McLaughlin

Evidence

Spring 2011

EVIDENCE LAW AND THE SYSTEM

Mistrust of juries is the single overriding reason for the law of evidence. Voir dire is the process in which court and counsel try to find out whether any members of the panel should not serve in the case at hand. If a juror is related to a party (by blood, marriage, or by business connection such as being the creditor or debtor, employee or employee) or prejudiced on an issue, he should be excluded for cause. o Each party may challenge any number of people for cause. o The judge must determine any such challenge, excluding if cause is found. o Each party has a fixed number of peremptory challenges (often 3) which entitles him to exclude potential jurors for any reason at all without stating a reason. Must be prepared to show that they are not acting on the basis of race. In federal and many state courts, voir dire is conducted by the judge. Not an argument but instead sums up the facts that each party contends that her proof will establish. The party with the burden of persuasion goes first, followed by his adversary, and each may have additional turns if needed. The objects actually involved in the events of the litigation are called real or original evidence. o Almost always admitted. o Writings are documentary evidence and they are so common that special rules apply. The opponent can usually only cross-examine on subjects opened up on direct and may not go into other relevant matters not explored on direct. When the evidence on both sides is in, a party confident that a reasonable person could only find in his favor may make a motion for judgment (only the defense may do so in criminal law). Typically, such motions are denied and are only rarely granted for the party bearing the burden of proof in a civil case and seldom granted in negligence cases. The party bearing the burden of persuasion (usually plaintiff or prosecution) has the right to make two closing arguments, one before and one after his adversary. The parties draft instructions and submit their requests to the court before the process of proof has been completed and the judge often expects and gets instructions before trail even begins. Curative = save the verdict and judgment from later reversal on account of inevitable trial errors. Limiting = advise the jury to consider certain proof only on one point and not others or against one party and not others.

Jury Selection

Opening Statement Presentation of Proof

Trial Motions

Closing Arguments Instructions

Deliberations The Verdict Judgment and Post-Trial Motions

Prosecutors usually have no appeal from an acquittal. Even when judgment has been entered, a party may obtain full appellate review only if it has preserved its claim of error by stating its position promptly and clearly at trial. Only leads to relief if the appellate court finds that that the trial court erred and that the error probably affected substantial rights of the appellant. 1

Appellate Review

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Evidence

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Appeals: Preserved Error Below / Plain Error (FRE 103 objection or offer of proof) Exception is plain error = something that is so obvious and so egregious that the court will take notice of it (FRE 103d) Error Standard of Review is Abuse of Discretion Always on evidentiary issues. Its not what the appellate court would have done if they were the trial judge. Deferential Standard of Review unless judge is wrong in the law. Reversible Error / Harmless Error

Making the Record

1. 2. 3. 4. 5. Pleadings Filed documents Record of proceedings Exhibits Docket entries

How Evidence is Admitted

Direct examination must proceed by non-leading questions. FRE 611(c) o The question should unnecessarily push the witness toward a particular response, it should not be too suggestive of the answers sought. The main instrument of control during cross-examination is the leading question. o The leading question narrows the inquiry and limits the opportunity of the witness to stray from the chosen path. Scope-of-Direct Rule (FRE 611-b) o Cross-questioning is limited to matters explored on direct. o Aims to confine the opponents ability to interrupt the calling partys case. o It enables parties to control the order in which they present their evidence. o BUT more than a dozen states have abandoned the scope-of-direct rule. Voucher Rule (FRE 607) o FRE 607 does away with this rule and provides that ANY PARTY may impeach, including the party calling the witness. o It is no longer open to doubt that a party who cannot cross-examine a witness adequately at the outset may recall her later, without fearing that he thereby vouches for her or becomes bound by her testimony. Real Evidence o Refers to tangible things directly involved in the transaction or events in litigation. o Not required to produce such items and their existence and nature may be established by testimonial account. o The BEST EVIDENCE doctrine does require the introduction of writings (or an excuse for not producing them), and all such items are generally considered relevant. 2

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Evidence

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First, the proponent establishes that the writing is what he says it is (he authenticates it) Second, he shows that it falls within a hearsay exception. o The court takes the skeptical position that the thing may not be taken at face value and may not assume what the things seem to be. The proponent must authenticate the evidence. This is done by stipulation or by testimony from a witness having firsthand knowledge. Demonstrative Evidence o Tangible proof that in some way makes graphic the point to be proved. o It is created for illustrative purposes and for use at trial. o It played no actual role in the events or transactions which gave rise to the lawsuit. o Such materials are usually considered relevant and are routinely admitted.

How Evidence is Excluded

The Objection o Must be timely (it must be raised at the earliest reasonable opportunity). o Must have a ground (should include a statement of the underlying reason). Substantive Objections o These rest of particular exclusionary principles in the Rules of Evidence. o The hope is to keep evidence out altogether. o Examples: hearsay and Best Evidence doctrine Formal Objections o These focus on the manner of questioning. Ask and Answered Assumes facts not in evidence Argumentative Compound Leading the witness Misleading Speculative or conjecture Ambiguous, uncertain, and unintelligible Nonresponsive to the question General Objection o Does not preserve for review whatever the point of the objector had in mind. o Gives less than the maximum protection. The Motion in Limine o Used to obtain a ruling in advance. o Provides a chance for both parties to brief an important evidence issue and present more elaborate argument than is possible during trial. o Trial judges are than willing to consider and rule in advance upon such matters, hoping to make sounder decision and avoiding delays that are awkward while trial is in process. 3

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Evidence

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o FRE 103(a) provides that an objection need not be renewed at trial if the judge makes a definitive ruling on a pretrial motion. The Offer of Proof o A lawyer faced with excluding evidence MUST make a formal offer of proof if he wants to preserve the point for later appellate review. o Demonstrating to the trial court exactly what the lawyer is prepared to introduce if permitted. o Required for the same reasons as objections. To accord the offering party a fair procedural opportunity to get in his proof. He must be ready to present his evidence when the objection is made and must make its substance known to the court (FRE 103(a)(2)). Necessary to preserve the record for purposes of review. Without an offer, an appellate court normally has no way to determine whether excluded evidence might have affected the outcome. Ordinarily the jury is excused when a proffer is heard. Judicial Mini-Hearings o FRE 104 describes the functions of judge and jury in deciding evidence questions. o 104(a) says the judge determines preliminary questions. Witness competency, privilege, admissibility of evidence. The Judge alone decides issues involving the application of privileges. o 104(b) says it is different when relevancy turns on fulfillment of a condition of fact. Here the judge merely screens the evidence. When different answers are possible, the jury decides. The jury decides whether the condition is satisfied (fulfilled) and evidence that is conditionally relevant is admitted upon or subject to the introduction of sufficient other evidence to support a finding by the jury that the condition is satisfied.

Congress Supreme Court Judicial Conference Standing Committee Advisory Committee

CONSEQUENCES OF EVIDENTIAL ERROR

Appraising Such Error on the Merits o Identify error and instruct the trial court how to do the right thing next time. o FRE 103 says error must have affected a substantial right meaning essentially outcome. o The usual standard directs appellate courts to reverse a judgment only for error which probably affected the result, although this formula tells little and does not capture the flavor of the case. o There are FOUR CATEGORIES: 1. Reversible Error: The kind of mistake that probably did affect the judgment. 2. Harmless Error: The kind of mistake that probably did not affect the judgment. 3. Plain Error: The kind that warrants relief on appeal, in the estimation of the reviewing court, even though appellant failed to take the steps usually necessary to preserve its rights. 4

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Evidence

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Appellate courts routinely reject these claims and emphasize that the lawyer failed to object or offer proof, thus waiving the right to argue error. Only used if error was in some sense obvious meaning that the judge should have known better even if the lawyer did not, AND more serious in the sense of providing greater certainty that outcome was affected. Only if the judgment below amounts to a miscarriage of justice. FRE 103(d). 4. Constitutional Error (Criminal Cases): A mistake in admitting evidence for the prosecution that should have been excluded under the Constitution. Distinguishing Harmless from Reversible Error o Cumulative Evidence Doctrine Supports affirmance despite errors by the trial court both in admitting and in excluding. While the trial judge did err in admitting evidence offered against the appellant, still so much other property evidence supported on the same point that the jury would likely have found against her even if the judge had correctly excluded the evidence in question. Question = whether evidence erroneously admitted probably affected outcome or whether evidence erroneously excluded probably would have affected outcome. o Curative Instruction Doctrine When the risk is great the evidence admitted on one point or against one party may be improperly considered by the jury as proof on a different point or against another party, a limiting instruction is possible (FRE 105). o Overwhelming Evidence Doctrine If a reviewing court concludes that evidence properly admitted supports the judgment below overwhelmingly, generally it affirms, even in the face of errors admitting or excluding evidence that might otherwise be considered serious. Appellate Deference: The Discretion of the Trial Judge o The doctrine of judicial discretion leads to the practice of limiting appellate review of evidential rulings. o The judge may exclude even competent and relevant evidence if it seems likely to prejudice the jury against one of the parties (FRE 403). o The judge may control the manner and sequence of questioning witnesses (FRE 611). Procedural Pitfalls and Adversarial Gambits o Failing to Object or Offer Proof Failing to object waives the right to claim error in admitting evidence. Failing to offer proof waives the right to claim error in excluding evidence. Relief is denied in the absence of plain error. Review is limited because appellant failed to preserve the point. Plain error is seldom found in rulings admitting evidence, and almost unheard of in rulings excluding evidence. 5

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Evidence

Spring 2011

An objection on one particular ground suffice ONLY to preserve that particular error. o If appellant unsuccessfully objected that certain testimony violates the hearsay doctrine, he can prevail on appeal only if testimony did offend the doctrine. o An unsuccessful offer of proof resting on a particular ground for admitting evidence suffices only to preserve arguments on that ground for review. If part of the document is not excludable under the hearsay doctrine, an objection on that ground may viewed as inadequate even though other parts of the document should be excluded for that reason. Appellate courts often say that where the judge sustains an objection or accepts an offer of proof on the wrong ground, her ruling will likely be sustained on appeal if some other ground, though unmentioned below, supports her action. The system favors affirming judgments! o Inviting Error A party invites error by relying on evidence offered by his opponent that he might otherwise have excluded by raising objection. o Opening the Door Trial behavior may open the door to evidence that would otherwise be excludable. Example: A party testifying on direct examination by his own counsel makes an ill-advised and overboard assertion that he a blemish-free past but has a criminal record. Appeal From Judgment o Rulings admitting or excluding evidence, rulings on examination of witnesses (whether dealing with the form or the substance of the questions), and rulings on such evidential devices as presumptions and burden of persuasion are almost always reviewed only after judgment. o Rulings on claims of privilege are likewise reviewed only after judgment. Interlocutory Appeal o Two important exceptions where interlocutory appeal is commonly permitted. Privilege Rulings; Suppression Motions

RELEVANCE
FRE 402 says that relevant evidence is generally admissible and irrelevant evidence is not. Direct Evidence o Evidence, which if accepted as genuine or believed true, necessarily establishes the point for which it is offered. Circumstantial Evidence o Evidence, even if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation seems as probable or more so. o The Rules draw no distinction between direct and circumstantial and neither is inferior. LOGICAL RELEVANCE o Evidence was relevant if it tended to establish the point for which it was offered and material if the point bore on issues in the case (common law). o Evidence should only be admitted if it is both relevant and material. 6

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Evidence

Spring 2011

Under FRE 401, evidence is relevant if it tends to make or less probable the existence of any consequential fact. RELEVANCE THRESHOLD o More Probably True It has the required tendency only if it makes the point more probably true than not. o More Probable Than Any Other Only if the suggested inference is more probable than any other. o More Than Minimally Probative Requires more than minimal probative worth, hence that there is a standard of legal relevancy that is more strict than logic and reason alone would indicate. o More Probable Than it was Before Evidence is relevant if it makes the point to be proved more probable than it was without the evidence. Most lenient standard; most favoring admissibility. Found in FRE 401!!!!! WEIGHT AND SUFFICIENCY o Weight = the aggregate probative worth that the factfinder assigns to the proof in the case. o Sufficiency = there must be enough evidence to satisfy the standard of proof that applies. A civil case is subject to judgment as a matter of law if the evidence as a whole, viewed by a reasonable person, can support only one outcome. RULE 403: 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. Probative Value must outweigh unfair prejudice. Unfair prejudice = an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.

Old Chief v. United States

ISSUE = Defendant argued that the offer to stipulate the fact of the prior conviction rendered evidence of the name and nature of the offense inadmissible under FRE 403, the danger being that unfair prejudice from the evidence would substantially outweigh its probative value. 2000 Amendment to FRE 103 allow the record to be preserved if a pretrial motion was made (motion in limine). RULE = Evidence can be admitted for proper purposes but not for improper purposes. RULE = FRE 401 defines relevant evidence as 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 than it would be without the evidence. RULE = The fact to which evidence is directed need not be in dispute. While situations arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice, rather than under any general requirement that evidence is admissible only if directed to matters in dispute. If relevant evidence must sometimes be excluded because of its connection to other evidence, its exclusion must not rest on the ground that the other evidence rendered it irrelevant. o Rather it must rest on its character as unfairly prejudicial, cumulative or the like, its relevance notwithstanding. 7

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Evidence

Spring 2011

HOLDING = A documentary record of the conviction for that named offense was relevant evidence in making Old Chiefs status as a convicted-felon more probable than it would have been without the evidence. If jurors expectations are not satisfied, triers of fact may penalize the party who disappoints them by drawing a negative inference against that party. A party must be entitled to present the jury a picture of the events relied upon; substituting a naked admission might rob the evidence of much of its fair and legitimate weight. RULE = Even background evidence has some relevance under FRE 401 as the ACN recognizes. Even evidence that is essentially background in nature is routinely admitted as an aid to understanding and can show circumstances surrounding the events.

