as substantive evidenceB

Defendant has to take the stand in order for this e*ception to apply, which you cannot forceB

o $peaking (uthority 2F&) J#"2d32'32!33

$tatement of a person aut$ori7ed to spea/ on behalf of someone who becomes a

party to a lawsuit are admissible when offered a"ainst t$e party

• =awyer, P& guy, president of company

&ecall letters could have issues because they are forced

o .icarious (dmissions 2F&) J#"2d32'32D33

$tatement is usable a"ainst a party if:

• 6ade by a party’s agent or employee and it

• !oncerns something within the scope of agency or employment

o !ity is separate jurisdiction than state

• $tatement was made while employment relationship e*isted

Doesn’t matter if employee was off5duty when statement was made

+ndependent contractors don’t count

Does not matter if a 8legal conclusion,9 don’t need personal knowledge

!ahlandt v. 5ild "andid Survival & Research "enter, Inc.: <olf may or may not have attacked a little kidBDefense claims he hurt himself on the fenceB (t trial, the judge refuses to admit statements by an employee

telling his supervisor that the wolf attacked the kid and refuses to admit the 8minutes9 of a meeting

containing the same statementB The judge should have admitted these—worker’s statements should have

been admitted, but their statement against the worker should notB

o !o5!onspirator $tatements 2F&) J#"2d32'32)33

Two reuirements:

• 6ust prove conspiracy e*isted at time statement was made

'G



• $tatement must be made in furtherance of the conspiracy

o -overnment informantsAsnitches that 8turn9 cannot come in, not

acting in furtherance of conspiracy

our8aily v. U.S.: <hether a conspiracy e*isted was in issue while trying to admit a hearsay statement under

this ruleB The court decided to 8bootstrap9—considering the statement itself while determining whether a

conspiracy e*istedB

o $tatement does not have to be against party’s interest

+mportant part is that the party made the statement and it is relevant

o !an only be offered a"ainst t$e party 28(cross the vB’93—cannot have self5serving hearsay

o Personal knowledge reuirement is rela*ed for the declarant

(ssume party knows what they are talking about

Personal knowledge doesn’t matter for party admission

• 4o personal knowledge, lower probative value 2F&) /#03

o 1pinion testimony standards are rela*ed for declarant

!an say 8+ was negligent9—doesn’t matter that this is conclusory statement

#earsay 'ceptions

J#/—<hen the Declarant is >navailable to Testify

• !riteria for being 8unavailable9 2F&) J#/2a33

o Declarant is e*empt from testifying because court finds privile"e 2F&) J#/2a32"33

Declarant cannot just claim the privilege, court must recogniEe it—privileges can be

waived under certain conditions

o Declarant re*uses to testify even after ordered to testify by court 2F&) J#/2a32'33

o Declarant truly does not remember 2F&) J#/2a32033

+f court does not believe that declarant 8forgot,9 silence can be an implicit denial

o eat$ or serious illness 2F&) J#/2a32/33

<hen the illness is temporary, court usually grants continuanceo Declarant is absent from trial and proponent has been unable to procure declarant’s

testimony by service of process or other available means 2F&) J#/2a3233

6ust subpoena the witness even if you know they are coming

6ust make all reasonable efforts to get witness to hearing, including serving the

witness

o Forfeiture by wrongdoing

<itness is not 8unavailable9 if it is shown that the proponent of the hearsay

statement made the witness unavailable

o !an’t simply look around the courtroom and declare witness 8available9

<itness may be in the courtroom, but 8unavailable9 to testify 2Privilege3

<itness could not be in the courtroom, but considered 8available9

o Curden of proof— proponent trying to use this e*ception has burden of proof to show the

declarant is 8unavailable9—F&) "#/2a3 judge determination

• )*ceptions 2F&) J#/2b33

o Former testimony—must be unavailable 2F&) J#/2b32"33

-iven as a witness at trial, hearing or other lawful deposition—whether the current

proceeding or a different one 2under oat$3 2F&) J#/2b32"32(33

• Does not apply to testimony before a grand jury

'H



+s now offered against a party who had an opportunity and similar motive to

develop the testimony by cross5e*amination or redirect 2F&) J#/2b32"32C33

• $imilar motive—if issue in the previous proceeding is very different, you

can defend against the testimony by saying you had the opportunity, but notthe same motive

• Doesn’t matter who offers the testimony, matters who it is offered a"ainst

2must have had chance to rebut, whether they did or not3 8nly in homicide or civil cases

• +n a civil case, can be a predecessor in interest

!an admit by court reporter transcript or another witness, all are subject to

impeachment

+f someone puts in part of testimony, consider using F&) "#G to complete it

o Dying declaration—must be unavailable 2F&) J#/2b32'33

Theory: dying declarations are highly reliable because no one would lie on their

deathbed

$tatement must be made under believe of imminent death and must go to the cause

of circumstances of the declarant’s death

8>nder the shadow of impending death9 have to actually believe they are going to

die

+n criminal conte*t, only allowed in homicide cases

Shepard v. U.S.: <ife thought she had been poisoned by her husband and says, 8+ think my husband did

thisB9 !ourt rules that it’s not coming in because it lacks the imminent reuirement—she was dying slowlyB6ust speak the words without hope of recovery and in the shadow of impending deathB Fear or belief that

illness will end in death is not sufficientB

Declarant doesn’t actually have to have died, just believed their death was imminent

