Evidence Carter Fall 2010

Evidence –Carter – Fall 2010 ARTICLE I: GENERAL PROVISIONS:  FRE 101: Scope: Rules govern proceedings in federal courts except: o FRE 1101(d)(1): Preliminary questions of fact o FRE 1101(d)(2): Grand jury proceedings o FRE 1101(d)(3): Misc. proceedings e.g. preliminary examinations in criminal cases, sentencing, issuance of arrest warrants and search warrants, etc.  FRE 102: Purpose and Construction: Rules shall be construed to secure: o Fairness in administration o Elimination of unjustifiable expense and delay AND o Promotion of growth and development of law of evidence . To the end that the truth may be ascertained and proceedings justly determined  FRE 103: Rulings on Evidence (Preserving Error) o FRE 103(a): Effect of erroneous ruling: Error may not be predicated upon a ruling admitting/excluding evidence unless: . A substantial right of the party is affected (reversible v. harmless error) AND . (1) Objection: If admitting evidence: Timely objection or motion to strike appears of record, stating specific ground of objection, if not apparent from context OR  Motion in limine is like an objection and raises a preliminary question . (2) Offer of proof: If excluding evidence: Substance of evidence was made known to court by offer or was apparent from context within which questions were asked  FRE 104: Preliminary Questions (Preliminary question hearing/Sidebar) o 104(a): Questions of Admissibility Generally: . Covers qualification of person to be a witness, existence of a privilege, or admissibility of evidence . Rules of evidence do not apply, except privilege  Preliminary questions of fact are determined by the court by a preponderance of the evidence, see, e.g. Bourjaily o 104(b): Relevancy Conditioned on Fact: . When relevancy of evidence depends on fulfillment of condition of fact:  Court shall admit it upon, or subject to, introduction of evidence sufficient to support finding of fulfillment of condition o 104(c): Hearing of Jury: . Hearings on admissibility of confessions always outside hearing of jury . Hearings on other matters outside hearing of jury:  When interests of justice require  When accused is a witness and so requests o 104(d): Testimony by Accused: . Accused does not become subject to cross on other issues in case by testifying on a preliminary matter o 104(e): Weight and Credibility: . Party can introduce to jury evidence relevant to weight and credibility.  FRE 105: Limited Admissibility (Limiting Instruction): o When evidence admissible as to one party/for one purpose but not admissible as to another party/for another purpose admitted: . Court, upon request shall restrict evidence to proper scope and instruct jury accordingly.  FRE 106: Remainder of or Related Writings or Recorded Statements: o When writing or recorded statement or part thereof introduced by a party: . Adverse party may require introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

ARTICLE II: JUDICIAL NOTICE:  FRE 201: Judicial Notice of Adjudicative Facts: o FRE 201(b): Kinds of Facts: . A judicially noticed fact must be one not subject to reasonable dispute in that it is EITHER:  FRE 201(b)(1): generally known within the territorial jurisdiction of the trial court OR  FRE 201(b)(2): capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned o FRE 201(c): When Discretionary: . Court may take judicial notice, whether requested or not o FRE 201(d): When Mandatory: . Court shall take judicial notice if:  Requested by party AND  Supplied with the necessary information o FRE 201(g): Instructing Jury: . In a civil action or proceeding:  Court shall instruct the jury to accept as conclusive any fact judicially noticed . In a criminal case:  Court shall instruct jury that it may, but is not required to, accept as conclusive any fact judicially noticed

ARTICLE IV: RELEVANCY AND ITS LIMITS:  FRE 401: Definition of Relevant Evidence: o 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  FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible:  FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time: o 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  Chapple: Error to admit gory pictures of charred body and skull of victim. o While pictures were relevant, they had little probative value because: . Cause of death was not contested/defense offered to stipulate  Case turned on whether defendant was “Dee”, the murderer  Substantive Character Evidence: FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes: o FRE 404(a): Character Evidence Generally: . Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:  FRE 404(a)(1): Character of the Accused: o In a criminal case, evidence of a pertinent trait of character: . Offered by the accused, OR . By the prosecution to rebut the same, OR . If evidence of a trait of character of the alleged victim is offered by accused and admitted, evidence of same trait of character of accused offered by the prosecution  FRE 404(a)(2): Character of the Alleged Victim: o In a criminal case, and subject to limitations of 412 (evidence of victim’s past sexual behavior/sexual predisposition in a sex offense case), evidence of pertinent trait of character of victim: . Offered by the accused, OR . By the prosecution to rebut the same, OR . Homicide case: Evidence of character trait of peacefulness of alleged victim, offered by prosecution to rebut evidence that alleged victim was first aggressor.  FRE 404(a)(3): Character of a Witness (Character for Credibility): Governed by FRE 607/608/609. o FRE 404(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 therewith. . It may, however, be admissible for other purposes, such as proof of:  Motive  Opportunity  Intent  Preparation  Plan  Knowledge  Identity (may be based on M.O.) OR  Absence of mistake or accident o Provided that, upon request by accused, prosecution shall provide reasonable notice of general nature of any such evidence it intends to introduce at trial . In advance of trial, or during trial if court excuses pretrial notice on good cause shown . * Huddleston: When there is a question as to whether D really committed the prior act:  Judge must find that evidence is probative of material issue other than character. (Preliminary question of whether FRE 404(b) is satisfied)  Question of conditional relevance under 104(b): Jury determinesx that proof of prior crime/act/wrong is relevant if it reasonably concludes by a preponderance of the evidencex that: o Act occurred o D was the actor . Therefore, possible for evidence of prior crime/act/wrong to be admitted even if D was acquitted (note case: Dowling)  xSome states require judge to determine that act occurred AND  xSome states also require higher level of proof that act occurred e.g. clear and convincing evidence  FRE 405: Methods of Proving Character o FRE 405(a): Reputation or Opinion: . In all cases in which evidence of character or trait of character of a person is admissible:  Proof may be made by testimony as to reputation or by testimony in form of opinion . On cross, inquiry allowable into relevant specific instances of conduct o FRE 405(b): Specific Instances of Conduct: . In cases in which character or 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 person’s conduct  FRE 406: Habit; Routine Practice: o Evidence of habit of person or of routine practice of organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. . Whether corroborated or not AND . Regardless of presence of eyewitnesses  Forbidden Evidence: FRE 407-411: FRE 407: Subsequent Remedial Measures: Not admissible to prove negligence, culpable conduct, product defect, design defect, or need for warning or instruction. Admissible when offered for another purpose, e.g. proving ownership, control, or feasibility of precautionary measures if controverted, or impeachment.  FRE 408: Compromise and Offers to Compromise: o FRE 408(a): Prohibited Uses o FRE 408(b): Permitted Uses  FRE 409: Payment of Medical and Similar Expenses: Evidence of furnishing/offering/promising to pay medical/hospital/similar expenses not admissible to prove liability for injury  FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements: o Except as provided, not admissible in any civil or criminal proceeding against defendant who made the plea or was a participant in the plea discussions: . FRE 410(1): Plea of guilty later withdrawn . FRE 410(2): Plea of nolo contendere . FRE 410(3): Any statement made in the course of proceedings regarding either of foregoing pleas, OR . FRE 410(4): Any statement made in course of plea discussions with an attorney (NOT POLICE) for the prosecuting authority:  Which do not result in a plea of guilty OR  Which result in a plea of guilty later withdrawn o However, such a statement is admissible: . FRE 410(4)(i): in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, OR . FRE 410(4)(ii): in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel  FRE 411: Liability Insurance: o Evidence that person was/was not insured against liability not admissible upon issue whether person acted negligently or otherwise wrongfully. o Evidence of insurance admissible when offered for another purpose, e.g.: . Proof of agency . Proof of ownership . Proof of control . Bias or prejudice of a witness  FRE 412: Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition: o FRE 412(a): Evidence generally inadmissible o FRE 412(b): Exceptions: . FRE 412(b)(1): Admissible in a criminal case:  FRE 412(b)(1)(A): Evidence of specific instances of sexual behavior by victim offered to prove that person other than accused was source of semen, injury, or other physical evidence  FRE 412(b)(1)(B): Evidence of specific instances of sexual behavior by victim with respect to person accused of sexual misconduct o Offered by accused to prove consent, OR o Offered by prosecution  FRE 412(b)(1)(C): Evidence the exclusion of which would violate constitutional rights of defendant . FRE 412(b)(2): Admissible in a civil case:  Evidence offered to prove sexual behavior OR sexual predisposition of victim, if: o Otherwise admissible, AND o (Reverse 403) Probative value substantially outweighs danger of harm to any victim and of unfair prejudice to any party. . Evidence of victim’s reputation admissible only if it has been placed in controversy by victim o FRE 412(c): Procedure to determine admissibility:  FRE 413: Evidence of Similar Crimes in Sexual Assault Cases: o FRE 413(a): Admissible  FRE 413: Evidence of Similar Crimes in Child Molestation Cases: o FRE 414(a): Admissible o FRE 414(d): “Child” is a person below the age of 14.  FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation: o FRE 415(a): Admissible

