I.
Relevance
·
FRE 401
o
Evidence is relevant if it makes a fact material to the case more or less
probable.
·
FRE 402
o
Irrelevant evidence is
inadmissible
o
Relevant evidence is admissible
EXCEPT when barred by, inter alia,
other FREs.
·
FRE 403
o
Relevant evidence is inadmissible
if its probative value is substantially outweighed by the danger
of:
§ Unfair
prejudice;
§ Confusing
the issues;
§ Misleading
the jury;
§ Undue
delay;
§ Wasting
time; and/or
§ Redundancy.
·
Old
Chief v. U.S.
o
Charge was felon-in-possession. D
stipulated to the fact that he was a felon because of a prior felony
conviction. State wanted the full conviction record admitted.
o
The full conviction record is
relevant to a material fact of the case (D’s status as a felon). But the danger
of unfair prejudice substantially outweighs the probative value because D
stipulated to being a felon, making the details a moot point. The details would
only inflame the jury.
·
State
v. Chapple
o
The only matter in controversy is
the identity of the killer.
Defendant did not disagree with the victim’s identity, cause of death, etc. BUT,
this does NOT mean that the photos aren’t relevant.
The gruesome pictures were relevant to proving the individual elements of the
murder charge, but their possibility of unfairly prejudicing the D
substantially outweighed their probative value.
o
The probative value analysis goes
ONLY to questions that are at issue in the case. Here, D’s sole argument is that
he was not the “Dee” that committed the murder.
·
Conditional relevancy
o
Courts can always put a limiting
instruction on evidence.
o
E.g., “the guilty party’s
insurance will pay. . . . My insurance will pay.”
§ FRE
411
·
Evidence of insurance is not
admissible to prove negligence.
§ But,
a party’s admission of negligence is admissible to prove her guilt. The court cannot
give a limiting instruction because you must mention insurance.
·
FRE 104(a)
o
When a fact is required in order
to make other evidence admissible, the court can take ANY evidence into account
in establishing the foundational fact. The court is not bound by the FRE.
§ E.g.,
if the evidence is that an alleged employee admitted the employer’s guilt, the
court has unbound discretion to decide the fact of whether the witness was
actually an employee of the employer. Then, the admission is open to attack.
·
FRE 104(b)
o
When the relevance of evidence
depends on the existence of a fact, the court can allow the evidence in on the
condition that subsequent evidence is offered to establish the prerequisite
fact. If not, then the court instructs the jury to disregard the initial
evidence allowed in.
§ E.g.,
evidence that the driver was driving 200 mph 15 miles before the scene of the
accident is relevant ONLY IF there is evidence that the road stayed straight
and level from that point until the accident scene. The court can allow the
evidence in on condition of the subsequent evidence.
·
FRE 404
o
Character evidence is generally
not admissible to prove that a person acted in accordance with that character.
§ Exceptions
for criminal cases
·
If Defendant offers admissible evidence of his own
pertinent[1]
character trait, State may offer rebuttal character evidence.
·
If Defendant offers admissible[2]
evidence of the Victim’s pertinent character trait, State may offer :
o
Rebuttal evidence of the Victim’s
character AND
o
Evidence of Defendant’s same
character.
§ Additional
exception for homicide cases
·
If Defendant offers evidence that
the Victim was the first aggressor, State may offer evidence of Victim’s
character for peacefulness.
o
A prior crime, wrong, or other
act is:
§ NOT
admissible to prove character to show that the person acted in accord therewith.
§ Admissible
to prove:
·
Modus operandi
o
Signature methods used to
complete the previous crime, wrong, or other act are very similar to the methods
used in this instance.
·
Plan
o
Something more than a similar and
proximate connection.
o
E.g., where Defendant is charged
with robbing a bank and using a white getaway car, evidence that Defendant
stole a white car days before the robbery is admissible as plan.
·
Motive
o
Similar to character. D had a
certain character trait and acted in accord therewith.
o
E.g., in a domestic violence
case, evidence that D is a jealous person proves motive.
·
Intent
o
BUT, evidence of prior acts to
prove intent is only allowed when intent
is put at issue.
·
FRE 405
o
When character evidence is admissible,
it can be proved by
§ A
witness’s testimony of
·
Her personal opinion of the
person, OR
·
The person’s general reputation
in the community
o
Evidence of specific instances of
the character is NOT allowed EXCEPT
§ On
cross-exam OR
§ When
character is a material issue in the
case
·
E.g., in a suit for defamation
where the Defendant asserts truth as a defense, specific instances to support
or attack the claim are allowed.
o
If the defamation is calling the
person a liar, rapist, murderer, coward, sexual deviant, etc., evidence of
specific instances is allowed.
·
Proving prior acts
o
Huddleston
v. U.S.
§ A
prior act is admissible if the party proves that the Defendant committed the
prior act by a preponderance of the
evidence. So, if it was a previous crime for which the Defendant was
acquitted of BARD, it could still be admissible.
·
Rape shield rules
o
FRE 412, rules for BOTH civil and
criminal cases of alleged sexual assault:
§ Evidence
of the Victim’s sexual history or predisposition is inadmissible EXCEPT
·
In a criminal case, evidence of
specific instances of the Victim’s sexual history
o
With the Defendant
§ Is
admissible ONLY if offered by
·
The Defendant, to prove consent ONLY, or
·
The State, for any reason.
o
With anyone else
§ Is
admissible if offered by the Defendant to prove that someone else was the
source of semen, injury, or other physical evidence.