• +f not dead, they must satisfy another F&) J#/2a3 e*ception for

unavailability in order to use this declaration

o $tatement (gainst +nterest—must be unavailable 2F&) J#/2b32033 6ust be against declarant’s interest at the time the statement was made

• Declarant doesn’t have to be a party or against a certain party to the case,

just against the declarant’s interest

Declarant must /no. the statement is against their interest—court uses objective

test 2would reasonable person know this was against their interest3

6ust be against proprietary or pecuniary interest 2monetaryAproperty rights or

freedom from criminalAcivil liability3

• Does not include social interests

+f it doesn’t ualify under this e*ception, consider F&) J#"2d32'3

Casic competency reuirement of personal knowledge still applies

<hen statement is being put on by a defendant to show a 0rd party admission of

guilt, corroborating circumstances reuired

• <hen a statement is against penal interest in a criminal case, it may be

admitted only if corroborating circumstances clearly indicate statement was

trustworthy

!o5defendant statements—when a witness says 8he and + did this,9 it can open the

door to conspiracy chargesB

• Typically kept out due to !onfrontation !lause

'J



5illliamson v. U.S.: !an only put on the portion of the statement that is against the declarant’s interest—anyother stuff is e*cludedB

1illy v. 2irinia: +n a statement that mentions the defendant, only the part against the defendant comes in due

to the !onfrontation !lauseB

o

Pedigree )*ception—must be unavailable 2F&) J#/2b32/33 -oes to things like when a person was born

1nly really applies to inheritance cases

$tatements of anyone in your family talking about family stuff comes in

• ( very close family friend’s statement can come in

o Forfeiture by <rongdoing—must be unavailable 2F&) J#/2b32G33

+f you intentionally make the person disappear, you can’t use their statement

;udge finds this

J#0—&egardless of <hether the Declarant is (vailable as a <itness

• Present $ense +mpression 2F&) J#02"33

o Declarant describes something as $e is seein" it

o 6ust describe or e*plain the event perceived

o 6ust be made during or immediately after

8+mmediately after9 is very strict—matter of seconds

•

+f there is time to reflect, it does not count• <ill never be a written statement

• )*cited utterance 2F&) J#02'33

o $tatement related to a startling event or condition made while declarant was under t$e

stress or ecitement t$at it caused

$ubject matter only has to relate to the event that was startling—does not have to

describe it

o $ubjective standard under the totality of the circumstances to determine whether they were

still under stress or e*citement

o -enerally indicated by 81h my goshQ9 or 8oh noQ9

• $tatement of declarant t$en&eistin" mental p$ysical emotional condition 2F&) J#02033 8+ feel

shitty about shit9BBstatements !(4T look backwards

o +ncluding intent, motive, design, mental feeling, pain or health

o =ike P$+ only inwardB Does not include statement of memory or belief to prove fact

remembered 2unless relating to a will3

o $tatement of plan or intention is e*pression of then5e*isting mental state

o Permits introduction of testimony that a declarant said they were going to meet another

person to show the other person went to the location

$tatement of intention as proof of conduct of another person

'K



!utual 1i#e v. Hillmon: =etters are statements of then5e*isting mental state and are admissibleB ee*pressed he was doing something, which made it more likely that he was doing thatB

• $tatement 6ade for 6edical Diagnosis or Treatment 2F&) J#02/33

o +ncludes statements of past medical history and current symptoms as long as they have been

made for the purpose of medical diagnosis or treatment

!an be backward5looking

o (lso e*tends to descriptions of what caused the patient’s problems as long as they are

reasonably pertinent to diagnosis or treatment

-enerally identity of who caused it or statements of fault are not allowed because

the doctor does not need to know that

o (ctual diagnosis or treatment does not come in

o $tatement can be made by another person, not just person seeking treatment

o oesn9t $ave to be made to a doctor —consider nurses, parents, etcB

o These often count come in as e*cited utterances 2F&) J#02'33 or mental state 2F&) J#02033

o $tatements made to a doctor in anticipation of litigation 2e*pert witness3 still comes in

• )mergencyA8K5"5"9 !alls

o &ecorded conversation is not 8hearsay within hearsay9

o 1ften no matter is asserted, as the operator likely just asks uestions

o !an also count as 8effect on the listener9

• Past &ecollection &ecorded 2F&) J#0233

o $ometimes a witness may not remember a relevant fact, but have written notes about it at

an earlier time—these notes are admissible if:

"B 2Former knowledge3 1n a matter the witness once knew about, but now cannot

recall well enough to testify fully and accurately

• <itness says they can’t testify from memory alone 'B <as made or adopted by the witness .$en t$e matter .as *res$ in the witness’

memory

• 4ot as tight of a time reuirement as 8present sense impression9

0B (ccurately reflects witness’ knowledge

• <itness must vouch that whatever she wrote was written accurately

+f admitted, record may be read, but only received as an e*hibit if offered by t$e

adverse party

o >sed a lot with statements made to police when witness gets on stand and changes their

story

+f witness can’t remember, you can ask whether they would have given a false report

to the police• Present &ecollection &efreshed 2F&) G"'3

o @ou can helpArefresh witness’ memory using anything—not just written statement

o +f showing witness a document to 8refresh9 their memory, there is no hearsay issue because

the document is not introduced into evidence

o 1pposing party is entitled to see the item used to 8refresh9 and to admit it into evidence—

only comes in as impeachment, not substantive 2unless it fits a hearsay e*ception3

+n criminal case, if you refuse to show the other party, strike the testimony or have a

mistrial

0#



o First try to refresh recollection under F&) G"', then try F&) J#023

F&) G"' does not come in under substantive evidence, just as impeachment

F&) J#023 does come in as substantive evidence 2admissible hearasay3

1nly a writing written by the witness can be used for F&) J#023

(nything can be used for F&) G"'

• Cusiness &ecords )*ception 2F&) J#02G33

o &ecords of a regularly5conducted business activity—any business, including illegal businesses 2crime ring3

o &euirements:

Must lay *oundation

• "B &ecord was made at 2or near3 the time of the event it describes by a

person with knowledge of what record says, or transmitted with someone

with knowledge

• 'B &ecord has to be kept in the course of regularly conducted business

activity

• 0B 6ade as a regular practiceAactivity, not just for litigation

o <itness may testify about how the record meets these reuirements

!ustodian or other ualified witness—does not need firsthand knowledgeo &ecords may be e*cluded from this e*ception 2not coming in3 if the circumstances indicate a

lack of trustworthiness

6ade for litigation, incentives, etcB

Supruniu v. $etriw: !ourts skeptical about admitting personal checkbooks, even if part of a business

activity—lack trustworthinessB

• Public &ecords 2F&) J#02J33

o Three types of records:

&eports about activities of government entity 2F&) J#02J32a32i33

• 6atters concerning internal functions of an agency—standard operating procedures, manuals, employment records, etcB

• (dmissible in civil and criminal cases

&eports about matters observed under legal duty by police and law enforcement

2F&) J#02J32a32ii33

• (nything within an agency’s e*pertise that they are supposed to observe or

report on

• (dmissible in civil cases only

&eports of *actual *indin"s resulting from legally5authoriEed investigations 2F&)

J#02J32a32iii33

• (dmissible by any party in a civil case, but only defendant in a criminal

case

eech Aircra#t v. Rainey: ( 8factual finding9 includes conclusions and opinions as long as they are based on

factual investigation and satisfy the rule’s reuirement for trustworthinessB !an’t admit the statements that

lead to facts or opinionsB

o This e*ception e*cludes reports when the sources of information or other circumstances

indicate a lack of trustworthiness

o Ceware of 8hearsay within hearsay9—citiEen statements within official reports

0"



o Police report:

<hat officer observed at scene—admissible as a matter he observed while under a

legal duty to report

<itness statements—hearsay within hearsay, 8outer layer9 2of police report3 is

admissible

• +nner layer is witness’ statement, can9t come in if the officer has no

firsthand knowledge, can’t come in under this e*ception 1fficer’s conclusions—admissible as factual findings

• Public &ecords of .ital $tatistics 2F&) J#02K33

o &ecords of birth, death or marriage if reported to a public office

• (bsence of &ecords

o (bsence of Cusiness &ecords 2F&) J#02H33

These are not 8hearsay,9 as there is no statement

>sed to show whether an event occurred 2usually that it did not3, as it would have

been contained in the record

o (bsence of Public &ecords 2F&) J#02"#33

$ame

Residual #earsay 'ception

J#H—&esidual )*ception

• )lements:

o 6ust need it

o 6ust have guarantee of trustworthiness

• .irginia law has no euivalent

• earsay allowed under this rule when:

o )uivalent circumstantial guarantees of trustworthiness

o )vidence of material fact

o 6ore probative of the point offered than any other evidence obtainable by the proponent

o (dmitting it will best serve purpose of these rules and administration of justice

• 6ust give adverse party reasonable notice 8before9 trial—very low standard

• 6ust give declarant’s address and contact information so the other party can investigate

• $ome courts use this rule if an e*ception isn’t uite met

'allas "ounty v. "ommercial Union Assurance "o.: +nsurance !ompany’s defense was that fire damage to a

courthouse had occurred a long time ago, not this recent lightning stormB +nsurance !ompany finds old

newspaper article about the prior fire in the courthouseB (ncient Documents e*ception 2F&) J#02"G3 would

work, but didn’t e*ist thenB

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Con*rontation Clause

$i*th (mendment says a criminal defendant shall enjoy the right to be confronted with the witnesses

against him

$ituations in which out of court statements are admitted as proof of what they assert 2hearsay3 may

cause a conflict with the !onfrontation !lauseo !onfrontation !lause imposes burden on the prosecutor to produce witnesses