ARTICLE V: PRIVILEGES:  FRE 501: General Rule (for federal criminal and federal question cases): o Except as otherwise required by Constitution, or provided by act of Congress, or in rules prescribed by Supreme Court pursuant to statutory authority: . Privilege of witness, person, government, state, or political subdivision thereof shall be governed by:  Principles of the common law, as they may be interpreted in the light of reason and experience o However, in diversity cases, privilege determined in accordance with state law  Background Info on Privilege, esp. Attorney-Client Privilege: o Swidler & Berlin: The attorney-client privilege survives the death of the privilege holder . Here, the government cannot subpoena the notes an attorney made at his meeting with Vince Foster, even though Foster subsequently committed suicide o Confidential information must be treated by the privilege holder as such . E.g. If cabbie/murderer tells friend he killed his wife, he cannot claim that information is protected by attorney-client privilege . E.g. Suburban Sew ‘N Sweep v. Swiss Bernina: If company does not take precautions to destroy privileged documents, it cannot claim that information is protected by attorney-client privilege when plaintiff- scavengers fish the documents out of the dumpster  BUT Privilege holder can tell multiple people with whom talks are privileged o E.g. Tells lawyer, then tells priest, then tells psychotherapist o Privilege holder must have reasonable expectation of confidentiality under the circumstances . E.g. Conversation conducted in public won’t be held to be confidential  Privilege circle extends to necessary persons and persons whose presence is reasonable o Necessary: E.g. Intermediaries like translators, supervised parties like secretaries, paralegals, interns o Reasonable: E.g. Infant o Non-communicative observations/actions are not privileged . E.g. Lawyer must testify that client was covered in blood when he arrived at office  Proposed but Rejected FRE on Privilege: o Required reports privileged by statute o Lawyer-Client . The Rule: Client has privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for purpose of facilitating rendition of professional legal services to client  (1) between himself or his representative and his lawyer or his lawyer’s representative OR  (2) between his lawyer and lawyer’s representative OR  (3) by him or his lawyer to a lawyer representing another in a matter of common interest OR  (4) between representatives of the client or between the client and a representative of the client OR  (5) between lawyers representing the client . The privilege holder: The privilege may be claimed by:  The client  His guardian or conservator  The personal representative of a deceased client  Successor/trustee/similar representative of a corporation/association/other organization, whether or not in existence  Lawyer at the time of the communication—but may only claim on behalf of client . Exceptions/No Lawyer Client Privilege :  Carter listed: Prevention of an imminent future crime  Furtherance of a crime or fraud: If services of lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what client knew or reasonably should have known to be a crime or fraud o Attorney need not know of crime/fraud but is used to perpetuate it o In re Francis Carter: Crime-fraud exception applies, statements are not protected by attorney-client privilege, nor by work product protection. . For exception to attorney-client:  Client made privileged communications with intent to further unlawful/fraudulent act AND  Client carried out crime or fraud o Here, perjury and obstruction of justice in having affidavit prepared . For exception to work product:  Client consulted lawyer/used material for purpose of committing crime or fraud  Claimants through the same deceased client: Lawyer can say who decedent would have wanted to win in case of contested will  Breach of duty by lawyer or client: Communication relevant to an issue of breach of duty by lawyer to client or by client to lawyer o e.g. in malpractice case, lawyer can describe how she advised the clients  Document attested by lawyer:  Joint clients: As to a communication relevant to a matter of common interest between two or more clients o If the communication was made by any of them to a lawyer retained or consulted in common o When offered in an action between any of the clients. . Definitions: Client: Person, public officer, or corporation/association/organization/entity, either public or private:  Who is rendered professional legal services by a lawyer OR  Who consults a lawyer with a view to obtaining professional legal services from him . Lawyer: Person  Authorized OR  Reasonably believed by client to be authorized o To practice law in any state or nation . Representative of the lawyer: One employed to assist lawyer in rendition of professional legal services . Communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to client or those reasonably necessary for transmission of communication o Psychotherapist-Patient . Jaffee v. Redmond (US 1996): The federal courts recognize a psychotherapist-patient privilege under FRE 501  This privilege extends to licensed social workers in the course of psychotherapy . The Rule: Patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the director of the psychotherapist, including members of the patient’s family . The Privilege Holder: The privilege may be claimed by:  The patient  His guardian or conservator  The personal representative of a deceased patient  Psychotherapist, but may only claim on behalf of patient . Exceptions:  Proceedings for hospitalization: No privilege for communications relevant to issue in proceedings to hospitalize patient for mental illness, if psychotherapist in course of diagnosis or treatment has determined that patient is in need of hospitalization  Examination by order of judge: If judge orders examination of mental or emotional condition of patient, communications made in course thereof are not privileged with respect to the particular purpose for which the examination is ordered  Condition an element of claim or defense: No privilege as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense o Or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense . Definitions: Patient: Person who consults or is examined or interviewed by a psychotherapist . Psychotherapist:  Person authorized to practice medicine in any state or nation  Or reasonably believed by patient so to be o While engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction OR  Person licensed or certified as a psychologist under laws of any state or nation, while similarly engaged . A communication is “confidential” if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family o Husband-Wife: . Testimonial Privilege: Blocks all testimony by one spouse against the other, including testimony about pre-marital events or acts  Applies only if spouses are married when testimony is sought  Trammel: Witness spouse is the privilege holder o Defendant spouse cannot claim privilege to stop spouse from testifying against him . But, in another case, witness spouse who does not want to testify cannot be compelled to testify against defendant spouse  Exceptions: o Joint criminal activity (varies by J) o Child abuse by other spouse o Marriage in clear disrepair/long separation o Fraudulent marriage/marriage for the purpose of blocking testimony . Spousal Confidences Privilege: Blocks testimony about private communications between spouses while they were married  Applies forever to protect communications during the marriage  Montgomery: Spouses are co-privilege holders o Defendant spouse can claim privilege to prevent witness spouse from testifying about confidential communications between spouses . Here, letter telling husband to stop cheating customers was confidential/privileged communication  Exceptions: o Joint criminal activity (varies by J) o Suits between spouses o Child abuse by other spouse o No reasonable expectation of confidentiality/waiver o Marriage in clear disrepair/long separation (varies by J) . Rule: An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him . Privilege Holder:  The accused  The spouse on his behalf . Exceptions: No privilege:  One spouse charged with a crime against the person or property of the other or a child of either o Or with crime against person or property of a third person committed in course of committing a crime against the other  As to matters prior to the marriage  In proceedings in which a spouse is charged with sex trafficking o Communications to Clergymen: . Rule: Person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor . Privilege Holder: Privilege may be claimed by:  Person  Guardian or conservator  Personal representative of deceased  Clergyman on behalf of the person . Definitions: Clergyman: Minister, priest, rabbi, or other similar functionary of a religious organization  Or an individual reasonably believed to be so by the person consulting him . A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication o Political Vote o Trade Secrets o Secrets of state and other official information o