Establishing Relevance
The proponent should put forth an evidential hypothesis explaining why his proof is relevant. The adverse party should be ready to refute the hypothesis, if possible, or show its limitations or offer a counterhypothesis that explains away the evidence or enlists it in aid of his own cause. o Such differences are said to affect the weight of the evidence and credibility of the witnesses rather than admissibility. o It also contains at least one specific premise linking the proof to the general premise. o Finally, it sets out the conclusion toward which the evidence points. Deductive Argument = the stated premise necessarily leads to a particular conclusion. Inductive Argument = the conclusion does not necessarily follow from the premises, though they support the conclusion. This is much less categorical. RELEVANCE IN OPERATION o Assessing relevance involves understanding the evidential hypothesis that leads by inductive argument to the sought-after conclusion and deciding whether the argument really does increase the likelihood of the conclusion. o Evidence of efforts to avoid capture is generally admissible in criminal trials. Evidence does not create a presumption of guilt or suffice for conviction. While flight bears generally on guilt, it clearly cannot be taken as proof of some specific elements in the crime. o Relevancy depends on the reasonableness of the assumption that defendant knew he was under investigation and that this inference becomes weaker as lapsed time between the crime and alleged flight increases. If defendants conduct cannot support an inference of flight, it may be reversible error to invite the jury to consider flight as evidence of possible guilt.

PRAGMATIC RELEVANCE
FRE 401 giveth, but FRE 403 taketh away! The logical relevancy standard in FRE 401 is satisfied by evidence having even slight probative worth, but FRE 403 lets the judge exclude relevant evidence on account of any danger described there or any of the considerations also set out there. FRE 403 confers broad discretion on the trial judge. o Evidence is to be excluded ONLY if probative value is substantially outweighed by any of the listed dangers/considerations.

State v. Chapple
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Evidence

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ISSUE = Defendant contends that the pictures admitted into evidence were gruesome and inflammatory and therefore should not have been admitted. RULE = If the photographs have any bearing upon any issue in the case, they may be received although they may also have a tendency to prejudice the jury against the person who committed the offense. Discretion of the trial court will not be disturbed on appeal unless it has been clearly abused. The exhibit must FIRST be found relevant; THEN the trial court must consider the probative value of the exhibits and determine whether it outweighs the danger of prejudice. RULE = Relevancy is not the sole test of admissibility for the trial court. Where the offered exhibit is of a nature to incite passion or inflame the jury, the court must go beyond the question of relevancy and consider whether the danger of prejudice created by admission of the exhibit substantially outweighs the probative value of the exhibit. o If the photographs have no tendency to prove or disprove any question which is actually contested, they have little use or purpose except to inflame and would usually not be admissible. RULE = When reviewing an evidentiary issue, the standard of review is abuse of discretion. The trial judge must have made an unreasonable resolution of the issue. HOLDING = The photographs had little probative value on the issues being tried and their admission in evidence could have almost no value or result except to inflame the minds of the jury. Admission of the photographs was error. Touchstone is not that photographs are gruesome, but rather because the probative value was so slight the photographs were improper.

Old Chief v. United States (PART 2)

RULE = On objection, the court would decide whether a particular item of evidence raised a danger of unfair prejudice. If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes too. RULE = What counts as FRE 403 probative value of an item of evidence, as distinct from FRE 401 relevance, may be calculated by comparing evidentiary alternatives. ACN to FRE 403 = When a court considers whether to exclude on grounds of unfair prejudice, the availability of other means of proof may be an appropriate factor. o However, the fact that there were alternative proofs does not render the evidence irrelevant. It only affects the probative value! HOLDING = In this case, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.

LIMITED ADMISSABILITY (FRE 105)

FRE 105 allows for admission of the evidence, on the point for which or against the parties as to whom it is competent BUT give limiting instructions to prevent misuse on other issues or as against other parties.

COMPLETENESS (FRE 106)

FRE 106 allows the adverse party to require introduction of any other part of the statement that ought in fairness to be considered contemporaneously with the part already offered. o RULE OF COMPLETENESS could apply to statements that have not been written or recorded and to other sorts of evidence as well. 9

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Evidence

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o Trial courts have authority under Rules 401 through 403 and 611 to apply the same principle to such other proof. o Invites the opposing party to require the proponent to offer another writing at the same time as the writing being offered. o Clearly authorizes adverse parties to answer an incomplete presentation later in trial, thus also serving as a rebuttal rule. o FRE 106 can sometimes trump hearsay and other objections when necessary to provide context.

SHORTNESS OF LIFE
Courts may limit the number of witnesses called to prove any particular point. Judges may exclude, as cumulative, evidence that is duplicative of that already presented. Judges may also insist that a trial continue once it has begun and deny requests for time to locate new witnesses or evidence. o A tireless or resourceful litigant should not have unlimited freedom to wear down his opponent by repetitious proof or unnecessary waiting. Relevant o FRE 401 asks if the evidence moves the needle. Sufficient o Enough that a reasonable jury could find this way (not the test of 401; just has to have a tendency to prove) Irrelevant o FRE 402 if it does not have a tendency Relevant but Inadmissible (Incompetent) o FRE 402 o inadmissible for reasons in 402 (Constitutional block, other rule, federal law) o relevant, but not competent evidence Relevant but Insufficient o Relevant but Improper o Old Chief, used for 404(b) purpose o Unfair prejudice o Chapple = relevant but improper and unfairly prejudicial because probative value was so low and the ability to inflame and incite the jury was so high

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Evidence

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RULE 101 (Scope)

These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in Rule 1101.

RULE 102 (Purposes and Construction)

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

RULE 103 (Rulings on Evidence)

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and 1. Objection. In the 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. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, 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 predictable, 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. ACN (a) Rulings on evidence cannot be assigned as error unless: 1. a substantial right is affected, and 2. the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. a. The objection and offer of proof are the techniques for accomplishing these objectives. ACN (b) Its purpose is to reproduce for an appellate court, insofar as possible, a true reflection of what occurred in the trial court.

RULE 104 (Preliminary Questions)

(a) Questions of admissibility generally. Preliminary questions concerning 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. 11

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(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 and so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject 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.

RULE 607 (Who May Impeach)

The credibility of a witness may be attacked by any party, including the party calling the witness.

RULE 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. (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. (c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

RULE 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 than it would be without the evidence. Whether an item of evidence, when tested by the processes of legal reasoning, possesses sufficient probative value to justify receiving it in evidence. The standard of probability is more probable than it would be without the evidence. o A brick is not a wall! Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. o Charts, photographs, views of real estate, murder weapons.

RULE 402 (Relevant Evidence Generally Admissible; Irrelevant Inadmissible)

All relevant evidence is admissible, except as otherwise 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 admissible. Constitution act of Congress FRE rules prescribed by Supreme Court

RULE 403 (Exclusion of Relevant Evidence Prejudice, Confusion, 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 needles presentation of cumulative evidence. BALANCING TEST = Probative Value vs. Harm Likely to Result if Admitted Unfair Prejudice = undue tendency to suggest decision on an improper basis (emotional) 12

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o Consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.

RULE 105 (Limited Admissibility)

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

RULE 106 (Remainder of or Related Writings or Recorded Statements)

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded instrument which ought in fairness to be considered contemporaneously with it.

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HEARSAY
An out-of-court statement offered to prove the matter asserts. o Out of this court proceeding; not necessarily out of the courtroom setting. Offered to prove the truth of the matter asserted. REASONS TO EXCLUDE: o The absence of cross-examination. Out-of-court statements arent subject to this truth-testing technique. o The absence of demeanor evidence. The out-of-court declarant is not under the gaze of the trier of fact, at least at the time he speaks, so the trier lacks those impressions and clues which voice, inflection, expression, and appearance convey. o The absence of the oath. Usually the out-of-court declarant was not under oath at the time he spoke so the trier of fact has no indication that he felt any sense of moral or legal obligation to speak the truth. These three reasons express a clear preference for live testimony over out-of-court statements. o They also describe three major safeguards in the trial process: Testifying witnesses will swear (or affirm) under penalty of perjury that they will tell the truth. Their demeanor is on display for the trier of fact to observe. They are subject to immediate cross-examination. HEARSAY RISKS: o Misconception o Fault Memory o Misstatement (ambiguity or faulty narration) o Distortion, outright deliberate lying or deception, insincerity, lack of candor ASSERTIVE CONDUCT: o Any reasonable definition of hearsay must embrace assertive conduct when offered to prove the point asserted. o Rule 801(a) embraces such conduct since its definition of statement includes nonverbal conduct of a person, if it is intended by the person as an assertion. o Use of nonverbal cues (nodding or shaking the head or shrugging the shoulders, pointing. Clearly hearsay when these are used.

Cain v. George
ISSUE = Appellants contend that the trial court erred in allowing in evidence the testimony of the motel owners concerning the number of guests who had occupied the room where the deceased was found dead and who had made no complaints. RULE = Testimony as to noncompliant depends solely on the credit to be given to the witnesses who testify and that such evidence tended to show how the heater had acted in the past. Evidence of noncompliant, sometimes called negative hearsay or the sounds of silence, is usually admitted over a hearsay objection. HOLDING = It was not hearsay as it derived value solely from the credit to be given to the witnesses themselves and it was not dependent upon the veracity or competency of other persons. We think it was admissible to show how the heater acted in the past.

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INDIRECT HEARSAY
There would be something terribly wrong with a system that refused to accept the word of a witness on such fundamental facts as her name, parentage, and place and date of birth. When such information is developed as background, the evidence is admitted despite being hearsay. o It would be different if such facts were central points of hotly contested fact. Rule 602 instructs that every witness must be shown to have personal knowledge of the matter to which she is to testify, which ordinarily means knowledge gleaned directly from the senses. o Again, the system will tolerate testimony of name and birth despite the lack of this.

United States v. Check

Spinelli operated undercover and worked through an informant named Cali to get close to Check; Spinelli assumed the role of a prospective purchaser of narcotics in his investigation of Check. HOLDING = Significant portions of Spinellis testimony regarding his conversations with Cali were indeed hearsay, for that testimony was a transparent attempt to incorporate into the officers testimony information supplied by the informant who did not testify at trial. MACHINES AND ANIMAL SPEAK: FRE 801(b) supposes ONLY a PERSON makes a statement. WHEN IS A STATEMENT NOT HEARSAY? FRE 801 says that a statement is hearsay when offered to prove the truth of the matter asserted. o A statement is NOT hearsay when offered for another purpose: Impeachment Verbal acts (or parts of acts) Effect on listener or reader Verbal objects Circumstantial evidence of state of mind Circumstantial evidence of memory or belief

Betts v. Betts
Husband sued his former wife and obtained a judgment awarding him custody of their daughter. Foster mother testified that the daughter often cried when talking about step-father and mother and claimed step-father killed her brother. RULE = There is a distinction between non-hearsay statements which circumstantially indicate a present state of mind regardless of their truth and hearsay statements which indicate a state of mind because of their truth. The state of mind must be relevant in either instance. The distinction is based upon the question whether the statement shows the mental state regardless of the truth of the statement. HOLDING = The use of this testimony does not violate the hearsay evidence rule. The statements of the child were not admitted to prove the truth of the assertions she made, but merely to indirectly and inferentially show the mental state of the child at the time of the child custody proceedings. 15

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The statements in question in this case are clearly non-hearsay statements which circumstantially indicate a state of mind regardless of their truth.

PRIOR STATEMENTS BY TESTIFYING WITNESSES Under Rule 801(d)(1)(A), Congress removed the hearsay bar only from prior inconsistent statements that were themselves given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. HEARSAY UNDER RULE 801 1. Traditional Rule At common law, hearsay was any out-of-court statement offered to prove what it asserts. This definition is the most common one and it closely matches FRE 801(a)(c). 2. Hearsay as Uncross-Examinable Statement FRE 801(d)(1) says some out-of-court statements by testifying witnesses that would be hearsay are not hearsay because the declarant testifies and submits to crossexamination on any statement that fits FRE 801(d)(1)(A), (B), or (C). 3. Hearsay as a Rule of Preference 4. Hearsay as a Cautionary Principle NON-HEARSAY USES AND NONASSERTIVE CONDUCT Under FRE 801, nonassertive conduct offered for the familiar two-step inference (two prove the actors belief in a fact, hence the fact itself) is hearsay. FRE 801(a)(2) defines nonverbal conduct of a person as hearsay only if it is intended by him as an assertion. Nonassertive conduct includes the visible psychological, physical, and emotional reaction of a person, which may suggest something about what happened.

RULE 801 (Definitions)

(a) Statement. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person 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 witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: a. Inconsistent with the declarants testimony, and was give under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition; OR b. Consistent with the declarants 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 16

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2. is:

Admission by Party-Opponent. The statement is offered against a part and

a. The partys own statement, in either an individual or a 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 partys 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 co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not along sufficient to establish the declarants authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant therein of the declarant and the party against whom the statement is offered under subdivision (E).

HEARSAY EXCEPTIONS
1. Statements by Declarants who Testify a. FRE 801(d)(1) 2. Admissions a. FRE 801(d)(2) = five exceptions b. Make up the admissions doctrine c. Pave the way to admit statements made by opponents of the offering party 3. Unrestricted Exceptions a. FRE 803 b. 23 unrestricted exceptions c. A statement fitting any of these exceptions may be used to prove what it asserts regardless whether the declarant testifies, regardless whether he could be produced at trial to testify. 4. Statements by unavailable Declarants a. FRE 804 = five exceptions b. May be invoked only if declarant is unavailable as a witness under FRE 804(a) 5. Catchall a. FRE 807 = catchall exception CONSTITUTIONAL CONSTRAINTS The 6th Amendment says the accused has the right to be confronted with the witnesses against him. o Confrontation Clause = blocks the use against the accused of some out-ofcourt statements, even if they would fit a hearsay exception. o At the heart is the right to cross-examine, which is diminished or denied when prosecutors use such statements. o Applies in both federal and state courts (incorporated in by the 14th Amendement). o Constrains ONLY prosecutors and it applies ONLY in criminal cases. Different from hearsay because hearsay applies to all parties in civil and criminal trials. 17

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Crawford v. Washington (2004) o Supreme Court discarded its prior approach and concluded that the Confrontation Clause applies only to testimonial statements. o Excited utterance (FRE 803(2)); against-interest statements (FRE 804(b) (3)); and child victim hearsay rule ARE NOW USUALLY EXCLUDABLE unless the accused has an adequate opportunity to cross-examine at trial or before. o Davis v. Washington = statements made for the primary purpose of dealing with an ongoing emergency are admissible after all.

