evidence outline and case chart

8/3/2019 Evidence Outline and Case Chart

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Michael Mroczka

Unit I: Relevance

Chapter 1: General Principles of Relevance

A. Probativeness and Materiality: Focus on 401 & 402

Relevance Three Rules: FRE 401, 402, and 403

o Rule 401: ―Relevant evidence‖ means having any tendency to make the existence of any fact that is of consequencdetermination of the action more probable or less probable than it would be without the evidence.

1) Evidence must be material

Evidence is material if it bears on a ―fact that is of consequence to the determination of the act 2) Evidence must be probative of a material fact.

The evidence must have a tendency to make the existence of [that fact]… more probable or lesthan it would be without the evidence.

No need to prove — just make more or less probable

o Rule 402: Evidence is not admissible if not relevant, but typically admissible if relevant.o Rule 403: Relevant evidence may be excluded if it poses problems that substantially outweigh it’s probative value

1. Probativeness

If the proposition itself is one provable in the case at bar, or if it in turn forms a further link in a chain of proof, the final prop

which is provable in the case at bar, then the offered item of evidence has probative value in the case.

o Whether the immediate or ultimate proposition sought to be proved is provable in the case at bar is determined by

law governing the case

May be excluded as irrelevant for either of these two reasons:o

1) It is not probative of the proposition at which it is directedo 2) That proposition is not provable in the case

* ―Men’s fixed designs are probably carried out.‖

2. Materiality

United States v. James Ernestine James’s (Defendant - Appellant’s)

boyfriend, David Ogden (decedent) was killed by

Defendant- Appellant’s daughter, Jeffries.

Defendant-Appellant was convicted by a Federal

District Court of the crime of aiding and abetting

manslaughter. At trial, Defendant-Appellant raised

the defense of self-defense in the original action.

Where a Defendant raises self-defense a

to a charge of manslaughter, it is improp

exclude extrinsic evidence of the decedenature that would have corroborated the

Defendant’s testimony. It was probative

defendant’s state of mind. It was necessa jury to know that D was telling the truthstories.

B. Conditional Relevance: Focus on FRE 104(b)

Cox v. State Patrick E. Cox (Appellant) was convicted of

murder by a jury following a shooting that left James Leonard (Victim) dead.

The testimony of the deputy prosecutor i

admissible under Rule 104(b), which pro―[w]hen the relevancy of evidence depen

the fulfillment of a condition of fact, the admit it upon . . . the introduction of evidsufficient to support a finding of the fulfthe condition.‖ Since here the relevance

prosecutor’s testimony depends on a confact (whether Appellant knew of the evebond reduction hearing), and because othevidence was present that would support

that the condition was fulfilled, the testimrelevant and admissible.

C. Probativeness Versus the Risk of Unfair Prejudice: Focus on FRE 403

FRE 403 (restyled) Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

o The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or m

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly precumulative evidence.

1. Photos and Other Inflammatory Evidence

State v. Bocharski The Trial court allowed six photographs into

evidence over the objection that they were

gruesome, highly inflammatory, and unduly

prejudicial.

Evidence that is relevant should nevertheexcluded when the risk of prejudice outwprobative value of the evidence, and the

photographs should have been excludedaccordingly; however, because the viewi



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photographs by the jury did not contribu

affect the jury’s verdict, the error was ha

United States v. James Dissent: Rule 403 does not limit unfair pone side. The dissenting opinion is baseddiscretion afforded the trial judge; the di

argues that the instant court must ―defer judge’s discretion, when the trial judge h

sensible reason for exercising his discretdid.‖

4. Effect of Stipulations

United States v. Jackson D was accused of robbing a bank and made

several pretrial motions. At issue here are D’s

motions to exclude evidence of his use of false

name after being arrested.

The evidence relating to D’s arrest in Gebe inadmissible at trial provided that D e

stipulation to the effect that he was in Geshortly after the robbery and that while tused a false name.

Old Chief v. United States D was arrested. D was charged with various

crimes including violating 18 U.S.C. Section:

922(g)(1) which makes it a crime for anyone “who

has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding

one year” to “possess in or affecting commerce,

any firearm.”

In this case, as in any other in which the

conviction is for an offense likely to supconviction on some improper ground, threasonable conclusion was that the risk oprejudice did substantially outweigh the

probative value of the record of convictiowas an abuse of discretion to admit the r

when an admission was available. Discounted Probative value approach

o Court is to evaluate whether a particular item of evidence raised a danger of unfair prejudice. If it did, it would evasubstitutes. If the alternative had substantially the same or greater probative value but lower the danger of unfair pr

sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probativewere substantially outweighed by unfairly prejudicial risk.

Narrative Integrity

o Substitution of evidence might have the effect to rob the evidence of much of its fair and legitimate weight. Can telcolorful story.

Chapter 2: The Specialized Relevance Rules

A. Subsequent Remedial Measures: Focus on FRE 407

FRE 407 (restyled) Subsequent Remedial Measures

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

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

o But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving own

control, or the feasibility of precautionary measures.

Subsequent Remedial Measures- Something done after an accident to prevent more accidents (or for a different reason?)

o P would like to get it in b/c it is like an admission that something was wrong NO.

o Inadmissible for the purpose of proving culpable conduct, product defect or the need for a warning. Why? If admissible, D wouldn’t make post accident repairs Public safety policy.

o Two Exceptions: D must raise issue first! May be admissible to show ownership or control, if D puts it in controversy.

Allowed if D controverts or disputes the feasibility of a safer condition.

B. Compromise Offers and Payment of Medical Expenses: Focus on FRE 408 & 409

FRE 408 (restyled) Compromise and Offers to Compromiseo (a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or di

validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a val

consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offeredcriminal case and when the negotiations related to a claim by a public office in the exercise of its regulatinvestigative, or enforcement authority.

o (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudnegating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.



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Settlement Evidence: Compromise- an offer to settle as an implied admission

o An offer of a settlement or an offer to settle a claim that is disputed (liability or amount of damages) is not allowed

issue of liability. Why? To encourage settlement.

o Statements of fact made during settlement talks are also inadmissible.

Exception: Witness impeachment on the ground of bias.

Limited to Bias! No exception based on inconsistent statements.

o Rule of exclusion for settlement evidence does not apply unless the plaintiff has asserted a claim, and the defendandisputed that claim, either as to the liability or the amount of damages at the time of settlement discussion.

Claim- assertion of rights

Third Party Repairs- Most courts admit evidence of third party repairs.

o Reasoning — Most third parties will not be dissuaded from making repairs just because evidence of those repairs mi

offered against someone else. Although there may be little probative force to get past 403.

Criminal Cases:

o Except in one fairly narrow circumstance, ―statements made during the compromise negotiations of… disputed civ

are not admissible in subsequent criminal litigation, when offered to prove liability for, invalidity of, or amount of

claims.‖

One circumstance: FRE 408(a)(2)

Rule 408 poses not bar to admission at criminal trials of conduct or statements made in civil co

negotiations —when those ―negotiations related to a claim by a public office or agency in the e

regulatory, investigative, or enforcement authority.‖

o When an individual makes a statement in the presence of government agents, its subsadmission in a criminal case should not be unexpected. The individual can seek to pragainst subsequent disclosure through negotiation and agreement with the civil regul

attorney for the government.

FRE 409 (restyled) Payment of Medical and Similar Expenses

o Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from a

not admissible to prove liability for the injury.

Offer to Pay Hospital or Medical Expenses-

o Evidence that a party has paid or offered to pay hospital or medical expenses is inadmissible to prove liability. Policy — To encourage charity or generosity.

o Only excludes the offer to pay to the payment itself. Does not exclude statements of fact made in connection with the offer.