!urrent Test:

o )vidence cannot be admitted if 8testimonial9:

o !onsider the 8primary purpose9 of the interrogation:

4on5testimonial if it was to help police conduct 8ongoing emergency9

Testimonial if no emergency, used to prove past events for a criminal investigation

+f prepared for litigation, the creatorApreparer should be there

Ohio v. Roerts: )stablished that hearsay statements of all kinds were admissible against criminaldefendants if they fit into the hearsay e*ceptions or indications of reliabilityB !ourts find almost all evidence

to be reliableB

"raw#ord v. 5ashinton: !onfrontation clause reuires the presentation of witness making only8testimonial9 out of court statementsB

• (bsent confrontation, 8testimonial9 statements must be e*cluded, regardless of reliabilityB

• Testimonial hearsay can be admitted in these situations:

o Testifying declarant,

o >navailable declarant if defendant had prior opportunity to cross

o $tatement not offered for truth of the matter asserted

• Defining 8testimonial9—statements at grand jury hearings, former trial testimony, preliminary

hearings, and depositions—situations where declarant would reasonably e*pect their statement to be

used prosecutoriallyB

'avis v. 5ashinton: 8Primary Purpose Test9 for police uestioningB

• $tatements made during a 8K5"5"9 call are non5testimonial when objective circumstances indicate the

primary purpose of the uestioning was to enable police to respond to an emergencyB

• $tatements made to police will be testimonial when objective circumstances show there was no

emergency and primary purpose was to establish past events potentially relevant to criminal

prosecutionB

!ichian v. ryant : $tatements a shooting victim made to police while waiting for the ambulanceB

Declarant identified the person who shot him and how it happenedB

• This is non5testimonial when police get information from the victim to protect others from the

potentially violent shooterB

• <as not an emergency

!elende)('ia) v. !assachusetts: !onfrontation clause applies to certificates of forensic analysisB

• (nalyst must personally testify

00



Privile"es

• ( rule giving a witness the right not to testify about a certain matter or giving a person the right to

prevent a witness from testifying about a particular subject

• Oeeps out otherwise admissible information based on relationships and trust

• 6ore important to keep certain relationships private than to have all the possible information at a

trial

#"—Privilege in -eneral

• >nless a civil diversity case, substantive state law applies

o Privilege applies at all stages of trial 2F&) ""#"3

• Privilege is an F&) "#/2a3 determination by the judge

• )lements of privilege:

o "B (ll privileges have a communication

.erbal, written, or intentionally assertive conduct

Privilege only protects a communication itself, not t$e underlyin" *acts —can’t

immuniEe facts or physical objects simply by communicatingAconveying themo 'B The communication has to be made in confidence

Presence of a third party negates this privilege

=imited e*ceptions

• +f third party is necessary 2translator, nurse, doctor3

• <hen third party has a privileged relationship with the person asserting the

privilege 2husband talking to attorney and wife3

o 0B )very privilege has a holderB The holder is the person who can e*ercise the privilege or

waive itB

older does not have to be on stand to claim privilege

!an be anyone—the client is generally the holder, but an attorney can assert

privilege on their client’ behalf

• older can waive privilege in three ways:

o )*pressly 28+ waive93

o Cy not asserting it when they should 2by not objecting3

2Failure to e*ercise the privilege—must be asserted, is not automatic3

o .oluntarily disclosing the privileged matter—even if inadvertent—thereby opening the door

+f the holder reveals a significant part of the communication in an unprivileged

setting, the privilege may be considered 8waived9 as to the entire communication

+f it was accidental, some courts consider the privilege to be waived, others look at

circumstances with consideration to fairness

+f disclosure is involuntary 2stealing information3 privilege 41T waived

• )avesdropping:

o !=—overheard communications were treated as voluntary, but inadvertent disclosure— waived privilege

o 6odern law—courts treat eavesdropping as involuntary disclosures—no waived privilege

2like having your conversation stolen3

)avesdroppers cannot testify

• (ll privileges have e*ceptions when there is a conflict between the holder and the other person—

client suing attorney, privileges do not apply

0/



#'—(ttorney5!lient Privilege and <ork Product% =imitations on <aiver

• Protects confidential communications between client and attorney

• !lient is the holder, can be a corporation

• (ttorney doesn’t need to be a real attorney, client just has to think so

Up8ohn v. U.S.: <hen the 8client9 is a business, each employee’s confidential communications 2for the

purpose of legal representation3 are coveredB The 8control group9 of the company are still the holders, and

can assert or waive privilege for everyoneB +e CoD could waive then leave employees out flapping in the

windB

• !ommunication must be directed at the attorney in an attorney capacity

• Does not cover basic facts of representation

o !lient identityApayment of legal fees

>nless e*posing basic facts of representation would effectively disclose confidential

communication or incriminate a client

U.S. v. $ape: 6an taking a kidnapped woman across state lines retains an attorney for herB +f e*posing the

identityAretainer will implicitly disclose client, privilege appliesB

• Privilege begins from the first consultation—whether the lawyer is retained or not