·
In a civil case:
o
Evidence of the Victim’s sexual
history or predisposition is admissible IF its probative value substantially
outweighs the danger of harm to ANY victim and unfair prejudice to ANY party.
o
Evidence of the Victim’s
reputation is admissible ONLY IF the Victim puts her reputation at issue.
o
FRE 413, 414, 415
§ Evidence
of prior sexual assault(s) carried out by the Defendant is admissible subject
to FRE 403 (relevance and unfair
prejudice).
·
FRE 406
o
Evidence of a person’s habit or
an organization’s routine practice is admissible to prove that he or it acted
in accordance therewith.
o
Habit requires at least some conscious thought along with regularity
and specificity.
·
FRE 407
o
Evidence of remedial measures made
in response to[3] the harm that creates a cause of
action is
§ Inadmissible
·
To prove negligence, guilt,
defect, or the need for a warning.
§ Admissible
·
For impeachment OR
·
To prove IF DISPUTED
o
Ownership or control
§ E.g.,
if Defendant claims he does not own the sidewalk, and then pays for its repair.
o
To prove the feasibility of precautionary
measures
§ Tuer
v. McDonald
·
·
FRE 408
o
The details of settlement negotiations in a live dispute with an actual threat of litigation are
§ Inadmissible
·
To impeach
·
As substantive evidence
§ Admissible
·
To show bias
·
FRE 410
o
In BOTH civil and criminal
cases, evidence of the following is NOT admissible against Defendant
§ Defendant’s
withdrawn guilty plea
·
A guilty plea is not barred by
this rule. It is a statement against a party-opponent.
§ Defendant’s
plea of nolo contendere
§ A
statement made during a plea colloquy
§ A
statement made during plea bargaining that did not turn into a plea of
guilty
o
BUT IF Defendant offers any of this
as evidence, the Plaintiff/State can offer the same as contextual evidence.
·
FRE 409
o
Evidence of promising to pay
medical expenses resulting from an injury is NOT admissible to prove liability
for that injury.
o
This rule must be construed
narrowly. If Defendant says “I will pay your medical expenses because I was at fault,” the admission
is admissible.
II.
Hearsay
·
An out of court statement offered to prove the truth of the matter asserted that is not defined as non-hearsay by FRE 801(d)
and that is not a hearsay exception
under FRE 803, 804, or 807.
·
U.S.
v. Check
o
Can’t circumvent hearsay rules by
eliciting the witness’s half of a conversation with the declarant.
·
Hearsay dangers
o
No cross-examination to uncover
declarant’s
§ Misperception
§ Faulty
memory
§ Misstatement
(ambiguity/faulty narrative)
§ Insincerity
·
Statement
o
A statement is assertive conduct,
written or spoken; its purpose is to convey a specific message to the world.
o
Cain
v. George
§ Non-complaint
(the fact that a declarant did not complain about something) is not a
“statement”
o
Animals and machines do not make “statements”
despite possible hearsay dangers.
·
Offered
to prove the truth of the matter asserted
o
Common non-hearsay uses of out of
court statements offered for a purpose other
than to prove the truth of the matter asserted.
§ Impeachment
·
Offered to attack the credibility
of evidence or testimony
§ Verbal
acts
·
The fact that the statement is
made has probative value regardless of the contents.
·
Shazam
o
When the statement is made, it
triggers a legal event
o
E.g. performance of a contract.
By saying “the corn is yours” the declarant was performing his contractual
duty.
§ Effect
on listener
·
A statement offered to explain
subsequent conduct, NOT to prove the truth of the matter asserted.
·
If the Plaintiff testifies that
the Declarant said “I am Defendant’s employee” in order to prove agency, this
is inadmissible hearsay. But if Defendant counters with contributory
negligence, the Plaintiff can testify to what the Declarant said in order to
prove the effect of the Declarant’s statement on the Plaintiff, i.e., that Plaintiff
was not contributorily negligent in believing that the Declarant was Defendant’s
employee and, thus, qualified to work with gasoline.
§ Verbal
object/verbal marker
·
A statement used to connect two
separate things.
§ Circumstantial
evidence of state of mind, memory, or belief
·
Ana Sopher’s will
o
Whether or not Ira really is “a
terrible person” is a non-issue. The issue is whether Ira had a reasonable
expectation of a bequest, and the statement shows Ana’s state of mind and belief
that she clearly did not like Ira.
·
“I am batman” to prove insanity.
·
The Declarant’s statement of what
she remembered must be specific and
of something unique or highly unusual. Independent, corroborative evidence
helps.
o
Borderline non-hearsay uses
§ U.S. v. Singer
·
The letter was addressed to the
Defendant’s alias name. It could be hearsay because it is being offered to
prove that the Defendant went by the alias name. But the sender is not
proclaiming to the world that the Defendant lives here and goes by an alias. He
is simply trying to get a message to the Defendant; lying would be a waste of
time.
§ A
·
FRE
801(d), exclusions from hearsay
o
FRE 801(d)(1)(A)
§ A
testifying witness’s prior statement made in a formal proceeding[4]
that is inconsistent with her
testimony at trial is admissible
§ State v. Smith
·
A prior inconsistent statement
made under oath, written by the Declarant-Witness herself, made under penalty
of perjury, and notarized is admissible in some jdx’s.
