EVIDENCE - OUTLINE I. INTRODUCTION. A. The Concept Of Evidence. 1. The eleven articles of the Federal Rules of Evidence. a. Article I: General Provisions. b. Article II: Judicial Notice. c. Article III: Presumptions in Civil Actions and Proceedings. d. Article IV: Relevancy and its Limitations. e. Article V: Privileges. f. Article VI: Witnesses. g. Article VII: Opinions and Expert Testimony. h. Article VIII: Hearsay. i. Article IX: Authentication and Identification. j. Article X: Contents of Writings, Recordings, and Photographs (The Best Evidence Rule). k. Article XI: Miscellaneous Rules. 2. Definition: Any knowable fact or group of facts, not a legal or logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or of logic, on which the determination of the tribunal is to be asked. 1 Wigmore, Evidence. 3. All the means by which any alleged matter of fact, the truth of which is submitted to investigation at judicial trial, is established or proved. B. The Law Of Evidence. 1. The set of rules and principles affecting judicial investigation into questions of fact; for the most part, controverted. II. PRELIMINARY MATTERS. A. Alternatives To Formal Proof. 1. Judicial notice: The process whereby the trier of fact accepts certain facts as true without the necessity of formal proof. a. Adjudicative facts - matters of consequence to the resolution of the factual issues in the particular case. 1)Some examples. a)Water at sea level boils at 212F; b)Human body cannot withstand immersion in c)No two finger prints are alike. 2)FRE 201. Judicial Notice of Adjudicated Facts. (a) Scope of the rule. This rule governs only judicial notice of adjudicative facts. (b)Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy can not reasonably be questioned. (c) When discretionary. A court may take judicial notice, whether requested or not. (d)When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. (e)Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f)Judicial notice may be taken at any stage of the proceeding. (g)Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. b. Legislative facts - facts which are relevant to legal reasoning and the law-making process. 1)Some examples. a)Racially separate schools are inherently unequal; b)electronic devices exist to intrude upon the privacy of persons. c)Statutes, regulations and etc. 2)Some jurisdictions refuse to distinguish betweenadjudicative and legislative facts (eg: Alaska). c. Law. 1)Judicial notice may be taken of laws. 2)Uniform Judicial Notice of Foreign Law Act. a) All jurisdictions recognize the admissibility of foreign laws. 2. Other options. a. Stipulation. The parties may agree to agree as to how a matter should be handled at trial. b. Presumptions. Another way to expedite. B. Types Of Formal Proof. 1. Real evidence: presentation of the thing itself in court; the knife, the mangled limb; the stolen money; the contract. a. Real evidence is admitted to the jury room, demonstrative evidence is not. 2. Demonstrative evidence: not the thing itself, but a visualization or representation to aid the factfinder; a photograph of the accident scene; a model of a knee joint; a chart. 3. Testimonial evidence: oral testimony by a witness who is under oath or solemn affirmation. 4. Documentary evidence: We did not discuss this type in class, however, according to Black's Law Dictionary, this type of evidence is "evidence derived from conventional symbols (such as letters) by which ideas are represented on material substances. Such evidence is furnished by written instruments, inscriptions, documents of all kinds, and also any inanimate objects admissible for the purpose, as distinguished from 'oral evidence, or that delivered by human beings viva voce (by mouth)." C. Basic Rules of Admissibility. 1. It must be relevant, material and competent. 2. Probative value must outweigh the prejudice created. 3. FRE 103. Rulings on Evidence. (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless substantial right of the party is affected, and (1)Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2)Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. (b) Record of offer and ruling. The court may add any other or further statement which shows the character of theevidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (c) Hearing of jury. In jury cases, proceedings shall be conducted to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. 4. Relevancy and material. a. If an item tends to prove or disprove any proposition, it is relevant to that proposition. b. If the proposition itself is one provable in the case, or if it in turn forms a further link in a chain of proof the final proposition of which is provable, then the offered item of evidence has probative value. c. FRE 401. Definition of "Relevant Evidence". "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable tan it would be without the evidence. d. FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. All relevant evidence is admissible, except as other- wise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissable. 5. Competence. a. Competence applies to both evidence and witnesses b. Competence means that evidence has been obtained in such a way, from such a source, and is in such a form that it is deemed proper to admit. 1) Note that evidence may be relevant, but the witness may be incompetent. 6. Legal relevance. a. Basically, every piece of evidence to be admitted must have probative value, and that probative value must be weighed against the prejudicial effect. b. FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Although 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, or needless presentation of cumulative evidence. 7. Evidentiary Foundations. a. Paving the way for admissibility of evidence requires the use of foundation testimony which in a large sense is basic to the admission of all evidence. b. FRE 901. Requirement of Authentication or Identification. (a)General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirement of this rule: (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. (2)Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3)Comparison by trier or expert witness. Comparison by the trier of fact or by expert witness with specimens which have been authenticated. (4)Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5)Voice identification. Identification of a voice, whether heard first-hand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6)Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by a telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made a place of business and the conversation related to business reasonably transacted over the phone. (7)Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. (8)Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. (9)Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10)Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. c. So, a proper foundation must be laid before a competent, relevant and material piece of evidence may by introduced. D. Preliminary Questions Of Fact: The Role Of The Judge And Jury. 1. The judge decides which evidence the jury gets to hear. 2. The jury is to weigh the evidence which is admitted in accordance with the instructions of the judge. 