Evidence - Williams Fall 2003 I EVIDENCE: 1. The majority of cases are won or lost at trial I) 80% civil decisions remain in tact II) 95% of criminal remain 2. Offer of Proof: I) This is presenting to the court clearly what would have been said if the objection was sustained II) If this evidence were allowed it would show __ and it is relevant because __ 3. Direct Examination: Generally, NO leading question, so you must prepare your witness; except: I) Hostile witness: only percipient witness is connected with the opposition II) Preliminary Questions: presenting established/ undisputed information III) Party w/ Difficulty Testifying: 1. Children 2. Mental Disabled IV) Expert Witness 4. Submitting Tangible Evidence: I) Mark for Identification II) Lay Foundation III) Introduce Evidence  objection here if foundation not laid IV) Court’s Verbal Acknowledgement that the evidence is admitted 5. Objections I) Waived if not made II) Motion to strike if not enough time to object III) Judges CAN object but they don’t like to b/c it shows favoritism or incompetence IV) You MUST state the REASON for your objection V) Keaton: sometimes objections are seen by the jury as an attempt by the attorney to hide important evidence, thus attorneys will often tactically get evidence to be inadmissible in a motion in limine away from a jury, on the other hand, an attorney who attempts to introduce inadmissible evidence simply to force the opponent to object is unethical 6. Types: I) Direct- personal knowledge II) Circumstantial- inferences which are ok if supported II RELEVANCE : 1. Elements: I) What proposition is the evidence offered to prove? II) Is the proposition provable? It is NOT provable where: 1. the law stipulates: CA legal standards are very important i.e. there is an irrebuttable presumption that a child born to wed parents living together is the son of the father  blood tests are NOT allowed to prove otherwise  NOT provable 2. Fact was stipulated: the other side stipulates to a fact III) Does the evidence have SOME tendency in reason to prove or disprove the proposition? 1. Rules: (a) MR 402: All relevant evidence is admissible unless statute or code or unfair prejudice, confusion or delay is disproportionate to the value of the evidence (b) CA 351: All relevant evidence is admissible unless statute says it is not or it is not balanced fairly with the prejudice (c) CA 210: Evidence is relevant if it has some tendency in reason to prove the proposition. 2. Cases: (a) Knapp v. State: evidence offered that the old man was fearful of the police- some tendency and reason to prove self-defense which is a provable element of the case

1 Evidence - Williams Fall 2003 (b) Sherrod v. Berry: proof that there was no weapon  provable  some tendency in reason that the officer had no reasonable belief of a weapon? Prof says yes, court says no 2. Probative Value: Simply because something has limited probative value does not mean it is not relevant  often times all the evidence together increases the probative value I) King Solomen: judge says that since they cannot determine the mother, they will kill the baby, one of the women cries in objection 1. offered to prove who is the biological mother 2. provable? It shows that one mother has more caring for the child 3. some tendency in reason? Biological mother has the child’s best interest in mind 4. probative? Some value  not so if religious belief goes against child raised by another II) Paint Cans: second can by the same manufacturer tested to prove defective first can III) Love Letter: w/the weapon purchase, increases probative value of lover’s motive to kill the husband 3. Discretion: Even where relevant the court has discretion to exclude if it is unfairly prejudicial I) Old Chief: has a prior assault conviction  some tendency and reason to prove that he is guilty of the current assault with a deadly weapon but it was unfair prejudice II) Ballou: the lower court wrongly excluded the 24% alcohol level in light of the fact that the nurse said she did not smell alcohol  this should have gone to the jury on credibility iii) Unfair Prejudice Occurs Where: 1. Emotion leads the trier of fact to make a decision rather than facts 2. Decision NOT based on the law III HEARSAY: An out of court statement offered to prove the truth of the matter asserted 1. Impermissibility Rationale: I) Can’t test its credibility when it is out of court II) Cannot view their actions/body languages: assertive or hesitant 2. Simply because the party who made the statement is sitting in court or on the stand does not mean it is not hearsay, if the individual made the statement outside of the courtroom  hearsay 3. Approaches: I) Assertion Centered: 1. is it an out of court statement/conduct? 2. Are we asked to believe the content of the statement/conduct? II) Declarant Centered: 95% accurate 1. Are we asked to believe the witness (not hearsay) someone else (hearsay)? 2. Are we asked to believe something now (not hearsay) or in the past (hearsay)? 4. Inferences: Even where it is a step/inference necessary to wind up at the ultimate conclusion, if we need to believe the content of the statement in order to believe the inference, it is hearsay. 5. Even if out of court statement is NOT hearsay, it must still be relevant to be admissible! 6. NOT Hearsay: i) Proof of Life: Estate of Murdock: evidence that party says “I am still alive” to prove they are still alive  it doesn’t matter what was said, speaking is proof of life, the court should ask that the question be redirected to simply ask whether something was said ii) State of Mind (Effect on Party): 1. Subramaniam: evidence that terrorists said they were going to kill the individual as proof that he was justified in having unlawful ammunition  NOT trying to prove that the terrorists were going to kill him, rather that the individual had fear 2. Fundamental Too: want to admit statements by customers complaining that competitors were selling the banks at a lower price than retail  admitted to show there was confusion over the banks and not that the items were lower priced iii) Independent Legal Significance:

2 Evidence - Williams Fall 2003 1. Contract: Ries Biologicals: want to offer evidence that the company made personal guarantee statements to the buyer  where the words serve as an operative contract they have independent legal significance and are admissible 2. Gift: transfer is made with words of donative intent, it makes the transfer a gift & not hearsay iv) Name Calling: X is a pig. We aren’t trying to prove X is a pig simply to prove dislike v) Non-Assertive Conduct: Where the party acting is not trying to communicate anything, rather they are simply acting in their best interest. (opening umbrella in the rain) 1. Assertive is Hearsay: (a) Rothschild: sold British stocks  intended to communicate that the British had lost b/c he said this is what he would do if the British did indeed lose (b) CA 225: A statement is (a) an oral or written expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written expression 2. US v. Zenni: admit evidence that parties acted by calling in and making bets  not used to prove they put “X” amount on “A” horse, they were acting in their best gambling interest and not trying to communicate anything by calling 3. Silver v. NY Central RR: a failure to act can be non-assertive conduct  party is suing because it got too cold on the ship  nobody else evidenced that it was too cold by complaining (like putting on a sweater) 4. United States v. Jaramillo Suarez: