<p>EVIDENCE – PIERCE – FALL 2011 I. EXAM TIPS a. How Pierce Grades Propensity i. Applicable Rule ii. Applicable Balancing Test – Usually not concerned with outcome of balancing test, but concerned with selecting the correct balancing test. b. See question 16 on p. 551. One like this will be on the exam. c. What Pierce is looking for: which FRE applies and how it applies. d. Answering Procedure – FRE; relevant balancing test; application of FRE and balancing test to facts. II. PRELIMINARY MATTERS a. Scope: FRE 101: These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101. i. Builders Steel Doctrine 1. Jury Trial – Judge must be vigilant and exclude inadmissible evidence. 2. Bench Trial – Judge admits all arguably admissible evidence during trial and then, during her deliberation, determines which evidence is reliable for drawing inferences. When in doubt, let it in. b. FRE 102: Purpose and Construction: These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. III. TAKING EVIDENCE: What evidence should be available to lay jurors given their estimation and emotional difficulties a. Preconditions to Testimony i. Personal Knowledge and the Lay Opinion Rule 1. FRE 602: Lack of Personal Knowledge: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. a. Personal knowledge does not mean precise knowledge—witness only has to do her best to relate what she can about the subject of testimony (best memory rule) b. FRE 602 is a specific application of FRE 104(b). c. Only admissible evidence may be considered in making an FRE 602 determination. 2. Lay Opinion Rule: FRE 701: Opinion Testimony by Lay Witnesses: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are a. rationally based on the perception of the witness, and i. Subset of FRE 602, which requires that witnesses testify to matters based on personal knowledge. ii. Estimates, e.g., of speed of a car are admissible. They can be rationally based on perceptions. Room to argue that perceptions do not allow rationally based estimate (e.g., witness saw car go by through a 2’ by 2’ window). b. helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and c. not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. i. Common Law approach: Lay witness can only testify as to facts. ii. FRE – Lay witness can testify to facts and her opinions. iii. Inferences – Limited to those based on rational perceptions. 3. Opinion on Ultimate Issue: Witness can give one if he meets 701 requirement (overrules CL rule) a. FRE 704(a): Opinion on Ultimate Issue: Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. i. Possible Objections – Usually an opinion on an ultimate issue is not helpful or doesn’t meet 701 or 602. ii. Witnesses (even lawyers) cannot testify as to conclusions of law. b. FRE 704(b): Opinion on Ultimate Issue: No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. 1 i. Experts cannot testify as to whether the defendant had the requisite mental state or condition for crime (Hinckley Rule): ii. Oath 1. FRE 603: Oath or Affirmation: Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. iii. Competence 1. FRE 601: General Rule of Competency: Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. a. Includes children, elderly, and even severely retarded (disability can affect weight given to the testimony) b. Interrogation i. Direct Examination ii. Cross-Examination 1. FRE 611(b): Scope of Cross-Examination: Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination a. Judge may allow examination outside scope of direct. b. If defendant denies doing something (e.g., owning a gun) on direct, prosecution may ask about it on cross-examination. 2. FRE 611(c): Leading Questions: Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. a. Prohibition on leading questions applies to questions outside the scope of direct during cross-examination. iii. Impeaching and Leading on Direct 1. FRE 607: Who May Impeach: The credibility of a witness may be attacked by any party, including the party calling the witness. iv. The Judge’s Plenary Control 1. FRE 611(a): Control by Court: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. c. Objections i. Classification 1. To content of evidence 2. To the foundation for evidence 3. To the form of a question ii. Waiving, Preserving, and Reviewing Error 1. General Principles a. Evidence is Presumed Admissible i. FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. ii. Close calls go to the proponent of the evidence b. The Parties Control the Case c. Objections Can Be Waived d. Trial judge is rarely reversed 2. Avoid Waiver a. Objections to admission of evidence: must object and/or make an offer of proof (describe what the potential evidence is). You waive the objection unless you say the right thing quickly. 2 b. Claims of erroneous exclusion of evidence c. Escape Clauses i. FRE 103(a)(1): Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. 1. You don’t need to state the grounds if it’s obvious from the context ii. FRE 103(a)(2): Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. 