BAR Exam Cheat Sheet - Evidence Outline Cheat Sheet
BAR Exam Cheat Sheet - Evidence Outline Cheat Sheet
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Date Created: 03/06/14
Evidence Outline 1 Getting evidence in i Always make sure 1 Relevant 2 Personal knowledge 3 Meets 403 test b Direct examination i Three purposes 1 Bring out background information 2 Lay the foundation for the testimony to follow a Establish personal knowledge 3 Ask substantive questions ii R 611c only nonleading questions allowed 1 But trial judges may allow leading questions in four situations a When necessary to develop testimony i If witness is young timid ignorant or sick When the witness is uncooperative c When the rule is more trouble than it is worth i Ie with matters that are not contested d When memory seems exhausted i 612 lawyer permitted to refresh a witness s memory by letting him read a prior statement iii Baker v State can a witness refresh his memory with a written statement that someone else wrote 1 Yes literally anything is suitable that jogs the memory so long as it s not entered into evidence 2 Past recollection recorded on the other hand involves admitting past writings into evidence under 8035 c Cross examination i R 611c leading questions permitted ii R 611b Scopeofdirect rule cross is limited to matters explored on direct and matters affecting the credibility of the witness iii 612 if a witness uses a writing to refresh memory then the adverse party is entitled to have the writing produced 1 James Julian v Raytheon trial binders were protected as work product but D waived that protection when he used the binders to prepare a witness d Personal knowledge R 602 a witness may not testify to a matter unless evidence shows that the witness has personal knowledge of the matter i May consist of the witness own testimony e Preliminary questions R 104 i 104a simple relevance court determines preliminary questions of law concerning a witness s qualifications the existence of a privilege or the admissibility of evidence 1 legal std that must be applied 2 stmt fit a hearsay exception 3 character evid 4 witness qualification 5 privilege ii 104b conditional relevance when relevancy depends on the fulfillment of a preliminary condition of fact the court shall admit it only upon a finding of the ful llment 1 Either judge makes nding of fact or if different answers are possible then the jury decides 2 Screening evidence from the jury 3 Example before determining relevancy of gun in connection to murder jury must first make a l04b finding that the gun in question was actually the gun found at the scene of the crime f Real evidence tangible things directly involved in the event in question i Authentication proponent must lay the necessary foundation g Demonstrative evidence illustrative evidence that makes graphic the point to be proved II Keeping evidence out a Objections l03al i Objections must be on the record failure to object or make an offer of proof waives right to appeal on evidentiary error ii Substantive rests on particular exclusionary principles in the Rules of Evidence iii Formal objections to the manner of questioning I Asked and answered assumes facts not in evidence argumentative leading the witness speculation b Offer of proof argument to admit evidence counterpart to the objection i l03a2 lawyer explains what the evidence will show away from jury c Motions in limine pretrial objections which attempt to get advance rulings on admissibility of evidence d Evidential error must be predicated on affecting a substantial right of a party ie affecting the outcome the substantive right is the right to a jury trial l03a i Kinds of error 1 Reversible probably did affect the judgment 2 Harmless probably did not affect the judgment 3 Plain warrants relief on appeal even though the appellant failed at trial to object or make an offer of proof obvious or serious errors 4 Constitutional should have been excluded under the Constitution III Relevance initial threshold question that evidence must satisfy a Definition 401 having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence i Relevance and materiality 1 Relevant tends to establish the point for which it was offered 2 Material the point bears on the issues in the case 3 Use the pleadings as a guide what must each side prove or disprove b R 402 All relevant evidence is admissible subject to Constitution and FRE irrelevant evidence is inadmissible c R 403 Otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misleading the jury or by considerations of undue delay waste of time Shortness of Life Doctrine or needless presentation of cumulative evidence i State v Chapple Did trial court err in admitting gory pictures of the crime scene 1 Yes the facts illustrated in the exhibit were not in dispute or at issue Probative value was substantially outweighed by prejudice D offered to stipulate to cause of death Only result was to in ame the passions of the jury Gruesome pics might be relevant if they are needed to establish cause of death position of body or viciousness of attack PPP ii Old Chief V US I D stipulates that he is a convicted felon for the purposes of a gun possession charge but he wants to exclude the name of the prior felony 1 Names of prior crimes are relevant because they place Old Chief within a particular subclass of offenders for whom firearms possession is outlawed a Evidence may be relevant even if overbroad 2 D cannot stipulate away evidence rather the P is entitled to prove his case iii Old Chief v US 11 even though relevant the names of prior felonies are too prejudicial 1 Prior felony is wholly independent of the concrete actions at issue in the case 2 The qualifying conviction alone is sufficient for the statute a But the prejudicial effect of the nature of the prior conviction substantially outweighs its probative value d Limiting instructions R 105 allow judges to limit the prejudicial effect of a piece of evidence on other issues in the case i Always used when character evidence is admitted to tell jury that it does not show propensity e Completeness doctrine R 106 adverse party may require the admission of the complete writing or statement if necessary to mitigate the effect of only an excerpt IV Character evidence a 404a Character evidence is inadmissible for the purposes of propensity except i Evidence of a character trait of the accused offered by the accused criminal only 1 D waives his right to argue prejudice by introducing evidence of his own character to show propensity ii Evidence of a character trait of the victim offered by the accused criminal only 1 Subject to 412 limitations Rape Shield 2 Must be a pertinent character trait 3 In a homicide case P may introduce propensity evidence of victim s peacefulness in order to rebut evidence that the victim was the first aggresor iii Evidence of a character trait of a witness as provided in R 607609 b 404b evidence of prior acts are not admissible to show propensity i But they may be used to show motive intent absence of mistakeaccident identity knowledge common plan or scheme opportunity preparation or if character is at issue ii Not controlled by R 405 iii Fourpart test to determine 404b admissibility for judge to decide 1 Is the evidence offered for a proper purpose listed above 2 Is it relevant for that purpose 3 Does it pass the 403 test 4 Is a limiting instruction needed c