defendant accused of cocaine conspiracy  want to admit pay/owe sheets, could not be admitted to prove the amounts owed, but could as non-assertive conduct that trafficking was occurring in the apartment 5. If a doctor treats you  he is not meaning to communicate anything, but if he says “I am going to give you a shot to take away your fever.” The statement is hearsay (a) Stark: non-action (b) Words Attached: putting on a jacket and saying “I am cold.. brr” (c) Words of Action: manager promoting a party as evidence of honesty vi) Machines: Machines (speed gun) and animals do not make hearsay statements, we are not as worried about them because they do not have a propensity to lie. 1. F801A and CA 2205: both specifically refer to a PERSON 2. Buck v. State: bloodhound evidence is admissible if the proper foundation is laid: (a) Dog must be trained to follow human tracks w/ his accuracy tested on one or more occasions (b) Must be other evidence pointing to guilt, this is merely corroborative circumstantial evidence vii)Proving an Element of the Case: 1. Hypo: Mother testifying that the daughter said the room was yellow  not to prove the color of the room, but to prove daughter was in the kidnapper’s house 2. Vinyard: evidence that individuals said the floor was slippery  admitted to prove the defendants had notice and thus owed a duty of care, not simply to show the floor was slippery 3. Johnson: evidence of incompetent records of other hospitals  admitted to show that the hospital was negligent in hiring him, not simply to show that the doctor was a bad doctor 7. Limiting Instruction: FR 105/CA 355: You must affirmatively ask for a limiting instruction where there is a dual purpose for the evidence otherwise you cannot object to the jury using it for whatever purpose they desire because the right has been waived: US v. Rhodes: admit soft film evidence in case for espionage, the film contains statements saying there was espionage as well as detailed information on the defendant  ask for a limiting instruction to simply allow the detailed information as admissible to show the defendant’s association with the group because they were tracking him carefully IV EXCEPTIONS AND EXEMPTIONS: 1. Former Testimony: I) Traveler’s Fire Insurance v. Wright: JB gets convicted of fraud when in his criminal suit two witnesses testify that he burnt it down to collect  they don’t want to testify in a similar action against JC because it is civil and they could self-incriminate due to a lack of immunity 3 Evidence - Williams Fall 2003 ii) CA 1291: Former testimony can be used where witness is unavailable & 1. person for whom the testimony is being used against is the same or a successor in interest 2. the person for whom the testimony is being used against was a party to the previous suit and had the opportunity to cross-examine w/ same interest & motive in the prior hearing iii) CA 240 Unavailable: jury never gets to find out why unavailable 1. Privilege: spousal, attorney, doctor 2. Incompetent 3. Dead or unable to attend or testify b/c (a) Physical (b) mental illness 4. absent from court AND the proponent has made reasonably diligent efforts to secure their presence  NOT if unavailability secured by attorney i.e. paid vacation to Jamaica IV) DIFFERENCE: FR 804: A party is also unavailable if they have a memory failure which must be deemed by a person physically present to testify as to the lack of memory V) US v. Salerno: witness invoked 5th amendment right not to self-incriminate in a subsequent criminal trial against another party  not the same opportunity and motive to cross-examine and the court realizes the government could have granted immunity if they really wanted it in vi) CA 1292: Former testimony against different party if substantial identity of issues 1. The declarant is an unavailable witness 2. The former testimony is offered in a present civil suit, NOT in criminal 3. The interest and motive for cross-examination must be the same vii)FR: different party MUST be SUCCESSOR in interest- Wright: partners 2. Dying Declarations: We can’t get this elsewhere and people tend to be more truthful at death. I) Soles v. State: “Daddy, Carl Soles shot me with a 22 rifle and I have got to die” 1. the declaration must relate to the cause and circumstances of death 2. the declaration must be based on personal knowledge 3. there must be a sense of immediate and impending death 4. DIFFERENCE: (a) CA: party MUST die (b) FR: even if survived, but declarant must be unavailable (see above) ii) Division of Duties: The trial judge determines (out of presence of jury) the preliminary questions of fact i.e. apply the rules of evidence by a preponderance of evidence i.e. MORE likely than not  here the judge determined there was NO sense of immediate and impending death, since it failed the rules of evidence is was inadmissible as hearsay iii) Refuting the Decision: the opponent can introduce ANY evidence to the jury to refute the evidence if it is admitted including that there was no sense of impending death, but he cannot ask that the evidence instruction be given i.e. dying declaration instruction 3. Excited Utterance: If a stressful event causes a person to be sufficiently excited, they will react without contemplation, reflection, or a chance to deceive: Truck Insurance v. Michling: husband dies after accident, want to admit that he told his wife he was struck by a bulldozer I) Proponent has the burden of proving excited utterance by preponderance standard ii) CA 1240/: must lay this foundation: 1. Declarant must have personal knowledge  witnessed exciting event 2. Declarant must be under the stress of the event  can be revived/relived 3. Statements are related to the exciting event III) DIFFERENCE: FR: there is bootstrapping 104A: you can use the actual evidence as some proof of the foundational elements i.e. you can use the contested evidence in order to determine the preliminary question of fact by a preponderance of the evidence  NOT sufficient standing alone 4. Present Sense Impression: You can use statements to prove the truth of the matters asserted if they are said as the events are occurring 4 Evidence - Williams Fall 2003 I) DIFFERENCE FR ONLY CA you can only use these statements to explain the conduct but not to prove the truth of the matter asserted II) State v. Jones: hearsay statements were said over the cb radios, even though the statements no longer seemed to be as the event was occurring in trial  the attorney did not object and the objection was waived 1. Statement must have occurred as the event occurred  NO time lapse and no writing down because this allows reflection 2. Declarant has personal knowledge of the event  we DON’T even need to know the identity of the declarant (i.e. nobody knew who the truck drivers were) 5. Admissions: A statement made by a party offered against the party  they are party to the suit thus they have a chance to explain or refute it I) DIFFERENCE: FR admissions are EXEMPTIONS ii) Statements: Reed v. McCord: Employer admits that the employee did not properly set the machine, thus it is not the machine insurer’s liability 1. NO need for personal knowledge on this issue  employer wasn’t there 2. If you report it, it will be treated as your admission: not if you heard or was told it iii) Silence or Conduct: 1. US v. Hoosier: the girlfriend said the jewels and the money were nothing, the party should have seen the rest of the stuff in the hotel  bf remains silent (a) Silence can be an admission where: (i) Reasonable person