C. Liability Insurance: Focus on FRE 411 FRE 411 (restyled) Liability Insurance

o Evidence that a person was or was not insured against liability is not admissible to prove whether the person actednegligently or otherwise wrongfully. But the court may admit this eviden ce for another purpose, such as proving a

bias or prejudice or proving agency, ownership, or control.

Liability Insurance-

o P wants to show that D has liability insurance —― D has insurance so he expected to act negligently.‖

o NOT Admissible to show fault or absence of fault. Two Exceptions: May be admissible for some other relevant purpose:

Where D’s ownership or control is controverted

o D must specifically dispute ownership

To impeach witness on the ground of bias.

D. Pleas in Criminal Cases: Focus on FRE 410

FRE 410 (restyled) Inadmissibility of Pleas, Offers of Pleas, Plea Discussions, and Related Statementso (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant

the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedcomparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority (or agent of) discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

o (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) (i) in any proceeding in which another statement made during the same plea or plea discussions has b



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introduced, if in fairness the statements ought to be considered together; or

(2) (ii) in a criminal proceeding for perjury or false statement, if the defendant made the statement under the record, and with counsel present.

Evidence is always barred except where specifically permitted.

Criminal defendant may knowingly and voluntarily waive this.

o Prosecutor may as a precondition to any plea negotiations, demand that any statements they make during negotiatioused to impeach any contradictory testimony they give at trial.

Some courts believe that D must be talking with prosecutor or agent of. For example, talking to a police officer who merely ahave the authority to give a deal may not be protected.

o However, some courts believe that Rule 410 should exclude D’s statements if she ―exhibited an actual subjective e

to negotiate a plea,‖ and that ―expectation was reasonable given the totality of the objective circumstances.‖

Evidence offered against the prosecutor-

o Rule 410 bars evidence of pleas and plea discussions only when offered against the defendant. By its terms, the rulprevent the defendant from presenting evidence that the prosecutor offered to drop a charge during plea discussion

o But since admitting such evidence would thereby frustrate the purpose of the rule, some courts have ignored the st

language of the rule and have barred the evidence.

Chapter 3: Character Evidence

A. The Character-Propensity Rule: Focus on FRE 404

FRE 404 (restyled) Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

o (a) Character Evidence.

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

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

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

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

o (i) offer evidence to rebut it; and

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

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

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

o (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s chara

order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, su

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack oOn request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor int

offer at trial; and

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

People v. Zackowitz Mr. Zackowitz (Defendant) shot and killed Frank

Coppola (Victim) after Victim allegedly made

crude comments to Defendant’s wife. Defendant

was subsequently arrested and charged with the

crime of murder, and convicted in the lower court.

Defendant appeals here; the sole issue of the

appeal is the state of mind of Defendant, which

determines the degree of homicide of which Defendant is guilty.

Held. Error was committed by the lowerallowing the prosecution to present the ethe jury, as the introduction of such evidresulted in the jury being unfairly prejud

against Defendant. (Because he had weawas dangerous, and because he was dangDissent. ―Defendant was presented to th

man having dangerous weapons in his pmaking a selection therefrom, and goingput into execution his threats to kill; not of a dangerous disposition in general, buwho, having an opportunity to select a w

carry out his threats, proceeded to do so.

Propensity Box-

o Evidence that a person has a particular character trait generally is not admissible to show that a person acted in conwith that trait at a particular time.

Zackowitz’s weaponry was used to prove him ―a man of dangerous propensities, who because of those p



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was more likely to kill with deliberate and premeditated design than a man of irreproachable life and ami

manners.‖

Can be used to justify condemning a man of bad character…

B. Routes Around The Box

1. Proof of Knowledge

Hacker Problemo One shipment happenedo Another the same way to a different place, where D was caught.o D said he didn’t do the first one.

o P wants to introduce the second theft in the trial for the first. For what reason? Knowledge of how to hack the company and commit the crime.

o Is there any other way? D could admit that he has the knowledge to do it to keep out the second theft.

2. Proof of Motive

US v. Peltier I Problem

o Agents were shot, D was charged.

o P want to introduce that D had plead not guilty to attempted murder in another state and didn’t show for trial. And of a warrant for his arrest.

o Why would it be allowed?

Motive. He was on the run and didn’t want to be caught.

o Arguments against admission? They don’t need to show the reason he was supposed to be on trial.

3. Proof of Identity

US v. Peltier II Problemo D was pulled over and police found in the vehicle the agents gun with D’s fingerprint, a gun that matched the weap

killed the agents, and many other guns, tools and shells etc.o Should the judge allow admission?

Yes to the agent’s gun, finger print, and the gun that matched the weapon that killed the agents. Maybe kstuff out?

United States v. Trenkler There was a bombing. Evidence was introduced of

a previous bomb built by D to show Identity by

M.O.

Evidence is admissible when there exists

―special relevance,‖ independent of its te

show criminal propensity, on a material when the probative value of the evidencesubstantially outweighed by the danger oprejudice; here, there was such a specialwith respect to the evidence and a reason

could have determined that the same perresponsible for both bombs

Proof of Modus Operandi:

o If we know D committed a particular crime in the past, and the present offence matches that crime idiosyncratic wamay infer the defendant committed the present offense as well.

o The idea is that this could not be anyone else’s crime. o The similarities between the two crimes must be so distinctive that the inference that nobody else could have comm

crime overcomes the jury’s temptation to engage in propensity reasoning.

o Test: from Trenkler — In resolving whether the evidence supports an inference that the two incidents are sufficientl

idiosyncratic, an exact match is not necessary. The Test must focus on the ―totality of the comparison,‖ demanding not a ―facsimile or exact replica‖ bu

―conjunction of several identifying characteristics or the presence of some highly distinctive quality.‖

4. Narrative Integrity (Res Gestae)

Russian Roulette Problem

D was charged with possession of a revolver… P called W to testify that D played Russian roulette with her (mainly that D pointed a revolver at her hea

pulled the trigger). Judge allowed description of the ―game‖ but did not allow the words ―Russian roulette.‖

o Theory the judge admitted the evidence?



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Ownership or possession or knowledge by W that D owned or possessed.

o Why forbid references to Russian roulette?

Prejudicial?

o Why not just say D showed W the gun? It was a while since she would have seen the gun and seeing it that way would make her remember it. An

way might hurt her credibility.

5. Absence of Accident Cleaning His Gun Problem

o D charged with shooting wife, says it was accidentally discharged while cleaning.o P wants to introduce that he shot and killed a previous wife, which he claimed was an accident while cleaning gun

o What other reason than propensity? That he should have and did know how to clean a gun now, or the chances of the accident happening aga

o Could the judge have given instructions? Maybe allow to show a previous accident but withhold that former wife was killed. However that might

narrative integrity.

D. Propensity Evidence in Sexual Assault Cases: Focus on FRE 413, 414, & 415

FRE 413 (restyled) Evidence of Similar Crimes in Sexual Assault Cases

o (a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evithe defendant committed any other sexual assault. The evidence may be considered on any matter to which it is rel

o (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to

defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at days before trial or at a later time that the court allows for good cause.

o (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule

o (d) Definition of “Sexual Assault.” In this rule and Rule 415, ―sexual assault‖ means a crime under federal law o

state law (as ―state‖ is defined in 18 U.S.C. § 513) involving:

(1) any conduct prohibited by 18 U.S.C. chapter 109A;

(2) contact, without consent, between any part of the defendant’s body — or an object — and another pegenitals or anus;

(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s b

(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on anotor

(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1) – (4).