FRE 801(d)(1) DECLARANT TESTIFYING 1. PRIOR INCONSISTENT STATEMENTS a. FRE 801(d)(1)(A) says that a statement by a witness is not hearsay if four conditions: i. Declarant testifies in the case. ii. The witness must now be cross-examinable concerning the prior statement iii. The statement must be inconsistent with his present testimony iv. It must have been made under oath, subject to perjury, in a previous hearing, trial, deposition, or other proceeding. State v. Smith ISSUE = The interpretation of the words other proceeding as used in FRE 801(d)(1)(A). RULE = In determining whether evidence should be admitted, reliability is the key! In many cases, the inconsistent statement is more likely to be true than the testimony at trial as it was made nearer in time to the matter to which it relates and is less likely to be influenced by factors such as fear or forgetfulness. Another factor is the original purpose of the sworn statement. RULE = If a witness testifies at a preliminary hearing and at trial, giving different versions of the facts on the latter occasion, what he said at the preliminary hearing may be offered at trial (at least if he is cross-examinable then). A preliminary hearing is a proceeding under FRE 801(d)(1)(A). o Also includes a grand jury inquest even though the defense did not have the ability to cross-examine at the grand jury inquest. This exception helps the prosecutor deal with a turncoat witness. On that earlier occasion, both the defense and prosecutor are present so both had an opportunity to cross-examine. RULE = The word inconsistent in FRE 801(d)(1)(A) does not include only statements diametrically opposed or logically incompatible. It may be found in evasive answers, silence, or changes in position. This is particularly true in a case where a witness is reluctant to testify or if the witness forgets the facts after testifying at a grand jury. A purported change in memory can produce inconsistent answers. HOLDING = The complaining witness-victim voluntarily wrote the statement herself, swore to it under oath with penalty of perjury before a notary, admitted at trial she had made the statement and gave an inconsistent statement at trial where she was subject to cross-examination. FRE 801(d)(1)(A) is satisfied. United States v. Owens RULE = The requirement can be satisfied even if the witness has forgotten the events. RULE = Declarant does not have to be cross-examinable about the events, only the statement. HOLDING = One may be subject to cross-examination under FRE 801(d)(1)(C) even if lack of memory about events makes him unavailable as a witness for purposes of the exceptions in FRE 804. 18

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2. PRIOR CONSISTENT STATEMENTS a. FRE 801(d)(1)(B) sets out four conditions: i. Declarant testifies in the case ii. The witness must be cross-examinable at trial concerning the prior statement; iii. The statement must be consistent with his present testimony; iv. It must be offered to rebut a charge of recent fabrication or improper influence or motive. Tome v. United States ISSUE = Whether out-of-court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under FRE 801(d)(1)(B). RULE = A prior inconsistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made BEFORE the alleged fabrication, influence, or motive came into being. Impermissible if it came AFTERWARDS A consistent statement that PREDATES the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. RULE = The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should be received generally. HOLDING = FRE 801(d)(1)(B) permits the introduction of a declarants consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive ONLY when those statements were made BEFORE the charged recent fabrication or improper influence or motive. 3. PRIOR STATEMENTS OF IDENTIFICATION a. FRE 801(d)(1)(C) creates what amounts to a hearsay exception for previous statements of identification, made by a witness after perceiving the subject. i. Witness must still be subject to cross-examination concerning the statement. b. Wade-Gilbert doctrine = establishes a per se rule that blocks use of some pretrial statements of identification that might fit FRE 801(d)(1)(C) those obtained in postindictment lineups where the defendant is denied counsel. State v. Motta ISSUE = Appellant contends that the trial court erred in admitting Aragons composite sketch based on Iwashitas description of the robbery suspect. RULE = The composite sketch is hearsay but nevertheless admissible under the exception for prior identifications if it complies with FRE 801(d)(1)(C). It has the same effect as if the victim had made a verbal description of the suspects physical characteristics. Just because the sketch is in picture form does not change the fact that it is being offered as a statement made out of court to prove what the suspect looked like. RULE = A composite sketch is admissible under FRE 801(d)(1)(C) if: (1) the declarant testifies at trial and is subject to cross-examination concerning the subject matter of his statement; AND (2) the statement is one of identification of a person made after perceiving him. RULE = FRE 801(d)(1)(C) is admissible as substantive evidence. HOLDING = The primary reason for excluding hearsay is the danger that the declarant is not available and her credibility therefore cannot be assessed by the trier of fact. That danger was not present in this 19

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case so given the fact that the jury had the opportunity to judge the credibility of both the police artist and the eyewitness at trial, there is no reason to disturb the trial courts discretion in admitting the sketch. 801(a),(b),(c) Yes hearsay A for A 801(d)(1)(A) 801(d)(1)(B) 801(d)(1)(C) 801(d)(2)(A) (1) Declarant (1) Declarant (1) Declarant (1) Statement testifies in case testifies in case testifies in case offered against a (2) Subject to C-E (2) subject to C-E (2)subject to C-E party (3) statement; not (3) statement (3) statement (2) partys own events (4) statement (4) identification statement (4) statement was consistent with of a person inconsistent with trial testimony (5) made after THERE ARE NO trial testimony (5) offered to rebut perceiving OTHER (5) oath after door was REQUIREMENTS (6) penalty of opened HERE!!! perjury (6) recent (7) trial, hearing, fabrication deposition, or (7) pre-motive to other proceeding fabricate If you can get a statement in A for B, then it is not hearsay. If you want the statement in A for A and the opponent objects for hearsay, then you go through the exceptions! If just one of them is satisfied, then the statement can be admitted A for A.

FRE 801(d)(2) ADMISSIONS BY PARTY OPPONENT

What a party says can be offered against him. The most persuasive explanation is that the admissions doctrine expresses the philosophy of the adversary system, in which each party is responsible for making or breaking, winning or losing, his own lawsuit by his conduct in and out of court. When a statement comes in against a party as his admission, generally it is not binding in the sense of foreclosing him from taking a conflicting position. o A party may seek to explain away or reject what he said before. o The very fact that he takes such a position often induces the adverse party to offer his admissions. In the case of individual admissions, there are almost no limits. o Many cases reject the objection that declarant lacked knowledge, and the ACN to FRE 801 endorses this result. o FRE 804(b)(3) carves out a separate exception for declarations against interest and the admissions doctrine carries no against interest requirement. o A judicial admission cannot be rebutted; an evidentiary admission can be rebutted.

BRUTON v. UNITED STATES

Evans made a statement that Bruton and I committed the robbery while being interrogated in a St. Louis jail, where he was being held on state charges. The trial court admitted the confession against Evans but told the jury that it could not be considered in any respect against Bruton. RULE = A defendant is constitutionally entitled to have the trail judge first determine whether a confession was made voluntarily before submitting it to the jury for an assessment of its credibility.

20

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RULE = There are some texts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the circumstances devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. RULE = A STATEMENT BY ONE DEFENDANT FITS FRE 801(d)(2)(A) WHEN OFFERED AGAISNT THE PERSON WHO SPOKE, BUT NOT WHEN OFFERED AGAINST A COPARTY! This is called the spillover confession problem. HOLDING = The Court endorses the technique of redacting a confession by one defendant to delete any reference to another. NO GUARANTEE OF TRUSTWORTHINESS IS REQUIRED IN THE CASE OF AN ADMISSION!

801(d)(2) (A) partys statement (B) Adopted Statement (C) Authorized Agent (D) Employee-Agent (E) Co-Conspirator A = ones own statement B through E = someone chargeable to party

ADOPTIVE ADMISSIONS
The heart of an admission by X need not be the words he speaks or writes: It may be a statement spoken or written by another. For if X manifests his adoption or belief in its truth, then X becomes the declarant and the statement becomes his own. FRE 801(d)(2)(B) Example: were you speeding yes; the meaning of the words of inquiry is so absorbed in the meaning conveyed in the word of response that it is fair to conclude that the answering party conveyed the combined message of both statements.

UNITED STATES v. HOOSIER

Hoosier was convicted of the armed robbery of a federally insured bank. Four witnesses identified him as the petitioner. Appellants sole argument is that the testimony elicited from the fifth witness concerning appellants girl friends statement was inadmissible hearsay and that it was reversible error for the District Court to fail to grant the objection to its admission. The statement was made in the appellants presence, with only his girlfriend and Rogers present. 21

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Since appellant had previously trusted Rogers sufficiently to tell him his plan to rob the bank, it is unlikely that his silence in the face of these statements was due to advice of counsel or fear that anything he said might be used against him. HOLDING = Under the totality of the circumstances, probable human behavior would have been for appellant promptly to deny his girlfriends statement if it had not been true particularly when it was said to a person whom he had previously related a plan to rob a bank.

ADMISSIONS BY SPEAKING AGENTS FRE 801(d)(2)(C)

When a person authorizes an agent to actually speak for him, as in arrangements between seller and broker, it seems obvious that what the one says may be offered in evidence against the other. o The words are verbal acts. o It is the philosophy of the adversary system; when one person hires another to speak for him, it is fair to allow the words of the latter to establish facts at trial against the former. There are two requirements: (1) statement by a person; (2) authorized by the party to make a statement Pleadings from prior lawsuits, as well as pleadings superseded by amendment in the pending suit, are generally admissible against the party who filed them. o Same goes for answers to interrogatories, whether filed in a prior suit or the pending action. o Does not apply with an admission filed in response to requests to admit.

ADMISSIONS BY EMPLOYEES AND AGENTS FRE 801(d)(2)(D)

There is no personal knowledge requirement. Requirements: (1) partys agent; (2) concerning a matter within the scope of the agency; (3) made during the existence of the relationship. Traditionally statements by public employees have not been admissible against the government on the grounds that: o Such people do not have the same sort of personal stake in the outcome of any dispute as private employees have, AND o Agents cannot bind the sovereign.

MAHLANDT v. WILD CANID SURVIVAL & RESEARCH CENTER

This is a civil action for damages arising out of an alleged attack by a wolf on a child. RULE = A statement based on the personal knowledge of the declarant of facts underlying his statement is not the repetition of the statement of another, thus not hearsay. o It is merely opinion testimony. RULE = The declarant need not have personal knowledge of the facts underlying his statement. RULE = FRE 801(d)(2)(D) was to reach only two classes: o People whose conduct produces liability for their employers or principles, sometimes on the theory of respondeat superior where the conduct looks like a personal tort for which the company is also liable, and sometimes because the people are actors whose conduct contributes significantly to organizational liability. o People who are passive observers or bystanders rather than actors, but who make statements on matters within the scope of their duties. These people are not always authorized spokespeople and the reason to admit their statements is less compelling than the reasons to admit statements by liability-producing actors. RULE = FRE 801(d)(2)(D) applies only to statements by agents or servants that are within the scope of their duties. 22

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o This does not mean that the exception reaches only statements made while the speaker is at work nor does it require that the speaker have decision-making authority with respect to the matters of which he speaks. Email messages are admissible against the company so long as the author of the email is speaking about matters within the scope of her duties. HOLDING = FRE 801(d)(2) and 403 doe no warrant the exclusion of the evidence or Mr. Poos statements as against himself or Wild Canid. But the limited availability of the corporate minutes, coupled with the repetitive nature of the evidence and the low probative value of the minute record, all justify supporting the judgment of the trial court.

CO-CONSPIRATOR STATEMENTS
The elements of FRE 801(d)(2)(E) have not changed since the common law: o A co-conspirator statement is admissible if: Declarant and defendant conspired and the statement was made (coventurer) During the course of the venture (pendency) AND In furtherance thereof (furtherance) Available in civil and criminal cases whether or not they involve charges of conspiracy. Enables one party to introduce against another the statements made by persons who conspired with the latter; but proving conspiracy is an elaborate undertaking. o The exception seldom appears outside the context of prosecutions that include counts of criminal conspiracy and as a practical matter most such prosecutions are brought in fed ct. Conspirators are likely to speak differently when speaking to each other than when on the stand. The statement of each is an act of the conspiracy and as such is relevant evidence against all members. The exception does not reach statements made before or after a conspiracy. o The Court has been emphatic that statements made during the concealment phase are not ordinarily within the exception.

BOURJAILY v. UNITED STATES

FBI agents arrested Lonardo and petitioner immediately after Lonardo placed a kilo of coke in petitioners car in the hotel parking lot. RULE = There must be evidence that there was a conspiracy involving the declarant and the nonoffering party and that the statement was made in the course and in furtherance of the conspiracy. RULE = The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been met. o Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case. RULE = When the preliminary facts relevant to FRE 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence. RULE = Out of court statements are only presumed to be unreliable. o The presumption may be rebutted by appropriate proof. FRE 803(24) o Individual pieces of evidence, insufficient in themselves to prove a point, may in culmination prove it. These two propositions demonstrate that a piece of evidence, unreliable in isolation, may become quite probative when corroborated by other evidence. RULE = The judge alone decides under FRE 104(a) whether the coventurer, pendency, and furtherance requirements are satisfied. HOLDING = Lonardos out-of-court statements were properly admitted against petitioner. Those statements indicated that Lonardo was involved in a conspiracy with a friend. Each one of Lonardos 23

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statements may itself be unreliable, but taken as a whole, the entire conversation between Lonardo and the informant was corroborated by independent evidence. Apollo Approach =Because of the coincidence problem the coventurer requirement raising both an issue of predicate fact for the co-conspirator exception and an ultimate issue in a conspiracy prosecution some have thought that the jury should be put in charge. o The question whether the exception applies would be treated as an issue of conditional relevancy under FRE 104(b). o The jury would be told to consider a co-conspirator statement as evidence against the defendant only if it found that declarant and defendant conspired.

Present Sense Impressions and Excited Utterances

FRE 803(1) = Present Sense Impressions o Immediacy is the key o Declarant describes what he sees as he sees it. o Theory is that substantial contemporaneity of event and statement negative the likelihood of deliberate of conscious misrepresentation. In many instances precise contemporaneity is not possible and hence a slight lapse is allowable. o If the witness is declarant, he may be examined on the statement; if the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement. o Permissible subject matter is limited to description or explanation of the event/condition. Statement Describe or explain Event/condition Meade while receiving event OR Immediately thereafter Without opportunity to reflect or deliberate FRE 803(2) = Excited Utterances o Excitement is the key. o Declarant sees a startling event that rivets his attention and then or later (while still in its sway) he speaks in reaction. o Theory is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. o The standard of measurement is the duration of the state of excitement. o A statement need only relate to the startling event or condition, thus affording a broader scope of subject matter coverage. Statement Relating to Starting event Made while under stress Without opportunity to reflect or deliberate The relationship between event and statement was so close that the happening impelled the words out of declarant. o The connection was so close that declarant had no time to lie or forget and that he focused his attention on what he described. Participation by the declarant is not required. 24

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o A non-participant may be moved to described what he perceives and one may be startled by an event in which he is not an actor.