would object and deny when statement made (ii) Silent party heard the accusation (iii) Silent party understood the accusation (iv)The silent party had the opportunity to rebut or explain the statement (b) If a person is in custody silence NOT an admission b/c constitutional right to remain silent 2. State v. Carlson: the wife says he took the drugs and the defendant simply shook his head  the court presented this to the jury but it was a preliminary question of fact that should have been determined by the judge whether it constituted an admission iv) Agents on behalf of Principal: 1. Big Mack: truck driver claims brakes were faulty as proof of company’s negligence (a) Internal: statements to the president were for the company ONLY (b) There must be PROOF of authorization to make the employer liable: (i) The employer is responsible for employee’s negligence (ii) He has been given external authorization to make statements 2. DIFFERENCE: FR: Mr. Poos comes home and a witness tells him his wolf bit the child  he reports the same to other people saying “the wolf bit the child” (a) No personal knowledge and bootstrapping allowed here (b) FR- so long as the party is an agent, if it is made in the course and scope of employment it is admissible against the employer 3. Who is an AGENT? Sable v. Mead Johnson & Co: statements by doctors in a private company meeting saying the drugs cause priapism are these admissions against the company? (a) The employer must have control over the agent’s conduct  none here (b) There must be a fiduciary duty  no proof doctors obligated to act to further the company’s interests (c) Agent has the ability to alter the legal relationship between principle and third parties  go home at end of day, cannot legally bind manufacturer v) Co-Conspirators: Admissions by co-conspirators are admissible against ALL co-conspirators 1. CA 1223/ FR801D: (a) Made while the declarant was participating in the conspiracy (scope) it does not count upon arrest 5 Evidence - Williams Fall 2003 (b) Statement was made in furtherance of the conspiracy: US v. DiDomenico (c) Statement was made prior to or during the time the defendant was participating in the conspiracy: US v. Goldberg: evidence prior to joining (d) DIFFERENCE: CA: you can present this evidence before the foundation is laid so long as you eventually lay the foundation otherwise mistrial 2. US v. Doerr: statements made to a customer regarding a red curtain over the door, the half brother says he doesn’t know what goes on behind the curtain: statements must be in furtherance of the conspiracy or to move it forward: (a) Control damage by the conspiracy (b) Recruit new members (c) Inform members (d) Conceal criminal objectives 3. Bourjaily v. US: federal court conspiracy to sell cocaine tape  determining a conspiracy is a preliminary question of fact and federal allows bootstrapping: (a) Step one: judge considers the statements themselves (b) Step two: there must be additional evidence  statements insufficient 6. Statements Against Interest: People tend not to harm their own interest unless it is true  do NOT do this if it is a statement offered against a PARTY (admissions are easier to get in) I) State v. English: defendant wants to offer evidence that 3rd party admitted to the crime 1. Third party statements against interest are allowed where the 3rd party KNOWS at the time that he is making the statement, it will subject him to (a) Pecuniary- against money interest (b) Proprietary- against property interest (c) Penal- against criminal interest (d) Civil- subject to civil liability or be adverse to the party in civil trial (e) DIFFERENCE: CA ONLY social interest- shame in society 2. Third party is unavailable to testify 3. Personal Knowledge is required by declarant ii) Penal Interest Concern: Where the statement exonerates the defendant in a criminal prosecution we are particularly wary because the defendant has a heightened interest in exonerating himself: 1. US v. Barrett: wants to admit statement that Buzzy did it not Bucky (Barrett)  There was sufficient corroborating circumstances to ensure the reliability 2. Williams v. US: deputy pulls over Harris and Harris says the drugs belong to Williams, prosecution wants to admit this statement against Williams  statement must be against the declarant’s interest, not an attempt by the third party to exonerate himself and blame another 7. State of Mind: Statements a person says about their present state of mind are admissible because there no memory problem and people normally speak truth about their physical or mental state I) Adkins: wife says the defendant wined and dined her and she finds the defendant distasteful  used to prove alienation from the husband and stating her present state of mind  unfairly prejudicial to demonstrate that she had an affair with the defendant ask for a limiting instruction only allowing evidence of her finding the defendant distasteful II) Mutual Life Insurance of NY v.Hillmon: They want to get insurance money by claiming the husband died at crooked creek, the insurance company is trying to say it was Hillmon, want to admit evidence that the husband had said he was going to crooked creek  We allow the introduction of hearsay statements as to the person’s statements of intention as tending to prove they acted on their intentions 1. How they feel or bodily health: happy or sad or saying they don’t like someone 2. statement of belief: I believe I am Elvis, I believe that is a zippo 3. statements of intention: to show what they plan on doing CA 1251

6 Evidence - Williams Fall 2003 III) Sheppard v. US: they wanted to admit the dying woman had said her husband poisoned her  insufficient evidence of her knowledge of impending death for dying declaration, and could NOT rescue this on appeal because they never even argued state of mind, + 1. State of mind intentions looking back are NOT admissible 2. This limits the Hillmon doctrine to prevent swallowing the hearsay rule and prevents memory from becoming an issue IV) US v. Pheaster: declarant said he was meeting a 3rd party in the parking lot to pick up some drugs  when can you use statements of intention to place someone? 1. FR 803-3: You can only use a statement of intention to place the declarant (a) it is admissible to say “I will not go out with anyone but steph tonight” to place the declarant but not to place steph there whereas in CA this places both parties (b) DIFFERENCE: it would be inadmissible to say “I will wait at home until Steph picks me up” as offered to prove the FR individual was picked up by Steph  CA allows this V) DIFFERENCE: CA 1251-2: If the declarant is unavailable you can use past states of mind i.e. “I hated Buzzy last week.” BUT limited by circumstances exhibiting a lack of trustworthiness VI) Zippo v. Rogers: want to admit a survey where parties said “that is a zippo” indicating their present state of mind  different from toilet bank because declarants were not commenting on their present state of mind they questioning why it was cheaper to express confusion NOT what they actually believed at the time  they weren’t saying these two banks are the same 1. Collections of state of mind statements are admissible 2. could have potentially gotten it in through non-assertive conduct if the customers turned fake lighters in to get them repaired by zippo 8. Medical Diagnosis: FR 804-4/CA Civ Pro Code 1953: Where the declarant’s statements are to make a diagnosis regarding present or pre-exisitng circumstances (does NOT have to be a