§ PIS
is MORE THAN JUST impeachment evidence. It stretches to substantive evidence of the Defendant’s guilt.
§ A
prior, substantive statement that is inconsistent with subsequent testimony of
“I forget” is…
o
FRE 801(d)(1)(B)
§ A
testifying witness’s prior statement that is consistent with her testimony at
trial is admissible to rehabilitate the witness after an attack on her
credibility.
§ E.g.,
if the witness has just been attacked with impeachment evidence, the other side
can offer her prior consistent statement to show that her testimony is true
even if she had a motive to lie, misperceive, etc.
§ Tome v. U.S.
·
The prior consistent statement
must have been made before the
motive to lie arose.
·
The Declarant-Witness’s parents
divorced, she was in father-Defendant’s custody, then she made the
statements incriminating him. The statements were made after the motive to lie
(i.e., to be in her mother’s custody) arose, inadmissible.
·
This is basically the common law
rule that a prior consistent statement is only credible if it was made without
a motive to lie, the motive being the core of the impeachment evidence used to
attack the witness’s testimony at trial.
o
FRE 801(d)(1)(C)
§ A
testifying witness’s prior statement of identification is admissible.
§ E.g.,
in criminal cases, the inevitable in-court identification of the Defendant is
highly suggestive. Prior identification of someone else should be allowed in.
§ State v. Motta
·
Even if the testifying witness’s
prior statement of identification identifies X as the perpetrator and the
witness identifies X as the perpetrator at trial and X is the defendant at trial,
the prior statement of identification is admissible
·
A police department sketch is
admissible as a prior statement of identification. It is the witness’s
statement asserting that “this is the perpetrator.” It is not the artist’s
statement (but this is moot because the artist testified at trial).
o
FRE 801(d)(2)
§ Statements[5] of
a party opponent are admissible against the party opponent.
·
The statement must be
o
The party opponent’s own statement,
o
Another’s statement adopted by the party opponent,
o
The party opponent’s agent’s statement, or
§ Made
on the party opponent’s behalf (with
authorization), OR
§ While
acting as an employee within the
scope of employment
o
A co-conspirator’s statement made in furtherance of the conspiracy;
NOT idle chatter.
§ Bruton v. U.S.
·
A co-conspirator’s confession
implicating the party opponent is not admissible against the party opponent;
not even with a limiting instruction. It is not in furtherance of the
conspiracy.
§ U.S. v. Hoosier
·
When a counterpart, friend,
spouse, etc. makes a statement and the party opponent fails to deny or correct
the statement, his silence is considered acceptance and adoption of the statement. It is admissible against him depending
on the circumstances and parties present at the event.
§ Litigation
materials
·
Alternative pleadings made by the
party opponent in the current litigation are NOT admissible against the party
opponent.
·
Admissions made in discovery
requests for admissions in a prior lawsuit are NOT admissible in a subsequent
lawsuit. They are only allowed to be used in one lawsuit.
·
Prior lawsuits, answers, and
complaints are admissible against the party opponent.
§ Mahlandt v. Wild Canid Center
·
The agent’s personal knowledge of
the situation is not necessary to be an admissible admission of the principal.
Hearsay within hearsay admissions are allowed to be put in front of the jury
and the party opponent then has a chance to explain it.
§ Agents
·
When an employee or
co-conspirator makes an admission on behalf of the party opponent, the
proponent of the statement must be able to prove the employment or conspiracy
relationship with other evidence.
The admission cannot be the only evidence of the employment or conspirator
relationship.
·
FRE
803, hearsay exceptions – unrestricted
o
FRE 803(1), present sense
impression
§ The
statement must
·
Describe an event
·
Be made whilst Declarant is
perceiving it OR immediately
thereafter.
§ Nuttall v. Reading Co.
·
The present sense impression
exception to the hearsay rule requires that the declarant made the statement
substantially close to the time of the event such that there is no possibility
that the declarant had a lapse in memory.
o
FRE 803(2), excited utterance
§ The
statement must
·
Describe an event capable of
giving rise to excitement
·
Be made in a state of excitement
or agitation brought on by the event
·
Circumstances must show that
there was no time to reflect on or lie about the situation
§ U.S. v. Arnold
·
Statements made after having a
loaded gun pointed at her and several minutes thereafter and upon seeing the
gunman again later are all excited utterances.
·
Excited utterance is different
from present sense impression in that a longer passage of time is allowed. As
long as there is evidence that the Declarant was still in an excited state, the
statement is an excited utterance.
o
FRE 803(3), then-existing mental,
emotional, or physical condition
§ The
statement must describe the Declarant’s state of mind[6] or
physical condition[7]
at the time Declarant makes the statement.
§ The
statement CANNOT be a statement of memory or belief offered to prove the fact
remembered or believed UNLESS it relates to the Declarant’s will.
·
“I am batman” is admissible only to prove that the Declarant believed he was batman, not that he was,
in fact, batman.
§ Mutual Ins. Co. v. Hillmon
·
The letters indicating Waters’s
plans for accompanying Hillmon on a trip are admissible to prove Waters’s state
of mind that he intended to take a
trip with Hillmon, but not that he actually did so.
·
The FRE adopts this approach. A
Declarant’s state of mind can be admitted to prove a third party’s intent to do
something.
§ U.S. v. Pheaster
·
Expansion of the Hillmon doctrine.