Nuttall v. Reading Co.

o Widow is suing deceased husbands company for making him work on a day that he was very ill. o She must prove that he must have been IN FACT compelled to go to work; not that he felt he had to go to work that day. o Wife overheard a phone conversation in which he talked to his boss; he then told her that he had to go. HOLDING = When a man talks as Nuttall did and acts as Nuttall did during and immediately following a conversation on the telephone with his boss, it has a tendency to show that the boss was requiring him to come to work against his will. This illustrates the utility of the exception for present sense impressions in FRE 803(1). The exception is crafted in a way that nearly insures firsthand knowledge.

United States v. Arnold

Arnold challenges his felon-in-possession-of-a-firearm conviction contending improper admittance of evidence and erroneous evidentiary rulings. RULE = Under FRE 803(2), a court may admit out-of-court statements for the truth of the matter asserted when they relate to a startling even or condition made while the declarant was under the stress of excitement caused by the event or condition. Three parts: o 1 There must be an event startling enough to case nervous excitement. o 2 The statement must be made before there is time to contrive or misrepresent. o 3 The statement must be made while the person is under the stress of the excitement causes by the event. RULE = The question is whether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event. RULE = Cases have upheld the admission of statements that also were made after the startling even but well within the traumatic range of it. RULE = The rule does not demand a precise showing of the lapse of time between the startling even and the out-of-court statement. o The exception may be based solely on testimony that the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing to be emotionally upset. HOLDING = There were no evidentiary rulings in this case.

State of Mind FRE 803(3)

Four Distinct Usesto prove: (a) declarants then-existing physical condition i. In personal injury suits, the exception is regularly invoked for statements describing aches/pains ii. It matters not whether declarant speaks close in time to the injury or onset of ailment, so long as his words describe how he feels as he talks. iii. These statements are admissible not only when spoken to treating physicians, but also when declarant talks to spouse or friend. (b) his then-existing mental or emotional condition i. Reaches only statements of present mental state. 1. What the declarant says on Wednesday about his mental state on Monday does not fit. 25

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Sometimes it is reasonable to assume that mental state persists over time so what the declarant says on Wednesday about how he feels may shed light on his mental state both then and on the prior Monday and following Friday and can be admitted as proof of all these points. iii. Most often courts refuse to draw inferences of continuity, particularly into the past. iv. The stream of consciousness has enough continuity so that we may expect to find the same characteristics for some distance up or down the current; BUT there is a point beyond which such evidence becomes irrelevant. v. The exception does not embrace a statement of memory or belief to prove the fact remembered or believed. vi. NECESSARY to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind. (c) his later conduct (subsequent conduct) MUTUAL LIFE INSURANCE v. HILLMON This question is of admissibility of the letters written by Walters on the first days of March 1879, when he stated that he would be leaving with Hillmon. RULE = A mans state of mind or feeling can only be manifested to others by countenance, attitude, or gesture, or by sounds or words, spoken or written. RULE = Whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. RULE = Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. HOLDING = The two letters were competent evidence of the intention of Walters at the time of writing them, which was a material fact bearing upon the question in controversy and that for the exclusion of these letters, as well as for the undue restriction of the defendants challenges, the verdict is set aside.

ii.

UNITED STATES v. PHEASTER

HILLMON DOCTRINE = Hearsay evidence is admissible if it bears on the state of mind of the declarant It does not require that the state of mind of the declarant be an actual issue in the case. Instead, the state of mind of the declarant is used inferentially to prove other matters which are in issue. When the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the act. RULE = Hearsay evidence of statements by the person which tend to show his intention is deemed admissible under the state of mind exception. RULE = When hearsay evidence concerns the declarants statement of his intentions to do something with another person, the Hillmon doctrine requires that the trier of fact infer from the state of mind of the declarant the probability of a particular act not only by the declarant but also by the other person. The possibility of unreliability of the inference to be drawn from the present information is a matter going to the weight of the evidence which might be argued to the trier of fact, but it should not be a ground for completely excluding the admittedly relevant evidence. HOLDING = Although the court recognized the force of the objection to the application of the Hillmon Doctrine in the instant case, it could not conclude that the district court erred in allowing the testimony concerning Larrys statements about where he was going to be introduced. 26

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(1) Then existing state of mind Intent 803(3) A for A (2) Went to Chicago (3) Went to Chicago with John o Most courts will allow all three o Some courts will allow number three if there is additional evidence o Some courts say no to number three (d) facts about his will a. Can be defended on the ground that the mental state of the testator is of paramount importance in wills cases. b. Admitting what he has said on the subject makes sense because: i. He is likely to be well informed on the subject ii. He is likely to be dead when the matter is litigated, suggesting a strong need for evidence of what he has said iii. His own views on the subject may be as trustworthy as live testimony by interested parties disputing the disposition of the estate. I hate my husband because he is so cruel. (1) I hate my husband. (2) Tends to prove that husband is cruel. #2 is NOT permissible So, #1 must be legitimate issue otherwise FRE 403 problem. A for A: 801(d)(1)(A) 801(d)(1)(B) 801(d)(1)(C) 801(d)(2)(A) 803(1) 803(2) 803(3) 803(4)

STATEMENTS TO PHYSICIANS FRE 803(4)

1. Statement made for medical 2. diagnosis OR 3. treatment 4. describing medical history 5. past/present symptoms 6. cause 7. reasonably pertinent to medical diagnosis or treatment RULE = There is good reason to believe that a person will be careful and accurate in describing his symptoms to his doctor because life and health are at stake. ACN = Statements as to fault do not ordinarily qualify. Saying I was struck by an automobile would fit, but not a statement that the car was driven through a red light. 27

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Pertinency Standard: If not included in the exception, everything said by the patient in the context of being questioned for the purposes of treatment and diagnosis would be admissible. Instead, this requirement is intended to impose a true limit. ACN = Declarations made to an examining physician to qualify him as an expert witness do not have the trustworthiness of declarations made to a treating physician because the self-interest of the declarant may become a motive for distortion, exaggeration, and falsehood. ACN = The statement need not have been made to a physician; statements to hospital attendants, ambulance drivers, or even members of the family might be included.

Blake v. State
A sixteen year old girl told a doctor that her step-father had raped her several times. RULE = In situations involving physical or sexual abuse of children, statements made by a child victim to a medical professional may be admitted. RENVILLE TEST = First, the declarants motive in making the statement is consistent with the purposes of promoting treatment or diagnosis. Second, the content of the statement is reasonably relied on by a physician in treatment or diagnosis. HOLDING = The two part Renville test was satisfied here. The victim was examined by Dr. Bowers as a result of an investigation into allegations that she had been sexually abused. The victims statements were consistent with the purposes for which Dr. Bowers became involved with the victim and Dr. Bowers testimony indicates that she relied on the victims account of the circumstances surrounding the sexual assault to determine how to properly treat the victim.

PAST RECOLLECTION RECORD FRE 803(5)

1. A memorandum or record 2. concerning a matter about which a witness 3. once had knowledge 4. but now has insufficient recollection to enable the witness to testify fully 5. the writing must have been made or adopted by the witness 6. when the matter was fresh in the witness memory 7. reflects the knowledge correctly 8. the document itself is read into evidence, not entered as an exhibit 9. can be an exhibit if offered by an adverse party ACN = The guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them.

Ohio v. Scott
ISSUE = Whether the past recollection exception violates a defendants 6th Amendment right of confrontation and the opportunity to cross-examine. Miss Tackett was a friend of defendant and he told her that he shot someone; conversation took place inside of a movie theater and Miss Tackett gave the police a signed, handwritten statement concerning the conversation the day after the arrest. At trial, Miss Tackett slightly changed her story to where she said the conversation consisted of slightly different facts which altered the statements made to her by the defendant. REASONING = The statement consisted of facts of which the witness had firsthand knowledge; the written statement was the original memorandum made near the time of the event while the witness had a clear and accurate memory of it; the witness lacked a present recollection of the words used by defendant in the conversation; and the witness stated that the memorandum was accurate. 28

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HOLDING = The statement was properly admitted as past recollection recorded and its admission did not violate defendants constitutional rights.

BUSINESS RECORDS FRE 803(6)

1. Regular business; regularly kept record a. Regular activity to make the record b. Embraces only records of a business, institution, profession, occupation, or calling. c. It need not generate a profit, but those records MUST BE regularly generated. d. Fits exception if each person involved in its preparation was acting in the regular course of her business activities. e. Broad enough to reach records kept by a single person who is in business for himself. f. Reaches records of illegal enterprises like drug selling. 2. personal knowledge of source a. the source of information must be someone with personal knowledge b. that person need not be the one who made the entry i. Contemplates multiple hearsay (one entry based on another based on another). 3. contemporaneity a. the information will be recorded (or at least gathered) a the time of the act or event or when the condition was observed b. but the requirement is not interpreted literally; it suffices that the record (or the information gathered) close to the time of the event. 4. foundation testimony a. either testimony by the custodian of records or other qualified witness or a certification by such a person, which means an affidavit. b. Foundation witness or the certifier need not have made the record or observed its preparation, nor even have been employed when the record was made. c. What is required is a witness with firsthand knowledge of the system who can describe usual means of preparation so as to satisfy the other three requirements. d. In short, the foundation witness or certifier may rely on a kind of circumstantial knowledge, although one lacks even this minimal knowledge cannot lay the foundation. ACN = Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short in the regular course of business. If, however, the supplier of information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself and the fact that it may be recorded with scrupulous is of no avail.

Petrocelli v. Gallison
James and his wife sued Dr. Gallison alleging medical malpractice in connection with a hernia operation; plaintiffs claim that records stating that nerve was severed should be admitted. RULE = FRE 803(6) provides that any reports 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 should be admitted even though the declarant is available as a witness. RULE = The information source must be acting in the regular course of business. o The ACN makes it clear that this encompasses only declarants (like nurses or doctors in the case of hospitals) who report to the record keeper as part of a regular business routine in which they are participants. 29

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Where the declarant is a hospital patient, his relating of his own history is not part of a business routine in which he is individually a regular participant. HOLDING = To be admissible as business records under FRE 803(6), the referenced notations would have to represent either the opinions or diagnosis of the Massachusetts General Hospital doctors who made the notations or the diagnosis of some other person with knowledge (such as a medical colleague) who reported to the maker of the record as part of the usual business or professional routine of the hospital. o If the entries were merely relaying what Mr. Petrocelli or his wife told the reporting physicians when providing a medical history the matter would not be admissible solely under FRE 803(6)

Norcon v. Kotowski
Sexual harassment case; Norcon objected to the submission of a memo and Kotowski argued that the memo fell within the business records exception. Memo was comments made by other Norcon employees about sexual comments and actions made at work by the supervisor; the memo was prepared by the independent security firm hired by Norcon. Norcon does not contest the trial courts finding that the information was acquired as par to of a regularly-conducted business activity and that it was regular practice to keep memos of this type. o Instead, it objects to the fact that the memo consisted of double and triple hearsay of informants who provided the information contained in the memo. o There is no indication these informant-employees were acting within the regular course of their business. RULE = If the supplier of the information does not act in the regular course, an essential link is broken. HOLDING = Despite the fact that the informants may not have been acting in their regular course, as supervisors and safety employees should be admitted as nonhearsay admissions of a party-opponent under FRE 801(d)(2); they were agents speaking at a time that they were employed by Norcon. By invoking the admissions doctrine and the business records exception, we can view the statements by the informants as authorized admissions that were recorded in the ordinary course of the business of the private security firm in investigating such incidents.

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PUBLIC RECORDS FRE 803(8)

It is presumed that public servants go about their tasks with care, without bias or corruption, and that the scrutiny and exposure surrounding government functions add assurance that public records are trustworthy; the repetitive routine involved in preparing many documents adds to assurance. Necessity also plays a role: public officials probably do not long remember much of what they record in the course of their duties. Clause A = embraces mundane documents describing activities of the office or agency. Clause B = covers matters observed by public officials. Examples: IRS assessment liens indicating unpaid taxes; reports by building inspectors indicating code violations; cargo survey reports prepared by AID. Clause C = embraces factual findings from official investigations. Examples: findings of employment discrimination based on race and gender prepared by the EEOC; studies on toxic shock syndrome by the CDC FRE 803(9) = exception for records of vital statistics, such as birth and death FRE 803(14) = exception for evidence of judgments of felony convictions FRE 803(23) = exception for judgments on matters of personal, family, or general history or boundaries. FOUR DIFFICULTIES of FRE 803(8): 1. The Compartments are Not Watertight a. It often makes a difference which category is invoked. 2. Use Restrictions in B and C require interpretation and have undergone judicial modification a. B was added by Congress, but C was inserted because of collision with confrontation rights. 3. Use Restrictions seem to operate differently from constraining language in other exceptions a. They behave more like exclusionary provisions than limits on exceptions. 4. Trustworthiness clause is a wildcard a. It introduces necessary flexibility but consequent uncertainty.

Baker v. Elcona Homes

The plaintiffs cause of action was based on alleged negligence of the defendant Slabach (a truck driver for Elcona Homes). Primarily factual issue is which vehicle had the right of way at the time it entered the intersection and before the collision occurred. ISSUE = Whether the court should have admitted into evidence the police accident report prepared. Sgt. Hendrickson had left the sand and the defense introduced the police accident report into evidence over the hearsay objection of plaintiffs. RULE = A police report is a public record within the meaning of the first part of FRE 803(8). The direct observations and recorded data in the court of investigation which were placed upon the report clearly are matters observed pursuant to duty imposed by law as to which matters there was a duty to report under FRE 803(8)(B). The ACN accept evaluative reports as being within the meaning of factual findings under FRE 803(8)(C). RULE = In determining whether the sources or other circumstances indicate lack of trustworthiness, the ACN lists four suggested factors: 1. the timelines of the investigation; 2. the special skill or experience of the official; 3. whether a hearing was held and the level at which conducted; 31

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4. possible motivational problems HOLDING = The sergeants own objective findings of act were admissible.