doctor) because people seeking treatment have a motive for truth and usually don’t seek unnecessary treatment, they are admissible where: I) party was seeking medical treatment when the statement was made II) it was NOT for diagnosis in relation to a lawsuit 9. Prior Identification: Allowed because they are more reliable and there is no memory issue I) DIFFERENCE: FR 801(d)(1)(c): This is an EXEMPTION in the federal rules, this is NOT hearsay 1. declarant testifies at trial 2. declarant is subject to cross  some debate as to whether a party is really subject to cross where he cannot remember making the id, but allowed b/c this allows the opposition to attack the party’s credibility II) US v. Owens: under the federal rules  victim is badly beaten and initially unable to make an identification, several visitors talk to him about the beating and he is then able to make the identification, but at trial he testifies he does not remember making the id, even though he doesn’t remember, the foundational elements of above are laid iii) CA 1238: DIFFERENCE: CA requires more hefty laws 1. MADE while still FRESH in the declarant’s mind  can’t confirm w/o memory 2. declarant must TESTIFY at trial 3. declarant must testify that it was an ACCURATE REFLECTION of his/her opinion  not if can’t even remember making the id 4. witness/declarant must have PERSONAL KNOWLEDGE 10. Recollection: i) Past Recollection Recorded: you write it down and can NOT remember it later 1. FR 803-5: (a) The document was made or adopted by the witness while fresh in his/her memory (b) Witness is available to testify as to his memory (c) Document does NOT go to the jury unless the opponent introduces it into evidence 7 Evidence - Williams Fall 2003 2. CA 1237: STRICTER (a) The witness MUST have personal knowledge of the incident recorded (b) Writing was made while (i) Fresh in the witness’ memory OR (ii) During the actual occurrence (c) The writing was made by the witness or at his/her direction by someone else for the purpose of recording the witness’ statement (d) Witness is available to testify to the truth (e) Someone else must testify that it is an accurate account of the statement made i.e. someone who watched the making of the document or the person who recorded it (f) The document can ONLY be read and does not go to the jury 3. The opposition can show that the party is only reading the document, but it is not something they ever even believed at the time it was written ii) Present Recollection refreshed: this is NOT even court evidence, simply something to refresh the party’s memory 1. Baker v. State: lawyer wanted to use the police report to refresh the officer’s memory on the stand to testify that the defendant was not the assailant in the murder (a) Anything can be used to refresh memory so long as the proper foundation has been laid (b) Whatever is used to refresh memory must be given to the opposition to examine its fairness 2. Adams v. NY RR: wanted to bring in a document to refresh the defendant’s memory and show that the injury resulted from a previous incident (a) Usually refreshing of memory occurs prior to trial, but it can occur during as well (b) FR 612: the court may in its discretion order anything that is used to refresh to be presented to the court and if it is not: (i) They can deny its use (ii) Limit its use (iii) Place the party in contempt b/c opposition is entitle to view everything used 11. Business Records Exception: After admissions, second most used exception because they are readily available  reliable b/c a company has the motive to keep them accurate for regular course of business, and preferable to the past recollection recorded b/c the jury gets the documents during deliberations i) California 1. 1270: A business includes every kind of business, governmental activity, profession, occupation, calling or operation of institution whether for profit or not  BROAD 2. 1271: admissible to prove an act, condition or event if (a) made in the regular course of business (b) must be made near the act, condition or event (c) custodian of records or other qualified witness can testify to its identity and mode of preparation (d) the sources of information, method and time of preparation indicate trustworthiness ii) Federal 803-6&7: DIFFERENCE: federal rules ALSO include opinions III) Both the FR and the CA allow the absence of records as proof the event did not occur iv) Cases: 1. Johnson v. Lutz: the police report that they sought to admit as a business record included statements by bystanders saying it wasn’t X’s fault Each party in the chain of reporting must have an official duty  the bystander’s statements are inadmissible 2. Kelly Wasserman: want to admit the report that included a statement that the party could live there rent free  the initial statements had independent legal significance 3. US v. Duncan: defendants were charged with fraud for collecting on insurance for false injuries, within the insurance records were hospital records (a) FR 805/CA: If at each level you can satisfy the rules of admissible hearsay  admissible 8 Evidence - Williams Fall 2003 (b) Hospital business records  insurance business records: this court was lazy in not going through the foundational steps, they just let it in 4. Williams v. Alexander: want to admit the doctor’s records where the plaintiff admits that a third party hit the defendant who hit him (a) Statement of plaintiff: is an admission admissible (b) NOT a business record because the nature of the accident is not w/in the course and scope of the hospital’s business (c) NOT medical diagnosis exception b/c the nature of the accident is unnecessary to treat (d) Court’s go BOTH ways indicating that if the bulk of the information is a business record relied upon during the regular course and scope of business  admissible entirely 5. Hahnemann University Hospital v. Dunick: computerized records are admissible if the proper foundation is laid 6. Palmer v. Hoffman: driver of the train makes a report regarding the accident and dies (a) Where the documents are made for the purpose of litigation and not during the regular course and scope of business  inadmissible (b) Criticized for not recognizing the lack of trustworthiness element of the rule  subsequently limited in application 7. Lewis v. Baker: plaintiff injured on the job and claims that the brakes were faulty so it is the company’s fault, the defendant claims the plaintiff failed to properly set the brakes, jumped off and was injured  want to admit the personal injury report and the subsequent inspection report that demonstrate the brakes were not faulty (a) Where documents are prepared for litigation or primarily for the purpose of litigation they are inadmissible hearsay (b) Where the documents serve another purpose and are prepared on a regular basis by the company i.e. to prevent future injuries  trial court has discretion to determine which motivation is predominant and whether the documents are admissible 8. Yates v. Bair Transport Inc.: plaintiff sues for damages on personal injury and wants to admit doctor’s examinations from 1. plaintiff’s OWN doctor, 2. defendant’s doctor and 3 unknown  The oppositions documents are admissible where they are prepared for litigation  #2 is admissible because it is reliable and oversteps the Palmer issue 12. Official Records Exception: This overlaps the business records exception but it is most likely the preferable method of getting evidence in because you don’t need a qualified party to come in and testify as to the