1. With cross and leading questions, offers of proof are probably less needed 2. Voir Dire – One method of offering proof. iii. Plain Error Rule: FRE 103(d): Plain Error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. 1. Rarely invoked. Used usually to argue that counsel was incompetent. iii. Harmless Error: what effect the error had or reasonably may be taken to have had on the jury’s decision. 1. FRE 103(a): Effect of Erroneous Ruling: Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. iv. The Roles of Judge and Jury 1. Issues of Law: judge is responsible 2. Most Preliminary Issues of Fact a. FRE 104(a): Questions of Admissibility Generally: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. i. Judge gets some fact-finding role in determining the admissibility of evidence. ii. Preponderance of evidence is used. iii. Not governed by FRE; all non-privileged evidence may be considered. FRE 1101(d)(1). b. FRE 104(c): Hearing of Jury: Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. i. Judge has discretion regarding when a evidentiary hearing is in or out of the hearing of the jury (except when relating to a confession or when a criminal defendant so requests) 3. Preliminary factual issues that go to relevance, personal knowledge and authentication a. FRE 104(b): Relevancy Conditioned on Fact: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. i. Conditional relevance: judge determines whether the evidence bearing on the preliminary fact is such that reasonable people could find that it exists— assurance of a connection ii. Not governed by FRE; all non-privileged evidence may be considered. FRE 1101(d)(1). 4. Preliminary factual questions that go to “ultimate issues” a. If question of admissibility and question of guilt/liability are the same, under FRE, the judge decides admissibility unless there is a specific rule that provides otherwise b. When a judge does decide as a preliminary matter a factual issue that is also submitted to the jury, the jury is not told of the judge’s factual finding i. Decisions may differ because of burdens of proof, evidence is susceptible to 2 interpretations, judge can consider inadmissible evidence c. FRE 104(c) and (d) v. Cautionary Instructions and Limited Admissibility 1. FRE 105: Limited Admissibility: When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. 3 2. Allows for LIMITING INSTRUCTIONS. 3. This approach can backfire by directing the jury’s focus to the issue in question vi. Objections in Non-jury trials: much more laid-back, because judge is presumed to be immune to the general problems we feel plague juries. IV. RELEVANCE a. Basic Policy i. FRE 401 on relevance: Definition of “Relevant Evidence”: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.—extremely easy standard to meet 1. FRE 402: all relevant evidence is admissible generally (may be excluded on other grounds) 2. ALWAYS ASK WHAT THE EVIDENCE IS RELEVANT ON AND IF THAT INFERENCE ON WHICH IT WOULD BE RELEVANT IS BARRED. 3. Pay attention to underlying substantive claim—affects which evidence is relevant. E.g., evidence of conduct is relevant to negligence, but not res ipsa loquitur. ii. FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 1. a broad, general rule of exclusion that requires court to balance the probative value of evidence with its negative effects 2. BALANCING TEST TILTS IN FAVOR OF ADMISSION b. Circumstantial and Direct Evidence: no difference in value  Relevance is the only question. c. Conditional Relevance: relevance of one item of circumstantial evidence may only become apparent as more evidence is introduced down the road i. 104(b): need to introduce enough evidence to make relevance of this evidence existent ii. Courts are guided by two concerns to see if evidence is conditional 1. Does evidence of the conditioning fact greatly increase the probative value of the item of evidence that is offered? 2. Is good evidence of the factual condition likely to be available? iii. May be several layers of conditional relevance (have to prove that these Air Jordans were made by d and worn by d in order for Air Jordan prints to be relevant) iv. Response – Usually, when evidence is conditionally relevant, opposing counsel will object on basis of irrelevance. Counsel will respond that a connection will be made later. If no connection is made, opposing counsel may move to strike evidence from the record. d. Relevant and irrelevant—don’t confuse with sufficiency e. FRE 403 Balancing i. Probative value: how much does the evidence increasing the likelihood of some fact 1. If the evidence is unique and important, and no stipulation is forthcoming, the need for information almost always outweighs the detrimental effects ii. “Substantially” outweighed by offsets—test is tilted in favor of admission 1. Unfair prejudice: we think the jury will seriously misestimate the probative value a. Estimation Problems b. Regret matrix: want to make decision you won’t regret—if I know Jones raped 9 women, I don’t much care