Identity of informer  FRE 502: Attorney-Client Privilege and Work Product; Limitations on Waiver: o Applies to disclosure of a communication or information covered by the attorney client privilege or work product protection: . FRE 502(e): Definitions:  FRE 502(e)(1): Attorney Client Privilege: o Protection for confidential attorney-client communications  FRE 502(e)(2): Work Product Protection: o Protection for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial . Upjohn:  Attorney-client privilege attaches to lawyers’ conversations with employees o Communications made be employees to counsel for corp. acting as such o Made at direction of corporate superiors o Made in order to secure legal advice from counsel o Employees aware of this purpose o Communications concerned matters within scope of employment  Work product protection attaches to notes/memos of interviews o Possible that no showing of necessity can ever overcome protection of work product based on oral statements from witnesses . FRE 502(a): Disclosure made in federal proceeding or to a federal office or agency; scope of a waiver:  When disclosure: o Made in federal proceeding or to federal office or agency AND o Waives attorney client privilege or work product protection  Waiver extends to an undisclosed communication or information in a federal or state proceeding only if: o Waiver is intentional o Disclosed and undisclosed communications or information concern same subject matter AND o They ought in fairness to be considered together . FRE 502(b): Inadvertent disclosure: When made in federal proceeding or to a federal office or agency:  Disclosure does not operate as a waiver in a federal or state proceeding if: o Disclosure is inadvertent o Holder of privilege or protection took reasonable steps to prevent disclosure AND o Holder promptly took reasonable steps to rectify the error . FRE 502(c): Disclosure made in a state proceeding: When disclosure made in state proceeding and not subject of state court order re: waiver, disclosure not a waiver in federal proceeding if:  FRE 501(c)(1): Would not be a waiver under this rule if it had been made in a federal proceeding OR  FRE 501(c)(2): Is not a waiver under law of state where disclosure occurred . FRE 502(d): Controlling effect of a court order:  Federal court may order that privilege or protection is not waived by disclosure connected with litigation pending before court o In which event, disclosure also not a waiver in any other federal or state proceeding ARTICLE VI: WITNESSES:  FRE 607: Who May Impeach: The credibility of a witness may be attacked by any party, including the party calling the witness o Five types of impeachment . Bias: Witness’ like/dislike or fear of party, or witness’ self-interest  CL, not in FRE, but allowable under FRE  Basically always relevant  Abel: Witness’ and party’s common membership in organization probative of bias o Type of organization also relevant to show source and strength of bias, e.g. Aryan Brotherhood is secret group promoting lying and self-protection . Limit to scope of questioning on organization under FRE 403, e.g. name of organization and consequences of violating rules overly prejudicial . No limit on use of extrinsic evidence to show bias  Manske: o Self Interest: D claims Pszeniczka fabricated testimony to frame him o Fear: D claims Coburn and Campbell corroborated P’s false story because he had threatened them . Sensory perception: Physical or mental condition of witness that leads to inability to perceive accurately/to provide credible testimony based on something perceived . Character for credibility: FRE 608/609 . Prior inconsistent statement: FRE 613 . Contradiction: something that witness said in testimony is not true  Generally proved by extrinsic evidence o Can be prior inconsistent statements—but if they are offered for contradiction, they are offered for the truth of the matter asserted and require hearsay exceptions o Can be other evidence . E.g. OJ testifies he would never buy such ugly shoes, but he is impeached by contradiction when the prosecution presents his receipt for the Bruno Magli shoes  No contradiction on collateral matters: Contradiction evidence should have relevance aside from its impeaching effect o Tends to prove a substantive point, e.g. the shoes were O.J.’s above o Tends to contradict and to prove another impeaching point, e.g. Bias: witness said he met driver for first time after accident, but they had really been dating for a year . Collateral/not allowed e.g. Witness said he saw accident when returning from drugstore, but drugstore was not open that day.  FRE 608: Evidence of Character and Conduct of Witness (Character for Credibility): o FRE 608(a): Opinion and Reputation evidence of character: . Credibility of a witness may be attacked or supported by evidence in form of opinion or reputation, subject to limitations:  FRE 608(a)(1): Evidence may refer only to character for truthfulness or untruthfulness AND  FRE 608(a)(2): Evidence of truthful character admissible only after character of witness for truthfulness has been attacked by opinion or reputation evidence or otherwise (by bias, e.g.) o FRE 608(b): Specific Instance of (Non-Conviction) Conduct: . Other than conviction of crime (FRE 609), may not be proved by extrinsic evidence  Extrinsic evidence: anything other than the acknowledgment/denial of witness himself . But may, if probative of truthfulness or untruthfulness* and in discretion of court, be inquired into on cross examination  *Manske: Behavior taking advantage of others in violation of their rights is probative of truthfulness or untruthfulness: o Here, threatening witnesses was probative of untruthfulness . Meant to dissuade witnesses form testifying truthfully . Not merely probative of propensity for violence o Courts split on question of whether theft is dishonest act probative of (un)truthfulness . Manske court (7th Cir.) believes that it is . (Rule cont’d) Cross about specific acts concerning witness’ character for (un)truthfulness  E.g. “Isn’t it true that you lied to get into law school?” . Cross about specific acts concerning character for (un)truthfulness of another witness as to whose character the witness being crossed has testified.  E.g. “Did you know that A lied to get into law school?” o Giving of testimony (by accused or any other witness) not a waiver of privilege against self-incrimination when examined re: matters that relate only to character for truthfulness.  FRE 609: Impeachment by (Specific) Evidence of Conviction of a Crime: o FRE 609(a)(1): . Evidence that a witness other than an accused has been convicted of a crime (felony) shall be admitted subject to Rule 403 . Evidence that an accused has been convicted of a crime (felony) shall be admitted if court determines that probative value of admitting evidence outweighs its prejudicial effect to accused (reverse 403)  Lipscomb: “All felony convictions are probative of credibility to some degree.” To perform the reverse 403 balancing: o Trial court has discretion about when to inquire into facts and circumstances underlying conviction o Trial court has discretion about how extensive inquiry into facts and circumstances of conviction should be  Luce: D must take the stand in order to preserve for appeal a ruling on motion in limine admitting evidence of prior convictions for purposes of impeachment o Harm is speculative unless D takes stand o FRE 609(a)(2): . Evidence that any witness has been convicted of a crime (misdemeanor/felony) shall be admitted if readily can be determined that was crime of dishonesty or false statement  Not subject to FRE 403 limitation  Much narrower than crimes “probative of truthfulness/untruthfulness” that come in under 608(b) o FRE 609(b): Time limit: Not admissible if more than 10 years has elapsed since later of conviction/release from confinement . Unless court determines in interests of justice that probative value of conviction substantially outweighs prejudicial effect (reverse 403)  Adverse party must be given advance written notice of intent to use such evidence o FRE 609(c): Effect of pardon, annulment, or certificate of rehabilitation: . Evidence of conviction not admissible if:  FRE 609(c)(1): Conviction has been subject of pardon, annulment, certificate of rehab based on a finding of rehabilitation AND o Person has not been convicted of a subsequent felony  FRE 609(c)(2): Conviction has been subject of pardon/annulment based on a finding of innocence o FRE 609(d): Juvenile adjudications: Generally not admissible under this rule. However court may allow: . In criminal case . Witness other than accused  If conviction of offense would be admissible to attack credibility of adult AND  Court is satisfied that admission is necessary for a fair determination of the issue of guilt or innocence o FRE 609(e): Pendency of appeal: Does not render evidence of conviction inadmissible. Evidence of pendency of appeal admissible.  FRE 610: Religious Beliefs or Opinions: Evidence of beliefs or opinions of witness on matters of religion not admissible for purpose of showing that by reason of their nature witness’ credibility is impaired or enhanced.  