method, mode, preparation or source for information i) Rules: The government has an interest in collecting reliable information and will act on this based on the accuracy of what they determine and collect 1. FR 803-8: (a) Activities of the office or agency: personal records, receipts and journals (b) Matters observed pursuant to duty imposed by law excluding criminal cases: those by police officers/law enforcement personnel are INADMISSIBLE in criminal cases (c) factual findings resulting from the investigation unless the sources of information or other circumstances indicate a lack of trustworthiness: FEMA comes out to do an earthquake evaluation and gathers information from witnesses w/ no duty to report, the conclusions they make based on the hearsay statements are admissible if there is no lack of trustworthiness 2. DIFFERENCE CA 1280: these are admissible in CRIMINAL or civil if: (a) Writing is made w/ in the scope of duty of a public employee (b) Writing made at or near the time of the act, condition or event (c) Sources of information and method and time of preparation do not indicate lack of trustworthiness ii) Cases:

9 Evidence - Williams Fall 2003 1. Beech Aircraft Corp v. Rainey: products liability case on airplane accident  want to include the navy investigator’s report on his opinion of what caused the accident: Opinions are admissible as conclusions of an investigation so long as they are trustworthy 2. US v. Oates: defendant is charged with possession of drugs, want to admit a chemist diagnosis of the drug but he is unavailable due to a bronchial infection so another chemist comes in to testify as to the standard procedure for identifying the drug (a) Business record? They were unable to lay the proper foundation (b) Official Record? (i) CA: possibly if no lack of trustworthiness due to their preparation for litigation, not a violation of 6th amendment rights (ii) FR: NOT admissible in a criminal suit 3. US v. Grady: defendant charged with an illegal firearm sale for the purpose of reaching Northern Ireland conflict  want to admit royal constabulary record (a) literal: inadmissible in a criminal case (b) Intent: this was not made for the criminal investigation so it can be used for the criminal prosecution  this is the way they went here, could go either way 13. Parentage- “I am your mother.” 14. Criminal Convictions: CA 1300: felony criminal convictions can come in as proof of committing a crime in civil actions ONLY when necessary to prove any fact necessary to the judgment including I) DIFFERENCE nolo contendere pleas ii) FR 803(22): criminal convictions of crimes punishable over a year in prison or by death are allowed in CIVIL actions not including nolo pleas V RETURN TO RELEVANCE: 1. Foundation: 1. underlying statistical analysis, 2. methodology used in the case, informs the court why you are allowed to present the information I) People v. Collins: purse snatch, the prosecution used the stats of different characteristics to wind up with the likelihood the purse snatcher was the defendant, problem b/c some of the characteristics overlapped In order to use statistics, you must show that experts in the field would use the same methodology in reaching the conclusion and results the attorney did. II) Kramer v. Young: wanted to use the base theorem to establish the statistical likelihood that the man was the father of the child  since they laid the foundation and demonstrated that this was the accepted methodology by experts it was admissible 2. Character Evidence: i) Rule 404A: Character evidence is generally inadmissible, unless character is an issue in the case and is made so in a CRIMINAL prosecution either by: 1. Defendant raising his own character  prosecution can bring in character evidence to rebut 2. Defendant raises victim’s character  prosecution can use character evidence to rebut 3. In the case of sexual convictions, the prosecution may put the defendant’s character on trial for prior sexual acts or child molestation for any purpose. ii) Rule 405: Character in Issue: So long as the witness is sufficiently familiar with the defendant (preliminary question of fact) we can use evidence of: 1. Reputations: everyone in town knows they are a liar 2. Opinion: this guy likes to go to the bar a lot, in my opinion he is an alcoholic 3. Specific Acts: only to prove the character of the individual and if you use circumstantial character evidence: he did it before, he did it this time when: III) Cleghorn v. NY Central: two trains ran into each other, they want to admit evidence that the defendant’s employee is a drunkard 1. Not allowed to prove that the defendant was drunk on this occasion 2. Permissible to show the employer was negligent in hiring someone of such bad character 3. Allowing Other Acts Evidence: 10 Evidence - Williams Fall 2003 i) Rule 404B: these are not admissible as circumstantial character evidence, specific acts cannot be used to prove conformity on this occasion, but if there is a 1. Proper purpose that is relevant to the case (a) Identity (b) Intent (c) Motive (d) Knowledge (e) Opportunity (f) Absence of Mistake 2. Probative Value Outweighs the Prejudice the lower court has discretion to admit it, but must demonstrate that they exercised their discretion 3. Level of Proof: that the prior act occurred DIFFERENCE (a) CA: preponderance of the evidence (b) FR: reasonable jury could find ii) Proper Purpose: getting around the circumstantial character evidence problem 1. Identity: Modus Operandi: (a) For this to be relevant the identity of the defendant must be at issue: i.e. he says it wasn’t him (b) US v. Carillo: under cover cop says that he purchased heroin from the defendant in a balloon, they want to say that since the defendant used the balloon method in the past it was him even though the defendant denies selling to the cop (i) Once is sufficient: It does not matter whether the act occurred before or after (ii) Copycat: as a precaution there must be a short time period between the acts (iii) The modus operandi must be so unique and identical to the act in question as to earmark the behavior as the responsibility of the accused 2. Intent: (a) For this to be relevant the question of whether the party had the intent to commit the crime must be at issue. (b) US v. Beasley: The government busted a guy for illegally distributing drugs, he claims his intent was to use the drugs to do an experiment and assist plant growth, we want to show that he used the same drug before and gave it to his friends for illegal use to show he had ill intent (i) There must be some non-character evidence relevant to the case in addition to this (ii) The trial court must show it did balancing in order to admit this evidence  NOT done, so this case was reversed and remanded 3. Motive: (a) For this to be relevant the case must require that the defendant have a motive for the crime. (b) US v. Cunningham: nurse accused of stealing demoral form the locker that she shared with five others  want to admit she was a convicted addict in order to show she had a motive for stealing the demoral  lower court did not admit the conviction just the addiction (i) The appeals court almost never reverses the discretion of the lower court on appeal (ii) The court does NOT need to say specifically that the evidence does not exhibit unfair prejudice, they must simply show some action to demonstrate they used their discretion  here they did this by suppressing the conviction 4. Absence of Mistake: Relevant if self-defense is an issue, i.e. proof