FRE 414 (restyled) Evidence of Similar Crimes in Child Molestation Cases

o (a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit ethat the defendant committed any other child molestation. The evidence may be considered on any matter to whichrelevant.

o (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it todefendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at

days before trial or at a later time that the court allows for good cause.


o (d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:

(1) ―child‖ means a person below the age of 14; and

(2) ―child molestation‖ means a crime under federal law or under state law (as ―state‖ is defined in 18 U513) involving:

(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;

(B) any conduct prohibited by 18 U.S.C. chapter 110;

(C) contact between any part of the defendant’s body — or an object — and a child’s genitals

(D) contact between the defendant’s genitals or anus and any part of a child’s body;

(E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pa

child; or

(F) an attempt or conspiracy to engage in conduct described in subparagraphs (A) – (E).

FRE 415 (restyled) Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation

o (a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child mthe court may admit evidence that the party committed any other sexual assault or child molestation. The evidence considered as provided in Rules 413 and 414.

o (b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party aga

it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so a



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days before trial or at a later time that the court allows for good cause.


United States v. Guardia D was indicted for two counts of criminal sexual

penetration and two counts of battery; the

indictment was based on D's alleged behaviors

while he was practicing as a gyno. P offered into

evidence the testimony of various women whoclaimed to have been abused by D, and D moved to

have the evidence excluded based on the standard

of FRE 403. The lower court granted D’s motion,

and this appeal followed.

In order for evidence to be admissible unFederal Rule of Evidence 413, a defendaon trial for, ―an offense of sexual assaultevidence must be of and concerning, ―an

offense of . . . sexual assault,‖ the lower determine that the evidence is relevant, apotential prejudicial value of the evidencsubstantially outweigh its probative valu

403). The court did not abuse its discretiwithholding the evidence.

Use of Bad Act Evidence Against a Defendant in a Sexual Assault Case or a Child Molestation Case:

o In a case alleging sexual assault or child molestation, prior specific acts of sexual misconduct or of child molestatioadmissible as part of the prosecution’s case-in-chief to show the defendant’s propensity.

Specific instances of conduct, not reputation or opinion.

E. Proof of the Defendant’s and the Victims Character: Focus on FRE 404(a)(1), 404 (a)(2), & 405

FRE 405 (restyled) Methods of Proving Character o (a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be p

testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the ch

witness, the court may allow an inquiry in to relevant specific instances of the person’s conduct.

o (b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a chor defense, the character or trait may also be proved by relevant specifi c instances of the person’s conduct.

Michelson v. United States Whether a party has the right to cross-examine

another parties character witnesses and inquireabout past bad acts such as arrests and/or

convictions?

A party has the right to cross-examine an

parties character witnesses and inquire abad acts such as arrests and/or convictio

without more does not impeach the integimpair the credibility of witness and hen

conviction may be inquired about to undtrustworthiness of a witness. Before a chwitness is cross-examined as to a prior adefendant, the prosecution should demon

privately to the court that it is not based

unsupported or untrue innuendo. Character Evidence- Refers to a person’s general propensity or disposition

o Rules for the admissibility come from Rules 404(a) & 405o Two variables that are most important in this area:

1) the purpose for which the evidence is offered 2) whether it is a criminal case or a civil case

o Criminal Cases — The person whos character is of greatest interest is Defendant. The Rule with respect to defendant’s character basically requires us to focus on three things

1) Prosecution’s case-in-chief What can P do?

2) Defendant’s DefenseWhat can D do? *May be able to open the door.

3) If D opens the door, what can P do on cross-examination and what can P do during the rebu 1. Evidence of the criminal defendant’s character to prove his conduct in conformity therewith is not adm

during the Prosecutor’s case-in-chief.

Not allowed to show general propensity for the commission of crim to raise the inference of gu 2. Defendant may introduce evidence of a relevant character trait.

May do it with reputation or opinion testimony.

Allow him to suggest that he has good character for the particular trait to raise an inference tha

guilty (his conduct conformed to the trait).o The option to introduce evidence of good character as circumstantial evidence of goo

o Only Reputation and opinion testimony is allowed for this.o Cannot testify to specific instances of conduct.o Must testify to a relevant character trait (to the type of crime).

3. Prosecution’s response to Defendant’s character evidence:

If the Defendant opens the door, the prosecution can respond in two ways:

o 1) Cross-examination of D’s character witness to ask the character witness whether h



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heard or knows of specific instances of conduct (acts or convictions or arrests) if theadversely on the character trait that D has introduced.

For impeaching the character witness’s knowledge Must be a good faith basis. Must be relevant to the type of crime If denied, the prosecutor is not allowed to prove the prior instances of cond

allowed to ask.

o 2) Rebuttal by separate character witness to show opposite character. Reputation and opinion testimony

If the Defendant himself takes the stand:

o He must open the door by introducing character. (―I’m an honest/peaceful person I wthat.‖)

o Certain permissible ways to impeach the credibility of the defendant as a witness on

the stand without him opening the door about credibility. (Character of Truthfulness Victims Character: Generally the victim’s character is irrelevant.

Self Defense Cases: Character might be admissible

o In a self defense case, D is allowed to introduce evidence about V’s violent charactercircumstantial evidence that V was the first aggressor

Door Opens and on rebuttal, P can offer evidence of V’s good character fo

peacefulness

Specific instances, Rep and Opinion Can also introduce evidence of D’s Character for violence.

Reputation and Opiniono Example: D testifies that A told him that V attacked A with a Knife. Or V told D that

attacked A with a knife. Admissible to show D’s state of mind (reason to react the way he did). To show D was aware of V’s bad acts and rep.

o Civil cases —Inadmissible to prove a person’s conduct in conformity with character. Across the board exclusion D’s liberty is not at stake There may be situations (few) where a person’s character in an essential element of a claim or defense in

character evidence must be allowed.

Tort case for defamation, Tort of negligent hiring/entrustment

o Defendant’s other crimes, wrongs or acts- General Rule- D’s other crimes or bad acts are not admissible to prove the general character or suggest D

criminal propensity.

If other bad acts show something specific about the crime currently charged (separate from just general cthen the other bad acts may be admissible as evidence bearing on guilt.

o To dismiss an alibi (closeness in time and place tends to identify D as the person wh

committed the crime) (opportunity & means).

Five most common non-character grounds for admissibility:o M- Motive

o I- Intento M- Mistake/accident, the absence thereof

o I- Identity (modus operandi)

o C- Common scheme or plan

Procedure — P has to prove that these other crimes happened

o Conviction

o Introduce evidence that the other crimes happened

Standard of proof — Sufficient evidence standard

Sufficient evidence from which a reasonable juror could conclud

committed the other crime. Court must weigh the probative value against unfair prejudice If allowed, there must be a limiting instruction to the jury Pretrial notice, criminal case- Upon D’s request, P must give notice of inte

introduce 404(b) evidence. May be used in civil cases

When does 405(b) apply?

o Only when the existence of a character trait — and not any conduct done in conformity with that trait is the thing to Examples:



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Rebutting and Entrapment Defense:

o When alleging entrapment, a D claims he was induced to commit a crime that he wootherwise commit.

o The prosecutor may rebut by showing that D was predisposed to commit the crime in

(may show that D had a thievish [corrupt or drug-dealing] disposition. No need to prove acting in conformity with the predisposition, only existen

Rebutting a Defense of Truth in a Libel or Slander Action:

o D publicly accuses P as a thief (bully or liar), which gives rise to a slander or libel aco If D claims the accusation was truthful, the trial will focus on whether P is indeed a t

or liar, making existence of a character trait a critical thing.

Resolving a Parental Custody Dispute:

o Must decide which is the better parent, character is critical.

F. Evidence of Habit: Focus on FRE 406

FRE 406 (restyled) Habit; Routine Practice o Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occ

person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regwhether it is corroborated or whether there was an eyewitness.