3. FRE 104. Preliminary Questions. (a) Questions of admissibility generally. Preliminary questions in the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case. (e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. III. THE EXAMINATION OF WITNESSES. A. Testimonial Competence. 1. Introduction. a. In order for a witness to testify at a trial, and thus his testimony be admitted into evidence, he must be competent to testify. b. Rowley, The Competency of Witnesses, identifies four types of common law incompetent witnesses: 1)those insensible to the obligations of an oath; 2)those wanting in capacity or understanding; 3)those having a pecuniary interest in the issue; 4)parties to the issue. 2. Incompetence by reason of status: Traditional limitations. a. Spousal incompetence. 1)At common law, a spouse is incompetent to testify against the other spouse. 2)Most jurisdictions now allow spouses to testify against each other in civil trials. 3)It depends on which jurisdiction one is in as to whether or not the spousal immunity still applies. In some states, the spouse is incompetent to testify, in others, the spouse can claim a privilege, and in still others, a spouse can testify. b. Dead man's statutes. 1)Where death has sealed the lips of one of the parties to a personal transaction, the law, for protection of his estate and his survivors, should and ought to seal the lips of anyone else making a claim against the estate. 2) Generally, a witness may not testify as to any matter or fact occurring (with the decedent) before the death of the decedent. c. Infamous crimes. 1)A person convicted of perjury is incompetent. d. Jurors. 1)A person who is a juror in a trial is incompetent to be a witness at that trial. 2)FRE 606. Competency of Juror as Witness. (a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. 3. The elements of modern competence. a. In all jurisdictions, witnesses must show (on voir dire examination, perhaps) that they: 1) have personal knowledge; 2)recollect it (memory); and 3)tell a comprehensible story (communicate). b. Age. The age of a witness may be critical to determine competency. In WA a child 12 or less, the judge makes a determination as to whether or not the child is competent. That usually consists of questions concerning the difference between right and wrong and telling the truth. In other jurisdictions, a child under 6 is not competent to testify. c. Other modern areas of incompetence. 1)Spousal, unless knowledge of an act occurring before the marriage. 2)Attorney-client, not to attorney, but to client. 3)Priest-penitent. 4)Physician-patient. 5)Lord Mansfield's Rule: A wife may not bastardize a child if the husband was near at hand within 2 years of the birth of the child. 6)Hypnosis. A victim whose memory has been hypnotically refreshed may not testify. Some jurisdictions allow for testimony under procedural safeguards. d. FRE 601. General Rule of Competency. Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. e. FRE 602. Lack of Personal Knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. f. FRE 603. Oath or Affirmation. Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with duty to do so. B. The Presentation Of Proof: Basic Limitations. 1. With the exception of leading questions, the law of evidence has little to say about the proper form or interrogation. FRE 611(a) leaves the method of interrogation to the discretion of the judge: a. Some things to watch for: 1)Ambiguous question: too broad, allows the witness to narrate, and he may blurt out something you don't want to hear. 2)Argumentative question: requires the witness to give an answer that the jury is to decide. Eg: Did you cause the accident? Did X murder Y? Have you quit assaulting your wife? Objection to the form of the question; argumentative. 3)Asked and answered: repetition of questions, objection to the form of the question; asked and answered. 4)Speculative: asking a hypothetical by assuming a fact not entered into evidence. 5)Compound question: double negative Is it not true that you were not on the right hand side of the road. b. FRE 611. Mode and Order of Interrogation and Presentation. (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1)make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.... 2. The rule against leading questions. a. FRE 611(c). (c)Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified as an adverse party, interrogation may be by leading question. b. A leading question telegraphs the answer: The signal light was green, wasn't it? c. Leading questions are generally not permitted on direct examination. It is okay to lead a witness: 1)Preliminary facts: Background information of the witness; good for putting the witness at ease and make him appear less like he's lying. 2)Uncontroverted facts: "Now at the time of the accident, you were traveling south on Cedar, isn't that true?" 3)Inconsequential facts: Allows witness to get to the main facts. 4)New topic: when you introduce the witness to a new topic, you can use leading questions to permit a smooth transition. 3. Assisting the forgetful witness. a. A witness may be permitted to examine a written document to refresh his memory. This is an exception to the hearsay rule See FRE 803(5). b. FRE 612. Writing Used to Refresh Memory. Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh his memory for the purpose of testifying, either- (1)while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross- examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. 4. The rule against hearsay. a. Traditionally, the law of evidence has excluded so-called hearsay testimony from admissibility. The general rule is that hearsay evidence is inadmissible unless it falls within its many exceptions. 5. The Best Evidence Rule. a. To prove the contents of a writing, the original writing itself must be produced, unless it is satisfactorily shown to be unavailable. b. As with most other rules, the best evidence rule is waived if the opponent fails to make a timely and specific objection. c. Applies only to private writings, not public documents. d. FRE 1001. Definitions. For the purposes of this article the following definitions are applicable: (1) Writings and recordings. Writings and recordings consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs. Photographs include still pictures, X-ray films, video tapes, and motion pictures. (3) Original. An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original. (4) Duplicate. A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original. e. FRE 1002. Requirement of the Original. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. f. FRE 1003. Admissibility of Duplicates. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. g. FRE 1004. Admissibility of Other Evidence of Contents. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if- (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or (3) Original in possession of opponent. At a time when an original was under the control of the party whom offered, he was put on notice, by the hearing, and he does not produce the original at the hearing; or (4)Collateral matters. The writing, recording or photograph is not closely related to a controlling issue. h. FRE 1005. Public Records. The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy , certified as correct in accordance with rule 902 or testified to be correct by a witness foregoing cannot be obtainable by the exercise of reasonable diligence, then other evidence of the contents may be given. i. FRE 1006. Summaries. The contents of voluminous writing, recording, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available of examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. j. FRE 1007. Testimony or Written Admission of Party. Contents of writings, recordings, or photographs may be proved by testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original. k. FRE 1008. Functions of the Court and Jury. When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording or photograph produced at the trial is the original, or (c) whether the other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. 6. Rules limiting opinion testimony. a. The non-opinion rule. 1)An opinion is an inference or conclusion drawn from facts observed and at common law was not admissible. b. The lay witness exception to the non-opinion rule. 1)The admissibility of a lay opinion is generally within the discretion of the trial judge; that is, the opinion may be allowed if it is based on the witness' perception and is helpful to the fact finder. a)Mother testifies that son was crazy, okay. b) Mother testifies that son is psychotic, not okay. c)Witness testifies that D was drunk, okay. d)Witness testifies that D an alcoholic, not okay. e)Witness testifies that X is unconscious, okay. f)Witness testifies that X is unconscious because of drugs, not okay. 2)FRE 701. Opinion Testimony by Lay Witnesses. If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to clear understanding of his testimony or the determination of a fact in issue. c. The expert witness exception to the non-opinion rule. 1)FRE 702. Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 2) Frye Rule. Scientific evidence is not admissible unless the thing from which the deduction is made is sufficiently established to have gained general acceptance in the particular field which it belongs. 3)On occasion, a witness who fails to qualify as an expert may nevertheless give lay opinion testimony. 4) Ultimate fact. One would not ask questions of a witness which call for an ultimate fact which the jury is to decide. a)FRE 704. Opinion on Ultimate Issue. (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be reached by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. 4)Questions falling under the 700 rules. a)Is the expert opinion necessary? b)Is the person an expert? c)Is the expert opinion in an area generally recognized (Frye Rule)? d)Will the testimony held the finder of fact? e)Is there a public policy reason for restricting the evidence? 5)Some Washington cases, as examples. a)State v. Steward: Expert witness testified that he had performed 16 autopsies on children, and 9 of the 16 had been killed by the mother's boyfriend. D was the mother's boyfriend. Ct. held not admissible. b)State v. Maule: Child abuse case and father accused of the abuse. Expert testified that most times a child who is abused is abused by his father. Ct. held not admissible. c) Why? Those type of statistics not relevant to whether the D in this case did the deed. 6) If no witnesses to a car accident, for example, many jurisdictions allow an expert witness to reconstruct the scene. 7)Opinion by an expert: with a reasonable degree of medical certainly. 8)FRE 705. Disclosure of Facts of Data Underlying Expert Opinion. The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. 9)FRE 703. Bases of Opinion Testimony by Experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. C. Impeachment, Cross-Examination And Related Problems. 1. Impeachment by cross-examination. a. General principle of impeachment: The process of introducing evidence tending to diminish the trust- worthiness of a person whose testimonial statement has been already admitted as evidence. b. Impeachment can be affected by either cross-examination or via contradiction testimony of another witness. c. First rule of cross-examination: If you don't know the answer, don't ask the question! 2. Impeaching your own witness: The vouching rule. a. FRE 607. Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling him. 3. The scope of the cross examination. a. FRE 611(b). Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. 4. Impeachment modes. a. Pursuing the competence factors: Where do you attack on cross-examination? 1)Witness has to take the oath: FRE 603 & 610. a)Does a child understand the oath? 2)Witness has to be competent: (personal knowledge) FRE 610. 3)Witness has to remember: FRE 602. 4)Witness has to be able to communicate: FRE 604. b. Pursuing the credibility factors. 1)Bias, interest, prejudice, and corruption. a)The bias of a witness will affect his credibility. Since bias is only a state of mind it will have to be shown circumstantially. 2)Prior crimes. a)At common law conviction of a felony made a person incompetent to testify thereafter. FRE 609 allows evidence of a prior conviction admitted to attack the credibility of the person, not to show his propensity for committing the crime. b)FRE 609. Impeachment by Evidence of Conviction of Crime. (a) General rule. For the purpose of attacking the credibility of witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross- examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has lapsed since the date of the conviction or of the release of the witness from confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been subject to a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. 3)Prior bad acts. a)FRE 608(b)(1). Evidence of ... Conduct of Witness. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than a conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness. 4)Prior inconsistent statements. a)FRE 613. Prior Statement of Witnesses. (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party opponent as defined in rule 802(d)(2). 