that they had done the act before as tending to show they were not using self-defense in this instance because they had done it before  they were not mistaken in believing they were being attacked 5. Opportunity: (a) Relevance established where attorney is trying to prove they tend to be around when things happen i.e. close proximity when the events occur, thus they had the opportunity to do the act (b) Tucker v. State: he had previously claimed he simply woke up and found a dead body in his living room, now on trial for a second act that had occurred in the same fashion  showing 11 Evidence - Williams Fall 2003 he tends to be around when these things occur and has the opportunity to commit the wrong  CA: Do not have to show there was a criminal conviction b/c that requires a higher standard of beyond a reasonable doubt, simply need to prove that the prior act occurred by a preponderance of the evidence 6. Knowledge: (a) Relevant if used to prove that the defendant knew what he was doing was criminal (b) Huddleston v. US: want to show that he had stolen televisions before because he was claiming that he sold the large quantities of appliances this time but did not KNOW they were stolen properly, thus he thought his behavior was legal  FR: In order to be able to use the prior act, you must have sufficient evidence to show that a jury could reasonably find that the other act had occurred. 4. Habit: Something that is so typical it is probative: ALWAYS going down Burns steps 2 at a time I) Perrin v. Anderson: victim was killed by officers, they want to show his tendency to go crazy with uniform officers 1. If the automatic response is to always do the same thing  admissible as habit 2. Circumstantial Character evidence is not admissible in a civil case. 3. What is enough to create a habit? Here they tried to bring in eight instances, and the court permitted four  this is the outer limit ii) Custom of an Organization: CA 1105/FR 406: 1. Where a company has a routine practice of always doing something i.e. checking the machines for safety, it is admissible so long as you have 2. A witness to testify as to the habit 5. Rape Shield Statutes: circumstantial character evidence about the victim can NEVER be introduced as tending to show consent i.e. she is highly sexual as tending to prove she consented on this occasion I) State v. Cassidy: defendant claims victim went crazy about her husband dying in Vietnam just as she had on a prior occasion with another man (she never made allegations of rape), she claims rape  he wants to introduce the prior occasion as tending to prove she does this all the time as proof it was consensual on this occasion  BALANCING: normally in a criminal matter, a defendant has the right to confront the witness including the introduction of circumstantial character evidence, but relevant evidence will be excluded where there is an overriding interest: 1. Right of privacy 2. Shielding a victim  HERE 3. Encouraging rape reports  HERE 4. Avoiding unfair prejudice 5. Avoiding jury confusion II) Olden v. Kentucky: plaintiff contends that her half brother raped her, he wants to introduce her engagement in sexual activity with another man as motive for her to cry rape i.e. to shield her from having to admit to her sexual partner that she had engaged in consensual sex 1. Where the prior sexual history is used to prove: (a) The nature of the injuries are not due to rape (b) Party has a motive for crying rape in the absence of the actual act 2. Evidence of prior sexual activity with the defendant can NOT be excluded III) US v. Platero: plaintiff was riding home with a man whom she later became sexually involved with when a security guard pulled the two over and made the man take a hike because he was intoxicated, he then go the women into the car where she claims he raped her and he claims it was consented  he wants to introduce her relations with the driver in order to demonstrate she had a motive to cry rape 1. FRE 412: The defendant must produce evidence that the introduction of sexual relations with someone OTHER than the defendant are for a valid reason with sufficient evidence that a reasonably jury would find 12 Evidence - Williams Fall 2003 2. here the trial court excluded it because they were not sure whether the driver and the victim became sexually active before or after the incident 3. this was a credibility and a factual determination that should have been given to the jury 6. Subsequent Precautions: subsequent precautions are not allowed to prove negligence because although it is non-assertive, what matters is what occurred at the time of the incident and not after and we also want to promote action to alleviate or improve problems i) Rules: 1. FR 407: subsequent precautions are permissible where the following are controverted, otherwise they are not relevant on a permissible reason (a) Proving Ownership (b) Proving Control (c) Proving Feasibility (d) Impeachment purposes 2. CA 1151: DIFFERENCES: (a) The California rules only discuss permissibility of this type of evidence to impeach (b) Allows subsequent precautions for strict liability reasons according to: (i) Language of the statute indicates this (ii) Policy: want to keep manufacturers liable (iii) manufacturer’s have an overriding interest to correct defects to maintain customers II) Tuer v. McDonald: decedent was admitted to the hospital for chest pains and given a medication to thin his blood, prior to surgery they took him off the medication to prevent blood loss during surgery, but the surgery was delayed and they chose not to re-administer the drug  the hospital subsequently instated a new policy where the drug was administered up until surgery: FEASIBLE? 1. Majority: anything that is practically possible, thus the weighing of the options indicates they thought about it, it was feasible at the time, but they chose not to  they were not disputing that it was feasible 2. Minority: because they weighed the option and chose not to do it, they implied by the choice not to do it that it was not feasible (defines it narrowly)  some courts accept this, but it swallows the rule 7. Offers in Compromise: In order to encourage settlement and avoid court overload, willingness to settle or evidence of settlement are not admissible as tending to show guilt I) Hartfield v. Max Rouse & Sons: logging equipment was auctioned too low and one of the sellers writes a letter to the owners indicating that they had failed to protect the minimum price adequately and they were willing to settle: Not only are settlements inadmissible, but discussions surrounding the settlements are inadmissible because we want to encourage the free flow of facts and allow parties to properly assess the merits of the case. FR 408 II) Davidson v. Prince: plaintiff gets attacked by a runaway steer and in a letter demands payment and also includes that he is not trying to settle  admissible 1. some courts would suggest there has to be SOME language of negotiation 2. If a party is trying to demand payment or evade liability this is not a settlement 3. If it is a bad faith claim by an insurance company to evade liability  admissible iii) Impeachment: For purposes of the TEST, where A, B, and C get into an accident and B settles with C and is then called as a witness, you can use the settlement as proof that B is biased for C, but you would SHOULD ask for a limiting instruction to prevent its use to prove C’s liability iv) Medical Expenses: 1. CA 1152: Offers of compromise for admission of liability and willingness to settle include the offer to pay MEDICAL EXPENSES because we want to encourage good Samaritans