Halloran v. Virginia Chemicals Inc. P frequently serviced air conditioners as part of his

job as an auto mechanic. The plaintiff was filling

the new compressor with Freon and heated one of

the cans to increase the flow of the Freon, at which

point the can exploded and injured him.

Issue: Whether evidence that the plaintif

immersion-heating coil to heat the can of

refrigerant should be admitted to show h

negligence, and that he failed to follow t

labels? Evidence of habit or regular usagbe admissible to prove the plaintiff follosame procedure the day he was injured.

Habit — A repetitive response to a particular set of circumstances.o The habit of a person or the routine of a business organization is admissible as circumstantial evidence of how the p

the business acted on the occasion at issue. Two Principle Factors:

1) The frequency of the conduct, and

2) Particularityo *hint words: Always, automatically, habitually.

Chapter 4: Impeachment and Character for Truthfulness

A. Modes of Impeachment

Non-Character Impeachment —Suggestion that witness is lying now may say little about the witness’s general tendency to te

truth. Exposes one lie at a time. You’re Lying! o Contradiction by Conflicting Evidence

Can impeach a claim by a witness by calling another that says otherwise. Can contrast a claim with the common experiences of life, which in light of other facts might render the t

implausible. Such contradiction can expose not only lies, but also mistakes of perception, memory, or narration.

o Contradiction by Past Inconsistent Statement Witness has said different things at different times, and therefore shouldn’t be believed on this point . Not only for lying, also for misperception, etc.

May invite suspicion that witness intended to deceive.o Evidence of Bias

Describes the relationship between a party and a witness which might lead the witness to slant his testimfavor or against a party.

Like, dislike, or fear of a party

Self interest in preferring one outcome over another

o Rules 402 and 403 constrain such evidence, as may rules governing hearsay, expert testimony, and privileges.

Character-Based Impeachment —Casting doubt on a witness’s words by showing that he is, by trait, a liar and lied in confor

that trait. Lying Liar!

o 404(a)(3) specifically permits propensity evidence concerning ―the character of a witness, as provided in Rules 60609.

o FRE 607: Either party may attack a witness’s credibility, including the party that sponsored the witness.

o FRE 608(a):



Michael Mroczka

Either party may offer evidence of a witness’s character for untruthfulness. The opponent may then rebut with evidence of the witness’s character for truthfulness.

Inference — The witness has good or bad character for truthfulness and therefore is more or lesshave lied in this case.

Both must take form of reputation or opinion.

o FRE 608(b): On cross-examination a party may ask a witness about specific instances of the conduct of a witness to at

support the witness’s character for truthfulness. Permits inquiry about the specific instance;

o During cross-examination of the witness who did the specific conducto During cross-examination of a character witness who has offered testimony about th

substantive witness’s character.

Inference —The person’s past lies (or similar conduct) are evidence of her general bad characte

truthfulness and she, acting in conformity with that trait, is lying now.

Limitations:

o Must be probative of truthfulness or untruthfulness

o May not be proved by extrinsic evidence

o Must survive 403o Good faith/reasonable basis needed

o Covered by 609 but excluded by 609, not allowed here.o FRE 609:

Either party may seek to impeach a witness by showing her past conviction of a sufficiently serious or de

crime.

Inference — The past crime is evidence of general immorality or lawlessness and acting in confwith that trait, the witness is lying now.

609(a)(2);

Only applies if it readily can be determined that establishing the elements of the crime requiredadmission of an act of dishonesty or false statement by the witness.

o The statutory element of a charged crime;o The face of the trial courts judgment;o The indictment;o A statement of admitted facts (if any); or

o Jury instructions (if any).

Unless the judge can find a requirement of proof of dishonesty or false statement on the surfacepaper record, the conviction is inadmissible under 609(a)(2) even if the witness exhibited disho

made a false statement in the process of the commission of the crime.

Then must be weighed under 609(b), (c), and (d).

B. Impeachment by Opinion, Reputation, and Cross-Examination About Past Lies: Focus on FRE 404(a)(3) & 608

FRE 608 (restyled) Evidence of Character and Conduct of Witness

o (a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about threputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion aboutcharacter. But evidence of truthful character is admissible only after the witness’s character for truthfulness has beattacked.

o (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not adm

prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulnesscourt may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulneuntruthfulness of:

(1) the witness; or

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

o By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony tha

only to the witness’s character for truthfulness.

C. Impeachment with Past Convictions: Focus on FRE 609

2. Rule 609 in Force

FRE 609 (restyled) Impeachment by Evidence of Conviction of Crime

o (a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a crimconviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more

year, the evidence:



Michael Mroczka

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the wit

a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative vaevidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily dethat establishing the elements of the crime required proving — or the witness’s admitting — a dishoneststatement.

o (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissibl

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudi

and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party

opportunity to contest its use.

o (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equi

procedure based on a finding that the person has been rehabilitated, and the person has not been convicte

crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on ainnocence.

o (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence.

o (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Eviden

pendency is also admissible.

United States v. Brewer After being charged with kidnapping, D filed a

motion to suppress the P’s introduction of past

criminal convictions, which would be used to

impeach D if he takes the stand at trial. Four total

convictions, and the admissibility of each into

evidence, are at issue here.

Under FRE 609, evidence of past criminconvictions are allowed when used to att

credibility of a witness, but only when thprobative value of the conviction supporspecific facts and circumstances substanoutweighs its prejudicial effect.

-Motion to suppress denied as to three ofpast convictions and granted as to the pr

kidnapping conviction.-No as to the past kidnapping conviction

probative value of the past conviction ontruthfulness does not outweigh the prejueffect should the jury hear of it. (when psame=very prejudicial)

-Yes as to the remaining three past convi

methods to impeach the credibility of D take the stand.

Brewer’s Probative value Test: Whether the probative value of admittingevidence outweighs its prejudicial effect. p. 276

o The court points to five factors to be examined:

(1) the nature of the crime; (2) the time of conviction and the witness’ subsequent

history;

(3) similarity between the past crime and the charged crime; (4) importance of defendant’s testimony; and (5) the centrality of the credibility issue.

D. Rehabilitation

Rehabilitation —Repairing a witness’s credibility only after it is attacked . 608 & 609 are attacks on character for truthfulness Evidence that attacks a witness’s specific testimony may call in question the witness’s general character

truthfulness.

Depends upon the circumstances.

o If can be explained as mistake of perception, memory, or narration, it might not be a and would not qualify as an attack.

o If the contradicting evidence suggests the witness has lied intentionally, then it may q

an attack.

o Ways to do it: Explain the impeaching fact Show the witness’s good character for truthfulness by reputation or opinion testimony of a character witn

If impeachment clearly suggested that the witness was lying as opposed to merely being mistak Prior Consistent Statement to rebut a charge of recent fabrication. FRE 801(d)(1).