if he robbed the bank. c. harm which results when evidence is inappropriately influential because it appeals to the biases or emotions of the fact-finder, i.e. unfair, devastating to my case 2. Jury may consider relevant evidence on issue B even when it is not logically relevant unless there is a limiting instruction a. Under 403, could still get the information excluded if there is a low probative value on relevant issue and high probability jury will consider it for the irrelevant purpose b. Otherwise, get a limiting instruction (FRE 105) 3. “Confusion of the issues”: evidence of other crimes (which robbery are we talking about) 4. Misleading the jury 5. Undue delay, waste of time, cumulative evidence iii. Narrative relevance under Old Chief: when the evidence is “part of the whole story” and jurors would be expecting this, then it can come in unless there are substantial offsets 1. If the jury doesn’t hear something that they expect to hear then they are going to wonder about it and be distracted</p><p>4 2. Under FRE 403, a court should give considerable and often dispositive weight to a party’s need to tell an effective, coherent story. a. Narrative relevance should be measured according to jurors’ expectations to hear a story. 3. Response – Potential response to this contention is to (1) make an FRE 403 argument and (2) stipulate to a location or an event. Opposing counsel argues that stipulation satisfies technical relevance, but counsel will invoke narrative relevance. a. Process – Defense stipulates to facts.  Prosecution claims Old Chief narrative relevance.  Defense argues, per FRE 403, that the possibility of unfair prejudice outweighs the probative value. 4. Makes it more difficult to exclude evidence under FRE 403. V. EXHIBITS a. Key Factors i. Exhibits v. testimony ii. Real v. Demonstrative Exhibits 1. Real evidence: objects that played a role in the events giving rise to the litigation or that were formed or altered by those events or by such objects 2. Demonstrative or illustrative evidence: other exhibits are prepared by a party in anticipation of trial for the purpose of explaining, demonstrating or clarifying testimony—probative value explained by one or witnesses iii. Real v. testimonial evidence 1. Personal experience is real evidence but it becomes testimonial because there is a need to assess credibility interposed between the occurrence and the jury’s assessment of its meaning iv. Special Rules for exhibits 1. Opinion and hearsay rules do not apply to exhibits 2. Exhibits are different than testimony because a judge or lawyer cannot question them—the foundation is vital; also they are sometimes dramatic and make their impact in an instant v. Civil v. Criminal Cases 1. Civil – Disputes are rare. Evidence and documents usually are authenticated prior to trial. If a party refuses to authenticate an exhibit and the opposing party does so at trial, the original party must pay the opposing party’s costs in authenticating. 2. Criminal – Disputes are more common. b. Authentication i. General Requirement 1. 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. a. A conditional relevance question. FRE 104(b). Judge must determine that party has presented sufficient evidence for fact finder to find that evidence is what party claims it to be. 2. FRE 901(b): Illustrations: By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. Most common authentication procedure. (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert 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 the alleged speaker. (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call </p><p>5 was made to a place of business and 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, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. a. List is NOT exclusive. ii. Authentication Procedure 1. For demonstrative exhibits, the requirement of authentication is met if it is an accurate and helpful summary or illustration or diagram of relevant testimony by a witness 2. Marking (as, e.g., Plaintiff Exhibit No. 1), showing (to opposing counsel and sometimes judge), authenticating (1: presenting evidence of what exhibit is generally; 2: sufficient evidence to support finding of authenticity), motion (to admit exhibit into evidence), opportunity to object and voir dire, ruling (by court), and publication to the jury (reading, showing, blown up on a large display, etc.) iii. Procedural Shortcuts 1. Can use the time at pretrial conference to stipulate to authentication, etc iv. Self-Authentication under FRE 902: Self-Authentication: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following (Only way to do this and you must give notice ahead that you are going to use one of these methods of self-authentication): 1. Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. 2. Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. 3. Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. 4. Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. 5. Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. 