·
A Declarant’s statement of intent
can be used to infer a 3rd party’s actions. Thus, Declarant’s
statement that he “is going to meet Angelo in the parking lot” can be offered
to prove that Angelo went to the parking lot and met Declarant there. But,
there must be some independent evidence that links the two actions together.
o
FRE 803(4), statement made for
medical diagnosis or treatment
§ A
statement describing medical history; past or present symptoms or sensations,
their inception or their general cause; and made for the purpose of obtaining medical treatment or diagnosis (when
there is a risk of malpractice to the doctor) is admissible. Statements made to
a doctor retained as an expert witness?
§ Statements
of identification are generally not allowed under this exception because the
identity of someone is not usually helpful to medical advisors (but see Blake)
§ Blake v. State
·
A child sexual abuse victim’s statement of identification to a doctor
is admissible because of the mental injury involved; the identification of the
perpetrator is important for giving medical advice. The rule only
applies to children.
·
This presents a Crawford problem when doctors are acting
under police/state orders.
·
The child-Victim identified her
step-father as the rapist. The identity was in regard to the general cause of
the injuries and it was important information for the doctor in giving medical
advice. The identity of a rapist is important for determining if the victim is at
risk of contracting STDs. In a case like this, the identity is important
because it helps to determine if the child needs to be removed from the home.
Further, there is additional emotional injury when a trusted family member does
this.
o
FRE 803(5), past recollection
recorded
§ When
the witness testifies but is forgetful, a statement that
·
The witness once knew about, but
now cannot recall on the stand,
·
Was made or adopted by the
witness whilst the matter was fresh in her memory, AND
·
Accurately reflects the witness’s
knowledge.
§ This
provision is different from FRE 612, present recollection refreshed. When the
witness’s memory is spotty, she just needs something to trigger it.
§ Ohio v. Scott
·
The examining party must first
ask the witness if the statement jogs her memory.
o
If yes, then the witness
testifies and the past recollection recorded is inadmissible.
o
If no, then the statement is admissible and goes to the jury room.
o
FRE 803(6), business records
§ Record
must be
·
Made as part of a business,
organization, occupation, or calling;
·
Made at or near the time of the
event recorded;
·
Made by, or made from information
given by, someone with knowledge;
·
Made and kept as a regular,
routine practice of the business
·
Testified as to its authenticity
by the custodian of records.
§ Businesses
and organizations and their employees have no incentive to falsify normal,
routine records.
§ Petrocelli v. Gallison
·
The medical record is
inadmissible because it was made by an unknown person. There must be someone named
as the author of the record so that we can be assured that the information is
based on personal knowledge and the adverse party can investigate the author.
o
FRE 803(8), public records
§ A
record of a public office is admissible if it is
·
A record of a public office’s
activities,
·
A record of a matter observed
whilst under a legal duty to report, but NOT police observations in a
criminal case (even if offered by the Defendant) or,
·
Factual findings pursuant to a legally
authorized investigation and NOT
offered against a criminal-Defendant (the criminal-Defendant can offer it,
though).
§ Baker v. Elcona Homes
·
The police accident report was
admissible. It was reliable because of the timeliness of the investigation
(i.e., cop arrived soon after), the cop’s special skills and experience, and
the cop was an independent party.
§ Melendez-Diaz v. MA
·
A state lab report is
inadmissible as hearsay under Crawford.
·
FRE
804, hearsay exceptions – declarant unavailable
o
FRE 804(a)
§ When
is a witness “unavailable”
·
The witness asserts a privilege AND the court recognizes it.
·
Refusal to testify
despite a court order.
·
Lack of memory, inability to
recall substantial details
·
Absence where Proponent cannot
procure Declarant’s presence by process or other reasonable means. Must at least ask the Declarant to come to court as a witness.
§ A
witness is not unavailable when the Proponent wrongfully caused the Declarant’s
unavailability.
§ Barber v. Page
·
The States cannot compel the
Federal government to provide the inmate to serve as a Witness. But the State
must at least ask for Fed’s permission to do so.
o
FRE 804(b)(1), former testimony
§ Proponent
offers the Declarant’s former testimony from a hearing or a deposition.
·
In a criminal case, the Opponent
(the State or Defendant) must have had an opportunity to examine the Declarant
on the offered statement AND similar motive[10]
to do so then as now.
·
In a civil case, the Opponent OR
a predecessor-in-interest must have
had opportunity and similar motive.
§ Lloyd v. Shipowner, Alvarez
·
The coast guard’s motive in
examining Lloyd’s former testimony at the hearing was to find out who started
the fight in order to determine whether Lloyd was fit to hold a mariner’s
license. Although Alvarez’s interest is in money and his
predecessor-in-interest’s interest is the public interest (finding out if Lloyd
started the fight, and if so, taking away his mariner’s license), the former
testimony is admissible because it meshes with the issue of the litigation (who
started the fight).
o
FRE 804(b)(2), dying declaration
§ Only
in a civil case or homicide prosecution, a statement made under the belief of imminent
death concerning the causes or circumstances of death is admissible. Declarant
does not have to have actually died, but he must believe that he is about to
meet a swift and certain doom.
§ Thus,
death row inmate’s exoneration of his accomplice is inadmissible because it was
not related to the cause or circumstance of his death (the needle/chair).
o
FRE 804(b)(3), statement against
interest
§ A
statement so contrary to the Declarant’s pecuniary
interests or having so great a tendency to invalidate her legal claims against someone else or to expose her
to civil or criminal liability that
a reasonable person would not have said it unless it were true.