5)The character witness for veracity. a)FRE 608. Evidence of Character and Conduct of Witness. (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than a conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self incrimination when examined with respect to matters which relate only to credibility. 6)Special procedures for experts. a)Sometimes a treatise is used to impeach an expert. Such as "Dr. are your familiar with Dr. Smith's article on pain?" If Dr. says no... But if Dr. says yes, and disagrees with the article, puts a question in the jury's mind. 5. Rehabilitation after impeachment. a. If a witness has been impeached on cross-examination, then it may be necessary to bring on another witness to rebolster the original witness' veracity; truthfulness. Such as a prior consistent statement. IV. RELEVANCY DEFINED. A. Mathematical Proof. 1. Fact situation. P is run over by a blue bus. P is prepared to prove that D operates 4/5 of the blue buses in town. The most that can be said is that the mathematical chances somewhat favor the proposition that P was run over by the D's bus. However, that is not enough. A proposition is proved by a preponderance of the evidence, if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the minds of the tribunal notwithstanding any doubts that may still linger there. 2. Hypo. A study of 500 men convicted of murder showed that 470 of the men had green eyes. In a murder trial, the D has green eyes. What does that prove? Nothing. B. Substantive Character Evidence. 1. A critical distinction. a. In the previous section "character" was used to determine veracity. In this section, character is used to prove substantive facts which are at issue: eg: a character trait. 2. Types of substantive character evidence. a. Some jurisdictions allow into evidence character evidence that has probative value including testimony of (1) specific past acts; and (2) opinions held by qualified observers; (3) reputation in the community. 3. Character evidence in a civil context. a. Mutual Life Ins. Co. of Baltimore v. Kelly, OH, 1934. Decedent was killed when he entered a building which had a trap gun set up. Family sought to recover from life ins. co. Company denied benefits claiming that Decedent was trespassing. The family attempted to rebut the "criminal trespass" inferences by having the beneficiary testify that the decedent was a fine American. The ct. held that such evidence was not admissible in a civil trial to bolster the character of a person who was not impeached. 4. Character evidence in a criminal context. a. FRE 404(a). Character Evidence not Admissible to Prove Conduct ... . (a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; (2) Character of victim. Evidence of a character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609. b. FRE 405. Methods of Proving Character. (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a trait of a character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct. c. FRE 412. Rape Cases; Relevancy of Victim's Past Behavior. (a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible. (b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is - (1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally required to be admitted; or (2) admitted in accordance with subdivision (c) and is evidence of - (A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or (B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which rape or assault is alleged. (c)(1) If the person accused of committing rape or assault with intent to commit rape intends to offer under subsection (b) evidence of specific instances of the alleged victim's past sexual behavior, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all parties and on the alleged victim. (2) the motion in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subdivision (b), the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding subdivision (b) of rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue. (3) If the court determines on the basis if the hearing described in paragraph (2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined. (d) For the purposes of this rule, the term "past sexual behavior" means sexual behavior other than sexual behavior with respect to which rape or assault with intent to commit rape is alleged. 5. Special rules for other crimes. a. FRE 404(b). (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. C. Other Examples Of Legal Relevance. 1. Habit and custom. a. FRE 406. Habit: Routine Practice. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. b. If a collateral fact is to be considered relevant, it must tend to establish fact in issue. It is enough that the inference to be drawn be a fairly possible one; and if it makes the material proposition more likely, it will appreciably advance the inquiry. Thus a well constructed habit has probative value. 1)Habit has probative value when it denote a mechanical course of behavior. c. Note difference between the 600 and 400 rules. The 600 rules look to the credibility of the person. The 400 rules look to the behavior. There is a fuzziness between them: intrinsic (what the witness said) v. extrinsic (show what X did). Thus habit is specific v. character is broad. d. Reyes v. MO Pacific RR Co., 1979. P was injured when D's train hit him. D sought to introduce evidence that P was probably drunk that night because he drank alot. Ct. said no. too broad. 2. Subsequent remedial measures. a. FRE 407. Subsequent Remedial Measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility or precautionary measures, if controverted, or impeachment. b. Flamingo v. Honda Motor Co., (7th Cir. 1984). P wished to introduce evidence that D changed the design of its motor cycle because of design flaw. Ct. held no. Violated FRE 407. By allowing such evidence, manufacturers would be discouraged to make design modifications to improve their products because a lawsuit would always be lurking. c. Following an accident a property owner is likely to repair or improve old defects and faults. Realizing the inadequacy of former precautions he may install the latest safety device to meet the challenge of changing conditions. Improving a condition may be acknowledgment that the previous condition was capable of harm, but it is not an outright admission of lack of due care, hence the will to improve should not create an automatic inference of prior negligence. 3. Compromise offers and settlements. a. FRE 408. Compromise and Offers to Compromise. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or a witness, negativing a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution. b. FRE 409. Payment of Medical and Similar Expenses. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. 