6 6. Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals. 7. Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. 8. Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. 9. Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. 10. Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. 11. Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record: a. was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; b. was kept in the course of the regularly conducted activity; and c. was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. 12. Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record: a. was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; b. was kept in the course of the regularly conducted activity; and c. was made by the regularly conducted activity as a regular practice. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. 13. List of self-authenticating documents is exclusive. v. Additional Requirements 1. Chain of Custody: big in police procedure. Showing that evidence in question is actual item at issue and ensuring no mix-ups. a. For a material that has no distinctive markings, a chain of custody requires some system of identification and control (e.g., cocaine) b. For unique objects, not necessarily used c. NOT a requirement of admissibility, but used in assigning probative weight to evidence. i. Open question whether it is a de factor admissibility requirement for some evidence. d. Need more than just a small break for violation to occur i. Reasonable care and a reasonable showing that there was no opportunity for tampering are what courts require. e. Some courts looks for positive evidence of tampering; if tampering and/or altercation seem fairly unlikely, chain of custody less important f. Policy reasons for chain of custody i. Criminal case determines whether defendant has life or liberty ii. No pretrial mechanisms in criminal cases iii. Litigation is clearly anticipated and sole possession of evidence is important iv. Police dept is in good place to put these rules together v. Encourages authorities to take care of important items of evidence. 2. Attesting Witnesses 7 a. FRE 903: Subscribing Witness’ Testimony Unnecessary: The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing. i. Arises in cases of wills. ii. Refers back to state law. c. 1000 series: “Best Evidence Rule”—inaccurate title b/c rule is in fact quite narrow; only applies when you’re trying TO PROVE THE CONTENTS OF A WRITING (remember example of confession tape—not trying to prove the contents of the audiotape, just trying to show that defendant confessed/difference between (a) trying to prove contents and (b) trying to prove what was said) i. Rule 1001: Definitions: For purposes of this article the following definitions are applicable: 1. Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. 2. Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures. 3. Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original". a. Whether or not something is an original is based on intent of creator. b. There can be millions of originals. There need not be only one. E.g., newspapers. i. Newspapers count as originals only of content of newspaper. E.g., if you wanted to introduce a libelous letter to the editor to prove its contents, you need the actual letter—not a copy of the newspaper that printed it. c. Computer printouts of photographs – Originals. 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. a. Concerned with eliminating forms of reproduction in which there is a high potential for human error. ii. Rule 1002. Requirement of Original: To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. iii. Rule 1003. Admissibility of Duplicates: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. 1. In other words, you can use duplications unless the 2 conditions apply. 2. In most situations, duplicates are admissible to the same extent as originals. iv. Rule 1004. Admissibility of Other Evidence of Contents: The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-- 1. Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or a. Bad faith is more than negligence. 2. Original not obtainable. No original can be obtained by any available judicial process or procedure; or 3. Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or a. Original must be in possession of opponent, not just any third party or witness. 4. Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. v. Rule 1005. Public Records: The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. 8 vi. Rule 1006. Summaries: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. 1. For voluminous originals that cannot be conveniently examined in court. 2. Summaries, etc. may be made, but originals also must be made available. vii. Rule 1007. Testimony or Written Admission of Party: Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original. viii. Rule 1008. Functions of Court and Jury: When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. 