If PCS was made before the motive to fabricate arose



Michael Mroczka

o Bonus — gets admitted into evidence Evidence that the witness was telling the truth as

Example: W-―traffic signal was red.‖ Can introduce evidence that the signal was indeed red (oprove color of light not truthfulness, therefore not constrained by character evidence rules).

o Need not wait until attackedo Subject to 403 as cumulative evidence

E. Use of Extrinsic Evidence Use of Extrinsic Evidence Not Available: Litigant must take the answer of the witness to the question posed on cross-examin

o Rule 405(a) — the litigant may ask a character witness on cross-examination whether that witness has heard of a spe

committed by the person about whose character the witness is testifying. Regardless of the witness’s answer, the lawyer may present no other evidence regarding the fact

o Rule 608(b) — The litigant may cross-examine a witness about specific instances of conduct that bear on character truthfulness. The rule explicitly states that such conduct, other than conviction of a crime as provided by Rule 609,

be proved by extrinsic evidence. If a witness denies having done or heard of the specific act, the lawyer may not present further evidence

Use of Extrinsic Evidence Available:

o Evidence tending to show bias, prejudice, or motive to lie.

o Conviction of a crime as provided in rule 609.

o Evidence to contradict/corroborate specific testimony (―light was red.‖ Evidence to show it was or wasn’t.)

o Prior Inconsistent statement, 613(b): Only if the witness is afforded an opportunity to explain or deny the same andopposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise req

Chapter 5: The Rape Shield Law

C. The Law in Force

FRE 412 (restyled) Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisp

o (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged smisconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim’s sexual predisposition.

o (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case:

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someothan the defendant was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accu

sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor;

(C) evidence whose exclusion would violate the defendant’s constitutional rights. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior

predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfa prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placcontroversy.

o (c) Procedure to Determine Admissibility. (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:

(A) file a motion that specifically describes the evidence and states the purpose for which it is toffered;

(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;

(C) serve the motion on all parties; and

(D) notify the victim or, when appropriate, the victim’s guardian or representative.

(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing andvictim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related m

and the record of the hearing must be and remain sealed.o (d) Definition of “Victim.” In this rule, ―victim‖ includes an alleged victim.

2. Explaining the Source of Physical Evidence

3. Past Allegedly False Accusations

State v. Smith D was convicted of attempted indecent behavior

with a juvenile, and appeals that conviction here.

The allegations were made by a juvenile. When D

attempted, on cross-examination, to inquire into

whether V had ever made similar accusations

The state rape shield law prohibits evide

victim’s past ―sexual behavior,‖ here thedisallowed was not concerning the victimsexual behavior, history or reputation fo

but rather was offered for impeachment



Michael Mroczka

against others, the lower court did not allow it,

citing the state rape shield statute. Past allegedly false accusations can be u

impeachment purposes.

4. 404(b) — Style Uses of Evidence of Past Sexual Behavior

a. Proof of Bias

Olden v. Kentucky D was convicted of forcible sodomy of V. D

maintained the sex was consensual, and V gave

several different accounts of the alleged sexualassault. V testified that she was living with her

mother at the time of the trial, and D sought to

introduce evidence that she was living with the

only witness who corroborated her story (now her

husband).

D wanted to prove that V was living withtime, therefore giving her motive to lie to

the court. Should have been allowed to cexamine, pursuant to the 6th amendmentconfront. It would have been used to impcredibility based on motive to lie in this

Unit II: Reliability

Chapter 7: The Rule Against Hearsay

B. Defining Hearsay

1. The Basic Rule: Focus on FRE 801(a)-(c) & 802

FRE 801 (restyled) Definitions; Exclusions From Hearsay

The following definitions apply under this article:

o (a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person as an assertion.

o (b) Declarant. “Declarant” means the person who made the statement. o (c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

o (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination a

prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a t

hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied chthe declarant recently fabricated it or acted from a recent improper influence or motive in so te

(C) identifies a person as someone the declarant perceived earlier. (2) An Opposing Party’s Statement . The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationshi

while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

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

FRE 802 (restyled) Hearsay Rule o Hearsay is not admissible unless any of the following provides otherwise:

a federal statute; these rules; or other rules prescribed by the Supreme Court.

Hearsay:

The Problem with Hearsay — The inability of the opponent to cross-examine the declarant in the presencefact finder at the time it was made.

o If not being offered to show truth, not hearsay.

Three Principle Categories of Non-Hearsay Statements:

o 1) The Verbal Act or Legally Operative Words: A situation were the substantive law attaches legal significance to certain words simply because those w

spoken. (I offer/accept.)

Words of defamation in a tort act for defamation Misrepresentation in fraud Bribery



Michael Mroczka

Making a gift

o 2) Words that are used to show an effect on the person who heard or read the statement:

Not hearsay if used for something other than to show truth Shows effect on the person who heard the words

Words that give a person motive to do something

o 3) Using the words as circumstantial evidence of the speaker’s state of mind. ―I am Elvis and it’s good to be back.‖

Relevant on insanity, not that he is Elvis.

2. Defining Assertions

Words Most oral and written expressions are manifestly assertive

o Declarative sentences-―This ship is safe.‖

Implied Assertions

o Commands- ―don’t run that stop sign‖- telling there is a stop sign ahead. ―Close the door.‖ More ambiguous.

If the person at whom the command is directed can see that the door is open.o If offered to prove the door is open, probably not hearsay.o If offered to prove that the declarant wants the door closed, probably hearsay.

o Questions

―does sarah sell drugs? How do you think she afforded that car?‖ hearsay if offered to prove that sarah sells drugs and bought her car from the proceeds.

What is your name? If offered to prove that the speaker did not know name.

o Declarative — Laura ought to give that dog a bath. = that dog is dirty

Indirect Assertionso ―I just spent all morning with the architect planning my retirement home.‖

Declarant dies of overdose; Prosecutor offers to show she was not mulling suicide. The immediate fact (planning her retirement home) is a necessary link in the chain of inferences leading to the

intermediate fact (she was planning for the long term), which leads to the ultimate fact (she probably was not suicide). Therefore the statement is being offered to prove what it asserts and is hearsay.

Non-hearsay Uses of Out-of-Court Statements

o Nonassertive words: ―Ouch.‖ Involuntary expression — Not intending to communicate pain, would not be hearsay if offered to prove you we

o Words Offered to Prove Something Other Than What They Assert

Letters to written to someone who had known him well, Offered to prove competency.

The letters said nothing — their authors intended to communicate nothing — about the testator’s comNot hearsay

No assertion of competence, no evidence to show they implied that he was competent.

Offered to prove that the writers believed he was competent.

o Assertions offered as Circumstantial Proof of Knowledge Sexually assaulted little girl described where defendant took her. Wanted to introduce it at trial to show knowledge of the appearance of the man’s residence. Not hearsay.

C. Statements of Party-Opponents

1. The Party’s Own Words: Focus on FRE 801(d)(2)(A)

Party Admission — 801(d)(2): Defined as non-hearsay

o Admission by a party-opponent

Any statement made by a party is admissible if offered against the party.

Does not allow a party to use her own prior self serving statement in support of her own case.

2. Adoptive Admissions: Focus on FRE 801(d)(2)(B)

3. Statements of Agents: Focus on FRE 801(d)(2)(C) & (D)

Vicarious Party Admissions:

o A statement made by an agent or employee is admissible against the principle if; the statement concerns a matter within the scope of the agency or employment; and the statement was made during the existence of the agency or employment relationship.

4. Coconspirator’s Statements: Focus on FRE 801(d)(2)(E) & 104(a)



Michael Mroczka

Preconditions for the coconspirator exception

o That a conspiracy existed at the time the out of court statement was made;o That the conspiracy included both the declarant and the party against whom the statement is offered; ando That the declarant spoke during the course of and in furtherance of the conspiracy.

Application of the coconspirator exception does not depend on whether the government has formally charged conspiracy.

Almost never applies to a confession made knowingly to the police and implicating one’s associates.

o Must be made in furtherance; confession may well terminate the conspiracy and almost never furthers it.

Bourjaily v. United States Petitioner, Bourjaily (friend), was charged with

conspiring to distribute cocaine and possession of

cocaine after he attempted to buy cocaine from an

FBI informant through his co-conspirator Angelo

Lenardo. Petitioner objected to the admission of

taped conversations between Lenardo and the

informant.

The standard of review for the initial det

of whether a co-conspiracy exists for theof applying Rule 801 (d)(2)(E) is a prepoof the evidence, and the evidence availabthreshold. The court is allowed to look a

hearsay statements in making that determhowever did not decide if it could look astatement alone to make the determinatio

D. Past Statements of Witnesses and Past Testimony

2. Inconsistent Statements Offered to Impeach: Focus on FRE 613

FRE 613 (restyled) Prior Statements of Witnesses

o (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its con

adverse party’s attorney. o (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statem

admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given anopportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing statement under Rule 801(d)(2).