• Privilege continues until it is waived—survives termination of the relationship or holder’s death

• )*ceptions when privilege does not apply:

o Disputes between attorney and client

o Doesn’t apply if used to perpetuate crimeAfraud

o =awsuit among joint clients who are not adverse to each other

• +nadvertent disclosure 2F&) #'3

o &esponse to multiple inadvertent, but voluntary, disclosure of protected content in discoverysituations

o =awyers have responded in two ways:

!ostly review process

4on5waiver agreements prior to discovery

• 8!law5back Provisions9—if privileged documents are inadvertently

released, receiving party agrees to return them upon reuest not to use them

• 1nly those that agreed to the provision are bound to it 2F&) #'2e33

o $cope of <aiver by Disclosure 2F&) #'2a33

Disclosure of a privileged matter does not waive the privilege for a related matter

• >nless the disclosure was intentional and the undisclosed communications

should, in fairness, be considered together o +nadvertent disclosure does not operate as waiver if holder took reasonable steps to prevent

disclosure and reasonable steps to rectify the error 2F&) #'2b3

1ther Privileges

• Federal courts can define new privileges by interpreting common law principles in light of reason

and e*perience 2F&) #"3

0



• Priest5Penitent

o +ssue arises as to whether the person being confided in is a clergyman

8+n capacity as spiritual advisor9

o 6ost states recogniEe it, as does Federal !ommon =aw

• Physician5Patient

o 6ost states have adopted it, Federal courts have not

o 1nly available where the patient consults the drB in the ordinary course of treatment ordiagnosis

o $tates have a lot of e*ceptions:

Ciggest e*ception is when patient only seeks doctor’s treatment or diagnosis when

in preparation for litigation

<hen patient puts his physical condition 8in issue,9 the privilege is considered to be

waived

• Psychotherapist5Patient

o &ecogniEed in every state and Federal !=

o )*ception:

!rimeAfraud or controversy between therapist and patient

Does not apply if patient’s mental health is 8at issue9 or if the communication wasthe result of a court5ordered e*am or if a commitment proceeding against the patient

/a##ee v. Redmond : !ourt recogniEes the privilege and e*tends it to licensed clinical social workersB

$pousal Privileges

• &ecogniEed by all states and Federal common law

• Federal common law has two separate spousal privileges

o Privilege a"ainst adverse spousal testimony (P5536)

)*cludes testimony by one spouse against another

4ot limited to communications—can be about anything

Doesn’t have to be related to the marriage—anything against interest

!overs pre5marriage as long as married at time of trial

Privilege ends when marriage ends 2divorce or death3

older is the testi*yin" spouse—can keep yourself off the stand 2%rammel 3

)*ceptions:

• +ntra5family conflicts—narrowly interpreted to nuclear family, you can be

made to testify

• Proceedings between spouses

• $pouses as joint actors

• !rime or tort against a witness spouse or a minor child of either spouse

%rammel : +f witness spouse is willing to testify, there is probably no 8marital harmony9 left to preserve—thetestifying spouse is the holderB

o Privilege for con*idential marital communications (PCMC)

Protects disclosure of confidential communications between spouses

=imited to communications during the marriage only

!ontent does not matter

+ntentionally assertive conduct counts, observations do not

Protection goes beyond death or divorce

0G



;oint holders— bot$ spouses may assert

$ame e*ceptions as above

4o parent5child privilege

5ut$entication

• Tangible evidence differs from testimony in two ways:

o +t goes with the jury to the deliberation room—tends to get more weight

o ;urors give physical evidence more weight because they think it is more reliable than oral

testimonyB Cecause it gets more weight, needs to be authentic

K#"—(uthenticating or +dentifying )vidence 2&1)3

8To satisfy the reuirement of authenticating or identifying evidence, the proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims it isB9 2F&) K#"2a33

• >se conditional relevance 2F&) "#/2b3 standard3o This is a matter for the jury to consider 2weight3 as long as the judge finds that it passes

reuirements of authentication

• (pplies to documents, records or other physical objects described in testimony or offered into

evidence

• 1ften not an issue at trial—usually stipulate to authenticity

• (uthentication does not guarantee admissibility or relevance

• )ven if admitted, can still impeac$ authenticity for weight 2ie dispute3

• ow can + show this evidence is what + claim it to be7

• )*amples of ways to satisfy authentication reuirement 2F&) K#"2b33

o !hain of custody testimony:

.arious witnesses state that the object was the same object obtained from another Testify as to how, when and from who they received it

o 4on5e*pert opinion of handwriting:

=aypeople who are familiar with a person’s handwriting can testify that the

handwriting on a document is by that person

o !omparison by an e*pert witness or the trier of fact:

!an put in authenticated specimen and let e*pert or jury compare

o Distinctive characteristics:

>niueness of an object along with circumstances of how it was found can provide

adeuate evidence to satisfy authentication

&eply doctrine—if a party introduces evidence that a communication was made to

another party, that evidence is treated as adeuate authentication of anothercommunication that was in reply to the first

• $omeone leaves a message on voicemail—8hey, + got your message?9—

don’t need the first message

o 1pinion about a voice:

( witness can authenticate a voice by testifying about familiarity with it if the

witness recogniEes it and identifies the speaker

5nyone can identify a voice—lay witness, e*pert, etcB

• !an be done after arrest and in the court room

0H



o )vidence about a phone conversation:

+f a call was made to a business, it can be authenticated with testimony that the

conversation was about business reasonably transacted by phone

For other calls, authentication is permitted by testimony that the person who

answered the call was the person called

• 8ello, this is RRRR9—authenticated as long as you show the phone number

as well

o Public records:

For documents or other records reuired or authoriEed to be recorded or filed in a

public office, authentication can be provided by evidence that the writing came form

the office where items of that type are kept

Proponent of evidence may have to produce a witness who knows and can testify

about the source and the chain of custody method used at that office

o 4ow5ancient documents are authenticated when 2all three3:

Documents or data compilations '# years or older at the time they are offered

Found in a place where they would likely be

+n a condition that does not create suspicion about their authenticity

• <ills, deeds, letters, maps, newspapers

>sually entered through a witness

Fits in with J#02"G3 2hearsay statements that are '# years old3

o )vidence about a process or system

<here an item of evidence has been created with a process or system, testimony

describing the process or system can authenticate that evidence

6ust show it produces a reasonably accurate result

o 6ethods provided by statute or rule 2F&!P3

K#'—)vidence that is $elf5(uthenticating

• They reuire 41 e*trinsic evidence of authenticity in order to be admittedB 41 foundationaltestimony is necessaryB

o The idea being that these items are so evidently genuine on their faceB

o 1pposing party can still dispute aut$enticity The jury still decides whether an item is

authentic

o Cut K#' says these are items that automatically satisfy that "#/2b3 standardB Cut remember

not automatically admissibleB $till have to deal with hearsay and the other rules

• )*amples:

o Public document bearing seal of government entity

o Public document not bearing seal, but with signature of official and accompanied by a

document under seal attesting to the signature

o Foreign public documents bearing signatures

o !ertified copy of public record

o 1fficial publication

o 4ewspaper or periodical

o =abels and trade inspection

o (cknowledge documents

o !ommercial paper and related documents 2any >!! doc works3

o !ertified records of regularly conducted activity—can put on a certificate instead of a

custodian if you have the custodian sign it

0J



(nalog to Cusiness &ecords e*ception under J#02G3

o !ertified foreign records of a regularly conducted activity

o Things declared by federal statute to be prima #acie authentic

K#0—$ubscribing <itness’ Testimony

• 4ecessary to authenticate a writing only if reuired by the law of the jurisdiction that governs its

validity• $tate law is treated as substantive law in diversity cases

• >nnecessary to have witness attest to seeing someone write signature if it is notariEed

• >sually shows up in wills and trusts

%hreadill v. Armstron 5orld Industries: (fter a prima #acie case of authenticity has been made, the piece

of evidence goes to the juryB (ll that matters is that they could go one way or anotherB Iuestions about the

document9s contents don9t in*luence t$e aut$enticity of the document, instead going to the weightB!ircumstantial evidence of authenticity—came from a placed it would be 2locked up3, on the defendant’s

letterhead, had 8president9 on the signature block—meets F&) K#"B

U.S. v. Stone: (dmission into evidence of e*planatory statements on an authenticating document constitutes

inadmissible hearsay when the person make the statement is available but doesn’t testifyB !ustodian hadwritten e*planatory statements beyond what is needed for authentication—this is a !onfrontation !lause

issue because that person can’t be cross5e*aminedB 4o e*ception applies because they were created for

litigation purposesB The authentication is fine, the e*planations are notB

Adamc)u v. Holloway: !ourt refused to admit a photograph of an accidentB 4eed a person to stand as the

8testimonial sponsorB9 4o proof is offered of who took the photoB <e aren’t shown where the camera was

standing, what the conditions were, whether the camera had been tampered withB The taker does not need to

be there to verify if a witness is familiar with the scene photographed and is competent to testify that the

photo correctly represents it—photograph should be admitted if relevantB

:est 'vidence Rule

• Four components:

o <hen provin" content of a document, writing or recording 2what it says3—you must use the

original

o )*act copies count the same as an original, unless there is a uestion of authenticity

o +f you can’t put in the original, you can prove the writing, document or recording’s content

any way you want

o (lways think about hearsay

• <hen does this rule apply7

o 1nly when a party seeks to prove t$e content of a writing, recording or photo

Document used as proof of the happening of an event 2bank robbery photo3 Document has legal significance 2contract or will3