FRE 611: Mode and Order of Interrogation and Presentation o FRE 611(a) Control by Court: Shall exercise reasonable control: . FRE 611(a)(1): Make interrogation and presentation effective for ascertainment of truth . FRE 611(a)(2): Avoid needless consumption of time AND . FRE 611(a)(3): Protect witnesses from harassment/undue embarrassment o FRE 611(b) Scope (Scope Rule): Cross limited to subject matter of direct and matters affecting credibility of witness . Court may permit inquiry into additional matters o FRE 611(c): Leading Questions: . Should not be used on direct except as may be necessary to develop witness’ testimony  E.g. with children . Should be permitted on cross. . Permitted when party calls:  A hostile witness o Witness whose testimony suprises you on stand . E.g. Witness changes story because intimidated . E.g. Hostile because of their own interests, not merely some relationship with D  An adverse party (on direct) OR  A witness identified with an adverse party o So closely affiliated you would expect bias . E.g. Defense calls victim in criminal case  FRE 612: Writing Used to Refresh Memory (Present Recollection Refreshed): If witness uses writing to refresh memory for purpose of testifying either: o While testifying OR o Before testifying . If court determines necessary, adverse party entitled to have writing produced at hearing, to inspect it, to cross witness on it, and to introduce in evidence portions which relate to testimony of witness.  Court shall examine writing in camera if contains matters not related to subject matter of testimony o Baker: Defense should have been allowed refresh present recollection of policeman testifying by showing him report written by fellow officer regarding fact that victim did not ID D as robber/attacker . Witness looks at memorandum to refresh memory of events but proceeds to testify on the basis of present independent knowledge . Memory aid not received or read into evidence (NO HEARSAY IMPLICATIONS)  Memory aid merely read by witness in attempt to refresh memory o Memory aid may be ANYTHING  FRE 613: Prior Statements of Witnesses: o FRE 613(a): Examining witness concerning prior (un)written statement: Need not show statement to witness/disclose its contents at that time BUT . On request, shall show or disclose to opposing counsel o FRE 613(b): Extrinsic Evidence of Prior Inconsistent Statement of Witness: Not admissible unless: . Witness is afforded an opportunity to explain or deny the same AND . Opposite party is afforded an opportunity to interrogate witness thereon OR  Interests of justice otherwise require o DOES NOT APPLY TO PARTY ADMISSIONS . N.B. You can introduce the extrinsic evidence without first asking the witness about it, but the other side must have opportunity to recall him/question him about it  Protects from witness who disappears midway through trial and hasn’t explained the prior statement . Webster: Prosecution called King, who gave testimony exculpating D. Prosecution impeached King (FRE 607) by use of prior inconsistent statement to FBI inculpating D. Judge gave limiting instruction (FRE 105).  Permissible use of impeachment by prior inconsistent statement: no bad faith calling of hostile witness just to impeach/get inadmissible hearsay before jury o Prosecution attempted to voir dire witness, but defense objected  D could have argued FRE 403 because jury would be unable to separate substance of prior statement from use for impeachment.  R: impeachment by prior inconsistent statement not permitted when employed as mere subterfuge to get inadmissible evidence before jury . Harris v. New York: (US 1971, 5 to 4) Accused takes stand and testifies he was selling baking powder. He is impeached by use of un-Mirandized post-arrest statements that he was selling heroin that are inadmissible for substantive purposes.  Majority: Even though statements are not admissible for substantive purposes, they are admissible for other purposes o If accused takes stand, must be subject to impeachment by prior inconsistent statement . Protection provided by Miranda does not allow accused to take stand and commit perjury  Brennan Dissent: Prior statements should not be admitted because they were directly related to the crime charged o Admitting statements for impeachment use interferes with D’s freedom to deny all elements of case against him . Cuts down on (5th Amendment) privilege by making its assertion costly . An incriminating statement is as incriminating when used to impeach as when used as substantive evidence . Jenkins v. Anderson (US 1980): Use of prearrest silence to impeach accused’s credibility when he takes the stand is acceptable  Here, D stabbed victim, did not wait for police/did not report incident, claimed self-defense at trial, and was impeached by his failure to report the incident ARTICLE VII: OPINIONS AND EXPERT TESTIMONY:  FRE 701: Lay Opinion: Testimony in form of opinions or inferences limited to opinions or inferences: o (a): Rationally based on perception of witness AND o (b): Helpful to a clear understanding of witness’ testimony or determination of fact in issue AND o (c): Not based on scientific, technical, or other specialized knowledge  FRE 702: Expert Testimony: If scientific, technical, or other specialized knowledge will assist trier of fact to understand evidence/determine fact in issue, witness qualified as expert by: o Knowledge o Skill o Experience o Training OR o Education . May testify in form of opinion or otherwise IF:  (1) testimony based upon sufficient facts or data  (2) testimony product of reliable principles and methods AND  (3) witness has applied principles and methods reliably to facts of case* . *Daubert: Key factors in court’s determination of whether scientific evidence is reliable:  Can it be tested?/Has it been tested?  Has it been subjected to peer review and publication?  What is the known or potential rate of error?  Is it generally accepted in the field? . Kumho Tire: Court MAY consider Daubert factors in determining whether expert testimony in a field other than science is reliable  However, Daubert factors are not definitive checklist or test; court has considerable leeway in deciding how to go about determining reliability of expert testimony.  FRE 703: Bases of Opinion Testimony by Experts: Facts or data upon which expert bases opinion or inference may be those perceived by or made known to expert at or before hearing. o If of type reasonably relied upon by experts in particular field, need not be admissible into evidence in order for opinion to be admitted. . Otherwise inadmissible facts/data shall not be disclosed to jury by proponent of opinion  Unless court determines probative value in assisting jury to evaluate expert’s opinion substantially outweighs prejudicial effect (reverse 403)  FRE 704: Opinion on Ultimate Issue: o FRE 704(a): Testimony in form of opinion/inference otherwise admissible not objectionable because it embraces an ultimate issue to be decided by trier of fact o FRE 704(b): NO expert testifying re: mental state/condition of D in criminal case may state opinion/inference as to whether D did/did not have mental state/condition constituting element of crime charged or of defense thereto. . Such ultimate issues are matters for trier of fact alone  FRE 705: Disclosure of Facts or Data Underlying Expert Opinion: Expert may testify in terms of opinion/inference and giver reasons therefor without first testifying to underlying facts/data, unless court requires otherwise. o Expert may be required to disclose underlying facts/data on cross.  FRE 706: Court Appointed Experts o FRE 706(a): Appointment o FRE 706(b): Compensation o FRE 706(c): Disclosure of Appointment o FRE 706(d): Parties’ Experts of Own Selection ARTICLE VIII: HEARSAY:  FRE 801: Definitions o FRE 801(a): Statement: . (1) an oral or written assertion OR . (2) non-verbal conduct of a person, if it is intended by the person as an assertion o FRE 801(b): Declarant: Person who makes a statement . Animals not hearsay declarants . Machines not hearsay declarants o FRE 801(c): Hearsay is: . A statement . Other than one made by the declarant while testifying at the trial/hearing (out of court)  Offered into evidence . To prove the truth of the matter asserted  Pacelli: Cannot admit hearsay statements that imply the truth of the matter asserted, even if they do not state it directly o Statement: “The murder was bungled by leaving the body where it could be found,” when declarants are Pacelli’s family, implies that they knew/believed Pacelli was the murderer/that he told them he was the murderer . Dissent: Not offered for the truth of the matter asserted: Offered to show that he was the murderer, not that he bungled the murder o FRE 801(d): Statements which are not hearsay (Hearsay Exclusions): A statement is NOT HEARSAY if: . FRE 801(d)(1): Prior statement by witness: The declarant testifies at trial AND  Is subject to cross examination concerning the statement AND  The statement is: o FRE 801(d)(1)(A): Inconsistent with the declarant’s testimony, AND was given under oath subject to penalty of perjury at a trial, hearing, or other proceeding, or in a deposition OR . Smith: Hooker is assaulted at motel by her pimp, she signs statement/affidavit under oath at station naming him as attacker but names different attacker on stand  Because of the facts under which this statement/affidavit was made, it counts as an “other proceeding”: guarantees of reliability/truthfulness (MINORITY RULE) o She wrote statement in her own words o She signed each page o Detective signed as witness on three pages o Notary read her statement and oath o She reread statement and oath o Seal and signature affixed . N.B. This was first admitted for impeachment purposes as a prior inconsistent statement (FRE 613), then for substantive purposes as a prior inconsistent statement (FRE 801(d)(1)(A)) . Prosecution needed it for substantive purposes because it was their only evidence and they have the burden of proof . Forgetfulness/Evasive Answers/Silence:  If court believes you are feigning forgetfulness/being evasive/refusing to answer, prior inconsistent statement will come in under FRE 801(d)(1)(A)  If you have a genuine medical reason to forget, e.g. amnesia or brain injury, prior inconsistent statement will not come in under FRE 801(d)(1)(A) o FRE 801(d)(1)(B): Consistent with the declarant’s testimony, AND is offered to rebut an express/implied charge against declarant of recent fabrication/improper influence or motive OR . Tome: Prior consistent statements of abused child to six witnesses naming father as abuser admitted in error.  