R 405 Methods of proving character 1 Applies only to 404al and 2 does not control 3 or 404b ii Reputation or opinion in all cases in which character evidence is admissible it may be given in the form of an opinion 1 May be raised on direct or cross specific instances may only be raised on cross iii Speci c instances may only be raised on cross keep in mind scopeofdirect rule or during direct in cases in which character is an essential element of the charge or defense 1 Convictions not necessary 2 Jury decides whether the specific acts actually happened under l04b TYPE DIRECT CROSS Reputation Always Always Opinion Always Always Speci c acts Characterinissue or Always other 404b use d Character evidence will always come with a limiting instruction telling the jury that it cannot be used to show propensity i But D can still make a R 403 argument e R 406 Habit and Routine conditioned responses and patterns whether corroborated or not are admissible to show propensity i Rule of admission not exclusion all that is necessary is that a party first lay the proper foundation f R 412 Rape Shield Law precludes almost all evidence of a victim s prior sexual behavior i Applies to both civil and criminal cases ii Exceptions 1 Evidence that a person other than the accused was the source of semen or injury 2 Evidence of specific instances of sexual behavior with the accused in order to prove consent iii Use reverse 403 test to determine admissibility P must demonstrate that the probative value of prior sexual conduct outweighs the prejudicial effect g Evidence of similar sex crimes to show propensity fourth exception to admit character evidence 1 Can be offered in P s caseinchief specific instances are okay ii R 413 Evidence of similar crimes in sexual assault cases is admissible iii R 414 Evidence of similar crimes in child molestation cases is admissible iv R 415 Evidence of similar sex crimes in civil cases is admissible V Categorical exclusions automatically excluded unless they fall under limited exceptions a Subsequent remedial measures R 407 i Inadmissible unless to show something other than culpable conduct e g ownership or control 1 May be used to show that precautionary measures were feasible only if feasibility is at issue ii Tuer V McDonald in medical malpractice suit P widow wants to show that old hospital procedure was dangerous by introducing evidence that hospital has since changed its procedure 1 Feasibility exception subsequent remedial measures may be introduced to rebut D s assertion that such measures weren t possible at the time of the accident a Merely saying a procedure wasn t safe doesn t trigger the exception D must claim impossibility of remedial measures b Here D claims only that remedial measures would be unsafe b Settlement negotiations R 408 i Settlement disputes must reach a certain point before triggering the rule there must be a potential cause of action 1 Claim must be disputed as to amount or underlying validity of the claim 2 It must be disputed in the sense that if negotiations fail there will be a lawsuit ii Applies to both behavior and statements VI c Payment of medical and similar expenses R 409 d Pleas plea discussions and related statements R 410 e Proof of liability insurance R 411 Hearsay R 802 an outofcourt statement offered to prove the truth of the matter asserted always consider Confrontation Clause issues in criminal trials a Defined in R 801 Statement is an oral or written assertion or nonverbal conduct of a person if it is intended as an assertion i Nonverbal conduct is only hearsay if it is assertive 1 Assertive conduct can be as simple as a head nod 2 But looking frightened or crying are not intended to be assertive so they are not excluded under the hearsay rule ii Wright v Doe d Tatham in suit to set aside a will alleging it was procured by fraud D offers as proof letters written by deceased to show his clear mental state 1 Letters are inadmissible to show the qualities of the deceased because they imply a statement that the deceased was sound iii Cain v George D motel owners in wrongful death suit attempt to introduce lack of complaints by prior guests about gas heater 1 Not hearsay silence lack of complaints is not assertive 2 Lack of complaints merely related the knowledge of the motel owners as to whether anyone had ever been harmed by the heater b Why do we exclude hearsay i Absence of crossexamination ii Absence of demeanor evidence iii Absence of the oath c Risks of hearsay statements i Risk of misperception ii Risk of faulty memory iii Risk of misstatement iv Risk of distortion d Indirect hearsay i United States v Check P in drug case asks investigator what informant told him but to avoid hearsay problems he asks investigator only to relate what he said not the informant 1 Hearsay transparent attempt to incorporate into the off1cer s testimony information supplied by the informant who did not testify at trial e Machine and animal statements are generally admissible ie canine identification f Hearsay within hearsay 805 multiple hearsay is okay if each layer fits within an exception g When is a statement not hearsay i When it is provided for any other purpose other than to prove the truth of the matter asserted or 1 Six categories must come with a limiting instruction a Impeachment asking witness on cross about conversation with insurance adjuster for purposes of impeachment b Verbal acts prostitute says I can show you a good time i Ransom demands extortion words have legal effect regardless of whether they are true c Effect on listener or reader to combat contributory negligence claim evidence that statement I m from the gas company caused P to have this belief d Verbal objects labels on items logos tags business cards e Circumstantial evidence of state of mind letters to show not that deceased was a bad husband but that wife s state of mind was not loving towards him f Circumstantial evidence of memory or belief description of room used not as evidence of what the room looked like but as evidence that the victim knew what the room looked like ii Or when it falls under a not hearsay exception in 801d VII Hearsay exceptions a Hearsay may be admissible under an exception but it still must be relevant and pass the R 403 test and other Constitutional challenges 5th 6th i When doing hearsay problems always make sure the outofcourt statement is hearsay to begin with under 801 b Four main groups of exceptions i Prior statements by testifying witnesses three exceptions ii Admissions by party opponent five exceptions iii Unrestricted exceptions 24 exceptions hearsay statements that may be offered to prove what they assert here iv Exceptions for when declarant is unavailable as a witness ve exceptions c Prior statements by testifying witnesses R 801d1 a prior statement is not hearsay if the declarant testifies at trial and is subject to cross and the prior statement is a Inconsistent with the testimony and it was given under oath at a trial hearing depo or other proceeding b Consistent with the testimony and is offered to rebut a charge of fabrication or improper in uence or motive c An identification of a person made after perceiving the person ii Prior inconsistent statements 801d1A rule 801 is for substantive use of prior inconsistent statements not impeachment 613 1 A prior inconsistent statement by a witness is not hearsay if three conditions are met