1)This makes perfect sense: An insurance will then be more inclined to disperse cash if it can do so without it being admitted into evidence that they did so. Good public policy reason. c. FRE 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the pleas discussions: (1) A plea of guilty that was later withdrawn: (2) A plea of nolo contendere: (3)Any statement made in the course of any proceedings under Rule 11 of Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas: or (4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or pleas discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. 4. Liability insurance. a. FRE 411. Liability Insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias of prejudice of a witness. V. THE HEARSAY RULES. A. The Rule Against Hearsay. 1. FRE 802. Hearsay Rule. Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Acts of Congress. B. Rationale For The Rule. 1. Basically, the rule allows for cross-examination of the person. If Joe says Sam told him that he saw the D commit the robbery, hearsay. You aren't able to ask Sam any questions to determine the validity of his observations. Was the moon full? How do you know it was the D? Etc. 2. Hearsay fails for being incompetent. Witness must have personal knowledge. C. Defining Hearsay - Basic Concepts. 1. FRE 801. Definitions. (a) & (c). The following definitions apply under this article: (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. (b) Declarant. A "declarant" is a person who makes a statement. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) Statements which are not hearsay. A statement is not hearsay if - (1) Prior statement by a witness. The declarant testifies at the trail or hearing and is subject to cross- examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or (2) Admission by a party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 2. So Hearsay is (1) An out of court statement; (2) made in court; (3) by someone other than the declarant; (4) offered as evidence to prove the truth of the matter asserted. 3. A threshold question: What are trying to prove? a. Example. 1)Joe is on the witness stand and Says Sam called me and said it was raining in London. a)What are you trying to prove? **Sam called Joe? Not hearsay. ** Raining in London? Hearsay. D. The Application of Basic Concepts. 1. McCormick, The Boaderland of Hearsay., 39 Yale L.J. 488,489 (1930). ... It is a familiar doctrine that the hearsay rule applies only to evidence of out-of-court statements offered for the purpose of proving that the facts are as asserted in the statement. Evidence of such statements made for any other purpose, e.g., to prove the making of a declaration as evidence of the publication of a slander, or to show that the one who uttered or heard it had notice of the facts asserted, is, of course, not hearsay. 2. Wheaton, What is Hearsay?, 46 Iowa L.Rev.210,215-18 (1961). ... the hearsay rule is not involved when they [statements] are offered merely to prove that they were said. The ultimate fact is then within the personal knowledge of the witness... . ... Thus, in an action for damages caused by an automobile collision the plaintiff, who was the driver of one of the automobiles, was permitted to testify that her companion had told her that the intersection they were approaching was dangerous and that the plaintiff should be careful. The statement was not hearsay; it was offered, not to prover that the intersection was dangerous, but rather to suggest that the plaintiff, having been warned, would proceed with caution. E. Evasive Analysis. 1. Analyzing hearsay. a. What are you trying to prove? 1)Is it a statement (verbal or non-verbal)? 2)Is it offered to prove what it indicates? (Does it matter if its true?) 3)Who said it? Are you talking to that person? 4)Is it hearsay under the rules? 5)Is it defined as not hearsay? 6)Is there an exception? 2. People v. Felder, NY, 1975. D lost money playing cards. Later he came back. A 3rd party stated ""this Joe is going to take your money" to decedent. Decedent ran out the door. D caught up with him and shot him & took the money. Question - Is the statement hearsay. Ct. held no. The purpose of the statement was not whether D was going to take the money, but why the decedent acted so strangely. The concurring opinion said that the statement was hearsay. 3. U.S. v. Snow, (9th Cir. 1975). D was convicted of possession of a unregistered firearm. The gun was found in a brief case which stated "Tri.Tron. Electronics" and "Bill Snow". D claimed the trial court erred in admitting the tag because it was hearsay: The name on the tag is asserting that the brief case belongs to Bill Snow, its an out-of-court statement and the prosecution tried to use it to prove that the gun was found in his brief case.. The 9th Cir. stated the tag was not hearsay. Here though the court is engaged in a balancing act: balancing public policy v. law. The court held that the name tag was circumstantial evidence: Evidence from which something can be inferred. a. Example. a. I make the statement, "It snowed last night." 1) I saw it snowing (direct evidence). 2)When I awoke there was snow on the ground (circumstantial evidence). 3. People v. Barnhart, CA, 1944. Police posed as workers and entered D's house. While there the phone rang. Police answered it. The person on the other end of the line made a wager. Question - Is the testimony of the police officer regarding the intend o the caller admissible? Out-of-court statement; offered to prove the matter asserted; its hearsay; no exception. The court states that the truth of the matter is immaterial, thus, not hearsay. Dissent said the truth of the matter is very material. F. Conduct And Implied Statements. 1. Non-verbal conduct can be considered a statement. a. In Stevenson v. Commonwealth, VA, 1977, the court allowed held that the wife's act was hearsay: Police officer went to the P's house and asked Mrs. if Mr. had changed clothes. Without uttering a word, Mrs. went and got Mr.'s clothes which had blood on them. Court said Mrs.' action was a statement, thus hearsay. b. Silver v, NY Central RR Co., MA, 1952. P claimed an injury due to the extreme cold on the train on which she was riding. Court refused to let porter testify that no one else complained of cold. Appellate court said that the silence was not a statement. c. U.S. v. Zenni, (E.D.KY 1980). D was suspected bookmaker. Feds. raided his establishment. Phone rang & feds. answered it. Person stated something like $50.00 on Secretariat at Hialeah in the 8th. The feds. wanted to introduce the evidence for the purpose of showing caller believed the place was used for betting, the existence of that belief tends to prove the premises was so used. D objected, excepted and appealed. The court stated that FRE 801(a)(2) removed implied assertions from the hearsay rule because it is not a statement. The court state that the statements of the bettors were no verbal conduct, offered as relevant for an implied assertion to be inferred from them that bets could be placed at the premises being telephoned. 