13 Evidence - Williams Fall 2003 2. FR 409: DIFFERENCE: if you offer to pay someone’s medical expenses, the actual offer is inadmissible, but the discussions surrounding it are admissible  there is no need to discuss the nature of the injury or how it occurred VI EXAMINING THE WITNESS: 1. Ten Commandments: I) Brevity: stick to a maximum of three points so the audience can take it in and absorb it all II) Short Answers/ Plain Words: aid the jury to remember III) Always ask LEADING questions on cross IV) Never ask leading questions you DON’T know the answer to  time for discovery has passed V) Listen to the answers  they may have already said what you are getting to VI) DON’T quarrel with the witness VII)DON’T give them an opportunity to repeat what they said on direct VIII) Never permit them to explain anything IX) Avoid the one question too many X) Save your ultimate point for summation so the jury will be waiting for the answer at closing 2. Impeaching: There is something fishy about their own testimony standing alone I) lthough you can impeach a hostile witness you can NOT call them specifically to impeach them  bring them where they are the only percipient witness, and impeach where they surprise you by divulging negative information II) US v. Hogan: defendant was charged with selling marijuana, the only percipient witness initially claimed the defendant was guilty, but then admitted he was tortured in Mexican captivity to make those claims  the US brought him to the stand specifically to impeach him and demonstrate that the defendant was indeed guilty  they can NOT do this!! iii) Methods: FRE does not address these categories, but use CA 780 1. bring out inconsistent testimony 2. point out inconsistent statements 3. Bias 4. Untruthfulness (a) In front of court (b) Character for untruthfulness 5. Perception and Memory 6. Taking away credibility (a) They didn’t see (b) The timing was off 3. Contradicting: Another witness saw it different. i) Methods: 1. cross-examination 2. introduction of extrinsic evidence (a) another witness (b) external documents II) If you are allowed to bring in extrinsic evidence, you can cross-examine on it, but you won’t necessarily be able to bring in the extrinsic evidence introduced through cross-examination 4. Methods of Discrediting the Witness: i) Extrinsic Evidence: 1. State v. Oswald: defendant is accused of robbery, he has an alibi who says that the defendant was in his restaurant on the day in question, the attorney wants to bring in extrinsic evidence to show that the restaurant owner couldn’t have possibly remembered the defendant because of the amount of customers and also demonstrate that he has a faulty memory with other instances

14 Evidence - Williams Fall 2003 (a) You are allowed to test a witness’ perception and memory, however you cannot bring in extrinsic evidence for the SOLE purpose of attacking his credibility, the evidence must have it’s own independent relevance. (b) Policy: we don’t want to open the floodgates to all this additional information that must be tested and cross-examined for credibility  thus ONLY questions regarding the time and date in question (c) CA 352: this is a principle and an exercise of discretion for the trial judge (d) FR: it will be a RULE for the EXAM, but some cases consider it to be a principle as well 2. US v. Copelin: defense claims identity defense and that he got the bills from legal gambling and not drugs, he claims he has never even seen drugs except on TV, the cross-examiner wants to ask the party about occasions where he tested positive on drug tests (a) Extrinsic evidence that would be inadmissible hearsay can be asked about during cross- examination with the hope that the witness will divulge and answer the key information  if he is a good liar, the tests results are barred (b) It is the oppositions responsibility to ask for a limiting instruction (c) If the jury concludes the witness lied about ANYTHING on the stand, they can conclude he has lied about EVERYTHING 3. US v. Owens: Defendant is an excellent marksman and weapons expert who is on trial for the murder of his wife who he claims he accidentally shot while cleaning his gun, he previously lied on his employment application regarding a marijuana possession and a previous firearm incident (a) FR 491/ Military 608B: You can inquire about specific acts of a victim on cross- examination even if they are not allowed into evidence (b) It is still up the trial court’s discretion to allow the information, they must do a balancing test for the unfairly prejudicial information and the actual documents are NOT produced for court (c) DIFFERENCE: CA 787: In CA this type of specific instance introduction during cross is NOT allowed in a CIVIL matter 4. US v. Drake: individual had previously lied about his credentials and then claimed he had a BA (a) Where a party opens up a topic on direct it becomes more lenient to allow it, less unfair prejudice because he brought it into court (b) The cross-examiner can question him regarding his lying incident but can NOT bring the document in ii) Felony Convictions: It is very dangerous to testify because it allows convictions that would otherwise be inadmissible 1. Rules: (a) FR 609: (i) Witnesses other than the accused in a CRIMINAL trial can have their felonies admitted where they were punishable by death or imprisonment over a year so long as the unfair prejudice does not substantially outweigh the probative value  need more unfair prejudice for those OTHER than the defendant – the judge has to show they used their discretion (ii) Evidence that the accused in a CRIMINAL trial has been convicted of a crime punishable by death or imprisonment over a year is admissible so long as the unfair prejudice does not outweigh the probative value (iii) Evidence that the witness has been convicted of a crime involving dishonestly regardless of its punishment is admissible (b) CA:788: In order for a conviction to be admissible in order to attack a witnesses credibility, it must be a felony (c) CA: Article I Section 28: Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile shall be subsequently used without limitation for the purposes of impeachment or enhancement of a sentence in any criminal proceeding. When 15 Evidence - Williams Fall 2003 the prior conviction is an element of a felony offense, it must be proven by the trier of fact in open court. (i) There is still balancing in that the probative value outweighs the unfair prejudice (ii) The admitted felony must still be relevant as having some tendency in reason to prove the proposition for untruthfulness 2. Cases: (a) US v. Sanders: defendant was charged with an assault, and they want to introduce evidence of a prior assault, in this case he claims self defense  The prejudicial value outweighs the probative value because it will likely be used as circumstantial character evidence (b) US v. Wong: the defendant wants to try to exclude two fraud convictions used to impeach him  There is NO balancing for convictions regarding dishonest b/c the probative value is too high (c) US v. Brackeen: defendant was previously involved in a bankruptcy, they want to introduce this as proof of a dishonest crime  For purpose of this test, we are only going to interpret false and “crimen falsi” in its narrow definition (d) Luce v. US: on appeal they claimed that the trial court did not properly exclude the defendant’s convictions