a The prior statement is inconsistent with his present testimony i Doesn t have to be opposite evasive answers or shifts in emphasis are inconsistent b The witness is now crossexaminable concerning the prior statement i US v Owens Sup Ct essentially gets rid of the cross examinability requirement 1 Requirement can be satis ed even if the witness has forgotten the events even if lack of memory made him unavailable under 804 c The prior statement was made under oath at a trial hearing deposition or other prior proceeding 2 State v Smith victimwitness signs statement under oath naming D as attacker at trial she names another man a Statement allowed under 801d1A it was written by witnessvictim she was sworn under oath and she admitted at trial that she had made the statement b Must consider the facts on a casebycase basis with an eye for reliability iii Prior consistent statements 801d1B 1 A prior consistent statement by a witness is not hearsay if three conditions are met The witness is now crossexaminable concerning the prior statement The statement is consistent with his present testimony i Prior statement need not be made under oath The statement is offered to rebut a charge of recent fabrication or improper in uence or motive rehabilitation i Ie can only be used after the witness s credibility has been attacked either expressly or impliedly 2 Tome V US a prior consistent statement can rebut an attack of improper in uence only if the statement had been made before the alleged fabrication it is inadmissible if made afterwards a b l04a determination Tome involved statements of daughter that she wanted to live with her mom P introduced them for substantive purposes not to rebut an alleged improper in uence i D never really made a qualifying attack simply implied that daughter wanted to live with Mom iv Prior statements of identification 80ldlC Prior statements of identification are admissible provided the witness is subject at trial to crossexamination 1 a Prior statement did not have to be made under oath 2 State v Motta composite sketch is hearsay because it is being offered as an outofcourt statement to prove what the suspect looked like but it is still admissible under 80ldlC as a prior identification d Admissions by party opponent 80ld2 i Individual admissions 80ld2A In either an individual or representative capacity 2 Personal knowledge not necessary for admissions l a John told me that he committed the murder is admissible even if speaker doesn t know the truth 3 Former guilty pleas may be used as admissions in civil cases 4 Must be admitted against the person who spoke not against a coparty Spillover confessions 5 a Bruton v US 6th Amd Confrontation Clause case not FRE admission of nontestifying D inculpates D Bruton i A limiting instruction cannot protect a codefendant ii Adoptive admissions 80ld2B If the individual knowingly manifests his adoption or belief in the truth of a statement of another then he becomes the declarant and the statement becomes his own US v Hoosier D was silent when his girlfriend commented on the bags of money in the hotel room his silence becomes a tacit adoption of the girlfriend s statement 1 a In order for silence to be admitted as an admission three qualifying factors must be met i D heard something ii The matter asserted was within D s knowledge iii The occasion and nature of the statement were such that he would likely have replied if he did not mean to accept what was said 3 But no meaning can be attributed to postMiranda silence Doyle v Ohio a PreMiranda silence may be used to impeach Jenkins iii Admissions by speaking agents 80ld2C l Statements by agents are admissible when the individual hired the agent to speak on his behalf a E g a lawyer s pleadings from prior lawsuits 2 Many things said by agents are verbal acts anyway so they fall under that exception offer to buy a house lend money etc iv Admissions by employees and agents 80ld2D l Statements by employees and agents are admissible if they are a Concerning the scope of employmentagency and b Made during the existence of the relationship 2 E g truck driver explains to police how the accident occurred this statement can be used to hold the truck company liable 3 Mahlandt v Wild Canid Survival D employee s statement that Sophie bit a child is admissible a R 805 multiple hearsay statementwithinastatement employee was merely relaying what she d heard i May be admissible if each part of the statement falls under a hearsay exception b But personal knowledge is not necessary for admissions c Minutes from board meeting is also admissible because the board of directors is the speaking agent of the D center v Coconspirator statements 80ld2E 1 Statement by a coconspirator is admissible against other coconspirators if a Declarant and defendant conspired coventurer requirement b Statement was made during the course of the venture pendency requirement c And in furtherance thereof furtherance requirement 2 Bouriaily v US judge not jury decides whether the three requirements of the rule apply a Permits bootstrapping under l04a or commonlaw bootstrapping rule is embodied in l04a b Preponderance standard e Unrestricted exceptions 803 i Present sense impression 8031 statement describing an event made while the declarant was perceiving the event or immediately thereafter 1 Immediacy is the key relationship between event and statement was so close that the happening impelled the words out of the defendant a Declarant had no time to forget or lie and attention was focused on the event b Doesn t need to be a startling event 2 Nuttall v Reading Co telephone conversation statements are admissible to show that deceased was forced to go to work because the statements were made during the event and immediately thereafter ii Excited utterances 8032 statements relating to a startling event made while the declarant was under the stress of excitement I Excitement is the key a Declarant had no time to lie or forget 2 US v Iron Shell girl tells police officer about assault an hour after it happened when she not hysterical or crying but nervous scared and disheveled a Factors to consider i Time lapse between incident and statement ii Whether statements were spontaneous or the response to an inquiry iii Age and physicalmental condition of D iv Characteristics of the event b Basically must show that statements were not the product of re ection and deliberation c Conviction affirmed the single question What happened does not destroy the excitement necessary for the exception to apply iii Stateofmind 8033 statements made about subjective internal states made simultaneous with the subjective state not afterwards upon re ection 1 Simultaneity required a I didn t ski the slope because I was afraid spoken after the fact is not admissible to show that person was afraid at the time b This slope is too advanced for me spoken at the time is admissible to show anxiety 2 Declarant must have intended to make a statement about his stateofmind 3 Can be used to prove four things a Declarant s thenexisting physical condition i In personal injury suits complaints about aches and pains made to others b Declarant s thenexisting mental or emotional condition i Complaints and expressions of anger comments that show knowledge of a particular fact ii Oberman v Dun amp Bradstreet P attempts to show Prudential s stateofmind based on conversation where Prudential