<hen witness is testifying on facts he learned from the writing as opposed to

personal knowledge 2S5ray3

"##"—Definitions

• (pplies only to .ritin"s recordin"s or p$oto"rap$s

o 4ot physical evidence 2baseball bat3

0K



o 8<riting9—any symbols having meaning 2including tomb stones and 6orse code3

• >nder F&), the Cest )vidence &ule applies to videos, but not in .irginia

• 1riginal—the documents or recordings itself or any counterpart meant to be an original by the

parties who created the first version

o (nything set down for the first time

• Duplicate—an e*act copy, can be enlarged or reproduced, as long as it is e*act 2F&) "##"2e33

• Duplicate 1riginal—multiple originals created at the same time, carbon copy 2F&) "##"2d33

"##'—&euirement of the 1riginal

• 81riginal writing, recording or photo is reuired in order to prove its content unless these rules or a

federal statute provides otherwise9

• <hen you are trying to prove contents, use the best evidence

o !an’t get on the stand and start testifying about the document—use it

o !an’t say 8+ have a video that shows RRR9—show the video

o +f you want to say what the deed said, you have to show the deed

o Can say somet$in" "eneral —8+ saw him writing9

"##0—(dmissibility of Duplicates

• 8( duplicate is admissible to the same e*tent as the original unless there is a genuine uestion about

the duplicate’s authenticity or circumstances make it unfair to use the duplicate9

• Don’t have to say why you’re using a copy

• 6ust lay *oundation that this is an e*act copy

"##/—(dmissibility of 1ther )vidence of !ontent

• +f a duplicate is not available, party can offer an e*cuse:

o (ll originals or duplicates are lost or destroyed not by proponent acting in bad faith

6ust show diligent and reasonable search

o (n original cannot be obtained by any available judicial process

6ay be privileged, outside scope of subpoena power or outside jurisdiction

o Party against whom original would be offered has control of the original, was put on notice

that the original would be subject of proof at trial or hearing, *ails to produce it at trial or

hearings

o <riting, recording or photo isn’t closely relate to a controlling issue

• +n this situation, witness is allowed to testify about the contents of the document without the

production of a duplicate or original—they can produce it however they wantB

"##—!opies of Public &ecords to Prove !ontent

• !an always use a certified copy of a public record

• 6ostly because you won’t be able to get original

• +f you can’t get a certified copy, prove however you want

"##G—$ummaries to Prove !ontent

/#



• Proponent can use a summary, chart or calculation to prove content of voluminous recordings,

writings or photos that cannot be conveniently e*amined in court

• 6ust make originalsAduplicates available for e*amination or copying by other parties at a reasonable

time and place

• ave to lay foundation to show summary is accurate

"##H—Testimony or $tatement of a Party to Prove !ontent

• <ritten or sworn party admission 8trumps9 C)&

o 6ust be sworn or written 2testimony, deposition or written statement3 as to what doc saysB

4o need to account for original

o +f not written or sworn, C)& applies

"##J—Functions of the ;udge and ;ury

• <hen you have a jury trial, the jury decides 2F&) "#/2b33 any issue about:

o (n asserted writing, recording or photo ever e*isted

o (nother one produced at trial or hearing is the original

o 1ther evidence of content accurately depicts the original

• ;udge decides this at bench trial

"#G—&emainder of or &elated <ritings or &ecorded $tatements

• +f a party introduces all or part of a writing or recorded statement, an adverse party may reuire the

introduction at that time of any other part or any other writing or recorded statement that, in fairness,

ought to be considered at the same time

!eyers v. U.S.: Perjury case—written transcript of allegedly false testimonyB Plaintiff puts on the witness to

testify instead of using the transcriptB Fine, as long as he doesn’t say 8there is a transcript saying RRRRB9 ;ust because there is a written record, doesn’t mean you have to use it 2as long as you don’t reference it3B

8pinion 6estimony

• Three types of opinion testimony:

o =ay opinions 2H#"3

o )*pert opinions 2H#'5H#G3

o $cientific evidence 2always given by e*pert testimony3

H#"—1pinion Testimony by =ay <itnesses

• <itness can testify only to *acts, not to opinions or conclusions 2if not an e*pert3• =ay witness testimony limited to three things:

o Personal knowledge

o elpful to clearly understanding the witness’ testimony or to determining a fact in issue

o 4ot based on scientific, technical or other specialiEed knowledge

• =ay witness can only give opinion testimony when they cannot be more specific

• Don’t just say that the person was drunk, tell why you think that

/"



• The more important an issue is to the case, the most important it is for the jury to decide what

happened as opposed to a witness

".5. v. Holden: The dispute is over whether the fact that a person winked constitutes conclusion testimonyB