United States v. Barrett Wanted to introduce prior inconsistent statement of

a witness.

613(b) does not absolutely require that abe laid to introduce a prior inconsistent sonly that an opportunity be given to the explain or deny that statement. Excludin

statement constituted reversible error, asintroduction might have raised a reasonain the minds of the jurors.

United States v. Ince Under Federal Rule of Evidence 607, a witness’scredibility may be attacked through impeachment

testimony, but when testimony lacks any probativevalue and carries a high risk of prejudice, the

evidence must be excluded, even when it meets thetechnical requirements of Rule 607.

Stevens’ testimony was offered to impeaprior inconsistent statement of Neumann

lower court nonetheless committed erroradmitting the evidence because the testim

carried a high risk of prejudice and was lany probative value. The government’s oapparent purpose for impeaching on of itwitnesses was to circumvent the hearsay

3. Inconsistent Statements Offered Substantially: Focus on FRE 801(d)(1)(A)

4. Past Consistent Statements: Focus on FRE 801(d)(1)(B)

Tome v. United States Statements were made after the motive t

5. Statements of Identification: Focus on FRE 801(d)(1)(C)

United States v. Owens Witness testified at trial but was unable to

remember identifying D or explain the basis of his

ID because of brain damage.

Prior identification is not inadmissible dumemory loss of the witness when he is a

testify. Easy to cross-examine someone wmemory loss.

E. Hearsay Exceptions Under Rule 804: “Declarant Unavailable” FRE 804 (restyled) Hearsay Exceptions; Declarant Unavailable

o (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court ru

privilege applies; (2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physicor mental illness; or

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or othe



Michael Mroczka

reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6);

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(or (4).

o But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s

unavailability as a witness in order to prevent the declarant from attending or testifying.

o (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a

(1) Former Testimony. Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the cu

proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interestopportunity and similar motive to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a st

that the declarant, while believing the declarant’s death to be imminent, made about its cause or circums (3) Statement Against Interest . A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believetrue because, when made, it was so contrary to the declarant’s proprietary or pecuniary interes

great a tendency to invalidate the declarant’s claim against someone else or to expose the declacivil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it isa criminal case as one that tends to expose the declarant to criminal liability.

(4) Statement of Personal or Family History. A statement about:

(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship badoption, or marriage, or similar facts of personal or family history, even though the declarant

way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related person by blood, adoption, or marriage or was so intimately associated with the person’s famildeclarant’s information is likely to be accurate.

(5) [Other Exceptions .] [Transferred to Rule 807.] (6) Forfeiture by wrongdoing . A statement offered against a party that wrongfully caused — or acquiesc

wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

1. Past Testimony: Focus on FRE 804(a) & 804 (b)(1)

United States v. DiNapoli At trial, when the prosecution attempted to introduce evidence of grand jury testimony under F

of Evidence 804(b)(1), the lower court held that the “similar motive” requirement was not met

disallowed the testimony.

In determining whether the ―similar motive‖ requirement of Rule 804(b)(1) is met, the court must consider: o whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substan

similar intensity to prove (or disprove) the same side of a substantially similar issue.o The nature of the two proceedings – both what is at stake and the applicable burden of proof – and, to a lesser extent, th

examination at the prior proceeding – both what was undertaken and what was available but forgone – will be relevant conclusive on the ultimate issue of similarity of motive.

Lloyd v. American Export Lines,Inc.

D wanted to introduce evidence from a coast guard

hearing that Alvarez started the fight. Lloyds

testimony refuted Alvarez’s. Culpability was the

interest.

Testimony was admissible under Rule 80

the Coast Guard and Alvarez shared a ―cof interest,‖ which meets the Rule’s ―preinterest‖ requirement, and because both

Guard and Alvarez had a ―similar motivdevelop Plaintiff’s prior testimony.

Former Testimony Exception

o The former testimony of a now unavailable witness if gen at a former proceeding or deposition is admissible agains

who on the prior occasion had an opportunity and a motive to cross-examine or develop the testimony of that witne How to make sure the motive was there:

If the issue in both proceedings are essentially the same

Grand jury proceedings don’t give opportunity to cross.

2. Statements Against Interest: Focus on FRE 804(b)(3)

Williamson v. United States Harris was pulled over by the police for erratic

driving, and a subsequent search revealed several

kilos of cocaine. He gave one version of how he got

the drugs during his first interview with the police,

but subsequently changed his story.

Rule 804(b)(3) does not allow admissionself-inculpatory statements, even if they

within a broader narrative that is generalinculpatory. Especially true when the staimplicate someone else.



Michael Mroczka

4. Dying Declarations: focus on FRE 804(b)(2)

Shepard v. United States part 1 D was convicted of poisoning his wife, allegedly

because he was in love with another woman and

wanted to marry her. At trial, the prosecution

attempted to admit evidence of a conversation that

the dying woman had with her nurse, in which she

had implicated D.

In order for a statement to be admitted adeclaration, there must be sufficient proostatement was made in the shadow of imdeath and that the declarant had no hope

recovery whatsoever.

Focus on FRE 806: Attacking and Supporting Credibility of Declarant FRE 806 (restyled) Attacking and Supporting Credibility of Declarant

o When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in ev

declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those pu

the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or cregardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party againsthe statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement a

cross-examination.

4. Forfeiture by Wrongdoing: Focus on 804(b)(6)

United States v. Gray D contends that she did not intend to procure

Declarant’s unavailability as a witness at this trial. A defendant who wrongfully and intentirenders a declarant unavailable as a witnproceeding forfeits the right to exclude, grounds, the declarant's statements at tha

proceeding and any subsequent proceedito render unavailable as a witness in somapplies.

F. Hearsay Exceptions Under Rule 803: “Availability of Declarant Immaterial”

FRE 803 (restyled) Hearsay Exceptions; Availability of Declarant Immaterial

o The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a wi

o (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immedia

the declarant perceived it.

o (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under thexcitement that it caused.

o (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state o(such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodil

but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the terms of the declarant’s will.

o (4) Statement Made for Medical Diagnosis or Treatment . A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general ca

o (5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and acc (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge.

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

o (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by — or from information transmitted by — someone with k (B) the record was kept in the course of a regularly conducted activity of a business, organization, occup

calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a

certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

o (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record des paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible source of the information nor other circumstances indicate a lack of trustworthin

o (8) Public Records. A record or statement of a public office if: (A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a



Michael Mroczka

observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally

investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

o (9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accora legal duty.

o (10) Absence of a Public Record . Testimony — or a certification under Rule 902 — that a diligent search failed to

public record or statement if the testimony or certification is admitted to prove that: (A) the record or statement does not exist; or (B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of t

1. Present Sense Impressions and Excited Utterances: Focus on FRE 803(1) & (2)

Present Sense Impression — A description of an event made while the event is still occurring or immediately thereafter.

Excited Utterance — A statement concerning a startling event and the statement was made while the declarant is still under th

the excitement caused by the event

o Three Factors: 1) The nature of the event 2) the passage of time: theoretically up to an hour, or more. 3) Visual clues

Exclamatory phrase

Excitement oriented verb (shouted, screamed, exclaimed) Exclamation points

2. Statements of Then-Existing Condition: Focus on FRE 803(3)

Mutual Life Insurance Co. v.

Hillmon

Mrs. Sallie Hillmon (”Mrs. Hillmon”), upon the

death of her husband, sought to collect on three

insurance policies insuring his life. The insurance

company defended on the grounds that Mr.