rejected P s application 1 Factladen statement by Prudential shows his intent to say I don t want to lease to you 2 Even though statement recites facts rather than literal inclinations Prudential clearly was intending to show it s stateofmind in rejecting the loan application iii Shepard v US P offers wife s statement that Dr Shepard poisoned me for truth of matter asserted 1 But 8033 exception show her antisuicide stateof mind in order to rebut D s contention of suicide 2 Rejected risk of confusion is too great a Statement is too factladen it accuses D b Plus it is too backwardlooking c Declarant s subsequent conduct ie statements to show intent to do something i Mutual Life Insurance v Hillmon letters admitted to show Walters intent to travel will Hillmon 1 Letters don t prove that he actually went but only that his stateofmind was that he intended to go at one time 2 Hillmon doctrine when the performance of a particular act by an individual is an issue in the case his intention stateofmind to perform the act may be shown a ie the stateofmind itself does not need to be at issue it can be used inferentially to prove other matters that are at issue ii Basic Hillmon statement of intent is admissible to prove what declarant intended to do and what he did do iii Extended Hillmon see above in addition to what a third party did iv US v Pheaster used extended Hillmon l Hillmon is part of the evidence code d Facts about declarant s will i Premised on the idea that the mental state of the testator is of paramount importance to interpreting the will iv Statements for purposes of medical diagnosis or treatment 8034 1 Good reason to believe that declarant will be truthful and accurate in describing symptoms and possible causes 2 Broader than stateofmind exception no temporal limitation a Embraces descriptions of both past and present symptoms ie medical history 3 Motive prong statements must be made for the purposes of medical diagnosis or treatment a Third party statements fall under this exception 4 Blake v State doctor allowed to testify regarding victim s statements during examination a Statements describing assault were relevant for the diagnosis of her emotional state which the doctor then uses to determine how to properly treat the victim v Past recollection recorded 8035 declarant s recorded statements about what he knew at the time may be substituted for testimony or used to refresh the declarant s memory at trial 1 Declarant must be available at trial 2 But when the rehabilitation doesn t work and the statement itself is to be admitted into evidence the party must demonstrate that a The witness lacks present recollection of the matter b The statement accurately re ects knowledge he once had c He made or adopted the statement and d He did so while the matter was fresh in his mind 3 Ohio v Scott P introduces witness s writtensigned statement given to police at crime scene to refresh her memory at trial evidence allowed requirements met vi Business records 8036 1 Four elements a Record regularly generated by a business i Must have been made in the regular course of business activities b Personal knowledge of source source of the information must be someone with personal knowledge c Contemporaneity information was gathered at the time of the event d Foundation testimony required by by custodian of the records or other qualified witness i Witness must simply have firsthand knowledge of the 10 recordkeeping system and can describe the manner in which records are prepared so as to satisfy the other three requirements ii Witness need not have personally created the document in question though 2 Petrocelli V Gallison D doctor s postoperation report included reference to severed nerve from operation 6 months prior a Business records exception does not apply i No indication Where the original information came from ii No personal knowledge report merely indicates What doctor was told I No regular business routine patient telling his doctor of severed nerve is not a regular business routine vii Public records 8038 1 Records reports or data compilations setting forth either a activities of an office or agency court transcripts receipts indicating service of process b matters observed by public officials IRS assessment liens reports by building inspectors i Baker v Elcona Homes applies to police reports in civil cases ii Excludes criminal matters observed by law enforcement personnel 1 US v Oates Customs chemist is member of law enforcement so exception does not apply to lab findings c factual findings from official investigations findings of employment discrimination studies on toxic shock syndrome i Trustworthiness factor according to Advisory Committee Notes consider 1 Timeliness of the investigation 2 Use of hearing procedures 3 Skill and motivation of the investigator 4 Improper motives 2 Not to be confused with a 8039 records for vital statistics b 10 proof of the absence of a public entry c 14 documents affecting interest in property d 22 evidence of judgments of felony convictions e 23 judgments on matters of personal or family history viii Learned treatises 803l8 l Full use of a treatise is permitted where a It is shown to be a reliable authority and b Either the expert relies on it on direct or it is called to his attention on cross ix Judgment of previous conviction 80322 1 After trial or upon guilty plea but not for plea bargains or no lo contendere 2 Felonies only 3 But not for criminal cases for purposes other than impeachment ll f Declarant unavailable 804 statements admissible only if the declarant is unavailable i 804a definition of unavailable l04a question preponderance Five situations 1 4 ii 804b 1 9999 Claim of privilege ie Fifth Amendment Refusal to testify on the stand D refuses to answer when ordered Lack of memory as to the subject matter of his prior statement Death illness infirmity Unavoidable absence presence simply cannot be obtained i ie beyond the reach of the court s subpoena power or simply cannot be found ii Diligent search usually necessary reasonable means of attempting to find witness 1 Barber v Page conviction overturned when P uses testimony from witness in federal prison in another state without making any goodfaith effort to bring him to trial a The right of confrontation may not be dispensed with so lightly None of these apply if the absence is due to the procurement of a party The witness s testimony not necessarily the witness himself must be unavailable a Includes situations where D can t remember or refuses to testify Trial judge makes unavailability determination under l04a if 804a condition is met there are five exceptions to the hearsay rule Former testimony 804bl a b Also includes depositions and testimony given in preliminary hearings Four requirements i Prior proceeding ii Under oath iii Subject to cross iv Same subject matter Limited primarily by the crossexamination requirement i Declarant must have been crossexaminable in the prior proceedings 1 As opposed to rule for prior inconsistent statements which requires a present chance to crossexamine the declarant concerning his previous statement Double hearsay problem 805 since prior testimony is introduced by way of transcript an outofcourt assertion by the court reporter of what the D said i Covered by the public records exception of 8038 2 Dying declarations 804b2 a b c Statement must be made while