§ In
a criminal case, if the
statement would subject the Declarant to criminal prosecution, it must be
supported by corroborating evidence
that supports its trustworthiness.
§ U.S. v. Williamson
·
A broad narrative by a Declarant
must be picked apart for directly inculpatory statements against his interest.
The entire account is not immediately admissible.
§ For
criminal cases, there is a fear that criminal organizations pay for perjury and
false statements, for somebody else to take the blame. Thus, we need evidence
that the Declarant is not connected to the Defendant to buttress
trustworthiness.
o
FRE 804(b)(4), statement of
personal or family history
o
FRE 804(b)(6), forfeiture by
wrongdoing
§ An
unavailable Declarant’s statement offered against a party that wrongfully caused
OR acquiesced in causing the
Declarant’s unavailability with the intent
of causing the Declarant’s unavailability.
§ Giles v. CA
·
The opponent of the statement
must have acted with the specific intent to keep the Declarant from testifying
in this particular cause of action. The proponent must prove this specific
intent by a preponderance of the evidence. That the Defendant killed the
Declarant does not immediately make her statements admissible until it is
proved that the Defendant intended to keep her from testifying in the murder
trial.
·
FRE
807, residual exception
o
Unenumerated exceptions to the
hearsay rule based on reliability (e.g., drug labels).
o
Statement must
§ Have
circumstantial guarantees of trustworthiness equal to the enumerated exceptions
§ Be
offered as evidence on a material fact[11]
§ Be
more probative than any other evidence the Proponent can reasonably obtain
§ Admission
of the statement must serve the purposes of justice
§ Notice
required.
o
U.S.
v. Weaver
§ There
are three witnesses who can testify that the mother said that the baby hit her
head on a table that morning. The statement does not fit under any hearsay
exception because the mother is at the trial and has testified.
§ But
their testimony to the statement is admissible because it is reliable.
·
It is straight from the mother’s
mouth on the same day of the incident
o
No problems of misperception by a
3rd party or loss of memory
·
All the witnesses are saying the
same thing and they have no personal interest in the matter and there were two
other independent witnesses that did not testify.
·
The mother is available to
testify and can take the stand to explain or deny the statement.
·
The doctor’s testimony
corroborates the fact asserted because the injuries are consistent with hitting
a flat surface.
§ The
Defendant proclaims her innocence. This is a core issue of the case and this is
the most probative evidence that the Defendant can get on that point.
·
Confrontation
Clause issues
o
Ohio
v. Roberts
§ Hearsay
offered against the Defendant is allowed when
·
Declarant is unavailable or
cross-examination would not serve any useful purpose
·
And the statement either
o
Falls within a firmly rooted
hearsay exception OR
o
Bears circumstantial guarantees
of trustworthiness.
o
Crawford
v. Washington
§ A
criminal Defendant must have an opportunity to cross-examine a testimonial
statement against the Defendant.
·
What is testimonial?
o
Witness statements
§ A
solemn declaration made for the purpose of establishing or proving a fact with
the reasonable knowledge that it would be used in a prosecution against
someone. Sworn affidavits, etc.
o
Ex parte proceedings
§ Grand
jury hearings, trial testimony, depositions, custodial interrogations
o
The Defendant must be allowed to
confront the statement when it is made, otherwise the Declarant must be hauled
into court for cross-examination.
o
Off-hand, casual remarks,
business records, and statements in furtherance of a conspiracy are non-testimonial.
·
Is the statement testimonial?
o
No
§ Statement
is admissible.
o
Yes
§ Is
the Declarant available at trial?
·
Yes
o
Statement is admissible IF the
Declarant is cross-examinable about the statement at trial.
·
No
o
Did Defendant have a prior
opportunity to confront?
§ Yes
o
Statement is admissible
§ No
o
Statement is inadmissible.
·
Davis
v. Washington; Hammon v. Indiana
o
Crawford focused on the
police’s role of gathering evidence and preserving it for trial. But the cops
also act in a public safety capacity. Statements made to cops acting in that
capacity are not testimonial.
o
As soon as the Defendant left the
scene and the operator started asking probing questions, the emergency was
resolved and the statements became testimonial. It would be reasonable for the
Witness to believe that her statements would be used in the Defendant’s
prosecution and the operator was working in an evidence gathering function.
·
Michigan
v. Bryant
o
A statement is testimonial ONLY
IF the primary purpose in giving it from the perspective of BOTH a reasonable
cop AND a reasonable witness is to gather, give, and preserve evidence for the
future prosecution of the Defendant.
o
The statement identifying the
Defendant as the shooter while the Declarant was wounded was not a testimonial
statement, it is admissible.
§ It
was not a dying declaration under FRE 804(b)(2) because the Declarant was
asking about the paramedics. He was not under the firm belief that he was about
to meet a swift and certain doom.
§ It
does not qualify as an emergency situation because the Declarant is not
operating on the belief that an emergency is in progress; he is safe, miles
away from the Defendant and surrounded by cops. But, the cops believe that an
emergency situation is taking place because they have no background
information; for all they know, the shooter could be on the scene.
·
Melendez-Diaz
v. MA
o
Lab reports prepared by a state
crime laboratory are testimonial hearsay. They are equal to affidavits prepared
in contemplation of prosecution. Further, there are several reliability factors
that require the ability to cross-examine: corruption because lab workers may
be under pressure from the prosecution or police to produce a certain result,
shoddy work, etc.