Prior consistent statements must have been made before the alleged fabrication or improper influence/motive came into being o Here, alleged improper motive of desiring to live with mother, starting when father got custody  Must be offered to rebut the charge of fabrication/improper motive o As here, cannot be offered merely to bolster truth of declarant’s story o FRE 801(d)(1)(C): One of Identification of person made after perceiving person . Motta: Sketch artist’s composite sketch of robbery suspect based on witness’ description admitted  The sketch is hearsay: it is a statement made out of court to prove what the suspect looked like. Functions the same as verbal description of suspect’s physical characteristics  Admissible as prior identification o No express temporal limit, but identification should be done close in time to perception: res gestae . Includes hearing person/voice ID . FRE 801(d)(2): Admission by party-opponent: The statement is offered against a party* AND is:  FRE 801(d)(2)(A): Party’s own statement (in either individual or representative capacity) OR o Bruton: Joint defendants. Error to admit Evans’ jailhouse statement, “Bruton and I committed the robbery.” . When there are two Ds and evidence is admissible against one but not the other:  A limiting instruction will not suffice to protect the rights of the D against whom the statement is not admissible o Must sever trials OR o Must redact or paraphrase the statement  FRE 801(d)(2)(B) Statement of which party has manifested an adoption or belief in its truth (Adoptive admission) OR o Hoosier: Hoosier told witness he was going to rob a back. Later, witness saw Hoosier and girlfriend and commented on expensive stuff. Girlfriend said, “That ain’t nothing. You should have seen the money we had in the hotel room.” . Adoptive admission because Hoosier stayed silent and did not deny his girlfriend’s statement in a situation in which a person would be expected to deny such a statement if it were untrue . Notes: Minimum Requirements of Tacit Admission:  Party heard the statement  Matter asserted was within his knowledge AND  Occasion and nature of statement were such that he would likely have replied if he did not mean to accept what was said o But excluded if: . Party did not understand the statement or its significance . Some physical or psychological factor explains the lack of reply . Speaker was someone whom the party would likely ignore OR . Silence was post-Miranda silence o No impeachment through post-arrest, post-Miranda Silence: Doyle v. Ohio: D’s story is that Informant was trying to sell him marijuana, and that Informant got mad and threw cash in his car, so he drove around to give it back. . Prosecution attempted to impeach D for failing to tell agent that story after he was arrested and Mirandized  Cannot use post-Miranda silence for substantive OR impeachment (prior inconsistent statement) purposes o Meaning of silence ambiguous because may just be exercise of right o Prejudicial because of jury’s inability to separate substantive and impeachment uses o But cf. Jenkins v. Anderson: Can impeach through use of pre-arrest silence e.g. failure to report incident to police and subsequent testimony of self-defense o But cf. Harris v. New York: Can impeach through use of un-Mirandized post-arrest statements e.g. statements that D was selling heroin and subsequent testimony of selling baking powder  FRE 801(d)(2)(C) Statement by person authorized by party to make statement concerning the subject (Speaking agent) OR  FRE 801(d)(2)(D) Statement by party’s agent or servant concerning matter within scope of agency or employment, made during existence of relationship (Agent in scope of employment) OR o Mahlandt: Statements that “Sophie bit a child.” . Admissible against Poos as adoptive admission (FRE 801(d)(2)(B)) . Admissible against Wild Canid Survival and Research Center because fits three requirements of admission by agent in scope of employment (FRE 801(d)(2)(D)  FRE 801(d)(2)(E) Statement by coconspirator of party during course and in furtherance of conspiracy o Bourjaily: Existence of conspiracy and D’s participation in it are preliminary questions of fact under FRE 104(a) . Determined by court by a preponderance of the evidence . Court can consider statements sought to be admitted when determining existence of conspiracy/D’s participation  Bourjaily court does not decide issue, but Rule amended below to require independent evidence of conspiracy/participation in addition to statements o Contents of statement not alone sufficient to establish declarant’s authority under (C), agency/employment relationship or scope under (D), or conspiracy and declarant’s/party’s participation (E)  *Victim is a party represented by the state for purposes of this doctrine, so victim’s admissions come in against her  Common Law Hearsay Exclusions (NOT HEARSAY): o Imperatives: No truth of the matter asserted . But cannot use the statement “Look at the red barn” to prove there was a red barn. o Interrogatories: No truth of the matter asserted o Impeachment by prior inconsistent statement: Not offered to prove the truth of the matter asserted o Verbal Act: Words of independent legal significance, offered to prove the act . Words of offer and acceptance (contract) . Words of passing of title  E.g. pointing to corn and saying “This corn belongs to you.” . Words that are themselves illegal acts  Offers of prostitution  Threats to do bodily harm o Effect on the Hearer: Hearer’s reaction must be at issue . E.g. Reasonableness of going to inspect gas leak with man who claimed he was from the gas company . E.g. Reliance on statement that man was from gas company  N.B. “I’m from the gas company” does not establish that declarant actually WAS agent of gas company. o Verbal Object/Chattel: Words on object that are an integral part of the object itself; not separate statements . Generally applies to words attached to object in the course of a business operation  E.g. Matchbook with “Eagle’s Rest Bar and Grill” printed on it, offered as proof that owner has been to that bar and grill  E.g. United States v. Duffy: Shirt with laundry mark “DUF,” offered to prove that he stole the car it was found in o Circumstantial Evidence of State of Mind: Circumstantial (i.e. not direct) evidence, offered to support an inference regarding a person’s state of mind— when that is at issue . E.g. Statement in Anna’s will “I give Ira $1,” offered to support the inference that Ira had no reasonable expectation of good companionship or support from Anna. At issue because of his tort claim to recover those damages. o Circumstantial Evidence of Memory: Circumstantial (i.e. not direct) evidence, offered to support an inference regarding a person’s memory of an event/place, which could not exist unless they actually saw the event/place . E.g. Child describes room of rapist. She could not have remembered room if she had not been there.  Description of what room looks like alone not relevant. Relevant because she knows what it looks like, which tends to prove that she was there when D was there. o Cain v. George: Evidence that people who stayed in a hotel room did not complain about a defective heater is not hearsay. . Non-complaint/non-reporting is an act/omission, not a hearsay statement  N.B. The Cain court reaches the non-hearsay result, but does not use the proper reasoning above.  FRE 802: Hearsay Rule: Hearsay not admissible except as provided by FRE, Supreme Court, or statute  FRE 803: HEARSAY EXCEPTIONS, AVAILABILITY OF DECLARANT IMMATERIAL: Not excluded by hearsay rule, even though declarant is available as witness: o FRE 803(1): Present sense impression: Statement describing or explaining an event or condition made while declarant was perceiving event or condition, or immediately thereafter . Nuttall: Admissible: Nuttall made statements “I am very sick”/ “Why are you forcing me to come in?” on phone while wife overheard. Then said to her “I guess I will have to go.”  Admissible to show that Nuttall was being forced to go to work against his will by his boss  Made substantially at time of event described o FRE 803(2): Excited utterance: Statement relating to a startling event or condition made while declarant was under stress of excitement caused by event or condition o FRE 803(3): Then existing, mental, emotional, or physical condition: . Statement of declarant’s then existing:  State of mind o Victims’ statements of fear not admissible because victim’s state of mind is not at issue, e.g. Nicole Brown Simpson’s 911 call, “If you don’t come, he’ll kill me.” o Exception to cases where state of mind not at issue: The Hillmon Doctrine: A present intention is admissible when offered to prove subsequent conduct of declarant . “I intend/I plan/I am going to do X”  e.g. Walters said, “I am going with Hillmon to Crooked Creek.” . Offered to prove that the declarant (Walters) subsequently did do X (went with Hillmon to Crooked Creek)  NOT offered to prove intent or state of mind alone o But see Pheaster: MAJORITY RULE: A present intention is inadmissible when offered to prove conduct of someone other than declarant. (Pheaster court: Hillmon statements are admissible to prove conduct of third parties.) . e.g. Larry said, “I am meeting Angelo in the parking lot to get free pot.”  INADMISSIBLE because offered to prove that Angelo met Larry in parking lot o Would be admissible to prove that Larry went to parking lot under Hillmon.  