death was imminent and it must concern the cause or circumstances of the impending death Declarant must sincerely believe that death is imminent Judge determines if declarant expected imminent death 3 Declarations against interest 804b3 a Thought to be trustworthy on the ground that a person is unlikely to state facts harming his own interest unless they are true i Eg Sam said he owed Todd 1000 12 ii Consider context and con icting interests b Requirements i Declarant is a nonparty otherwise it s an admission ii Declarant has personal knowledge iii Declarant knows or should know that statement is against interest c Factors to consider if a statement is against interest i Context look at reason for making statement ii Con icting interests iii Declarant s understanding of how statement might affect him d Williamson V US only statements directly against declarant s interest admitted not those also implicating D 4 Statement of personal or family history 804b4 a B declarant can be family friend or neighbor intimately associated 5 Statement against a party that has engaged in wrongdoing that procured the unavailability of the declarant 804b6 a l04a determination preponderance b US V Cherry multiple D s and a missing witness i Waiver of confrontation rights occurs if 1 D participated directly in planning or procuring the declarant s unavailability or 2 The wrongful procurement was in furtherance within the scope and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy ii Conspirator is responsible for the acts of colleagues unless he shows that he took affirmative steps to withdraw from the conspiracy before the acts were committed g The Catchall Exception 807 i Court must determine that the statement has a circumstantial guarantee of trustworthiness and l is offered as evidence of a material fact 2 is more probative on the point for which it is offered than any other evidence that can be procured through reasonable efforts 3 best serves the general purposes of the rules and the interests of justice with its admission ii Factors to consider in making trustworthiness determination Weaver 1 Declarant s propensity to tell the truth 2 Whether the statement was made under oath 3 Whether the declarant had personal knowledge 4 Time lapse the event and the statement concerning the event 5 Motivation of the declarant to make the alleged statement iii Catchall often used in child abuse cases as the basis to admit statements by young victims 1 Factors to consider to determine trustworthiness a Precocious knowledge and ageappropriate language b Behavioral changes c General demeanor and affect d Spontaneity 13 iv vi e Presence or absence of motive on the part of either the speaker or the reporting witness Signs of tension between the child and the alleged abuser The training and techniques of the reporting witness The number and consistency of repetitions of the basic story i Character of the child 2 When the testimony is being offered against the D must satisfy Constitutional standard of trustworthiness Idaho V Wright Near Miss Doctrine not allowed to use Catchall simply because you couldn t quite squeeze it in under another exception Dallas County V Commercial Union Assurance newspaper clipping admitted to prove previous fire 1 None of the hearsay risks are present State v Weaver D moves for new trial on basis of new affidavits suggesting other possible cause of infant s death 1 New trial granted affidavits pass trustworthiness test FquotC 39 h Minor exceptions 1 ii iii iv v1 vii VIII Ancient documents 80316 documents older than 20 years 1 First authenticate under 90lb8 Market reports commercial lists 80317 data published and generally used and relied upon by the public or by persons in particular occupations 1 Price lists in catalogues stock market quotes city directories Absence of record 8037 and 10 absence of entry as evidence of a nonoccurrence or nonexistence of a matter that one would expect to see recorded in such places if it occurred or existed 1 Must first establish that the record meets criteria in 8036 8 or 9 Birth marriage death 1 8039 public records vital statistics 2 80311 religious records of family history 3 80313 family records Real property 80314 15 20 Reputation within family 80319 Reputation within community 80321 permits admission of what people say as proof of what they in the aggregate think 1 Watch for 404 405 Constitutional restrictions on hearsay a 6th Amd in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him i Entitles the D to be in the court in view of the testifying witness and to cross examine b Four theories of how the Confrontation Clause operates on hearsay 1 iii Minimalist theory the Clause only speaks to live testimony and has nothing to say about outofcourt testimony 1 witness against means someone who testifies at trial Production theory requires the P to produce an available declarant in preference to his outofcourt statement but has nothing to say about declarants whose testimony the P cannot obtain unavailable 1 Partially adopted in Roberts stressing the duty of the P to produce Reliability theory the Clause sets a constitutional standard of reliability and reliability is less important if the accused can crossexamine 1 Also partially adopted in Roberts 14 iv Testimonial theory the Clause applies to testimonial statements which are at least statements made to law enforcement officers where the purpose of the testimony is to aid in prosecution 1 Crawford c Ohio V Roberts declarant testifies during preliminary hearing but at trial she is unavailable no prior cross although D attorney questioned her i Admissible two prong test 1 Declarant is unavailable a 804a5 test 2 Indicia of reliability test ii Even if unavailable a statement is only admitted if it bears adequate indicia of reliability 1 Two ways to meet this standard a Either the statement falls within a firmly rooted hearsay exception i 804bl former testimony exception is firmly rooted 1 Preliminary hearing was testimony because D s questioning amounted to cross it challenged the truth of her story and was full of leading questions b Or it bears particularized guarantees of trustworthiness d What are firmly rooted hearsay exceptions p 367 i Coconspirator statements ii Excited utterances iii Statements for medical diagnosis or treatment iv Business records v Dying declarations vi Agent s admissions vii Public records c Crawford v Washington declarant unavailable taperecorded testimony to police offered under 804b3 statement against interest i Inadmissible to admit statements deemed by a judge to be reliable is fundamentally at odds with the right of confrontation 1 It is the process not the content that must be reliable a Opportunity to cross makes the process reliable ii Testimonial statement unavailability opportunity to cross is required to satisfy the 6quot 1 And testimonial includes at least statements made to police a circumstances which would lead an objective witness to reasonably believe that the statement would be available for use at a later trial f Priordeferred cross and unavailable witnesses i Deferred does suffice prior may suffice if the witness is unavailable at trial ii Prior crossexamination 1 CA v Green witness extensively crossexamined at preliminary hearing but claimed to forget at trial prior testimony introduced under 804bl former testimony of unavailable witness a Admissible circumstances