1pinions are allowed when someone cannot be more specific without giving opinion—there is no better way

to describe the action of a wink other than calling it a winkB

U.S. v. Fiueroa(1ope) : Prosecution forgot to give advance notice of e*pert witness in a cocaine ring caseB

They tried to use the witnesses as lay witnesses, giving 8lay opinions9 that the defendant was an e*perienced

drug traffickerB The court ruled that this was improper—e*perts are e*pertsB

3cienti*ic 'vidence and 'pert 6estimony

H#'—Testimony by )*pert <itnesses

• 1ne place where we want witnesses testifying their opinions

• 4o PhD reuired—specialiEed knowledge can be about anything and from anyone

• $pecialiEed knowledge separating them from average people

• !ourt decides certification of e*perts as an F&) "#/2a3 uestion

• Don’t need personal knowledge—they are helpful due to their e*pert knowledge

o 6ust be some need for specialiEed knowledge—has to help jury or judge

• )*pert testimony has to be reliable 2F&) H#'2b352d33

• 2oir dire —cross5e*amine an e*pert on their opinions

o !an put on a witness to testify that the opposing e*pert is wrong

•

!an admit opinion evidence even if the information it is based on is not admissible if the informationis something e*perts in the field would rely on

U.S. v. /ohnson: -overnment wants to show marijuana came from !olombia, but has no witness to prove itB

They get a 8pot e*pert9 who has smoked a lot of weed to say that this is from !olombiaB The dude can

allegedly tell subtle differences and identify place of originB The court says this worksB

$cientific )vidence

• Fear is that jury will put too much value on the opinion and not make its own credibility assessment

—jury needs to decide case, not e*pert

Frye v. U.S.: 8-eneral (cceptance9 test—if the scientific standardAmethod is the 8general acceptance in the particular field in which it belongsB9 +f the principles upon which the scientific evidence is based are

generally accepted, the scientific opinion should be admissibleB ;udge simply has to ask if these principles

are generally accepted in the fieldB !onsider the downside of innovations—new developments in science

would not yet be 8acceptedB9

'auert v. !errell 'ow $harmaceuticals: $cientific evidence must be relevant and reliableB Focus of the

inuiry is the scientific principlesAmethodology, not the resulting opinionsB

Considerations o* reliability!

/'



o !an the scientific theory be tested, has it been7

o as the theoryAtechniue been published and subject to peer review7

o <hat is the known or potential error rate with the theory and are there standard for

controlling the techniue’s operation7

o as the theory been generally accepted7

1n remand, the court of appeals didn’t know what to do and came up with another factor—whether the

testimony results from scientific conduct independent of litigation or for the purposes of e*pert testimony7

9umho %ire "o. 1td. 2. "armichael : Trial courts get discretion in allowingAe*cluding e*pert testimony and

which factors to consider in determining whether to allow the testimonyB

H#0—Cases of an )*pert’s 1pinion Testimony

• Three situations for e*pert opinion:

o First5hand knowledge:

)*pert actually perceived something 2e*amined patient3

)*pert is also a fact witness—can be cross5e*amined on opinion and facts

@ou ask what the e*pert saw and for their opinion as to what they saw

o )vidence admitted at trial:

)*pert watches trial and then gives opinion based on what they hear

!an also just ask for opinion based on facts already in evidence

o Facts made known to e*pert before trial:

)*pert cannot testify to information that is not admissible—cannot use this to sneak

around hearsay rules +f the information is something e*perts in the field would 8reasonably rely on,9 it

does not have to be admissible

H#/—1pinion on an >ltimate +ssue

• 8(n opinion is not objectionable just because it embraces an ultimate issue9 2F&) H#/2a33

• e*ception 8+n a criminal case, an e*pert witness must not state an opinion about whether the

defendant did or did not have a mental state or condition that constitutes an element of the crime

charged or of a defenseB Those matters are for the trier of fact aloneB9 2F&) H#/2b33

o Onown as the inckley &uleB Cecause inckley was acuitted from the attempted

assassination of &eagan because he was found to be legally insane

o H#/2b3 says when the Ds mental state is at issue in a criminal case, you cant put an e*pert onto testify as to the ultimate issueB

H#—Disclosing the Facts or Data >nderlying an )*pert’s 1pinion

8>nless the court orders otherwise, an e*pert may state an opinion — and give the reasons for it — without

first testifying to the underlying facts or dataB Cut the e*pert may be reuired to disclose those facts or data

on cross5e*aminationB9

/0



• )*perts don’t have to lay foundation

• Curden for e*ploring basis is on cross5e*aminer

• )*perts have the option of giving reasons for their opinion

• <hen a treatise is relied on by an e*pert on direct or called to an e*pert’s attention on cross5

e*amination, that treatise comes in as substantive evidence 2F&) J#02"J33

H#G—!ourt5(ppointed )*pert <itnesses

• !ourt can appoint an e*pert on its own 2or as a result of a party’s motion3 to do whatever the court

tells the e*pert to do 2as long as they agree3

• $hould provide impartiality