2. One of the most frequent instances of non-assertive conduct treated as non-hearsay is flight from the scene of a crime. Such conduct is said to indicate consciousness of guilt. G. Defining The Hearsay Declarant. 1. FRE 801 Definitions. (b) & (c). The following definitions apply under this article: (b) Declarant. A "declarant" is a person who makes a statement. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 2. What happens when a witness you call tells another story on the witness stand. a. At common law a prior statement made by the declarant was not admissible. 1)U.S. v. Biener, (E.D.PA 1943). D accused of violating the Mann Act. Witness on the stand a prostitute who testified that D not a pimp. Prosecution sought to introduce a prior statement made & signed by witness. Ct. held not admissible. Note the decision was prior to FRE. b. Today, a prior statement by a witness is admissible under FRE 801(d)(1), which states that the prior statement is admissible (and is not hearsay) if it was made under oath: 801(d)(1). Prior statement by a witness. The declarant testifies at the trail or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person... . 3. U.S. v. DeSisto, 1964. Truck driver kidnapped & rig stolen. A trial driver says the man who stole truck had no tatoos. D had tatoos. On rehabilitation, prosecution sought to introduce fact that driver picked D out of a line-up shortly after the incident. Ct. allowed it: FRE 801(d)(1)(C). H. Exceptions to the Hearsay Rule. 1. Introduction. a. Reliability and necessity have been traditional justifications for virtually each hearsay exception that has been recognized. Recently, however, this conventional wisdom has been called into question. b. 801(d)(2). Statements which are not hearsay. A statement is not hearsay if - (2) Admission by a party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 2. Admissions: 801(d)(2)(A). a. Rationale. 1)State v.Johnson, WI, 1976. D's accountant on the stand and testified that his client (D) told him that he did not make tax payments. Hearsay? No. Under 801(d)(2)(A) it is not hearsay because it was made by the party to the action. a)The analysis: Is it an out-of-court statement? Yes. Is it used to prove the truth of the matter asserted? Yes. Is it hearsay? Yes. Is there an exception. Yes, 801(d)(2)(A). Is it admissible? Yes. 2).Bill v. Farm Bureau Life Ins. Co., IO, 1965. P beneficiary of a life ins. policy. Son allegedly committed suicide. Dr asked P if son killed himself. P nodded his head. An out-of-court statement. Used to prove the truth of the matter asserted. Its hearsay. But there's an exception; 801(d)(2)(A). It's admissible. b. Adoptive admissions: 801(d)(2)(B). 1)Ollert v. Ziebell, NJ, 1921. Woman died from dentist's treatment. Husband testified as to what wife said in front of the dentist. Ct. held that dentist's silence was an adoption of her statement and thus admissible under 801(d)(2)(B). a)A difference between a civil and criminal matter. In civil silence can be an adoption. In criminal silence can't be a adoption because of the right against self incrimination under the 5th Amendment. c. Vicarious admissions: 801(d)(2)(D). 1)Martin v. Savage Truck Line, Inc., (D.C.1973). D's servant ran over decedent. Servant told police facts of the accident, damaging to D. P sought to have the statements given to the police entered into evidence. D objected as hearsay. Ct. held that the information was not hearsay and admissible under 801(d)(2)(D) as a statement by made by a servant concerning a matter within the scope of his employment. a)WA follows the "speaking agent" rule: Unless the agent is authorized to speak for the master, the statement is not admissible. d. Co-conspirator declarations: 801(d)(2)(E). 1)A conspiracy is an agreement to do an illegal act. 2)The co-conspirator rule states that any act or declaration by one co-conspirator committed in furtherance of the conspiracy and during its pendency is admissible against each and every co- conspirator provided that a foundation for its reception is laid by independent proof of the conspiracy. 3)U.S. v. Haldeman, (D.C.1976). Mitchell, Haldeman and Erlicman were convicted of conspiracy. They appealed their conviction on the ground that recordings of their conspiracy was admitted into evidence. The ct. held that the recordings were admissible under 801(d)(2)(E). Other cases introduced by Professor Conklin. 4)Pointer v. TX, US, 1965. Victim said P raped her. She fails to show for trial. Prosecution wants to use prior statement. USSC said not admissible; hearsay. 5)Bruton v. U.S., US, 19 . USSC held that the statement of a co-defendant is not admissible unless the co-defendant makes the statement on the witness stand. 6)CA v. Green, US, 19 . Witness on the stand can remember. Attorney uses prior statement to refresh memory. Admissible? Yes. Witness was available for cross-examination. 7)Dutton v. Evans, US, 19 . Co-conspirator said to other co-conspirator that it was a third co-conspirator's fault that they got caught. Co-conspirator making the statement did not take the stand. USSC held that the statement was admissible if "reliable and not devastating". 3. Exceptions requiring declarant unavailability. a. Introduction: The concept of unavailability. FRE 804(a). Hearsay Exceptions; Declarant Unavailable. (a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant - (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent has been unable to procure the declarant's attendance (or in case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim or lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. b. Declarations against interest: 804(b)(3). (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 1)People v. Brown, NY, 1970. Decedent threatened D with a gun. D killed decedent. No gun found. Seals told his attorney that he found the gun and robbed store. Seal did not testify. D wants to bring in Seals' statement. Ct. held statement admissible under 804(b)(3). Seals' unavailable under 804(a)(1): he doesn't have to testify - privilege. An out-of-court statement Used to prove the truth of the matter asserted (declarant didn't make it). Its hearsay. There's an exception AND its reliable. 2)Purpose of the last sentence of 804(b)(3) is to keep the person going to the gas chamber from confessing to all the murders of his friends on death row and letting them off. c. Former testimony: 804(b)(1). (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar notice to develop the testimony by direct, cross, or redirect examination. 