of preliminary hearing were similar to a trial under oath represented by counsel b Was declarant unavailable at trial i Yes under 804a3 lack of memory c Did the prior opportunity to crossexamine satisfy 804bl and the Confrontation Clause 15 i Yes Crawford says a prior opportunity is enough even if there is no cross iii Deferred crossexamination 1 CA V Green the inability to crossexamine the witness at the time he made his prior statement cannot easily be shown to be of crucial signi cance as long as the defendant is assured of full and effective crossexamination at the time of trial g New hearsay i Idaho V Wright physician testifies to what 3year old told her because court did not believe child could communicate with jury 1 Supreme Court says statement violates the Confrontation Clause 2 Catchall exception is not firmly rooted 3 Particularized guarantees of trustworthiness must be drawn from the circumstances that surround the making of the statement that render the declarant worthy of belief not external evidence a Must be at least reliable as evidence admitted under a firmly rooted hearsay exception ie adversarial testing would add little to its reliability i Consider only subjective internal qualities of the statement 1 Whether child had motive 2 Whether the statements are of the type that a child would fabricate 3 Use of terminology unexpected of a child of similar age b Physician s questioning was suggestive so statements are inherently unreliable h Protected witness testimony i Coy v Iowa Sixth Amendment violated by placing screen between child sexual assault victims and D he could see them it is harder to lie to someone s face than behind his back ii Maryland v Craig Sup Ct approves letting child testify from other room through video feed interest in psychological wellbeing of victims 1 Courts must make casespecific findings 394 IX Foundation Authentication and Identi cation a 90la authentication requirement is satisfied by the offering of evidence sufficient to support a finding that the matter in question is what its proponent claims i l04b question judge plays only a screening function passing the ultimate decision to the jury 1 But judge will make decision if there is a risk of prejudice b 901b ten methods of authentication c Tangible objects i US v Johnson D challenges authentication of axe found on his property because witness failed to show that he could distinguish it from any other 1 Admitted witness was pretty sure and jury remained free to reject the evidence ii US v HowardArias since all pot looks alike D claims P must show that pot seized from boat was accounted for every step of the way continuous chain of custody l Admitted a missing link does not prevent admission so long as there is sufficient proof that the evidence is what it purports to be and it has not been altered in any material aspect 16 X d Writings 6 i US V Bagaric P tries to connect D to the crime with a letter written to other co conspirators l Admitted sufficient evidence to show that the letter is what P claims it is ii Spellings errors can be used to authenticate Telephone conversations i US V Pool P wants to introduce evidence of phone call from someone who identi es himself as Chip 1 Inadmissible just having someone ID himself is not enough without voice comparisons f Selfauthenticating documents 902 1 Domestic public documents e g city council minutes 2 Foreign public documents e g census report from France 3 Official publications issued by public authority e g maps 4 Newspapers and periodicals eg NY Times Newsweek 5 Trade inscriptions eg Sears catalogue ii But be wary of privatelypublished items e g dictionaries court reporters although opponent will probably stipulate Impeachment a Five ways to impeach a witness i Nonspecific impeachment 3 ways 1 Show the witness has bias motivation or corruption 2 Show a defect in his perception or memory 3 Show that he is by disposition untruthful ii Speci c impeachment 2 ways 1 Show that the witness has made a prior inconsistent statement 2 Contradict the witness by showing that he s just plain wrong about something b Repairing credibility subject to court s discretion under 611 supporting party may re C examine the witness to refute points suggested during the impeachment Nonspeci c impeachment i Bias and motivation I Always allowed questions about plea bargains fees paid to experts 2 US v Abel evidence of a witness s and D s membership in the White Brotherhood in addition to description of group was sufficiently probative of bias to warrant its admission for impeachment a Passes 403 test not unfairly prejudicial to D b Common membership in an organization suggests bias ii Sensory and mental capacity 1 May proceed in cross or through extrinsic evidence 2 Attacking party may show in uence of drugs or alcohol mental af ictions or illness or stays in mental institutions iii Character for truth and veracity three ways a Relevant under 404a3 i Veracity only ie can t show that witness is by disposition violent only untruthful 2 608b cross examine about nonconviction misconduct a Can only be raised during cross not during direct testimony of another witness b Examiner must have a factual predicate for the question and the bad act must bear directly on veracity in respect to issues involved in 17 the trial i Ie the bad behavior must involve lies or deception c US v Manske what kind of prior bad acts re ect on truthfulness i Threatening other defendants re ects on veracity 1 Behavior that seeks personal advantage by taking from others 3 609 cross examine about prior convictions a Can be raised anytime even if witness has left the stand b Conviction must have occurred within the last ten years c Prior conviction must either i be a felony 609a1 1 Subject to reverse 403 standard if witness is D or regular 403 for regular witness 2 US v Lipscomb judge has discretion to determine when to inquire into facts and circumstances underlying a prior conviction 3 But examiner may not go into details ii or involve dishonesty or false statement 609a2 4 608a testimony by a character witness that the target witness is untruthful opinion and reputation a Can only come in after there has been an attack on credibility d Speci c impeachment i Prior inconsistent statements 613 1 Can be raised during cross or extrinsically but if extrinsically witness must be permitted to explain prior statements and opposite party must have opportunity to interrogate the witness thereon 2 Not 80ldlA that is for overcoming the hearsay bar a The impeaching use of a prior inconsistent statement is considered a nonhearsay use 3 Harris v New York impeachment use of prior inconsistent statement obtained in violation of the D s Miranda rights a Allowed preMiranda statements may be used to impeach even if they are not available in the caseinchief i Miranda error cannot be used as a shield for perjury ii Sufficient deterrence of police misconduct ows when evidence in question is unavailable in caseinchief 4 Jenkins v Anderson prearrest silence can be used to impeach 5 Fletcher v Weir postarrest preMiranda silence can be used to impeach ii Contradiction 1 Can be raised in cross or through extrinsic evidence a Door must be opened up first though 2 Must have dual relevance must contradict testimony and do something else as well ie speak to some other issue in the case or to some other form of impeachment e g bias a Three