·
Bullcoming
v. NM
o
The supervisor of the analyst who
did the lab report is not allowed to testify in place of the analyst. The
analyst that completes the test and makes the statement that “this substance is
X” must be cross-examinable.
·
U.S.
v. Williams
o
Facts
§ The
swab was taken by the police, sent to Cellmark (where the DNA of the semen was
tested and a profile created), and sent back to the police with a DNA profile.
Then, Lambatos, from the state crime lab, matched the semen DNA profile to the
Defendant’s DNA profile in the state’s records which was obtained from a blood
sample after the Defendant had been arrested on unrelated charges prior to the
rape.
§ At
trial, Lambatos testified that the Cellmark DNA profile matched the state’s DNA
profile for the Defendant.
§ Defendant
appealed, that the Cellmark DNA profile was testimonial hearsay and Cellmark
was not cross-examinable on it.
o
Plurality opinion (Roberts,
Kennedy, Breyer, and Alito)
§ These
justices were the dissenters in Melendez-Diaz
and Bullcoming. They think that lab
reports are not testimonial hearsay.
§ They
focus on the reliability of lab reports, even though that is not dispositive (Melendez-Diaz and Bullcoming is
still good law). There is no evidence that Cellmark had a sample of Defendant’s
DNA from an unrelated matter that could have been switched with the swab sent
by the state. Further, the Victim subsequently identified Defendant in a
lineup!
§ They
say that it is distinguishable from precedent because here the Defendant is not
in custody or even known to exist while the report is being prepared. No
pressure from the state to screw the Defendant (but maybe there is a motive to
bribe, send a sample of Defendant’s DNA under the table?).
§ They
say that the Cellmark report was not offered to prove the truth of the matter
asserted. It was not admitted into evidence, but only relied upon by Lambatos
to give her testimony. Further, the trial was before a judge, so he knew that
the Cellmark report was not to be considered as substantive evidence.
o
Dissenters (Scalia, Ginsberg,
Sotomayor, and Kagan)
§ The
Cellmark report is testimonial. The Defendant must be allowed to cross-examine
the actual analyst who completed the testing.
o
Justice Thomas
§ Only
formal, solemn statements that are intended to be used as substantive evidence
of the Defendant’s guilt are testimonial. Here, it is a lab report prepared by
a private business who does not care about or even know if the report will be
used in a prosecution.
·
Testimonial statements are only
admissible if the Declarant is unavailable AND the Defendant had an opportunity
to confront the Declarant on the statement.
III.
Examining
witnesses
·
Competency of witnesses
o
Two requirements in order to be
allowed to testify
§ Personal
knowledge of that which she is testifying about, AND
§ The
ability to understand her obligation to testify truthfully.
o
U.S.
v. Lighty
§ Witnesses
are presumed competent. Incompetence to stand trial does not immediately mean
that the witness is incompetent to testify.
·
Examination
o
Direct
§ NO
leading questions, EXCEPT when necessary to help a witness who is
·
Timid, scared, or
uncommunicative;
·
Uncooperative;
·
Exhausted memory; Or
·
When the rule is more trouble
than it is worth.
o
Cross-Examination
§ Leading
questions are allowed.
§ Limited
to the scope of the direct examination AND impeachment.
·
Baker
v. State
o
FRE 612 (present recollection
refreshed) requires a lower standard than FRE 803(5) (past recollection
recorded).
o
FRE 612
§ The
witness silently reads the document to himself to see if it refreshes his
memory
§ Opponent
must be allowed to see the document and use it during cross-examination
§ The
documentary evidence does NOT go back to the jury room UNLESS the
cross-examining party wants it to.
o
FRE 803(5)
§ ONLY
after the witness truly cannot recall his prior statement, the prior statement
is admissible.
§ It
is ONLY read aloud by the Proponent, BUT the Opponent can have it admitted into
evidence.
·
Impeachment
Specific
|
Non-specific
|
|
Definite
|
Contradiction
|
Bias,
sensory/mental capacity, character for un/truthfulness
|
Indefinite
|
Prior
inconsistent statement, contradiction
|
o
Impeachment for bias
§ Definite
and non-specific. Nothing the witness says is credible because he has an
interest in how the case is decided.
§ Extrinsic
evidence is allowed
§ U.S. v. Abel
·
Impeachment evidence is subject
to FRE 403 balancing.
o
Impeachment on character for
untruthfulness
§ Three
definite, non-specific methods
·
FRE 608(a), character witnesses
o
Extrinsic evidence required
·
FRE 608(b), prior acts
o
NO extrinsic evidence allowed.
The cross-examining party can ONLY ask the witness about prior acts THAT directly address his character for
truthfulness.
o
U.S.
v. Manske
§ Lying
as a prior act is not the only activity that speaks to character for
truthfulness. Prior acts that bear indirectly on the witness’s adherence to
honesty are admissible to impeach a witness on his character for truthfulness.
§ Receiving
stolen goods, failure to file tax returns, bribery, etc. are examples. Here,
the witness was suborning perjury by using threats of physical violence (there
is no prior conviction because perjury is under-prosecuted). The Defendant
should have been allowed to impeach the witness on this.