1)In re Johns-Manville, (N.D.IL 1982). Dr. Smith chief MD for D from 1952 - 1966. In a trial brought by the suppliers of D, depos, testimony & etc. taken from Dr. Smith. Dr. Smith died. New lawsuits brought against D by others. The P's want to use Dr. Smith's statements. Ct. says Dr.'s prior statements are admissible because at the time of that first trial D had an opportunity to cross-examine Dr. d. Dying declarations: 804(b)(2). (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be his impending death. 1)Shepard v. U.S., 1933. Mr. convicted of murdering wife. Trial court allowed into evidence a statement by wife to her nurse that husband tried to kill her on the belief that the statement was the wife's declaration. The appellate ct. overturned. Yes a dying declaration is admissible, however, the person making the declaration has to believe that he is going to die. In this case, everyone, including the wife thought she was going to get better. Thus the statement was inadmissible. 2)State v. Adamson, AZ, 1983. Reporter killed when car blew up. He told paramedics that D planted the bomb. Reporter believed he was going to die, and in fact did die. However, not admitted. Under FRE 602 he had to have personal knowledge that the D did it. He did not have such personal knowledge. a)Watch for this: John stabbed me v. John blew up my car. One is a statement of personal knowledge, the other, is questionable. e. The balance of 804: (b)(4) & (5). (4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the stated matter; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. (5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. 4. Exceptions not requiring declarant unavailability: FRE 803. Hearsay Exceptions; Availability of the Declarant Immaterial. a. Business records: FRE 803 (6) & (7). The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of the information or other circumstances indicate lack of trustworthiness. 1)Tracy, The Introduction of Documentary Evidence, 24 Iowa L.Rev.436,454-56 (1939). ... The requirement that the book entries must be supported by the testimony of the person who conducted the transaction and gave the information to the bookkeeper, once so rigorously enforced by the courts, has given way, in the realization by the courts that in a complicated modern business such a requirement can rarely be met, to the modern rule that it is sufficient if the books are verified on the witness stand by the supervising officer who knows them to be the books of regular kept entries kept in that establishment, and by such other persons as are readily available to show the correctness of the accounts. 2)Records normally kept that are not self-serving. a)Social workers records admissible. b)Police records are admissible, but only the observations of the officer, not the hearsay of a witness. c)A memorandum by a RR after an accident is not admissible. Not made in the ordinary course of business: It was prepared for litigation purposes. d)Statement against self interest to a Dr. who notes it in his chart is not admissible unless of course the Dr. testifies. e)Copies of bank records not made by the bank are not bank records and not admissible. b. Public records: FRE 803(8), (9) & (10). The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (8) Public records and reports. Records, reports, statements or data compilations, in any form, of public officers or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of untrustworthiness. (9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, marriages, if the report thereof was made to public office pursuant to requirements of law. (10)Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, or data compilation, or entry. 1)One of the reasons for these exceptions it that if it were not so, the public official would spend his time testifying, and doing his job. Another reason is that there is a presumption that the public documents have been properly handled and recorded. 2)Complaint of American Export Lines, Inc., (S.D.NY 1977). Two vessels collided in NY harbor. The US Coast Guard convened a hearing & made a finding. The P wanted the report in its entirety admitted into evidence. The court held that the report was admissible under FRE 803(8)(C), however, the conclusions were not admissible. Consider, however: 3)Beech Aircraft v. Rainy, US, 1989. Widow of deceased pilot sued P, supplier of the aircraft to the govt. Military convened a hearing & drafted a report. A public record. Nothing in statutes forbids admissibility, but conclusion of military was pilot error. Widow wants to keep the conclusions out. USSC held if record is admissible, then the conclusion is admissible. c. Excited utterances and present sense impressions: 803(1) & (2). The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. 1)Nager Electric Co. v. Charles Benjamin, Inc. (E.D. PA 1970). Fire Lt. talked with two men right after a big fire occurred. Witnesses explained how fire started. Lt. testified as to what men said. Objection; hearsay. The ct. said testimony was admissible as the excited utterances of the witnesses. Admissible because the belief is that excited utterances are spontaneous and there is no time for manipulation of the facts and therefore probably reliable. An out-of-court statement. As the truth of the matter asserted. It is hearsay (declarant didn't make it). An exception 803(2); an excited utterance. 2)Houston Oxygen Co. v. Davis, TX, 1942. P's truck hit D. Jury found for D - $20K awarded as damages. P appealed. Trial court refused to allow P to introduce evidence from a witness who had seen the D's car just before the accident and made a comment to her husband that the driver of the car must be drunk & that they'd see them wrecked up on the road. Ct. held that the statements by the witness to her husband were admissible: Present sense impressions. d. Declarations of physical condition: FRE 803(3). The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (4) Statements for purposes of medical diagnosis or treatment. Statements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 1)Dewitt v. Johnson, OK, 1935. D hit by P's car & looking for damages for pain and suffering. Must show p & s. D's mother testified son said "it hurts". Ct. said statement admissible because it was about a then existing physical condition - 803(3). 2)Meany v. U.S., (2nd Cir. 1940). P a vet of WW I. Gassed. Mustard out of the service in 1919. In 1922 died. Family tried to recover insurance. P stopped paying premiums. If totally disabled, he didn't have to pay them. Treated by Dr. #1. Dr. #2 said that P was totally disabled. But what about time he stopped making premium payments. Dr. #1 dead. Dr. #2 asked P what Dr. #1 told him: Hearsay within hearsay. But really history of the P's medical background. The fact that Dr. #1 told P who told Dr. #2 that P was totally disabled was admissible under 803(4) - statement for purposes of medical diagnosis or treatment. 