Emotion  Sensation OR  Physical condition o Such as: Intent o Plan o Motive o Design o Mental feeling o Pain o Bodily health . But not including a statement of memory or belief to prove the fact remembered or believed  Unless it relates to the execution, revocation, identification, or terms of declarant’s will o FRE 803(4): Statements for purpose of medical diagnosis or treatment: Statements made for purposes of medical diagnosis or treatment and describing . Medical history OR . Past or present symptoms, pain, or sensation OR . Inception or general character of cause or external source thereof  Insofar as reasonably pertinent to diagnosis or treatment o Backward-looking statements acceptable under FRE 803(3), but not for 803(1) or 803(3). o Fault statements usually not admissible under this exception o But see Blake: Special case of child sexual abuse: Doctor allowed to testify to 16-year-old’s statements during sexual assault exam identifying stepfather as perpetrator . Declarant’s motive in making statement must be consistent with purposes of promoting treatment or diagnosis AND . Content of statement must be reasonably relied upon by doctor in treatment and diagnosis o FRE 803(5): Recorded recollection (Past recollection recorded): . A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately . Shown to have been made or adopted by the witness . When the matter was fresh in the witness’ memory . And to reflect that knowledge correctly  If admitted, memorandum or record may be read into evidence, but may not itself be received as an exhibit o Unless offered by an adverse party . Ohio v. Scott: Witness gave a handwritten, signed statement to police about conversation with D the day after the arrest stating that D told her he wrecked a car and shot a guy. On the stand, witness says she cannot remember D’s statement. Past recorded statement is properly admitted because requirements of rule above are met.  Present recollection is absent/incomplete BUT  Present testimony states that recollection was complete at time memorandum was written and that memo is accurate o FRE 803(6): Records of regularly conducted (business) activity: A memorandum, report, record, or data compilation, in any form, of:  Acts  Events  Conditions  Opinions OR  Diagnoses . Made at or near the time . By, or from information transmitted by, a person with knowledge . If kept in the course of a regularly conducted business activity AND . If it was the regular practice of that business activity to make the memorandum, report, record, or data compilation  All as shown by the testimony of the custodian or other qualified witness  Or by certification... . Business: includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit . Petrocelli v. Gallison: Petrocelli sued Dr. Gallison for severing nerve during operation. Not error to exclude business records containing references by other doctors to severed nerve.  No way of knowing where information in business record originally came from—Petrocelli in giving medical history or doctors themselves in making diagnoses? o FRE 803(6) requires that business record be made by a person with knowledge . Norcon v. Kotowski : Kotowski sexually harassed and fired. Investigative memo properly admitted under business records exception.  Memo contains hearsay statements of others: But those declarants were agents speaking on matters within the scope of their employment under FRE 801(d)(2)(D)/perhaps also speaking agents under FRE 801(d)(2)(C) o FRE 803(7): Absence of entry in (business) records: Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6). . To prove nonoccurrence of nonexistence of the matter . If the matter was of a kind which a memorandum, report, record, or data compilation was regularly made and preserved  Unless the sources of the information or other circumstances indicate lack of trustworthiness o FRE 803(8): Public records and reports: Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: . FRE 803(8)(A): The activities of the office or agency OR . FRE 803(8)(B): Matters observed pursuant to duty imposed by law as to which matters there was a duty to report  Excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel OR . FRE 803(8)(C):  In civil actions and proceedings AND  Against the government in criminal cases (ok against gov’t. but NOT OK against D) o Factual findings resulting from an investigation made pursuant to authority granted by law . Unless the sources of information or other circumstances indicate lack of trustworthiness (APPLIES TO ENTIRE RULE (A) through (C)) . Oates: Government sought to admit US Customs Service chemist’s report that white powdery substance was heroin.  Report clearly excluded under FRE 803(8)(C) because offered against D  Report excluded under FRE 803(8)(B) because chemist is “other law enforcement personnel” o “Any officer or employee of a governmental agency which has law enforcement responsibilities” o Participants in prosecutorial effort”  Reports that do not satisfy the requirements of FRE 803(8) CANNOT come in under FRE 803(6) . N.B. Public reports are generally treated like expert opinions in which we do not analyze levels of hearsay within them, but rather all the information the government gathers merges to form one opinion. o FRE 803(9): Records of vital statistics: Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages . If the report was made to a public office pursuant to requirements of law o FRE 803(10): Absence of public record or entry: . To prove the absence of a record, report, statement, or data compilation, in any form OR . The nonoccurrence or nonexistence of a matter of which a record, reports, statement or data compilation, in any form, was regularly made and preserved  By a public office or agency o Evidence in the form of a certification in accordance with Rule 902 OR o Testimony that diligent search failed to disclose the record, report, statement, or data compilation, or entry o FRE 803(11): Records of religious organizations: Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history . Contained in a regularly kept record of a religious organization o FRE 803(12): Marriage, baptismal, and similar certificates: Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament . Made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified AND . Purporting to have been issued at the time of the act or within a reasonable time thereafter o FRE 803(13): Family records: Statements of fact concerning personal or family history . Contained in: Family bibles . Genealogies . Charts . Engravings on urns, crypts, tombstones . Or the like o FRE 803(14): Records of documents affecting an interest in property: The record of a document purporting to establish or affect an interest in property . As proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed  If the record is a record of a public office AND  An applicable statute authorizes the recording of documents of that kind in the office o FRE 803(15): Statements in documents affecting an interest in property : A statement contained in a document purporting to establish or affect an interest in property . If the matter stated was relevant to the purpose of the document  Unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document o FRE 803(16): Statements in ancient documents: Statements in a document in existence 20 years or more . The authenticity of which is established o FRE 803(17): Market reports, commercial publications: . Market quotations . Tabulations . Lists . Directories . Or other published compilations  Generally used and relied upon by the public or by persons in particular occupations o FRE 803(18): Learned treatises: . To the extent called to the attention of an expert witness upon cross OR . Relied upon by the expert witness on direct  Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art  Established as a reliable authority o By the testimony or admission or the witness o Or by other expert testimony o Or by judicial notice . If admitted, statements may be read into evidence, but may not be received as exhibits o FRE 803(19): Reputation concerning person or family history: Reputation among: . Members of a person’s family by blood, adoption, or marriage OR . Among a person’s associates OR . In the community  Concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood/adoption/marriage, ancestry, or other similar fact of personal or family history o FRE 803(20): Reputation concerning boundaries or general history: . Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community AND . Reputation as to events of general history important to the community or state or nation in which located o FRE 803(21): Reputation as to character: Reputation of a person’s character among associates or in the community (Dovetails with FRE 405(a)(substantive) and FRE 608(a) (character for credibility) o FRE 803(22): Judgment of previous conviction: Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a felony . To prove any fact essential to sustain the judgment  But not including when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused o Pendency of an appeal may be shown but does not affect admissibility o FRE 803(23): Judgment as to personal, family, or general history, or boundaries: . Judgments as proof of matters of personal, family, or general history, or boundaries . Essential to the judgment  If the same would be provable by evidence of reputation  FRE 804: HEARSAY EXCEPTIONS: DECLARANT UNAVAILABLE: (Unavailability PLUS x): o FRE 804(a): Definition of unavailability: “Unavailability as a witness” includes situations in which the declarant: . FRE 804(a)(1): is exempted by ruling of court on ground of privilege from testifying concerning the subject mater of the declarant’s statement OR . FRE 804(a)(2): persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so OR . FRE 804(a)(3): testifies to a lack of memory of the subject matter of the declarant’s statement OR . FRE 804(a)(4): is unable to be present or testify at the hearing because of death or then existing physical or mental illness or infirmity OR . FRE 804(a)(5): is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means  Declarant is NOT UNAVAILABLE as witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to procurement or wrongdoing of proponent of statement for purpose of preventing witness from attending or testifying o MUST SATISFY BOTH: o 1) unavailability for purpose of Rule/statute o 2) unavailability for purpose of Constitution . Barber v. Page: Barber and Woods had same lawyer, Parks, at preliminary hearing. Woods flipped and incriminated Barber. Parks withdrew as Woods’ attorney and did not cross examine Woods, although another D’s lawyer did cross examine. At time of Barber’s state court trial in OK, Woods was in federal prison in TX.  