kinds of counterproof i Contradicts proves a substantive point ii Contradicts proves another impeaching point iii Only contradicts on a collateral point usually excluded e Repairing credibility i Two conditions 1 Cannot repair credibility before the attack has come 18 a But some preattack repairs are allowed i Fact the expert is paid for services ii Fact that witness has been convicted of crimes iii Fact that witness entered into a plea bargain iv Any connection or affinity between D and witness 2 Repair should be made at the point of attack ii Evidence of good character 1 608a court may admit opinion or reputation testimony supporting credibility after character for truthfulness has been attacked 2 US V Medical Therapy Sciences On cross D impeached P witness with evidence of prior convictions P repaired with character witnesses to bolster witness s credibility a Character witnesses allowed when convictions are used to impeach the door is opened to evidence in support of truthfulness iii Prior consistent statements 1 Overcome hearsay bar 80ldlB 2 Generally admissible to rehabilitate a witness provided that the attacking party suggested recent testimony was tainted by recent fabrication or undue in uence or motive XI Opinion and expert testimony a Lay opinion testimony nonexpert i 701 a lay witness may give opinion testimony speaking in generalities or conclusions when these are rationally based on his perception and helpful to the trier of fact in understanding his testimony or determining a fact in issue 1 602 personal knowledge required 2 70lc opinions cannot be based on scientific technical or other specialized knowledge within the scope of 702 ii Requirements 1 Must have proper foundation 2 Witness must testify to matters of common knowledge or experience 3 Opinion must be rationallybased personal knowledge 4 Opinion must be helpful to the jury speak to a fact at issue b Expert witnesses i 702 an expert is someone with specialized knowledge qualified by knowledge skill experience training or education 1 Three requirements a Testimony must be based on sufficient facts or data b Testimony must be the product of reliable principles and methods c Witness must have applied the principles and methods reliably to the facts of the case 2 Where expertise is only marginally helpful there may be a 403 problem 3 Formal training not required practical experience is okay ii 703 three possible bases of opinion testimony by experts 1 Facts or data learned by firsthand observation before the hearing 2 Facts or data learned at the hearing 3 Outside data gleaned from other sources prior to trial a Still possible to have hearsay issues b In criminal cases D is entitled to all hearsay evidence on which expert s testimony is based iii 704 the Ultimate Issue exception 1 Expert may testify to ultimate issues to be decided by the trier of fact 19 2 But in criminal cases he may not testify to the mental state of the D when that mental state is an element of the crime charged or of a defense thereto iv 705 with expert witness you can start with the conclusion and then go back and pick up the bases or underlying facts behind the opinion V 706 authorizes court to appoint independent experts c Reliability standard for scientific and technical evidence i Daubert p 621 702 imposes obligations on the trial judge to ensure that scientific testimony is relevant and reliable I Le s general acceptance test rejected 2 Factors which the trial judge must use to determine reliability under l04a a Has theory been tested or can it be tested b Has it been subjected to peer review or publication c How great is the rate of error d Does the theory or technique enjoy general acceptance within a relevant scientific community ii Kumho Tire v Carmichael Daubert test applies to all expert testimony not just to scientific testimony XII Burdens of Proof and Presumption a In civil cases i Burden of production party loses automatically if it can t produce sufficient evidence to enable a reasonable person to find in his favor 1 If party bearing the burden of production carries it the burden shifts to the other party and he loses automatically if he does not offer rebuttal evidence ii Burden of persuasion party can win only if the evidence persuades the trier of the existence of the facts he needs in order to prevail 1 Never shifts iii Presumptions devices that require a trier of fact to draw a particular conclusion when the basic facts are established 1 E g a letter properly addressed is presumed to have been delivered iv Texas Department of Community Affairs v Burdine assuming P s prima facie case has been established does D have burden of production or burden of persuasion 1 Sup Ct says burden of production a Once P has shown discrimination by preponderance of the evidence D must produce evidence to rebut the presumption of discrimination i Sufficient if it raises a genuine issue of fact persuasion is not necessary b The inference of discrimination may still remain c Burden then shifts back to P to show that D s evidence is just a pretext she then has burden of persuasion v Price Waterhouse v Hopkins mixedmotives case allows P to frontload her case with factual allegations rather than save them for later on 1 If P s case is strong initially prima facie specific direct factual allegations of discriminatio then D bears burden of persuasion a Makes it so P doesn t have to save evidence for later b P essentially claims that whatever D s excuse it s pretext c IfD does nothing he loses i Must create a question of fact for jury b In criminal cases i Dictated by the Constitution and the legislature not R 301 ii Burden of persuasion 20 XIII Privileges 1 P must prove beyond a reasonable doubt every element of the crime charged a But what about for affirmative defenses e g insanity 2 Patterson V NY burden of proving affirmative defense of extreme emotional disturbance is on D 3 Sandstrom v Montana neither burden of production or persuasion of showing intent can shift to D a Le P must show intent it cannot be presumed a Designed to protect certain societal relationships and encourage the free ow of information within those relationships Governed by common law or state evidence codes c AttorneyClient Privilege 1 ii iii iv vi vii viii ix PBR 503 p 307 Applies only to confidential communications made for the purpose of rendering professional legal services to the client 1 Preexisting objects and documents are not protected Lawyer is anyone authorized or reasonably believed by the client to be authorized to practice law in any state or nation People v Meredith D s first attorney testifies to location of wallet 1 AC privilege is not strictly limited to communications but extends to protect observations made as a consequence of protected communications 2 But when D counsel removes or alters evidence the privilege does not bar revelation of the original location or condition of the evidence in quesiton a To bar testimony as to the original location of the wallet essentially destroys critical information b If counsel simply observes the wallet and leaves it alone that observation is protected US v Kovel D communicates with nonlawyer employed by law firm 1 The privilege covers communications to nonlawyers that involves relating communications to an attorney a So long as the communications were made in confidence for the purpose of obtaining legal advice from the