·
FRE 609, prior convictions
o
NO prior conviction where more
than ten years have elapsed since the conviction or release, whichever is
later, is admissible UNLESS
§ Its
probative value substantially outweighs the danger of prejudice TO DEFENDANT,
and
o
For
§ Prior
convictions that DO NOT necessarily require proving a lie or dishonest act BUT
are punishable by death or imprisonment for more than one year committed by
·
Non-Defendant witnesses
o
Are admissible subject to FRE 403
balancing, danger of unfair prejudice TO THE DEFENDANT.
·
Testifying Defendants
o
Are admissible IF the probative
value outweighs its prejudicial effect on the Defendant
§ ANY
prior conviction of either a witness or a testifying Defendant, it is per se admissible IF establishing the
elements of the crime required proving that she told a lie or committed a
dishonest act. No balancing required.
·
E.g., fraud, perjury.
403 balancing
|
609 balancing
|
·
Inadmissible if danger of
prejudice substantially outweighs probative value
·
Admissible if prejudice just
barely outweighs probative value.
·
Admissible if probative value
substantially outweighs prejudice
|
·
Inadmissible if danger of
prejudice just barely outweighs probative value
·
Admissible if probative value
outweighs prejudice
|
§ U.S. v. Lipscomb
·
Balancing considerations for
prior convictions of Defendant AND non-Defendant witnesses
o
Nature of the crime
o
Recency of the conviction
o
Degree of similarity between the
prior crime and the current, charged crime.
o
Witness’s full criminal record
o
The importance of the witness’s
testimony
o
Whether the prior conviction was
a result of pleading guilty or going to trial.
o
The importance of credibility
issues in the case.
§ How
was the crime committed?
§ Luce v. U.S.
·
To appeal a denied motion in
limine to suppress Defendant’s prior conviction(s) as impeachment, Defendant
must actually testify, be impeached, and get convicted.
o
FRE 613, Impeachment by Witness’s
prior inconsistent statement
§ Specific.
This particular portion of the witness’s testimony should not be believed. The
jury can infer whatever it wants from the rest of the testimony.
§ When
impeaching with a PIS, the Witness-Declarant must have an opportunity to
explain or deny the PIS.
·
FRE 613
o
Any PIS. Extrinsic evidence is
allowed to impeach AS LONG AS the Witness-Declarant can be called back to
explain or deny. Here, the PIS is only allowed to impeach the witness on a
specific point of testimony, NOT as substantive evidence of Defendant’s guilt.
·
FRE 801(d)(1)(A)
o
The PIS must have been made under
penalty of perjury at a formal proceeding. Here, the PIS is allowed as
substantive evidence of the Defendant’s guilt.
§ Doyle v. OH
·
After being Mirandized, the
testifying Defendant’s silence CANNOT be used to impeach him as a PIS.
§ Jenkins v. Anderson
·
The testifying Defendant’s pre-Miranda silence CAN be used to impeach
him as a PIS.
§ U.S. v. Webster
·
A party cannot intentionally call
a Witness who has a favorable PIS in bad faith knowing that she will testify
contrarily to the PIS.
·
That the prosecutor offered to
examine the witness voir dire (the
jury would not hear the unfavorable testimony and subsequent favorable PIS)
shows good faith.
o
Impeachment by contradiction
§ When
there is no PIS that the Witness said but there is evidence that contradicts
what the Witness is saying.
§ Three
methods
·
Evidence that contradicts the
Witness that is relevant to a substantive issue in the case
o
Extrinsic evidence is permitted
·
Evidence that contradicts the
Witness and impeaches him in some other way where extrinsic evidence is
permitted (bias, sensory/memory, PIS)
o
Extrinsic evidence is permitted
·
Evidence that contradicts the
Witness on a collateral issue in the case
o
NO extrinsic evidence UNLESS the
Witness made the collateral point the linchpin of his testimony
·
Unconstitutionally obtained
evidence as impeachment
o
Harris
v. NY
§ Confessions
elicited (not coerced) in violation of Miranda
can be used to impeach a testifying Witness.
§ If
there is actual coercion, then the confession is wholly barred.
§ Here,
the State is impeaching the Defendant without any probing questions. The
impeachment evidence is allowed to rebut the Defendant’s direct testimony
o
U.S.
v. Havens
§ Illegally
seized evidence is admissible to impeach if the question that leads to
impeachment is made in good-faith.
§ Here,
the State is asking the testifying Defendant a question on cross-examination and then impeaching him on his answer
thereto. There is a danger that the State is manufacturing the situation in
order to get otherwise inadmissible evidence in. But if it is a logical,
natural question that a reasonable attorney would ask on cross-examination,
then it is OK to impeach on the Witness’s answer thereto.
·
Rehabilitating impeached witnesses
o
Rehabilitation is limited to the
scope of the attack that is made on the Witness.
o
U.S.
v. Medical Therapy
§ A
party may attack its own Witness on direct examination and call rehabilitative
Witnesses. It is within the judge’s discretion to determine if it is a
good-faith attack or just sandbagging.
·
Here, the State only mentioned
the Witness’s prior convictions and very briefly discussed the details. It was
not an actual attack.
·
However, the Defendant’s
cross-examination was an attack (the questions were sharp and accusatory) on
the Witness’s bias AND character for truthfulness. Even though the Defendant
was only trying to impeach the Witness for bias (in order to limit the State’s
ability to use rebuttal evidence), the questions were about allegations of
fraud, embezzlement, and stealing patients; they overlapped into the Witness’s
character for truthfulness. Thus, rehabilitative character Witnesses were
allowed in.
o
Rehabilitation with FRE
801(d)(1)(B), prior consistent statement
§ Rehabilitating
a Witness with a prior consistent statement is ONLY allowed after an express or
implied charge of purposeful lying because
of an improper influence, NOT forgetfulness.