Woods was unavailable under the Rule/statute BUT  Woods WAS NOT unavailable for purposes of Confrontation Clause: o Prosecution did not make good faith effort to obtain witness o “The right of confrontation cannot be dispensed with so lightly” PLUS o FRE 804(b): Hearsay exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . FRE 804(b)(1): Former testimony: Testimony given as a witness:  At another hearing of the same or a different proceeding OR  In a deposition taken in compliance with law in the course of a same or another proceeding o IF the party against whom the testimony is now offered (or in civil a predecessor in interest) had: . Opportunity AND . Similar motive to develop the testimony by direct/cross/redirect examination  Barber v. Page: Prosecution attempted to introduce Woods’ former testimony at a preliminary hearing, but he was not unavailable under the Constitution/Confrontation Clause . FRE 804(b)(2): Statement under belief of impending death (Dying declaration): In a prosecution for homicide OR in a civil action/proceeding:  Statement made by declarant while believing that declarant’s death was imminent  Concerning cause or circumstances of what declarant believed to be impending death . FRE 804(b)(3): Statement against interest: A statement that:  FRE 804(b)(3)(A): Reasonable person in declarant’s position would have made only if person believed it to be true because when made: o It was so contrary to declarant’s proprietary or pecuniary interest OR o Had so great a tendency to invalidate the declarant’s claim against someone else OR o To expose the declarant to civil or criminal liability AND  FRE 804(b)(3)(B): If statement offered in criminal case as one that tends to expose declarant to criminal liability: o Is supported by corroborating circumstances that clearly indicate its trustworthiness  Williamson: Harris confessed that he was transporting cocaine to Atlanta for Williamson. Unavailable under 804(a)(2) because he refuses to testify even after being ordered to do so: o Courts may not assume that a particular statement is against interest just because it is part of a larger confession . This is especially true in cases in which statement implicates someone else in crime  “One of the most effective ways to lie is to mix falsehood with truth” o Only portions of statements that are truly self-inculpatory meet the against interest exception . Here, admitting to possession of cocaine was self- inculpatory/against interest BUT . Implicating Williamson was NOT against interest  N.B. Some states allow conclusory statements like “It was my fault” under this exception while others do not. . FRE 804(b)(4): Statement of person or family history:  Statement concerning declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood/adoption/marriage, ancestry, or other similar fact of personal or family history o Even though declarant had no means of acquiring person knowledge of matter stated OR  Statement concerning foregoing matters, and death also, of another person o If the declarant was related to the other person by blood/adoption/marriage OR o Was so intimately associated with the other’s family as to be likely to have accurate information concerning matter declared . FRE 804(b)(6): Forfeiture by wrongdoing: Statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of declarant as witness  The Confrontation Clause and Hearsay: o The Sixth Amendment right of the accused “to be confronted with the witnesses against him” includes: . The right to see and to cross-examine* the witness . The right to be seen by the witness o *There are two relevant times for cross under the Confrontation Clause: . At the time of the statement . At trial At time of statement? At trial? Constitutional?

Cross? Yes Yes Yes

Cross? Yes No Yes under California v. Green

Cross? No Yes Yes

Cross? No No No o The Confrontation Clause requires: . Showing that witness is unavailable . Showing that statement is reliable (often this involves opportunity to cross) o Testimonial Hearsay: Crawford v. Washington: . If testimonial* statement, Confrontation Clause requires:  Unavailability  Prior opportunity for cross o *What is testimonial?: “solemn declaration or affirmation made for purpose of establishing or proving some fact” . Formal statement to government officer vs. casual remark to acquaintance  At minimum: Prior testimony at preliminary hearing  Prior testimony before a grand jury  Prior testimony at a former trial  Prior testimony during a police interrogation* . And perhaps more left unclear! o *Here, Sylvia Crawford’s statements to the police that victim was unarmed were testimonial. She was unavailable under the spousal testimony privilege. But Michael Crawford had no opportunity to cross her on them. . If not testimonial statement, Confrontation Clause imposes no specific requirements on states in developing their own hearsay laws o Testimonial Hearsay/Emergency Doctrine: Davis v. Washington: . The Confrontation Clause ONLY APPLIES to testimonial hearsay  Other hearsay is subject to the limitations of the Rules but not the Confrontation Clause . Testimonial Statement: Circumstances objectively indicate that:  There is no ongoing emergency AND  Primary purpose of interrogation is to establish/prove past events potentially relevant to later criminal prosecution o E.g. Hammon’s statements to police investigating domestic disturbance after fight was over were made to investigate what already happened/were testimonial . Non-testimonial Statement: Circumstances objectively indicate that:  Primary purpose of interrogation is to enable police assistance to meet an ongoing emergency o E.g. McCottry’s statements during 911 call identifying Davis as assailant during attack were made to resolve ongoing emergency/were non-testimonial  Hearsay, Due Process, and D: Chambers v. Mississippi: o The right of an accused to due process is the right to a fair opportunity to defend against the State’s accusations. (Right to a fair trial) At minimum: . Right to confront and cross-examine witnesses  E.g. Here, because of Miss. voucher rule, could not effectively confront and cross-examine McDonald about his confession/repudiation, as well as confessions to other witnesses . Right to call witnesses in one’s own behalf  E.g. Here, because Miss. did not have exception for “against penal interest,” could not call witnesses to whom McDonald confessed  FRE 805: Hearsay within Hearsay (LEVELS OF HEARSAY): Hearsay within hearsay is not excluded under the hearsay rules if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules o United States v. Check: Drug case in which Detective is asked to repeat on the stand only his side of the conversation with the Informant, who refused to testify. . This is an unacceptable attempt to introduce otherwise inadmissible hearsay . Statement by Detective: “I instructed Informant that by no means did I intend to front any sum of money to Defendant.” . Levels of out of court statements:  Defendant to Informant: I want Detective to front me some money (indirect hearsay)  Informant to Detective: Defendant wants you to front him some money (indirect hearsay)  Detective to Informant: I do not intend to front any money to Defendant o United States v. Pacelli: Levels: . Pacelli to family: I killed Patsy Parks (indirect hearsay) . Family to one another and witness: The murder was bungled by leaving the body where it could be found  FRE 806: Attacking and Supporting Credibility of Declarant: When a hearsay statement or an admission of a speaking agent/agent/coconspirator has been admitted in evidence, credibility of declarant may be attacked. o If attacked, may be supported by any evidence that would be admissible for those (credibility) purposes if declarant had testified as a witness. . Evidence of statement or conduct by declarant at any time inconsistent with declarant’s hearsay statement is not subject to any requirement that declarant be afforded opportunity to deny/explain (Only have to have opportunity to explain if using EXTRINSIC EVIDENCE of prior inconsistent statement of witness to impeach) o If party against whom hearsay statement has been admitted calls declarant as a witness, party entitled to examine declarant on statement as if on cross. (Leading questions)  FRE 807: Residual Exception (Catchall): A statement not specifically covered by FRE 803 or 804 but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule, if the court determines that: o (A): the statement is offered as evidence of a material fact o (B): the statement is more probative on the point for which it is offered than any other evidence which proponent can procure through reasonable effort AND o (C): general purposes of these rules and interests of justice will best be served by admission of statement into evidence. . If proponent wants to use catchall exception: must provide notice to adverse party in advance of trial  Intention to offer statement  Particulars of it o Name and address of declarant ARTICLE IX: AUTHENTICATION AND IDENTIFICATION:  FRE 901: Requirement of Authentication or Identification: o FRE 901(a): General Provision: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims . United States v. Johnson: Victim’s identification of ax as the one used in attack on him was acceptable even though it was not entirely free from doubt.  