3)U.S. v. Ironshell, (8th Cir. 1980). D charged with raping a 9 yr. old girl. Dr. on witness stand & said girl told him that vagina hurt, man tried to rape her. Objection, hearsay. Overruled. An out-of-court statement by the girl to Dr. Used to prove the truth of the matter asserted (not made by the declarant). Clearly hearsay. An exception: statement for medical diagnosis. a)In child abuse cases, the cts. are more likely to go the extra step to allow evidence in. e. Declarations of state of mind: FRE 803(3). The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 1)Res gestae: Rule that covers spoken words that are so closely connected to an occurrence that the words are considered part of the occurrence. Eg: excited utterances; thus it indicates what really happened. 2)Adoption of Harvey, PA, 1953. Young girl pregnant with child leaves town to have the baby. The plan is to give it up for adoption. A family is ready to adopt, but girl wants baby. A nurse on the witness stand is to testify that girl in hospital stated she wanted to give the baby up temporarily until she could come back to get it. Objection; hearsay. Overruled. a) Clearly hearsay, but what is the issue? The girl's intent: her state of mind. 803 (3) allows for statements of a declarant's state of mind to be admissible - an exception to hearsay. The "only limitation on the admissibility of the declarant's state of mind is that it reflects a natural manner and not under circumstances of suspicion." 3)Zippo v. Rogers Import, Inc., (S.D.NY 1963). P claimed patent infringement because D produced a lighter similar to P's. P did a survey of the public. 600 people thought that the copy was a Zippo. Witness on stand attempts to testify to this. Objection; hearsay. Overruled. a)An interesting case. Another instance in which the court had a decision in mind and then tried to rationalize it. Present sense impression? Seems pushing it. State of mind? Seems to be pushing that too. But, ct. said the evidence was admissible under 803(3) - current state of mind. When all else fails, try fairness. That's what the ct. did. 4)Mutual Life Ins. Co. v. Hillmon, US, 1892. Hillmon insured by P. Hillmon disappears. It is believed that a body found in Crooked Creek, KS is his. No proof. Ins. co. claimed the body was that of one Walters & wanted to introduce letters from Walters to his family. Walters sent letters stating he was going to Crooked Creek. Family objects; hearsay. The USSC held that the letters were statements, made out-of-court, were being used to prove the truth of the matter asserted, (of course the declarant was not on the stand), clearly hearsay. However, the decedent's statement "I intend to go" indicated his state of mind. If he intended to go, he probably went. If he went, he probably got there. 5)U.S. v. Annunziato, U.S., 1961. One Terker was murdered & D accused of being involved plus racketeering. Cohen, the bookkeeper states Terker told him to give $300.00 to Mayhew. Mayhew states he was told to give the $300.00 to D. Terker's son testified that his dad told him D called for the $300.00, & dad told D that he intended to send it. USSC held that the state of mind of the declarant (Terker, Sr.) was admissible under 803(3). The Ct. also stated that the statement would have been admissible under the co- conspirator rule too. f. Hearsay within hearsay. FRE 805. Hearsay within Hearsay. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. 5. The residual exception - flexibility for the future. a. FRE 803(24). Other exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. 1)Dallas County v. Commercial Union Assurance Co., (5th Cir. 1961). The County courthouse collapsed. The County investigated the building & found charred remains in the building. Nearby residents claimed that lightening struck the building causing it to collapse. The County tried to get the ins. co. to pay for rebuilding. The ins. co. refused, alleging that the building was old & that it just collapsed. At trial the ins. co. sought to allow into evidence of a 1901 fire in the courthouse that was reported in the newspaper. The ins. co. sought to introduce the newspaper clipping for the purpose of showing how the timbers were charred. The ct. allowed it. Clearly hearsay. But the ct. allowed it under 803(24) because it was accuracy & trustworthiness. 6. The balance of 803: (11), (12), (13), (14), (15), (16), (17), (18), (19), (20), (21), (22), & (23). The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or similar facts of personal family history, contained in a regularly kept record of a religious organization. (12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issues at the time of the act or within a reasonable time thereafter. (13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. (15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. (16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticityof which is established. (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, marriage, ancestry, or other similar fact of his personal or family history. (20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. (21) Reputation as to character. Reputation of a person's character among associates or in the community. (22) Judgment of previous conviction. Evidence of a final judgment, entered after trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than against the accused. The pendency of an appeal may be shown but does not affect admissibility. (23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. 7. FRE 806. Attacking and Supporting the Credibility of the Declarant. When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted into evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for the purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. I. Hearsay And Constitutional Confrontation Rights. 1. Professor Conklin did not talk about this section at all. However he did mention the cases below under the co- conspiracy exception to hearsay. a. OH v. Roberts, US, 1980. USSC allowed prior statement of an unavailable witness because the statement was "reliable and the witness was unavailable". wow! b. US v. Inadi, US, 1987. USSC changed the Roberts test to simply "reliable". Thus an unindicted co-conspirator's statement is admissible. VI. PRIVILEGES. A. Introduction. 1. The basis for privileges. 2. The federal perspective. 3. FRE 501. General Rule. Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determine in accordance with State law. B. The Executive Privileges. C. The Attorney-Client Privilege. D. The Privilege for Marital Communications. E. The Physician-Patient Privilege. F. The Priest-Penitent Privilege. G. The Newsman's Privilege. H. Other Potential Privileges. VII. BURDENS AND PRESUMPTIONS. VIII. CONCLUSION.