§ The
prior consistent statement as rehabilitative evidence is ONLY allowed if it was
made BEFORE the improper motive’s inception (Tome v. U.S.).
IV.
Opinion
Testimony
·
Witnesses
o
Lay witnesses
§ FRE
602
·
Personal knowledge of the
situation about which the witness is testifying is required. The foundation of
the witness’s personal knowledge can be proved by the witness’s own testimony.
§ FRE
701
·
Opinion must be:
o
Based on the witness’s
perception;
o
Helpful to determining a fact;
and
o
Not based on specialized
knowledge.
§ The
speed of vehicles is permissible lay testimony. Even though the witness does
not have a radar gun, it is based on perception, experience, and does not
require specialized knowledge.
o
Expert witnesses
§ FRE
702
·
Opinion must be:
o
Based on specialized knowledge
o
Helpful to the trier of fact to
understand evidence or determine a fact in issue;
o
Based on sufficient facts or
data;
o
Based on reliable principles and
methods; and
o
Reliably applied to the facts of
the case.
§ FRE
703
·
Experts can testify based on facts
o
Learned at trial; or
§ Either
·
Whilst sitting in the gallery; or
·
From hyphotheticals based on
evidence presented at trial.
o
Perceived prior to testifying.
§ E.g.,
a doctor’s diagnosis
§ A
fact need not be admissible IF it is something that is reasonably relied upon
by the professional community. If so, it must not be heard by the jury unless
the probative value substantially outweighs prejudice.
·
E.g., casual conversions
regarding standards of care, foreseeability, negligence, etc.
·
But it can’t be just a conduit of
inadmissible evidence, there must be filtering and application of knowledge and
expertise.
§ What
is “science”?
·
Testing;
·
Peer review and publishing;
·
Potential error rate
(systematically favors proponent);
·
Standards; and
·
General acceptance by the
relevant scientific community.
§ Daubert and Kumho Tire
·
The judge is a gatekeeper for
evidence and must make the initial determination as to whether or not expert
testimony is legitimate.
V.
Authentication
·
Self-authenticating evidence
o
No additional evidence is
required to prove that the evidence is what it is.
o
They are
§ Newspapers
and periodicals
·
Difficult to produce a complete
fraudulent copy
§ Official
publications
·
Penalties for altering
fraudulently
§ Trade
inscriptions
·
Penalties for violating copyright
§ Certified
business and public records
·
The hearsay exception. Must be
certified by affidavit.
·
Non-self-authenticating evidence
o
Proponent must produce evidence
sufficient to support a finding that the evidence is what it is. The judge
makes the initial determination of whether or not a jury could find it authentic, but the jury can always decide that it is
not authentic.
o
How
§ Physical
evidence
·
By testimony of a witness with
personal knowledge
o
Unique items
§ About
the distinctive characteristics about the unique item OR about fungible items
with distinctive characteristics (waterlogged weed); or
o
Fungible items
§ About
the chain of custody. A complete chain is sufficient to support a finding that
the physical evidence is authentic, but sometimes an incomplete chain is OK.
§ Writings
·
By
o
Testimony of a
§ Witness
with personal knowledge;
§ Non-expert
opinion based on familiarity with the handwriting.
o
Comparison by
§ The
trier of fact; or
§ Expert
opinion.
o
Distinctive characteristics.
·
Ancient documents
o
The document is over twenty years
old;
o
The document was found in an
expected place; and
o
Circumstances do not give rise to
any suspicion regarding its authenticity.
§ Voice
·
By hearing the voice live or on a
recording
·
If a recording, circumstances
must show that it is truly of the alleged speaker
o
Was the operator competent?
o
Any changes or alterations?
o
How was it preserved?
o
Are the speakers identified in
the recording?
o
Was the conversation voluntary?
§ Photograph
·
By a witness with knowledge. Do
not need to bring in the photographer.
§ X-rays
·
By a witness with specialized
knowledge.
[1]
Pertinent basically means FRE 401 relevance. It must be relevant to the issue
at hand.
[2]
See FRE 412, special exceptions for sex offense victims.
[3] If
Defendant was already going to carry out the remedial measures regardless, then
the evidence is admissible.
[4]
Can be an interrogation, deposition, grand jury proceeding, etc. The rules are
more liberal here because the Declarant-Witness is available at trial and is
cross-examinable at the prior statement. When the Declarant is NOT available at
trial, the rules are stricter because there is no cross-examination ability.
[5] It
does not have to be an admission of guilt. ANYTHING the party opponent says is admissible
against that party.
[6]
E.g., motive, intent, plan.
[7]
E.g., emotion, mental feeling, pain, bodily health.
[8]
Competence, as well as inability to communicate.
[9]
Declarant cannot physically get into the courtroom.
[10]
E.g., in a preliminary hearing for probable cause, an attorney might want to be
gentle with a witness (so as to keep him unwitting), then, at trial, where the
standard is beyond a reasonable doubt, the attorney might want to crush the
witness. This is a dissimilar motive.
[11]
This is possibly redundant. If it is not material, then it is not relevant in
the first place. Some courts interpret this provision to mean that the
residually excepted statement must go to a core fact in the case.
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