LEARNED TREATISES
FRE 803(18) permits full use of a treatise where: o It is shown to be reliable authority, AND o Either the expert relies on it in direct examination OR it is called to his attention on crossexamination.

EXCEPTIONS IN FRE 804 DECLARANT UNAVAILABLE

Unavailability of the declarant does not by itself put an out-of-court statement into an exception. o Unavailability helps a statement overcome a hearsay objection only if it fits into one of the give exceptions in FRE 804(b) Unavailability as a witness does not mean the declarant must be physically unobtainable; the requirement is satisfied if his testimony is unobtainable. o Even if someone is in court, he is unavailable if he cannot remember, refused to testify, or properly invokes a privilege. o The judge determines whether the declarant is unavailable meaning the question is one of admissibility under FRE 104(a). CLAIM OF PRIVILEGE o Where one defendant wishes to offer a statement by another as a declaration against interest, declarants privilege against self-discrimination entitles him not even to be called as a witness. o Hence, he may be unavailable under FRE 804(a)(1) without being called to the stand. REFUSAL TO TESTIFY o An effort to secure a witness cooperation is essential. LACK OF MEMORY o A declarant who testifies that he does not remember the subject matter of his statement. o A person may remember making his statement well enough to be cross-examinable, thus satisfying 801(d)(1), even though he has forgotten the underlying events, thus being unavailable under 804(a)(3) because of this fact. DEATH, ILLNESS, INFIRMITY o A minor ailment form which speedy recovery is expected should not satisfy the requirement, even though the declarant cannot attend trial on a given day; adjournment is an option. o A serious illness of uncertain prognosis is likely to be enough. o In some settings, mental condition makes a witness unavailable to testify even though the modern view is that insanity does not disqualify one from giving evidence. UNAVOIDABLE ABSENCE o A declarant is unavailable if her presence cannot be had at trial by subpoena or other reasonable means. o Sometimes she is beyond the reach of the subpoena power of the court (jurisdiction). o The reasonable means puts pressure on parties to obtain deposition testimony by a declarant who might be unavailable at trial.

1.

2. 3.

4.

5.

FORMER TESTIMONY EXCEPTION

Testimony; trial, hearing, deposition; same case OR different case; offered against; opportunity of similar motive to develop testimony by direct, cross, or redirect. 32

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o The prior statements were given under oath in a trial on the same issues, the declarant was cross-examinable, and the verbatim transcript of the earlier proceedings captures his words FRE 804(b)(1) also embraces depositions and testimony given in preliminary hearings in crim. cases. o Like prior inconsistent statements, this exception requires the statement to have been given in a proceeding but does not require judicial proceeding, which opens the door to use of the former testimony exception for testimony given in administrative hearings as well. The main limit is the cross-examination requirement. o The exception is available in civil cases if the party against whom it is offered or his predecessor in interest had a chance to cross-examine the declarant in the prior proceeding It suffices that the party against whom the testimony is offered had an opportunity and similar motive to cross-examine. o Often objecting party argues that differences between the prior and the present proceedings show that on the earlier occasion there was less reason to go after the witness. The charges or issues were different in the earlier proceedings, or the parties were added or dropped, or the purpose of the earlier hearing was narrower. ANY SUCH DIFFERENCE HAS NO PLAUSIBLE EFFECT!!

Lloyd v. American Export Lines

ISSUE = Did Alvarez or a predecessor in interest have the opportunity and similar motive to develop the testimony by direct, cross or redirect examination as required by 804(b)(1)? RULE = In order for hearsay exceptions in 804 to apply, it is required that the declarant be unavailable or absent from the hearing and the proponent of his statement be unable to procure his attendance by process or other reasonable means. RULE = If it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded as adequate opportunity for such examination, the testimony may be received against the present party. The idea that a person may be bound or affected by what his predecessor in interest has done is central to the notion or privity. HOLDING = Under these circumstances, the previous party having like motive to develop the testimony about the same material facts is, in the final analysis, a predecessor in interest to the present party.

DYING DECLARATIONS
When a person understands that his death is imminent and speaks of his circumstances, the hearsay doctrine has long recognized an exception for his words. The exception embraces those statements concerning the cause and circumstances of impending death. It reach the remarks identifying the assailant, and also descriptions of the accident or catastrophe that befell the defendant. Modern cases leave the issue as a matter of law to the judge and not within the province of the jury. Fear or even belief that illness will end in death will not avail of itself to make a dying declaration; there must a settled hopeless expectation that death is near at hand and what is said must have been spoken in the hush of its impending presence.

DECLARATIONS AGAINST INTEREST

Declarations against interest are thought to be trustworthy on ground that a person is unlikely to state facts (or make statements) harming his own interest unless they are true. Important factors included the following: o Context o Conflicting interest (a statement may further one interest and impair another) 33

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o One-way interest o Circumstantially adverse facts (statement may fit the exception without directly speaking of debts or property; statement admitting fault in a context that might give rise to liability or loss to the declarant may satisfy the exception). o Declarants understanding (only applies if declarant understands his own interests and how the fact or statement could affect them) o Effect of later events (some courts insist that the against-interest requirement is not satisfied where a statement becomes damaging in light of later unexpected events) o Conclusory remarks (some courts treat declarants against interest like admissions, allowing conclusions)

Williamson v. United States

The court admitted against Williamson what Harris told Agent Walton; on appeal Williamson claims the against-interest exception did not apply. RULE = FRE 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. RULE = There is no reason why collateral statements, even ones that are neutral as to interest, should be treated any differently from other hearsay statements that are generally excluded. RULE = FRE 804(b)(3) does not allow admission of non-self-inclupatory statements, even if made within a broader narrative that is generally self-inculpatory. RULE = The question under FRE 804(b)(3) is always whether the statement was sufficiently against the declarants penal interest that a reasonable person in the declarants position would not have made the statement unless believing it to be true and this question can only be answered in light of all the surrounding circumstances. HOLDING = 804(b)(3) does not reach associated (collateral) statements. Instead, a statement must itself be against interest in order to fit the exception. This holding excludes statements offered to prove acts by persons other than the speaker and this construction prevails in courts that follow Williamson. Corroborating Requirement = For statements offered to exonerate the accused, 804(b)(3) requires corroboration. Does not apply to statements implicating the accused. Its purpose is to circumvent fabrication. BRUTON = Williamson and I bought the cocaine can be used against Harris but not Williamson. 803(3) cannot come in to prove the underlying fact (cannot be used to prove that it was cocaine)

STATEMENTS OF PERSONAL OR FAMILY HISTORY

These statements an others like them describing family pedigree and family history are admissible under 804(b)(4) when the declarant is unavailable. 804(b)(4) applies despite the fact that the declarant sometimes conveys what he heard from another and thus lacks personal knowledge. The exception rests on the assumption that the speaker has adequate information and in practice many statements are made before controversy arises. Where a statement is offered to prove fact about people other than the speaker, courts may require independent evidence that she belongs to the family (or is an intimate of the family). o But when her statement is offered to prove facts about herself (such as her marriage or children or her parents), other proof of the relationships is probably not required.

STATEMENTS ADMISSIBLE BECAUSE OF FORFEITURE BY MISCONDUCT

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804(b)(6) paves the way to admit statements against a party who engaged or acquiesced in wrongdoing that was intended to, and did, make the speaker unavailable as a witness. The purpose of this provision is to deal with witness intimidation in criminal cases. The exception does contain a component of intentionality. o This goes not to the intent of a party to give up her right to exclude hearsay, but her intent to keep the speaker from testifying o The exception does not turn on proving intent to give up a right. o One who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.

THE CATCHALL EXCEPTION (FRE 807)

This provision authorizes courts to admit hearsay that does not fit any of the other categorical exceptions if it is nevertheless trustworthy and necessary. This provision descends from occasional pre-Rules cases recognizing that sometimes reliable and necessary hearsay simply does not fit any established exception. Material fact; probativity and diligence; interest of justice; notification to the adversary.

THE MINOR EXCEPTIONS:

803(16) = ancient documents o statements in documents that have been around for 20 years or more. 803(17) = market reports; commercial lists o Allows variety of published and generally used and relied upon by the public or by persons in particular occupations. o The notion here is that widespread circulation and reliance creates pressures ensuring reliability. 803(22) = felony convictions o Evidence of felony convictions is admissible in carefully limited circumstances to prove facts essential to sustain the judgment o The prosecutor cannot introduce prior convictions of third persons for purposes other than impeachment o Embraces only felonies, not misdemeanors, but 609(a)(2) authorizes use of both felony and misdemeanor convictions to impeach government and defense witnesses. 803(7) and 803(10) = absence of record o Authorize proof of the absence of entries in business and public records as evidence of the nonoccurrence or nonexistence of a matter that one would expect to see recorded in such places if it occurred or existed. Birth, marriage, death o 803(9) = prove vital statistics by public records o 803(11) = authorizes use of religious records as proof of matters of personal and family history such as marriage, divorce, ancestry, and relationship by blood or marriage. o 803(13) = family records may be used as proof of matters of personal or family history Real property o 803(14) = the content of documents of conveyance may be proved by the records of the land office. o 803(15) = documents of conveyance may be used to prove the truth of the matters they assert, such as source and condition of title. o 803(20) = reputation as to boundaries of or customs affecting lands in the community 35

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Reputation evidence o 803(19) = reputation of a person within his family concerning matters such as birth, marriage, death, and relationship by blood and marriage o 803(21) = proof of reputation within the community as to character Allows what people say as proof of what they thing even if it is hearsay o 803(23) = judgments as proof of matters of personal, family or general history or boundaries where the finding is essential to the judgment Such matters are evenly litigated and the outcome is to be trusted.

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HEARSAY QUIZ 801(a) 801(b) 801(c) A for A A for B (eliminate 1, 2, 3, 5 if A for A BUT always check 4) (1) PIS offered to impeach (2) effect on listener (3) state of mind (4) verbal act (magic person?) (5) verbal object 9) Offered A for B so it is not hearsay (effect on listener) 10) offered for A for A ( 11) hearsay (assertive nonverbal conduct) 12) Offered A for B (trying to get inside officers head to prove he acted in good faith) (effect on the listener) 13) A for A; nonverbal, nonassertive conduct 14) A for A; cant be PIS offered to impeach, effect on listener, or verbal object. -verbal act of jury 15) A for A 16) A for A 17) skip 18) nonverbal statements offered for its proof 19) A for A (always reserve that it could be a verbal act) BUT it is a verbal act not A for A -the words dont have to be substantively true but just definitely said 20) sounds like A for A BUT there is a magic person and therefore a verbal act (of terminating the lease) 21) A for A (nonverbal nonassertive conduct) 22) skip 23) if used as an identifier, it is a verbal object (A for B) but does not get you to prove that it is a Porsche 24) verbal part of an act 25) 26) skip 27) trying to prove a substantive point (A for A range; offered to prove they are a bad credit risk); BUT is it possible that it is a verbal act? Magic person saying magic words makes it so. Just because this company says they are bad credit risk, does not make it so! 28) getting in the mind of someone (probably not A for A) because acted reasonably. This is A for B, effect on the listener. 29) A for A (was it a statement? Nonverbal nonassertive conduct) 30) not offering to prove that a mistake was made; 31) hearsay because its A for A. words being spoken offered to prove that he is a violent man.

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CONFRONTATION CLAUSE
If a prior statement is found to be testimonial, and the declarant is not testifying at trial, the hearsay may be introduced against a criminal defendant only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. If the prior statement is not testimonial there is no Confrontation Clause issue and the testimony may be presented. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. The Supreme Court has not defined testimonial but the following are examples: o Ex parte in-court testimony or its functional equivalent - formalized testimonial materials such as affidavits, depositions or prior testimony. o Statement that are the product of an official inquiry - such as police interrogation. o Statements that are a solemn declaration or affirmation made for the purpose of establishing or proving some fact. o Statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Crawford v. Washington
RULE = In summary, Crawford applies only when all the following elements occur: o Criminal prosecution o The case involves testimonial evidence o made by the victim or a witness o who bear testimony testimony is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact o against the accused o The victim is unavailable to testify in court, and o The defendant did not have a prior opportunity to cross-examine the victim/witness. RULE = Testimonial statements by witnesses who do not appear at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross examination. RULE = The application of the Confrontation Clause is limited to hearsay statements. Hearsay statements are assertions of fact offered as proof of the truth of the facts asserted. The central issue is whether the hearsay evidence is testimonial. o If the out-of-court statement is testimonial, the prosecution cannot use it as substantive evidence unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination. o If the statement is non-testimonial, the Confrontation Clause simply does not apply. RULE = It is the speaker who counts, not the police, and it should suffice that the speaker expects that his statement may be used in investigating or prosecuting crime. Testimonial turns on what an objective witness would reasonably believe about the statement. o An overwhelming number of post-Crawford cases reject the notion that private statements are testimonial (statements made by a witness or crime 38

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victim to a friend of acquaintance, or to anyone at all who is not a law enforcement officer or connected with law enforcement in an official capacity. o Private statements are admitted as non-testimonial when they qualify as excited utterances or against-interest statements. HOLDING = The Supreme Court emphasized that the right to confront one's accusers could not be taken away in cases where judges believe that testimonial hearsay evidence is reliable, because such hearsay evidence had not had its reliability tested through the procedural crucible of cross-examination.

Davis v. Washington
RULE = The Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, does not apply to non-testimonial statements not intended to be used in a future criminal prosecution. RULE = If the primary purpose in making the statement is to establish or prove past events potentially relevant to later criminal prosecution the statement is testimonial. On the other hand if the primary purpose of the police questioning was to deal with a present or imminent risk of harm to an individual or the public, then the statement is non-testimonial and the confrontation clause does not apply. RULE = The fact that the Confrontation Clause does not apply does not mean that the statement is automatically admissible. The statement still has to be admissible under the particular jurisdiction's rules of evidence - which usually means that the statement must meet the requirements of an exception to the hearsay rule. HOLDING = Although McCottry identified her attacker to the 911 operator, she provided the information intending to help the police resolve an "ongoing emergency," not to testify to a past crime. The state are free to interpret similar clauses in state constitutions more strictly than the Supreme Court's interpretation of the federal Confrontation Clause.