that they tried to exclude in a motion in limine even though the defendant did not testify  In order to raise the issue on appeal, a defendant would have had to testify so the probative value could have been weighed. iii) Witness Reputation: Evidence of anything other than the HONESTY of the witness is inadmissible to contradict the witnesses credibility  can NOT introduce a reputation for bad memory or drinking because these do NOT relate to honesty 1. FR 608a: Opinion or reputation evidence of the witness may only 1. refer to the character for truthfulness or untruthfulness and 2. evidence of truthful evidence is only admissible after his or her truthfulness has been attacked by opinion or reputation 2. CA 786: Evidence of traits of his character other than honesty or veracity, or their opposites is inadmissible to attack or support the credibility of a witness iv) Psychiatric Testimony: 1. US v. Lindstrom: defendant is charged with fraud and the defense wants to introduce evidence that the defense’s key witness has a psychiatric condition b/c she has psychotic episodes with her boyfriend  In order for a person’s psychiatric condition to be admissible to attack their credibility, it must have some relation to their perception i.e. (a) The can NOT tell fact from fiction (b) It affects their MEMORY (c) PERCEPTION is impaired 2. Hypo: What if the person is a drunkard? NO only if it has a permanent affect of impairing their psyche and affecting their perception  NOT likely v) Prior Statements: 1. Inconsistent: Coles v. Harsch: P sues D for wresting “disgracefully” with P’s wife as proof of alienation of P’s wife’s affection, D’s witness says the conduct was “gentlemanly” and P tries to discredit by saying the witness had previously said it was “disgraceful” (a) FR 613b: Prior inconsistent statements can be admitted where (i) the witness is confronted with the statement and given a chance to explain AND (ii) the opposite party is given a chance to interrogate the witness regarding the statement (b) DIFFERENCE: CA: You can use an inconsistent statement made by a witness even if the statement is made AFTER testimony rather than prior 2. Consistent: Tome v. US: W testifies and is impeached on the ground that the other side’s attorney paid him off, want to admit evidence that before trial W made a statement that was consistent with his testimony in order to support the fact that his testimony was credible

16 Evidence - Williams Fall 2003 (a) FR: Consistent statements made BEFORE the charged lack of credibility are admissible to disprove the impeachment grounds (b) DIFFERENCE: CA 791: Any prior consistent statement is admissible where it is made before the inconsistent statement (i) W makes a statement (ii) W testifies and makes an inconsistent statement (iii) Because the initial statement was made prior to the inconsistent statement it is admissible 3. Not being able to remember is not necessarily an inconsistent statement vi) Bias: Hypo: The defendant and two witnesses are all part of an Aryan brotherhood who upon entrance promise to commit perjury on behalf of other members 1. Their participation in the group makes them willing to affirmatively lie 2. Due to their relationship, their testimony will be slanted purposely or subconsciously VII PRIVILEGE: Some relevant evidence is inadmissible due to privilege 1. Scope: I) If the privilege is breached, depending on the harm the holder can sue for breach of contract or malpractice II) A person seeking legitimate legal advice who later uses it illegally is still privileged III) Where an attorney relays information like the time of a hearing, the privilege does NOT exist because the information is more important than the trust relationship IV) Waiving the privilege 1. failure to object to its introduction at a proceeding if holder is present 2. filing a lawsuit relating to the privileged communication 2. Rules: i) FR: 1. 104A:Where a court is determining a case of privilege they cannot compel you to turn over privileged information to resolve a claim 2. 501: The federal privileges apply common law, but when applying state law apply the rules of the jurisdiction and CAN theoretically CREATE a privilege ii) CA: 1. 901: proceeding defined broadly: legislative session, investigation, congressional hearing 2. 910: privilege is inviolate in ANY proceeding even where hearsay is admissible in an administrative hearing  nobody not even gov’t can compel you to reveal information 3. 911: DIFFERENCE CA cannot create privilege, only those mandated by statute or the California consitution 4. 912: if you talk about the information PUBLICLY, privilege is waived 5. 913: a lawyer or opposing counsel cannot comment on the privilege i.e. in closing to say the party failed to answer a valuable question 6. 915: a court cannot require disclosure of privileged information and can only use non-disputed information to determine if something is indeed privileged 7. 917: certain relationships create a presumption of privilege and it is the person questioning the privileges responsibility to prove there is no privilege (see 956) (a) attorney client (b) doctor patient (c) spousal 8. 950: privilege is extended to anybody reasonably believed to be a member of any bar in any state (a) lawyers disbarred or suspended and continuing to practice (b) any party posing as an attorney 9. 951: client is anybody seeking legal advice from someone they reasonably believe is an attorney 10. 952: all confidences to an attorney or third parties furthering the client’s interest is privileged 17 Evidence - Williams Fall 2003 (a) private investigators (b) legal secretaries (c) ALL people an attorney uses to do the job 11. 953: only the client has the capability of waiving the privilege 12. 954: if someone is trying to disclose privileged information, the holder has the legal ability to prevent disclosure although it is not always practically possible 13. 955: an attorney can and has the ethical obligation to invoke the privilege in the client’s absence 14. 956: where an attorney is sought for the PURPOSE of committing a crime it is NOT privileged 3. Cases: I) Up Jon: the general counsel directs an internal investigation (stamped confidential) regarding some of the subsidiaries illegal activity to determine its legal ramifications and the IRS sends a summons demanding the docs to evaluate them for tax fraud and evasion 1. Privileged material is NOT discovery 2. Communication made by employees at the direction of superiors to seek legal advice is privileged where: (a) The corporation has taken reasonable steps to maintain their confidentiality (b) There is some indication that the primary purpose is to seek legal advice (c) The privilege protects the communication but NOT the underlying info  IRS could do their own investigation II) City Counsel: a lawyer retains a doctor to aid him in giving legal advice to a client, NOT to seek medical advice otherwise there would be doctor/patient privilege CA 952 III) Clark v. State: Client seeks attorney for divorce then kills his wife and calls the attorney for legitimate legal advice, operator overhears the attorney advise client to hide the weapon 1. MR 1.6: privileged information cannot be revealed w/o the informed consent of the client 2. CA 954: they could stop the any 3rd party where reasonable steps were taken to maintain confidentiality (a) Cell phones (b) Emails or electric media (c) NOT information in public or even on the stand whispering!!

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