Hillmon was not actually dead.

The letters were the natural proof of Mr.

intention to travel from Wichita to Crookwith Mr. Hillmon on a certain day. The ladmissible as evidence of the fact that heintention of going from Wichita and of g

Mr. Hillmon. These things are not provaother testimony, as Mr. Waters himself iunavailable to testify at trial. Can only bfor intent, not that he did in fact go with

Shepard v. United States part 2 A statement that looks backward in timebe admitted as evidence going to the stat

of the unavailable declarant. State of minmay only look forward into the future w

statements of feeling or intent.

Declarant’s Present State of Mind— How he feels about something or someone (feelings emotions) — Trying to prove state o

Declarant’s declaration of intent—Declarant’s intent to do something in the future, including the intent to engage in conductanother person

Present Physical Condition —A statement made by the declarant to anyone describing the declarant’s current physical condit

3. Statements for Medical Diagnosis: Focus on FRE 803(4)

United States v. Iron Shell D was convicted by a jury of assault with intent tocommit rape on V. At trial, various out-of-courtstatements, made by V to a police officer and a

physician, were admitted under two exceptions tothe hearsay rule. Based on the admission of the

out-of-court statements by the lower court, Dappeals his conviction.

The elements of the exception provided 803(4) were present, and the statements therefore properly admitted. Statements

reasonably pertinent to diagnosis or treat

A Statement made for the purpose of receiving medical treatment or diagnosis — A statement made to anyone concerning any

following things:

o Present symptoms

o Past symptoms

o The general cause of the declarant’s condition, if the purpose of the statement is to receive medical treatment or di

4. Refreshing Memory and Recorded Recollections: Focus on FRE 803(5) & 612

FRE 612 (restyled) Writing Used to Refresh Memory



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o (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options.

o (b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criman adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness a

and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that tincludes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order th

be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.o (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the cou

issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the wit

testimony or — if justice so requires — declare a mistrial.

Johnson v. State A prosecution witness’s previously recorded

statement was read into evidence, despite the

witness’s indication that he had no recollection of

the events to which his statement referred.

Federal Rule of Evidence 803(5) when th

evidence that a witness had firsthand knoan event and there is no testimony givenwitness’s memory was correctly transcrithe factual assertions contained in the sta

were true, not admissible.

803(5) requires that four requirements be met;

o 1) The witness must have had firsthand knowledge of the event;o 2) The written statement must be a memorandum made at or near the time of the event while the witness had a clea

accurate memory of it;

o 3) the witness must lack a present recollection of the event; ando 4) the witness must vouch for the accuracy of the written memorandum.

To meet the fourth element, the witness may testify that she presently remembers recording the fact correremembers recognizing the writing as accurate when she read it at an earlier time.

But if her present memory is less effective, it is sufficient if the witness testifies that she knows the memocorrect because of a habit or practice to record matters accurately or check them for accuracy.

It may even be sufficient if the individual testifies to recognizing her signature on the statement and beliestatement correct because she would not have signed it if she had not believed it true at the time.

However, the witness must acknowledge at trial the accuracy of the statement

5. Business Records: Focus on FRE 803(6) & (7)

Palmer v. Hoffman The petitioner attempted to admit statements from

the train engineer made in an interview two days

after the accident. The engineer died before the

trial. The petitioner attempted to admit theengineer’s statements as a business record,

arguing that they were made in the course of a

routine accident report.

Business records admissible under the hexception rules do not include accident rprepared for litigation even if the reports

prepared in a routine, systematic processSupreme Court reasoned that the statemenot in a record inherent for a railroad com

United States v. Vigneau Western Union money transfers for drugs.

The Western Union forms were filled out in part by someone not affiliated with the business, and then admitted for all purposes, includidentity of the person that filled out the ―sender‖ information on the form. Might have been admissible if WU had used a pro cedure for

the identity of the sender, but at the time of this trial, WU had no such procedure, making it impossible to prove that the person who fil―sender‖ information on the forms was who he said he was.

Business Records — Five elements:

o 1) The records of any type of businesso 2) The records were made in the regular course of the business

o 3) The business regularly keeps this type of record

o 4) The record was made at or about the time of the event recorded

o 5) The contents of the record consist of either of two things:

information observed by employees of this business a statement that falls within an independent hearsay exception

o General Rule: If statements of outsiders are contained in a business record, they must be redacted. Except: when outsider statement falls within an independent hearsay exception.

6. Public Records and Reports: Focus on 803(8) & (10)

Beech Aircraft Corp. v. Rainey The spouses of the Ps died during flight training

when their plane was unable to recover from an

evasive maneuver. D attempted to admit an

investigative report that concluded the accident

Federal Rules of Evidence (‖F.R.E.) Rulshould be construed broadly to ensure recontain opinions or conclusions are not

automatically excluded from evidence. A



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was caused by pilot error. the conclusion is based on a factual inve

and satisfies the Rule’s trustworthinessrequirement, it should be admissible.

Public Records — records of a public office or agency setting forth any of the following three things:

o 1) The activities of the office or agency itself ex: its own internal payroll records

o 2) matters observed pursuant to a duty imposed by law

o 3) A government report containing findings of fact or opinions resulting from an investigation authorized by law Different in criminal cases: police reports prepared for prosecutorial purposes and government investigatory findings are not

against the defendant in a criminal case.

G. Residual Exception: Focus on FRE 807

FRE 807 (restyled) Residual Exception o (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay

the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent canthrough reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and the interests of justice.

o (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party rea

notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that thea fair opportunity to meet it.

United States v. Laster D were convicted of drug offenses after the

company for which D worked reported that anemployee had ordered an ingredient used to make adrug from a supplier. At trial, the records showingthe orders from the supplier of the ingredient were

offered and admitted into evidence.

Although Federal Rule of Evidence 807

―residual‖ hearsay exception and shouldrelied on if a statement is admissible undhearsay exception, in the absence of anyapplicable exceptions, Rule 807 may be

relied on.

Chapter 8: Confrontation and Compulsory Process

A. Confrontation Clause and Hearsay

Crawford v. Washington In a criminal case, the sixth amendment requires that the defendant be confronted wit

witnesses against him — Be afforded an opportunity to cross-examine the witness.o The prosecution may not introduce testimonial hearsay in violation of the d

right to cross-examine the declarant.o Even if you satisfy a hearsay exception under the law of evidence, the 6th A

trumps the hearsay law.

The right to cross examine is satisfied if the defendant;

o 1) had a chance to cross-examine the declarant before trial. (former testimony exception)

o 2) has the opportunity to cross-examine the declarant at trial (prior statement of the witness)

o 3) Forfeited his confrontation right through witness tampering. (forfeiture by wrongdoing)

Testimonial Hearsay:

o Statement that qualify as testimonial: 1) Grand Jury testimony 2) Prior testimony at a preliminary hearing 3) testimony at a former trial 4) Statements made in response to police interrogation may be testimonial.

a) if the primary purpose of the police questioning is to establish or prove past events that are prelevant to a later criminal prosecution

o Statements made to the police are not testimonial if the primary purpose of the policequestioning is to enable the police assistance to meet an ongoing emergency.

5) Documentary Evidence:

a) Affidavits — Written statement made under oath

o if prepared for use at a criminal trial, it is testimonial Sworn certificates by forensic laboratory analysts describing the narcotic c

tested substance.

b) Police reports prepared for prosecutorial purposes--Testimonial



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c) business records — Not testimonial

Michigan v. Bryant Man was shot through the door of D’s home. Mandrove a distance away, got out of his car and fell to

the ground. Police arrived and began asking

questions.

Bullcoming v. New Mexico D on trial for DWI. Lab report was done regarding

D’s BA concentration. The witness was not the person who analyzed the blood sample.