CONFRONTATION CLAUSE FLOW CHART

1. 2. 3. 4. 5. Criminal Case (Federal or state) statement of declarant offered vs. the defendant statement is A for A declarant does not testify in case statement is testimonial a. THEN EXCLUDED UNLESS i. Declarant is: 1. legally unavailable AND 2. defendant had prior opportunity to cross declarant 3. OR statement is a dying declaration 4. OR defendants wrong doing cause declarant to be unavailable forfeiture by wrongdoing.

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CHARACTER EVIDENCE
Character, in evidence law, carries a narrow meaning, describing a persons inclinations and suggesting their innateness. Specific inclinations are not only descriptive but predictive, suggesting patterns of behavior and thus telling us something about the likelihood that a person would or would not do certain acts. When proof of character is used, we speak of the propensity argument, which justifies using proof of character as substantive evidence of conduct on a particular occasion. Obviously the probative worth of such proof cannot be measured with precision; its weight turns in part on the inclination and the point to be proved. 404(a) states a general rule excluding character when offered to prove conduct, and then sets out three exceptions, the first two only apply in criminal cases by virtue of amendment added in 2006: THREE WAYS TO PROVE CHARACTER: 1. witness may describe acts by the person that indicate the existence of that trait. 2. opinion that the person has the trait in question 3. witness might describe the reputation a. FRE 405(a) authorizes both reputation and opinion evidence but sharply restricts evidence of specific instances. CHARACTER EVIDENCE OF THE ACCUSED: 1. In a criminal case 2. Pertinent trait of the defendant (not such traits that prove character generally) 3. offered by the defendant; or prosecution in rebuttal (ONLY if defendant offers reputation=opens door) OR: 1. if the defendant offers character evidence of the victim 2. introduce the same trait of the defendant

RULE 404 (Character Evidence Not Admissible to Prove Conduct; Exceptions) (a) Character Evidence Generally. Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion EXCEPT: i. Character of accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; ii. Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged 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 alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; iii. Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609. (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 action in conformity
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therewith. It may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good case shown, of the general nature of nay such evidence it intends to introduce at trial.
Advisory Committee Notes: (a) = Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character; this use is often described as circumstantial. i. When the accused attacks the character of a victim, the door is opened to an attack on the same character trait of the accused. ii. The government cannot introduce negative character evidence as to the accused unless the accused introduces evidence of good character. iii. The accused cannot attack the alleged victims character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. iv. The amendment does not permit proof of the accuseds character if the accused merely uses character evidence for a purpose other than to prove the alleged victims propensity to act in a certain way. v. The amendment also does not permit proof of the accuseds character when the accused attacks the alleged victims character as a witness under Rule 608 or 609. vi. In a civil case evidence of a persons character is NEVER admissible to prove that the person acted in conformity with the character trait. 1. The circumstantial use of character evidence is generally discouraged because it carries serious risks of prejudice, confusion, and delay. (b) = The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.

RULE 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 character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct.
404(a)(1) Character Evidence of the defendant (1) defendant offers first 404(a)(2) character evidence of victim 404(a)(2) 405(a) If Character Evidence is admissible under 404, it can take the following forms: (1) opinion 405(b) Essential Element

(1) defendant offers first

(1) Homicide case

(1) opinion 41

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st

(2) prosecution then can rebut OR (3) defendant offers character evidence of victim

(2) prosecutor in rebuttal as to victim (and also as to defendant)

(2) victim was 1 aggressor

(2) reputation

(2) reputation

(3) prosecutor (3) no specific rebuttal with instances Only Q peacefulness on cross DOES NOT OPEN the DOOR to 404(a)(1)

(3) specific instances of conduct *Not whether it is relevant, because it is always relevant.

United States v. Huddleston

The Court gave more power to the prosecutor when answering whether to require specific proof of prior acts to satisfy some standard higher than the usual preponderance standard that applies to fact questions that come with issues of admissibility. o Giving the question to the court provides more protection for defendants; requiring a higher standard of proof has a similar effect. o Giving the question to the jury provides less protection; as does a lower standard of proof. RULE = First, the Rules do not require a preliminary finding by the court that the government proved a prior act; instead the judge makes a threshold decision whether the evidence is probative of a material issue other than character. RULE = Second, prior acts raise questions of relevance conditioned on facts under 104(b), which the jury decides by the preponderance standard. o By this approach, proof of a prior crime is relevant if the jury can reasonably conclude by a preponderance that the act occurred and the defendant was the actor. o Hence the judge only plays a screening role, asking only whether there is sufficient evidence to enable the jury to find that defendant committed the prior act. REMINDER = This is not a constitutional decision, so it is not binding on the states.

HABIT AND ROUTINE PRACTICE

In contrast to character evidence, proof of personal habit is freely admitted. Rule 406 stands out in Article IV in stating a rule of admissibility rather than limits. o On its face, it rejects limits by proving that habit is viewed is relevant to prove conduct whether corroborated or not and regardless of the presence of eyewitnesses. o The same liberality extends to proof of the routine practice of an organization. Habit denotes ones regular response to a repeated situation. o It is a persons regular practice of responding to a particular kind of situation with a specific type of conduct. o By its nature, it is at least regular if not invariable so it has greater probative value in proving conduct on a particular occasion than does evidence of more general propensities. o Also, it is less likely to carry moral overtones or to present serious dangers of unfair prejudice or confusion.

REMEDIAL MEASURES
Evidence of subsequent remedial measures has long been excludable, when offered to prove that the person in question was somehow at fault before, and FRE 407 continues tradition on this point. As a matter of policy, it is though wise to avoid discouraging efforts to make things better or safer. 42

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o It is considered unfair to introduce against a person, over his objection, evidence that he behaved responsibly after the fact. Concerns over relevancy arise because efforts to prevent future accidents may not show or even indicate the past practice or conditions amounted to negligence or fault. Concerns over confusion of issues arise partly because of the relevancy problem and partly because it may be impossible even to show that changes that follow an accident were made because of the accident. event injury/harm remedial measure taken after event harm les likely evidence of remedial measure not admissible to prove (see exceptions) unless offered for other purpose (if continued) owner contests feasibility impeachment

RULE 407 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Tuer v. McDonald
After Tuers death, and apparently because of it, St. Josephs changed its protocol with respect to discontinuing Heparin for patients with stable angina. Under the new protocol, Heparin is continued until the patient is taken into the operating room. o Defendants made a motion in limine to exclude any reference to the change in protocol under Rule 407. RULE = The ACN offered two justifications for excluding evidence of subsequent remedial measures to prove culpability: o Subsequent conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. o Social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. RULE = FRE 407 exempts subsequent remedial measure evidence from the exclusionary provision of 407(a) when it is offered to prove feasibility, if feasibility has been controverted. o When the plaintiff is obliged to establish that there were feasible alternatives to the design, manufacturing method, or warnings used by the defendant, he necessarily injects the question of feasibility into the case, to which the defendant ordinarily responds by showing why those alternatives were not used. o The assertion that a given course would be unsafe, in the sense that it would cause paramount harm to the plaintiff, necessarily constitutes an assertion that the course would not be feasible. RULE = Most courts have held that subsequent remedial measure evidence is not ordinarily admissible for impeachment if it is offered for simple contradiction of a defense witness testimony. o This is true if, at the time of the event, the measure was not believed to be as practical as the one employed, or that the defendant was using due care at the time of the accident. HOLDING = It is clear that Dr. McDonald made a judgment call based on his knowledge and collective experience at the time. The only reasonable inference from his testimony was that he and his colleagues reevaluated the relative risks in light of what happened to Mr. Tuer and decided that the safer course was 43

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to continue the Heparin. That kind of reevaluation is precisely what the exclusionary provision of the Rule was designed to encourage.

SETTLEMENT NEGOTIATIONS (FRE 408)

408 bars proof of civil settlements, offers to settle, and conduct or statements made during settlement negotiations, when offered to prove liability for or invalidity of the claim or its amount or to impeach through a prior inconsistent statement or contradiction. o THE FACTS ARE NO INADMISSIBLE; cannot prove liability for the claim or use it as a prior inconsistent statement Civil settlements are excludable not only in later civil suits, but in criminal cases (except that settlements in government enforcement suits are not excludable in criminal cases). The exclusionary principle rests on concerns of relevancy: o Payment of a small sum does not tend strongly to prove liability; acceptance of a large sum does not tend strongly to prove that a claim is weak. The main reason for the rule is public policy: o The system would grind to a halt if every case filed were tried, yet lawyers would not be able to risk negotiating if what they said or did in trying to settle were later provable if the attempt to settle failed. 408 applies to both furnishing or promising to pay a civil settlement and the language is broad enough to reach fines. o The same principle reaches conduct or statements in civil negotiations, but the principle does not apply to conduct or statements in proceedings relating to a claim by a public office or agency exercising regulatory or enforcement authority. PLEA BARGAINING (FRE 410) statements are excludable for many of the same reasons that apply to civil settlement negotiations. o FRE 410(4) requires exclusion of plea bargaining statements of the accused and other subdivisions similarly exclude withdrawn pleas of guilty, nolo contendere, and courtroom statements by the accused in entering such pleas. 1. the exclusionary principle in 410 applies both in later criminal cases and in later civil litigation.

PROOF OF PAYMENT OF MEDICAL EXPENSES (FRE 409)

Where a person pays for injuries or other expenses incurred by another, in the belief that he is responsible or even simply as a Good Samaritan, Rule 409 provides that proof of such behavior is excludable if offered to prove liability. The basis for this exclusionary principle is similar to those in 407 and 408 o Responsible behavior after the fact does not necessarily prove legal fault and the system should encourage such behavior. Only excludes furnishing or offering or promising to pay medical and similar expenses, which seems narrower than the coverage in 408. o Does not include conduct or statements made in compromise negotiations. This suggests that the statements accompanying an offer to pay medical expenses might not be excludable under 409, although such statements would be excludable if the context suggests that the parties were trying to settle the case. 44

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ACN = Contrary to Rule 408, dealing with offers of compromise, the present rule does not extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. Communication is essential if compromises are to be effect and consequently broad protection of statements is need. Not so in cases of payments or offers or promises to pay medical expenses, factual statements may be expected to be incidental in nature.

PROOF OF INSURANCE COVERAGE (FRE 411)

Bars evidence of coverage offered in arguments. Prevents the jury from deciding cases or adjusting damage estimates in the belief that insurance will pay the judgment. Recognizes several situations where the fact of insurance is admissible. o Insurance investigations sometimes gather pretrial statements from eyewitnesses, and these may be admissible for impeachment purposes.

IMPEACHMENT OF WITNESSES
There a five ways to impeach a witness: a. Three focus on bringing out reasons to doubt his word in general, without pinpointing a particular error or lie in his testimony (definite but nonspecific = definite in telling the trier why to doubt the witness, but nonspecific in not showing what testimony to doubt) i. Showing that the witness has some bias, animus, motivation, or corruption that might lead him to fabricate or shade his testimony to help or hurt one of the parties, ii. Showing a defect in sensory or mental capacity (perception or memory) that undercuts his testimony, iii. Showing that the is by disposition untruthful. 1. cross examine the target witness about nonconviction misconduct casting doubt on his honesty 608(b) 2. cross examine him about certain kinds of convictions 609 3. testimony by a character witness that the target witness is untruthful 608(a) b. The other two target particular misstatements or lies, but without suggesting reasons (specific but indefinite = specific in calling into doubt particular points in the testimony of the witness but indefinite because they do not necessarily reveal the underlying cause. i. Showing that the witness has made a prior inconsistent statement (one that conflicts with his current testimony) ii. Contradicting the witness (showing that he is just plain wrong on one or another point in his testimony) Subject to the discretion of the court under Rule 611 to limit excursions into side issues, the supporting party may examine the witness in an effort to refute points suggested during the attack or explain away any aspersions cast upon his veracity. a. Under certain conditions, he may offer proof of the good character of the witness for truth or veracity or evidence of prior consistent statements which harmonize with the direct testimony. EXTRINSIC EVIDENCE = affirmative proof to establish a particular point; testimony by another witness; only allowed when impeaching point is considering non-collateral! 608(b) is always collateral; for bias you can show extrinsic evidence. 45

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NONSPECIFIC IMPEACHMENT Bias and Motivation

The extent of permissible cross examination for bias is very much a matter for the discretion of the trial judge; the court cannot properly cut off all apparently legitimate attempts to show that a witness is bias and some subjects (like plea bargains affecting prosecution witnesses, or fees paid to experts) are so clearly proper that at least some questions are always allowed. So important is the defense right to develop bias on the part of the prosecution witnesses that the Supreme Court has held that denying cross-examination on such a point can violate defense confrontation rights and due process. The Supreme Court has held that a trial judge must permit defendant to uncover basic indentifying facts about government witnesses such as name and address, and place of employment. o The Court may still impose reasonable limits on efforts to show bias and cut off questioning when the point has been made.

United States v. Abel

A divided panel of the 9th Circuit reversed respondents conviction for bank robbery; held that the district court improperly admitted testimony which impeached one of respondents witnesses. 9th Circuit held that Ehles rebuttal testimony was admitted not just to show that respondents and Mills membership in the same group might cause Mills to color his testimony; the court held that the contested evidence was also admitted to show that because Mills belonged to a perjurious organization, he must be lying on the stand (this was impermissible). ISSUE = Respondent contends that the district court abused its discretion under Rule 403 because the testimony about the gang inflamed the jury against respondent, and the chance that he would be convicted by his mere association with the organization outweighed any probative value the testimony may have had on Mills bias. RULE = A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony. RULE = It is permissible to impeach a witness by showing his bias under the FRE just as it was permissible to do so before their adoption. RULE = Bias is used to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. It may be introduced by a witness like, dislike, or fear of a party, or by the witness selfinterest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness testimony. RULE = FRE 608(b) allows a cross-examiner to impeach a witness by asking him about specific instances of past conduct, other than crimes covered by Rule 609, which are probative of his veracity or character for truthfulness or untruthfulness. The Rule limits the inquiry to the cross examination of the witness, however, and prohibits the cross-examiner from introducing extrinsic evidence of the witness past conduct. HOLDING = The testimony is extrinsic evidence and certainly falls under 608(b) and should be disallowed because it is collateral. HOWEVER, Ehles testimony also shows bias and there is allowed despite being extrinsic evidence because it is non-collateral.