A reasonable juror could have found that this ax was the one used in the assault. o Failure to state particular identifying features of this ax go to weight and credibility under FRE 104(e) . United States v. Howard-Arias: Do not need every link in chain of custody to testify in case involving 240 seized bales of marijuana  There was sufficient proof that the evidence was what it purported to be and that it had not been altered in any material respect . United States v. Bagaric: Authentication of a letter may be based entirely on circumstantial evidence, including:  Appearance  Contents  Substance  Other distinctive characteristics . United States v. Pool: Speaker identifying himself by name during telephone conversation is not enough to authenticate that he is the speaker  Here, undercover agent had never met “Chip” and could not compare Chip’s voice with that of the speaker o FRE 904(b): Illustrations: Following are examples of authentication/identification conforming with the requirements of the rule (not exclusive list): . (1) Testimony of witness with knowledge: matter is what it claims to be . (2) Nonexpert opinion on handwriting: Nonexpert opinion as to genuineness of handwriting based upon familiarity not acquired for purposes of litigation . (3) Comparison by trier or expert witness: Comparison by trier of fact or by expert witnesses with specimens which have been authenticated . (4) Distinctive characteristics and the like: Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances . (5) Voice identification: Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with alleged speaker . (6) Telephone conversations: Telephone conversations, by evidence that a call was made to number assigned at time by telephone company to particular person or business if:  (A) In the case of a person, circumstances, including self- identification, show person answering was one called OR  (B) In the case of a business: o The call was made to a place of business AND o The conversation related to business reasonably transacted over the telephone . (7) Public records or reports: Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, statement or data compilation, in any form, is from the public office where items of this nature are kept . (8) Ancient documents or data compilation: Evidence that a document or data compilation in any form:  (A): is in such condition as to create no suspicion concerning its authenticity  (B): was in a place where it, if authentic, would likely be AND  (C) has been in existence 20 years or more at the tiem it is offered . (9) Process or system: Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result . (10) Methods provided by statute or rule  FRE 902 Self-authentication: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: o (1) Domestic public documents under seal (and signature): Document bearing seal purporting to be that of US or of any state, or of a political subdivision, department, officer, or agency thereof AND a signature purporting to be an attestation or execution o (2) Domestic public documents not under seal: Document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1), having no seal IF: . Public officer having a seal and having official duties in district/political subdivision of officer/employee certifies under seal that the signer has the official capacity and that the signature is genuine o (3) Foreign public documents o (4) Certified copies of public records o (5) Official publications: Books, pamphlets, or other publications purporting to be issued by a public authority o (6) Newspapers and periodicals o (7) Trade inscriptions and the like: Inscriptions, signs, tags, or lables purporting to have been affixed in the course of business and indicating ownership, control, or origin o (8) Acknowledged documents: Documents accompanied by a certificate of acknowledgement executed in the manner provided by law by a notary public or other officer o (9) Commercial paper and related documents: Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law o (10) Presumptions under Acts of Congress o (11) Certified domestic records of regularly conducted activity: allows for affidavit to authenticate a large group of business records o (12) Certified foreign records of regularly conducted activity ARTICLE X: CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS:  FRE 1001: Definitions: o FRE 1001(1): Writings and recordings: consist of letters, words, or numbers, of their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other forms of data compilation o FRE 1001(2): Photographs: include still photographs, x-ray films, video tapes, and motion pictures o FRE 1001(3): Original: An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. . An “original” of a photograph includes the negative and any print therefrom . If data are stored on a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original” o FRE 1001(4): Duplicate: A “duplicate” is a counterpart produced by: the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re- recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.  FRE 1002: Requirement of Original (Best Evidence Rule): To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required o Except as otherwise provided by FRE or statute . United States v. Duffy: Shirt with laundry mark “DUF” was found in D’s car. Shirt is both a chattel and a writing, thus could be treated as either. Words merge with object.  Here, because writing was simple, little danger that witness would inaccurately remember its terms  Terms of writing not central or critical to case against Duffy; shirt was one piece of evidence in a substantial case against Duffy . Meyers v. United States: In a trial for perjury, it was acceptable to call counsel at original hearing to testify as to what D said. Transcript of hearing not required.  Counsel’s testimony about what he heard was not an attempt to prove what a writing—the transcript—said.  Counsel’s testimony was equally competent as transcript to prove what D said at proceeding  FRE 1003: Admissibility of Duplicates: A duplicate is admissible to the same extent as an original unless: o FRE 1003(1): a genuine question is raised as to the authenticity of the original OR o FRE 1003(2): in the circumstances it would be unfair to admit the duplicate in lieu of the original . Turnage v. State: It was acceptable to admit copies of tapes of phone calls D made at county workhouse.  Although witness did not compare digital copies to analog originals, there is no genuine question of authenticity of the copies o Seven foundational elements that must be established before a tape recording can be admitted (as a supplement to FRE 1003): . Showing that the recording device was capable of taking testimony . Showing that the operator of the device was competent . Establishment of the authenticity and correctness of the recording . Showing that changes, additions, and deletions have not been made . Showing of the manner of the preservation of the recording . Identification of the speakers . Showing that the testimony elicited was voluntarily made without any kind of inducement  FRE 1004: Admissibility of Other Evidence of Contents: The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if: o (1) Originals lost or destroyed: Unless the proponent lost or destroyed them in bad faith o (2) Original not obtainable: by any available judicial process or procedure o (3) Original in possession of opponent: At time when original was under control of party against whom offered, party was put on notice that contents would be a subject of proof at hearing and party does not produce original at hearing o (4) Collateral matters: Writing, recording, or photograph is not closely related to a controlling issue  FRE 1005: Public records: Contents of official record, or of document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with FRE 902 or testified to be correct by witness who has compared it with the original o If compliant copy cannot be obtained by exercise of reasonable diligence, other evidence of contents may be given  FRE 1006: Summaries: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in form of a: o Chart o Summary OR o Calculation . The originals, of duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place.  Court may order that they be produced in court  FRE 1007: Testimony or Written Admission of a Party: Contents of writings, recordings, or photographs may be proved by the testimony or deposition of a party against whom offered or by that party’s written admission, without accounting for nonproduction of original o If opposing party acknowledges that something is accurate, there is no need to produce the original  FRE 1008: Function of Court and Jury: When admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact (FRE 104(b)) the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of FRE 104. o However, when an issue is raised: . (a) whether the asserted writing ever existed OR . (b) whether another writing, recording, or photograph produced at trial is original OR . (c) whether other evidence of contents correctly reflects contents o Then issue is for trier of fact to determine. ARTICLE XI: MISCELLANEOUS RULES:  FRE 1101: Applicability of Rules: o FRE 1101(a): Courts and judges: apply to federal courts o FRE 1101(b): Proceedings generally: Apply to civil and criminal proceedings o FRE 1101(c): Rule of privilege: Rule with respect to privilege applies at all stages of all actions, cases, and proceedings o FRE 1101(d): Rules inapplicable: Other than privilege, do not apply in following situations: . FRE 1101(d)(1): Preliminary question of fact: Determination of questions of fact preliminary to admissilbity of evidence when issue tbd by court under FRE 104 . FRE 1101(d)(2): Grand jury . FRE 1101(d)(3): Misc. Proceedings:  Proceedings for extradition or rendition  Preliminary examinations in criminal cases  Sentencing, granting, or revoking probation  Issuance of warrants for arrest, criminal summonses, and search warrants AND  Proceedings with respect to release on bail or otherwise