The surrogate testimony was not enough

the constitutional requirement.

B. The Bruton Doctrine

Concerns the problem of an out-of-court admission made by an accomplice who is tried jointly with the defendant.

o The confessing accomplices words are admitted against her as the statement of a party opponent.

o If offered against the defendant, however, they will most likely fail the Confrontation Clause scrutiny.

o An accomplice’s confession to law-enforcement authorities almost never will qualify as a coconspirator’s statement— Tare not directly admissible against the defendant.

Bruton v. United States In a joint trial, coconspirator’s confession was

admitted against her as admission by party

opponent. The problem was, the confession also

incriminated D and coconspirator was

unavailable.

Violates confrontation clause and prejud

Defendant.

Chapter 9: Lay Opinions and Expert Testimony

A. Lay Opinions: Focus on FRE 701

FRE 701 (restyled) Opinion Testimony by Lay Witnesses o If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

B. Expert Testimony: Focus on FRE 702

FRE 702 (restyled) Testimony by Experts

o A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the foopinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understa

evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

o Evaluating Reliability

o Testing — has there been testing of the principle or methods?

o Rate of Error — Is there a high rate of error?

o Acceptance by other experts in the field — What level?o Peer Review and Publications — If others have written it up its more likely to be reliable.

1. Who Qualifies as an Expert?

Jinro America, Inc v. SecureInvestments. Inc.

Expert to testify about Korean business practices. Stereotyped Korean business. Did not hasufficient experience in the field nor base

reliable principles etc.

2. (Im)proper Topics of Expert Testimony: Focus on FRE 702 & 704

FRE 704 (restyled) Opinion on Ultimate Issue

o (a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces anissue.

o (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or dhave a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters aretrier of fact alone.

a. Matters of Common Knowledge

b. Opinions on Law and Opinions on Ultimate Issues

Hygh v. Jacobs Expert testified that, in his opinion, D had used

“deadly physical force” when such a level was not Can not tell the jury what result to reach

crossed the line with some of his conclus



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“warranted under the circumstances.” warranted under the circumstances‖).

3. Proper bases of Opinion Testimony: Focus on FRE 703 & FRE 705

FRE 703 (restyled) Bases of Opinion Testimony By Experts o An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally ob

experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subneed not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the

of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion su

outweighs their prejudicial effect.

FRE 705 (restyled) Disclosure of Facts or Data Underlying Expert Opinion o Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first tes

the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

5. Assessing the Reliability of Non-Scientific Evidence

a. The Doctrine

Kumho Tire Co. v. Carmichael Expert intended to testify that in his expert opiniona defect in the tire’s manufacture or design causedthe blow out.

Federal Rules of Evidence (‖F.R.E.‖) Rugives a district judge discretion to determreliability of evidence in regards the circand facts of a particular case.

b. A Focus on Syndrome Evidence

State v. Kinney Expert testimony concerning rape trauma syndrome is admissible, ―to assist the jury in evaluati

evidence, and . . . to respond to defense claims that the victim’s behavior after the alleged rape inconsistent with the claim that the rape occurred.‖ Expert testimony concerning the rate of falsreporting, however, when offered as an explanation of the typical behavior of rape victims and―tantamount to an expert opinion that the victim was telling the truth,‖ is inadmissible.

Unit III: Privileges

Chapter 11: Privileges: General Principles

A. Rule 501’s Origins and Application: Focus on FRE 501

FRE 501 (restyled) General Rule o The common law — as interpreted by United States courts in the light of reason and experience — governs a claim

privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or

rules prescribed by the Supreme Court.

o But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of

Jaffee v. Redmond During discovery, the Petitioner learned that the

Respondent participated in 50 counseling sessions

with a clinical social worker. The Petitioner sought

access to the notes taken by the social worker

during those sessions and the Respondent resisted

their discovery arguing that disclosure should be

prevented because of a psychotherapist-patient

privilege.

The federal courts should recognize apsychotherapist privilege.

Further, the privilege should extend to ccommunications made by licensed sociain the course of psychotherapy.

The conversation between the Respondetherapist, and the notes taken during the

sessions, are protected from compelled dunder F.R.E. Rule 501.

Chapter 13: Familial Privileges

A. The Marital Privileges

1. The Spousal Testimonial Privilege

Trammel v. United States Petitioner was convicted of importing heroin intothe United States and conspiracy to import, based

upon the testimony of his wife. Petitioner appealed,

claiming that the admission of the adverse

testimony of his wife, over his objection

The witness-spouse alone has a privilegeto testify adversely; the witness may be ncompelled to testify nor foreclosed from

to evidence that does not consist of confmarital communications.

Spousal Testimonial Privilege — Available in criminal cases only

o A spouse cannot be compelled to testify about anything against the defendant spouse To protect marital harmony at time of trial

o This privilege belongs to the witness spouse, not the defendant. The witness spouse may voluntarily testify against the defendant.



Michael Mroczka

2. The Marital Confidences Privilege

Marital Confidences Privilege — Applies in any case

o A spouse is not required and is not allowed in the absence of consent to disclose a confidential communication thatby on to the other during the marriage.

Both spouses hold this privilege

Exceptions — Applies to both testimonial and confidences

o No privilege for communications or acts in furtherance of a future crime or fraudo Communications and acts that are destructive of the family unit (spousal and child abuse etc.)

Chapter 10: Authentication, Identification, and the “Best Evidence Rule”

Authentication:

o General rule: A writing is not admissible until it has been authenticated Preliminary proof has to be presented to prove that it really is what it purports to be — Laying a foundatio

o Methods of Authentication: FRE 901 Direct evidence

Personal knowledge of a witness

Proof of a persons hanwriting

o Lay witness — Opiniono Comparison by Experto Jury Comparison

Circumstantial Evidence Ancient Document rule

o 20 years or more old

o regular on its face — no whiteouts or erasers

o found in a place of natural custody Solicited Reply Doctrine — Comes back to you in response to a prior solicitaton

o Self authenticating Documents

Official Publications — Govt Docs Certified copies of public or private records that are on file in a public office — Deed Newspapers or periodicals Trade encryption and labels

Acknowledged document — notarized Commercial Paper — promissory notes

Best Evidence Rule — FRE 1001-1006

o Requires that a party who is seeking to prove the contents of a writing must either produce the original of the writinprovide an acceptable excuse for its absence.

If there is an acceptable excuse, the foundation is laid to prove the contents of secondary evidence

Copy or oral testimonyo BE Rule applies when: When a party is seeking to prove the contents of a writing.

1) Were the writing is a legally operative document

creates or destroys legal rights or obligations (deed, will, etc.) 2) Where a witness is testifying about facts that she learned solely from reading about them in a writing

o Does not apply when: A witness with personal knowledge testifies to a fact that exists independently of a writing which records

When the BE rule applies;o Must produce original

Whatever the parties intended as the original

can be more than one

Duplicates — Any counterpart produced by any mechanical means that accurately reproduced the originalo In general, admissible to the same extent as an original.o Except:

If a genuine question is raised as to the authenticity of the original Where it would be unfair

o Handwritten Copy is NOT an original or duplicate

Satisfactory Excuses:

o Original cannot be obtained with legal process

o Original is lost or cannot be found with due diligence

o Original has been destroyed without bad faith



Michael Mroczka

Escapes from BE Rule:

o Voluminous Records — Summary or chart provided originals are available for inspectiono Certified copies of public records

o Collateral documents —doesn’t go to anything really important

Good Sufficient Preponderance Beyond a reasonable

Faith Evidence doubtbasis|--------------------------------|-------------------------------------------|------------------------------------------------|

Impeachment 104(b) 104(a) Crim case verdictJudge other wrongs 404(b)

104(b) jury