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RULE = When a party uses prior statements by a witness to impeach on the theory that they are inconsistent with his present testimony, FRE 613(b) allows extrinsic evidence of such statements only if the witness under attack has a chance to explain. RULE = A party can cross-examine an expert on fees paid by the other side; the fact that a witness is on retainer bears directly on bias.

SENSORY AND MENTAL CAPACITY The attacking party may show that the witness was under the influence of drugs or alcohol at the time of the events or even during trial. Cross-examination on mental afflictions or illness is also proper, including questioning about treatment or stays in mental institutions. Occasionally courts order production of medical records to assist in cross; sometimes they admit psychiatric testimony when it bears on capacity to observe or report. No witness is incompetent because of mental illness. CHARACTER FOR TRUTH AND VERACITY Proving bad character for truth and veracity is a standard impeaching strategy; three means of proving untruthfulness are found in the Rules: o Cross examination on non-conviction misconduct o Cross-examination on convictions o Use of character witnesses 404 generally bars the use of character evidence to prove conduct outside of court; showing that a person is untruthful involves character evidence to show a particular kind of conduct in court (lying on the witness stand). o 404(a)(3) makes an exception permitting this strategy; 608 and 609 authorize and regulate this means of attack. 611 authorizes judges to protect witnesses from harassment or undue embarrassment. o When the witness is a party, such impeachment raises a risk of prejudice similar to that which 404 guards against. A party may lose the protection of 404 if he decides to testify, for doing so opens him up to the kind of impeachment by evidence of bad character that 608 and 609 permit. o Yet, testifying does not sacrifice protection of 404 since an impeaching attack must focus on traits relating to veracity.

CROSS-EXAMINATION ON NON-CONVICTION MISCONDUCT

One way to suggest that the witness is disposed to be untruthful is to being out on cross instances of non-conviction misconduct that seem to bear on veracity. 608(b) endorses cross-examination on such points if the court in its discretion decides that they tend to suggest this conclusion. Even if the cross-examiner has a factual basis for such questions, they can be damaging beyond their power to shed light on veracity. o Hence, trial judges have discretion to block even well-founded questions. 608(b) indicates that specific instances of conduct relating to truthfulness or untruthfulness may in the discretion of the trial court be raised on cross. 47

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A witness may be cross-examined on a prior bad act has not resulted in a criminal conviction only where: o The examiner has a factual predicate for the question, AND o The bad act bears directly upon the veracity of the witness in respect to the issues involved in the trial. This second prong asks whether the prior bad acts are probative of truthfulness or untruthfulness. 608 does not require pretrial notice. Most modern cases disapprove cross-examination about behavior that does not directly involve lies or deception; thus questioning about drug use, violence, or sexual relationships is generally disapproved.

United States v. Manske

The government made a motion in limine to block the defense from cross-examining Pszeniczka about threats he made to witnesses testifying in a related case and from cross-examining two other witnesses. o The government argued that that the threats amounted to conduct not probative of truthfulness or untruthfulness because they tended only to show propensity for violence. o Manske argued that threats calculated to encourage people to break the law are probative of truthfulness or untruthfulness and that threats supported the defense theory. RULE = 608(b) is a rule of limited admissibility. o Other than certain criminal convictions allowed into evidence by 609, a witnesss specific instances of conduct may only be raised on cross-examination if they are probative of truthfulness or untruthfulness. RULE = When a partys question is specific and well-founded, the cross-examiner should be allowed to ask questions on acts better described as dishonest than false, including questions related to concealing or frightening off witnesses or suborning perjury (even in unrelated cases). HOLDING = It was legally erroneous for the district court to conclude that the threat evidence was irrelevant under 608(b). Because the threat evidence also implicated Pszeniczkas untruthfulness, the governments motion should have been denied. RULE = Bias is always relevant and parties should be granted reasonable latitude in crossexamining target witnesses. o Proof of bias may properly show fear by the witness for his personal safety or the safety of his family or friends, relating to the parties or issues in suit. o Bias may be induced by a witness likes, dislikes, fear, or self-interest. RULE = The cross-examiner should not ask directly about bias, but instead should make point through suggestion that a witness has a motive or bias to lie. o Courts generally allow cross-examiners to ask directly about deceptive statements or behavior. Since December 1, 2003, FRE 608(b) has covered cross-examination on specific instances of conduct for the purpose of attacking or supporting the witness character for truthfulness. o The change made express what was always intended: 608(b) covers attacks on veracity or truthfulness (attacks on character) and nothing else. o 608(b) does not apply to questioning that aims to show bias. o 608(b) allows cross-examination but NOT extrinsic evidence.

PROVING PRIOR CONVICTIONS

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609(a) lets the cross-examiner ask about: o Convictions for crimes punishable by death or imprisonment in excess of one year, but for witnesses other than a criminal defendant the admissibility of such convictions is subject to 403 and such convictions can be used to impeach a criminal defendant only where their probative value outweighs their prejudicial effect to the defendant (a reverse 403 standard because it favors excluding rather than admitting evidence). AND Most courts allow the cross-examining party to bring out only limited information about the prior conviction (usually only the fact of conviction, name of the crime, date, and sentence) o Convictions for either felonies or misdemeanors involving dishonesty or false statement. Inquiry into misdemeanor convictions can proceed only if they are crimes of dishonesty or false statement. Certain core area: perjury, fraud, embezzlement, counterfeiting, forgery, and false statements or false pretenses. o Does not include those involving violence. Most courts say that trial judges lack discretion to disallow impeachment for crimes involving dishonesty and false statement and that 403 does not operate here. Concept behind this prong is that some crimes, despite not being classified as felonies, are so probative on credibility that they should be automatically proper subjects for cross-examination. Reaches convictions for crimes in which establishing the elements required proof of dishonesty or false statement, provided that this point readily can be determined. In 1989, the Court decided that 609 meant what it said in that it DID NOT PERMIT a court to block cross-examination of a civil plaintiff on his prior conviction. Amended 609(a) deletes the language limiting impeachment to cross-examination suggesting that it may go forward on direct and perhaps after the witness has left the stand. 609(b) recognizes a ten-year time limit which in effect creates a presumption that convictions older than that are excludable, as measured from the alter of the date of final release or the date of conviction. 609(c) disallows the use of convictions to impeach in some circumstances where formal procedures indicate that the witness has been rehabilitated (pardon, annulment, certification) if there have been no later felony convictions, or where a formal procedure concludes that the witness is innocent. 609(d) provides that a youthful brushes with the law are generally inadmissible but that in criminal cases such adjudications may be raised in the case of witness other than the accused. o What counts it not the age of the offender but the nature of the proceedings against him: convictions under statutory schemes permitting prosecution of youthful offenders as adults but providing alternate penalties fall outside the restrictive language of 609(d) which embraces only special juvenile offense schemes. 609(e) permits cross-examination on convictions despite pendency of appeal, a result justified by the fact that convictions are so much more often affirmed than reversed.

CHARACTER WITNESS
Introduce testimony by a character witness that the witness in question in untruthful. 608(a) authorizes by permitting opinion as well as reputation testimony; the character witness may say what he personally thinks of the veracity of the principal witness. o In either case a foundation is necessary and at least some minimal elaboration is allowed. 49

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o For opinion testimony, some period of personal acquaintance is necessary.

SPECIFIC IMPEACHMENT
Prior Inconsistent Statements
If a witnesses testimony differs on some point from her prior statements, the attacking party may cross-examine on those statements and prove them by extrinsic evidence. The message of 613(a) is simple: the cross-examiner no longer needs to worry about approaching the subject gently; instead he may go straight to the point. o The only restriction is that opposing counsel is entitled on request to see the prior statement or learn its contents, the purpose being to enable him to repair, if possible, the damage done by the attacker if he distorted the statement or wrenched it out of context. The message of 613(b) is more complicated: o If a prior inconsistency is proved by extrinsic evidence, generally the witness must have an opportunity to explain or deny it (unless the interests of justice otherwise require, AND o The adverse party (usually the one who called the witness) must have a chance to interrogate her. Concern that a prior inconsistent statement will be taken as proof of what it asserts is perhaps the most obvious reason that might persuade a court to exclude it (this misuse could lead to exclusion under Rule 403.

IMPEACHMENT BY CONTRADICTION
Impeaching a witness by contradiction entails a showing that something he said in his testimony is not so. Like inconsistent statements, the counterproof refutes him on specific points, though standing alone it is indefinite in failing to explain why he erred or lied. Courts generally recognize that all contradicting counterproof has some impeaching effect but letting it in only if additional relevance in the case (some relevance independent of its contradicting effect). THREE KINDS OF COUNTERPROOF o Not only contradicts but also tends to prove a substantive point The counterproof ordinarily gets in, as it would even if it did not have a contradicting effect, for it goes to the merits. Its impeaching effect is often forgotten, being overshadowed by the struggle of each party to establish one version of the facts and destroy the competing version. o Not only contradicts but tends to prove some other impeaching point The counterproof usually gets in, as would be true even if it did not have contradicting effect for it tends to show bias. Bias may be proved by extrinsic evidence so the attacking party is not limited to cross-examination. o Only contradicts Evidence is usually excluded; sometimes courts admit counterproof on such a point where it seems that a witness could not be innocently mistaken. Courts generally exclude counterproof that contradicts only a collateral point. o In effect, they require a dual relevancy of evidence offered to contradict a witness, for such proof must tend not only to prove that he lied or erred, but also to prove some other point that could make a difference in the case.

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If Florence testifies to her accident-free past, counterproof of prior accidents comes in because it contradicts her and bears on the question whether she is a careful driver. But he evidence comes in only to contradict her, not to prove she was negligent at the time, because the bar against character evidence makes it incompetent (though relevant) to prove negligence. o Counterproof must be relevant on some point other than contradiction! Collateral or Non-Collateral dual relevance (contradicts + substantive point or impeachment point) Does not need to have dual competence! Seven Impeaching Methods: 1. bias 2. ability to perceive 3. 608(a) 4. 608(b) 5. 609 6. Prior Inconsistent Statement 7. impeachment by contradiction

REPAIRING CREDIBILITY
i. before the attack has come. ii. The repair should be made at the point of attack. Two conditions must be met: Generally courts disallow any attempt to repair credibility

PRIOR CONSISTENT STATEMENTS

At common law, prior consistent statements were admissible to rehabilitate a witness, provided that the attacking party had suggested that her testimony was tainted by recent fabrication or undue influence or motive. A prior statement by the witness, consistent with her direct testimony, might tend to refute the attack. This rehabilitating effect is greatest when the witness had made her prior consistent statement before the alleged motive or influence came into play. A prior consistent statement that predates the alleged recent fabrication or the motive to falsify has sufficient probative value to be admitted because it tends to rebut the cross-examiners charge of recent contrivance.

FORBIDDEN ATTACKS
Rule 610 disallows impeaching attempts that attack credibility on the basis of belief or opinions on matters of religion. Religious beliefs are intensely personal and the subject brings great risk or prejudice and little prospect of developing anything that helps.

OPINION AND EXPERT TESTIMONY

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LAY OPINION TESTIMONY

Common law = Lay witnesses testify to facts, not opinions based on facts. Facts are more specific or concrete, opinions are more general or conclusory. RULE 701 says that 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. o 701 is more generous than common law tradition, allowing more latitude to admit lay opinion testimony. RULE 602 requires lay witnesses to have personal knowledge The Federal Rules permit the introduction of substantially more evidence than was formerly admissible; they place great reliance on cross-examination for much more evidence is now admissible subject to cross-examination as a means of verification.

EXPERT WITNESSES
Under RULE 702, an expert is essentially someone with specialized knowledge. o Someone who has formal education or training (doctors, engineers, geologists) o The standard is intended to be lenient and many others qualify o A person with suitable training or education can be an expert even if he is not a specialist or not renowned and even if he lacks a certification or experience. o It reaches as far as people with practical experience but no formal training. o There is an absolute right to qualify an expert witness (qualifications, experience, books written, special expertise, etc.) Under RULE 702, an expert can testify only if what he says will assist the trier of fact to understand the evidence or to determine a fact in issue. o Very generous standard and courts have admitted a wide range of testimony. o Experts may help the jury understand even familiar matters, in virtue of experience or training that provides a more thorough or refined understanding than ordinary experience provides. o Where expertise is only marginally helpful because the subject is simple or familiar, excluding such testimony better rests of RULE 403. RULE 703 lets an expert witness base his testimony on facts or date of three sorts, provided they are of a type reasonably relied upon by experts in the particular field, even if not admitted in evidence. o Facts or data that he learns by firsthand observation before the hearing o Facts or data that he learns at the hearing o Outside data, information he gleans before trial by consulting other sources. Reasonably relied upon by other experts in the field The expert relies on it, NOT the trier of fact! An expert must give her OWN opinion, even if she relies on others. Experts have wide latitude in choosing, but 703 requires courts to examine reliability of those sources. Most courts have rejected defense attacks on expert testimony relying on hearsay; most decisions stress either that the underlying statements are not testimonial or that they were offered only as the basis for expert opinion. Before the expert witnesses can testify to matters of substance, typically the calling party asks the court to qualify him as an expert. o RULE 104(a) says the court alone resolves this point and does not ask the jury to decide it. 52

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RULE 705 allows the calling party to directly ask the expert his opinion. o This has greatly increased the importance of cross-examination as a means of testing the opinion; the ACN says the cross-examiner may bring out data unfavorable to the opinion. RULE 706 permits the court to appoint independent experts; 706(c) says the source of the appointment need not be disclosed. o THIS IS RARELY USED: adversary tradition and compensation. 703 602 Inadmissible evidence Opinion admissible facts or data Probative value vs. prejudicial effect 704 Ultimate issue 705

702 Will aid the trier of fact Qualified witness Reliable (Daubert and Kumho Tire)

RELIABILITY STANDARD FOR SCIENTIFIC AND OTHER TECH. EVIDENCE

Daubert discarded Frye for federal courts in favor of a more flexible approach designed to insure the reliability of scientific evidence. In Kumho the Court extended Daubert standard to all expert testimony presenting technical or specialized material. FRE 702 was amended in 2002 in response to Daubert so it formally requires expert testimony to rest on sufficient facts or data, reflect reliable principles and methods, and reliably apply these principles and methods. Most states continue to follow the original version of 702, which refers only to the qualifications of the witness and to the helpfulness criterion.