lawyer b Kovel in this case was a former accountant and consultant for the firm in tax cases Joint clients if two or more clients retain the same attorney communications made in the presence of the other clients and the attorney are privileged to outsiders Corporate clients 1 Upjohn v US privilege protects communications made by company employees to counsel at the direction of corporate superiors for the purpose of securing legal advice Future crime or fraud 1 State v Phelps D tells lawyer he intends to commit perjury on the stand lawyer reveals this communication a AC privilege is not meant to protect discussion of future crime or fraud designed to conceal past wrongdoing 2 Applies to all communications of future crime or fraud regardless of whether to reveal would prevent the crime Assertion and waiver 1 The client holds the privilege and must claim it at the appropriate time or risk losing it 21 2 3 Asserting the privilege a l04a question b Claimant bears the burden of establishing his entitlement to the privilege i Opposing party bears the burden of showing an exception Waiver a Privilege is waived if its holder voluntarily discloses or consents to disclosure of any signi cant part of the matter or communication proposed FRE 511 i E g privilege is waived if client tells a third party about a conversation with lawyer d Psychotherapist atient privilege i PBR 504 p 312 in FRE protects confidential communications made to a psychotherapist or doctor in connection to diagnosis or treatment ii Includes both medical personnel and psychologists iii Patient owns the privilege iv No future crimes exception v No privilege where the victim is 16 or younger and has been the victim of sexual abuse therapist not bound by privilege vi J affee v Redmond p 804 P wants to discover notes made by therapist who treated police officer after shooting in order to find a prior inconsistent statement should privilege for mental health care be recognized as part of the federal common law 1 Yes reason positive value of providing psychotherapy and experience other states already had the privilege requires acceptance of this new privilege a Derived from FRE 501 as a matter of common law evolution Sup Ct expands the privilege not to just licensed therapists but to clinical social workers as well Quali ed privilege P must show that it cannot get the material in any other way a Unlike AC which is an absolute privilege e Spousal privileges i Two types testimonial and spousal confidence 1 2 Both recognized in common law but only the testimonial is in the FRE PBR 505 Joint participants exception both privileges are cancelled when both spouses are participants in the crime l04a question ii Testimonial privilege PBR 505 p 316 l 2 May be claimed only by the spouse in order to not testify against an accused spouse Only applies to criminal cases and only when the spouses are married when the testimony is sought Trammel v US wife agrees to testify against husband D as part of plea bargain a D tries to assert testimonial privilege but trial court allows testimony Sup Ct affirms b The witness spouse not the accused holds the testimonial privilege Exceptions privilege is negated a Where a spouse has harmed the other b When related to matters that occurred before marriage c When the accused is charged with importing an alien for prostitution 22 iii Spousal con dences privilege if the spouse is testifying what can heshe testify about 1 Even under spousal confidences privilege witness spouse may testify to things that others could testify to as well ie conversations in the presence of outsiders a Just not behaviors or conversations that were private to the marriage 2 US v Estes wife is now exwife testifying against exhusband a Two parts to testimony i First husband returns home with money 1 Joint participant exception should not apply wife was not a participant in a crime yet 2 Testimony should have been excluded ii Second they stash the money and spend it occasionally 1 Now JPE applies testimony was properly allowed b No testimonial exception because they are not married when the testimony is being sought f Privilege against selfincrimination i Applies to both the civilcriminal context to all administrativelegislative hearings ii Applies only to compelled testimony that could lead to criminal liability iii Limited to testimonial evidence 1 Nontestimonial evidence blood samples leaving the scene of an accident may be compelled iv Griffin v CA prosecutorial comment on silence is unconstitutionally compelled speech v Writings 1 US v Doe P wants Doe s business records to learn about fraudulent behavior Doe moves to quash the subpoena on Fifth Amd grounds a Sup Ct affirms the quash the act of handing over the records is compelled selfincrimination b Production would be D s admission that the does exist that he has them and that they are authentic XIV Best Evidence Rule a R 10011008 when proving the terms of a writing where the contents are at issue the original writing must be produced unless the party introducing the evidence has a valid excuse for not having the original b Not a rule of admissibility or exclusion merely says you must have the original evidence or a perfect representation i Only applies if the thing is not in evidence yet c Steps i Does the BER apply are the contents at issue ii Is it the original or if not does the representation suffice 1 Can t use a copy if 1003 a there s a genuine question as to the authenticity of the original 104a question for judge b it would be unfair to use in lieu of the original escape hatch d R 1001 definitions i What s covered by the BER Writings recordings and photographs ii What is an original What is a duplicate e R 1002 to prove the contents of a writing recording or photo the original is required i Contents in issue means you must prove the contents of something in order to win 1 Two ways to make the contents in issue 23 quot 39v a Needed to Win the case i Ie the meat of the document is what matters a will a document that defames somebody a document that is the subject of a copyright suit b Put in issue by one party i Ie a witness reads from a report he made on the scene report must be admitted into evidence 1004 other evidence ofthe contents of an original will suffice if i The originals have been lost or destroyed ii The originals are not obtainable iii The originals are in possession of the opponent iv The writing recording or photograph is not closely related to a controlling issue 1005 if a public record a certified copy is fine 1006 summaries are okay if the originals are made available for examination 1007 don t need an original if both parties agree to what it says 1008 certain things are mandatory 104b questions for the jury i Whether the asserted writing ever existed ii Whether another writing recording or photograph produced at trial is the original iii Or whether other evidence of contents correctly re ects the contents US v Duffy objection to lack of original watermark on shirt Writing at trial i Ct says it s not a writing just a shirt ii Court may decide whether something is a chattel or a writing 1 Chattel in this case a Writing was simple and easy for witness to remember b The terms of the writing were not central or critical to the case c The shirt was only collateral evidence of the crime of transporting stolen car 24
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