Daubert v. Merrell Dow

Petitioners are minor children born with serious birth defects; they and their parents sued Merrell Dow in California state court, alleging the birth defects had been caused by the mothers ingestion of Bendectin, a prescription anit-nasuea drug marketed by respondent. o Respondent removed the suits to federal court of diversity grounds. The district court said that scientific evidence is admissible only if the principle upon which it is based is sufficiently established to have general acceptance in the field to which it belongs; the court concluded that petitioners evidence did not meet this standard. o Petitioners contend Frye standard was superseded by the adoption of the FRE. RULE = Nothing in the text of the Rule establishes general acceptance as an absolute perquisite to admissibility; FRYE should not be applied in federal trials. RULE = Under the Rules the trial judge must ensure that any an all scientific testimony or evidence admitted is not only relevant but reliable. The subject of the experts testimony must be scientific knowledge. o Scientific = grounding in the methods and procedures of science. o Knowledge = more than subjective belief or unsupported speculation. 53

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Must be derived from the scientific method; proposed testimony must be supported by appropriate validation (good grounds) based on what is known. In short, the requirement that an experts testimony pertain to scientific knowledge establishes a standard of evidentiary reliability. o 702 further requires that the evidence or testimony assist the trier of fact to understand the evidence or to determine a fact in issue. This condition goes to relevancy. Expert testimony that does not relate to any issue in the case is not relevant and non-helpful. o This helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. RULE = Faced with a proffer of expert scientific knowledge, the trial judge must determine at the outset, pursuant to 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. o Can the knowledge be, and has been, tested? o Has the theory or technique been subjected to peer review and publication? o Is it widely accepted in the scientific community? RULE = The inquiry envisioned by 702 is a FLEXIBLE ONE!!!!!! The focus must be solely on principles and methodology, not on the conclusions they generate. HOLDING = General acceptance is not a necessary precondition to the admissibility of scientific evidence under the Rules, but the Rules (especially 702) do assign to the trial judge the task of ensuring that an experts testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands. Sufficient data; reliant data; reliable analysis/methodology. Judges perform the gate-keeping role and the criteria in amended 702 look very much like specifications of admissibility under 104(a).

Kumo Tire v. Carmichael

ISSUE = Whether the basic gate-keeping obligation applies only to scientific testimony or to all expert testimony. RULE = Daubert held that 702 imposes a special obligation upon a trial judge to ensure that any and all specific testimony is not only relevant, but admissible. RULE = 702 and 703 grant expert witnesses testimonial latitude unavailable to other witnesses on the assumption that the experts opinion will have a reliable basis in the knowledge and experience of his discipline. The Rules grant that latitude to all experts, not just to scientific ones. RULE = Dauberts description of 702 is a FLEXIBLE ONE; the factors it mentions do not constitute a definitive checklist or test. The list of factors was meant to be helpful, not definitive. RULE = A trial judge may ask questions of the sort Daubert mentioned only where an expert relies on the application of scientific principles but not where an expert relies on skill or experience based observation. 54

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702 does not create a scheme that segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Whether Dauberts specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine. HOLDING = The trial judge should look not only at reasoning or methodology but application of reasoning and methodology. The trial judge has discretion not only in deciding whether any particular criterion is satisfied, but also in deciding what criteria to apply in the first place.

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BURDENS OF PROOF AND PRESUMPTIONS

Courts normally act only when parties ask them to do so and prove their case so it comes naturally to think that litigants must carry burdens or lose if they fail. Burden of Production o Party runs the risk of losing automatically (on motion for judgment as a matter of law, before or after the verdict) if she does not offer sufficient evidence to enable a reasonable person to find in her favor. o If it carries very well, the burden shifts to the opponent; he loses automatically if he does not offer rebuttal evidence that is cogent and compelling. Burden of Persuasion o Party can win only if the evidence persuades the trier of the existence of the facts that she needs in order to prevail. Party wins only if, on basis of evidence, the facts seem more likely true than not. Because this burden operates at the end of trial, courts often say it never shifts. Sources and Nature of Presumptions o The term presumption describes a device that requires the trier to draw a particular conclusion when the basic facts are established, in the absence of evidence tending to disprove the fact presumed (counterproof) o If the basis facts are established by cogent and compelling evidence or stipulation and there is no counterproof indicating that the presumed fact is not so, then the trier must find the presumed fact. o The presumption disappears if the party opposing the presumption offers cogent and compelling proof that the presumed fact is not so. o Sometimes there is enough proof of the basic facts to support a finding that they exist, but not enough to require such a finding, so the trier might find against the basic facts, disbelieving witnesses or resolving a conflict or proof by concluding that the basic facts are just not so. The presumption affects decision only if the trier finds the basic facts to be so. In this situation, in a jury-tried case the judge must give a contingent (or conditional) instruction that if the jury finds the basic facts, then it must find the presumed fact. Presumptions and Inferences in Criminal Cases: o No presumption operating against the accused on an element in the offense can control decision, even if he offers no counterproof. The reason is that directed verdicts against the accused are not allowed, and a presumption instruction binding the jury amounts to a partial directed verdict. o The Court has found that instructions are ambiguous where they suggest that the defendant may be convicted only on proof beyond a reasonable doubt, but that he may be convicted on the strength of a presumption alone. PRESUMPTIONS: 1. Conclusive / Irrebuttable Presumption a. Must establish predicate facts i. If established, you cannot rebut the presumed facts ii. Presumed fact is automatically established 2. Mandatory / Rebuttable Presumption a. Must establish predicate facts (by cogent and compelling evidence) b. Then, rebuttal; if no rebuttal, presumption controls. c. If rebutted with cogent and compelling, then presumption is gone! 56

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d. If rebutted with some evidence other then cogent and compelling, then the presumption is an inference and the jury must decide. 3. Permissive Presumption / Inference JUDICIAL NOTICE It is the process by which a court determines certain matters without need of formal proof. Adjudicative Facts o 201(b) = generally known within the territorial jurisdiction of trial court OR capable or accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. o Facts that normally go to the jury in a case; if there is any reasonable dispute no notice o Those that would have to be proved by evidence if notice were not taken; serves as a substitute for evidence; FRE suspended so objections cant be made under rules! o Relieves the party of the burden or producing evidence on indisputable issues, furthering trial efficiency. o Requires an instruction informing the jury that notice has been taken and explaining what that means; court shall instruct jury to accept as conclusive any fact judicially noticed. o Just because the court can take judicial notice, does not answer whether it is a point that you can prove (under 404, 408, 410) Evaluative facts o Matters of common knowledge that judges and jurors bring to their deliberations. o These facts amount to background information, appearing inconspicuously and interstitially in the elementary process of understanding and reasoning. o Because it is usually a matter of general knowledge, there is usually no need to instruct the jury to take notice of such a fact. Legislative Facts o Considered by a trial or appellate court in ruling on a question of law. o Legislative history of relevant statute. Law o Process by which the court determines controlling law. o If judicial law is not taken, responsibility for proving the applicable law rests with the parties.

PRIVILEGES
The purpose is to protect certain relationships and values, even if such protection imposes significant costs on the litigation process. Primary goal is to encourage the free flow of information in various favored relationships, such as marriage. o To accomplish this, privileges block government interference with those relationships. o Without a privilege, a professional person called as a witness may have to disclose confidential communications from a client or patient, regardless of ethical standards of confidentiality and regardless what assurance of confidentially was given to the client or patient. RULE 501 = governs privileges

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Testimonial Privilege o BROAD = Goes beyond protecting communications and blocks all testimony by one spouse against another, including accounts of premarital events or acts. o NARROW = applies only if the spouses are married when the testimony is sought. o Attempts to preserve ongoing marriages; pitting spouse against spouse seems to invade and deny human dignity. Spousal Confidence Privilege o BROAD = Protects the interval of the marriage forever, hence blocking post-dissolution testimony describing private communications occurring during marriage. o NARROW = Excludes only testimony about private communications between spouses (and perhaps some behavior in private settings) while they were married. o A marriage without the right of complete privacy of communication would necessarily be an imperfect union; promotes the public policy of furthering and safeguarding the objectives of marriage just as other institutions in the area of domestic relations of family law promote it.

SELF-INCRIMINATION Only privilege expressly recognized by the Constitution, guaranteed by the 5th Amendment. o No person shall be compelled in any criminal case to be a witness against himself. Privilege applies in civil cases, pretrial proceedings and it may be asserted by any party or witness (not just criminal defendants) Also applies in administrative and legislative proceedings as well. Applies whenever government power can be used to compel testimony. Malloy v. Hogan = Court held that the federal privilege applies to the states as a component of due process under the 14th Amendment. There is a preference for an accusatorial rather than an inquisitorial system = justification. Belongs only to natural persons. o It cannot be asserted by legal entities like corporations or labor unions. o Nor can it be claimed by unincorporated associations or partnerships. o One of several codefendants cannot claim a privilege belonging to another. o Attorney or agent cannot rely on 5th Amendment in refusing to testify or produce evidence the would incriminate a client or principal. o A corporate employee must produce records held in an official capacity even if they would incriminate him personally. Applies only to evidence that is testimonial. o Does not protect against compelled production of incriminating evidence that is not communicative in nature. Blood sample does not violate; fingerprinting; photograph; participation in lineup; handwriting sample; hair sample; etc. Protects only against compelled disclosure that could lead to criminal liability, not disclosure that provides the basis for a civil damage claim or results in social embarrassment or public condemnation. o Only where danger of criminal liability still exists. If SOL has run, or the witness has received a pardon, or the Double Jeopardy Clause would bar prosecution, the privilege no longer applies. o Transactional Immunity = protects the witness against any future prosecution relating to the matter about which he is to testify. o Use Immunity = precludes use of his testimony in any further prosecution, but does not block prosecution based on other evidence that is not derived from the testimony. 58

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Provides less protection; Court has held this is sufficient. In a later prosecution, the government bears the burden of proving that its evidence derived from sources independent of any testimony that the defendant gave when his privilege claim was overruled. o Applicable even where the threat of criminal liability comes from another sovereign. However, the fact that the testimony would be incriminating under the law of another jurisdiction does not necessarily provide a basis for refusal to testify, but rather a ground under the Constitution for preventing use of that testimony in the other jurisdiction.

COMPETENCY
United States v. Lightly o Every witness is presumred to be competent to testify (601) unless it can be shown that: the witness does not have personal knowledge of the matters about which he is to testify he does not have the capacity to recall, or he does not understand the duty to testify truthfully. o This applies to persons considered to be insane to the same extent that it applies to other persons. The Oath Requirement: o United States v. Fowler 603 is clear and simple: before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation. No witness has the right to testify but on penalty of perjury and subject to crossexamination. Neither raising the hand nor using the world solemn is required; flexibility in wording of oaths or affirmations is often mandated by state constitutional provisions that prohibit religious tests for witnesses. One purpose is to impress on the mind of the witness a duty to speak only the truth; another purpose is to make him amenable to criminal prosecution if perjured testimony is given. The Child Witness o 601 adopts the position that almost anyone is competent to testify, letting the concerns of mental or moral capacity go to the issues of credibility or weight given to the evidence. The rule is designed to afford the flexibility required in dealing with children. o ACN 601 = no mental or moral qualifications for testifying as a witness are specified; discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine; the question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence. Some states, however, continue to presume incompetency of children below a certain age (12 in NY) Judges as Witnesses o 605 is explicit in making this one of the few federal grounds of incompetency. o 605 does not prohibit calling a judge as a witness in another trial or hearing, even a posttrial proceeding in the same case. Personal Knowledge Requirement 59

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o 602 provides that 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. o Competency pertains to the qualification of a person to be a witness and is a matter for the court under 104(a). o Usually satisfied by preliminary questions showing that the witness personally perceived certain facts before the witness is asked to relate those facts to the jury. CAN YOU OFFER IT? HOW CAN YOU OFFER IT? FOUNDATIONAL EVIDENCE, AUTHENTICATION Before tangible evidence is admitted, the proponent must show that what he offers is what he says it is Proponent must authenticate the exhibits that he offers. Authentication = offering evidence sufficient to support a finding that the matter in question is what its proponent claims. 901(a) 902 allows self-authentication 901 liberalizes the authentication requirement by relaxing the requirement and allowing courts to consider such things as appearance and contents and internal patterns and by expanding the list of things that are self-authenticating. o Still remains a significant hurdle that must be surmounted. Authentication gives rise to issues of conditional relevancy under 104(b); something offered in evidence becomes relevant in the case ONLY if the proponent proves that the thing is what he claims it to be. o Getting the court reporter to mark the exhibit for identification o Offering testimony identifying or describing the exhibit o Offering the exhibit in evidence o Letting counsel for other parties examine it o Giving the other lawyers a chance to object o Submitting the exhibit to the court to examine if it wishes to do so o Getting a ruling o Asking permission to present the exhibit, if admitted, to the jury by reading or showing it FRCP 26(a)(1)(b) requires each party, even without a request from the other side, to provide copies or descriptions of all documents, data compilations, and tangible things in the possession of the party that it may use to support its claims or defenses. BEST EVIDENCE DOCTRINE Litigants are mostly free to choose among admissible forms of proof, and they may offer lesser forms of reasons of practicability, economy, or tactics. The main exception arises in proving the contents of writings. o The rule precludes proof of the terms of a writing not only by testimony, but also by a copy, unless the original is unavailable through no fault of the party seeking to prove its content. Five reasons: written word has special sanctity in legal affairs; any other method of proving writing is distinctly inferior; modern photocopy methods have not always been available; production of the original writing assures completeness and prevents segments from being removed from their context; examining the writing may help resolve disputes over authenticity. Only applied when the party seeks to prove the content of a writing. o 1002 broadened the coverage of the doctrine to embrace recordings and photographs. Two situations in which necessarily content is indeed the point to be proved: 60

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o When the substantive law forces the content of a writing into prominence, requiring one party or another to prove that content. o When a party chooses to prove content, even though she might theoretically present and adequate claim or defense without such proof. FIRST ASK = Is it hearsay? If offered A for A go to exceptions. When an exception is offered, then the court knows it is being offered A for A. DO NOT GIVE 801 ANYTHING UNLESS ITS A FOR A!!!

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