1. Reference to FRE 104(a) – Judge makes finding as to whether sufficient evidence exists for fact finder to make conditional finding. 2. If you are dealing with excuse for non-original, the court decides. VI. RELEVANT BUT INADMISSIBLE: CATEGORICAL BALANCING AND THE RELEVANCE RULES a. Overview i. Two Types of Evidence 1. Substantive 2. Credibility ii. Rationale for Rules: there are certain types of evidence that are deemed statutorily more prejudicial than probative; derived partly from an assumption regarding juries’ estimation errors, avoiding extensive litigation on collateral issues iii. Limited Scope – Evidence may be excluded for a particular purpose may be admitted for other, non- excluded purposes. 1. A limiting instruction often comes along. iv. FRE 403 – All of these rules are subject to FRE 403 balancing arguments. b. Rules i. FRE 407: Subsequent Remedial Measures: When, AFTER an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 1. Rationale a. Allowing such evidence would bring up FRE 403 unfair prejudice issues. b. In negligence cases i. Don’t punish people for taking steps they may feel are morally and legally required. ii. Probative value of evidence with respect to negligence or culpability is relatively low. 2. Negligence Actions – FRE 407 applies in FRE jurisdictions and all states. 3. Strict Liability Actions – FRE 407 applies in FRE jurisdictions and most states. 4. DEFENDANT must take subsequent remedial measures—not a third party. 5. Only Excluded Purposes – When offered to prove negligence, culpable conduct, defect in product or design, or inadequate warning or instructions. a. Permissible Purposes – Proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment; to prove destruction of evidence; etc. List is illustrative, not exhaustive. 6. Response – Make an FRE 403 argument when evidence is admitted for a permissible purpose. Argue that despite a limiting instruction, jury will consider the evidence for an impermissible purpose, and this indicates unfair prejudice. ii. FRE 408. Compromises and Offers to Compromise 1. Rule</p><p>9 a. FRE 408(a): Prohibited uses: Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: i. (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and ii. (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. 1. Admissions of fact made during compromise negotiations are inadmissible.  Promotes candor between parties. a. Admissible under the exception for criminal cases. 2. Avoid pointless formalism (everything that we’re saying is purely hypothetical, etc.). Under the old system, all statements in compromise negotiations were phrased hypothetically because they were possibly admissible. 3. Some states have not adopted FRE 408 – Attorneys should still phrase compromise negotiation statements as hypotheticals. b. FRE 408(b): Permitted uses: This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. i. List is illustrative, not exhaustive. ii. Settlements – Evidence is admissible if it is used simply to show the existence of a contractual undertaking (i.e., the settlement) that can be enforced without any attention to the original dispute that it was intended to resolve. 2. Does not cover threats. 3. Rationale – Want to promote settlement/avoid litigation as a judicial economy factor; also, plaintiffs are looking for psychological satisfaction—encourages statements of apology, even if insincere. 4. Offers, e.g., “Will you take $200 and call it even?” may or may not fall within FRE 408. Arguments are possible on both sides as to whether there is a dispute as to validity or amount. iii. Nolo Contendre Pleas, Withdrawn Guilty Pleas, and Statements During Plea Discussions 1. FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements: Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: a. (1) a plea of guilty which was later withdrawn; b. (2) a plea of nolo contendere; c. (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or d. (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. i. Often signing a 410 waiver is a condition of any plea bargain However, such a statement is admissible (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 (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. 2. Rationale – There are many strategic reasons as to why one might plead guilty or to a lesser offense, e.g., lesser sentence or diminished prison time. Jurors do not always understand this. 3. Excludes evidence AGAINST DEFENDANT. 4. Opening Door – Defendant can open the door for such evidence to come in, i.e. a prior inconsistent statement results in a waiver of 410 for these purposes or by offering evidence of plea negotiations. 10 5. Waiver of FRE 410 – Government prosecutors universally will not begin plea negotiations until defendants waive their FRE 410 rights. Defendants then will consent to waiver. a. Effect of Waiver – When statement is within scope of exclusion of FRE 410 but statement is offered for impeachment purposes only, then FRE 410 does not apply. Supreme Court enforced such “knowing and voluntary” advance waivers in Mezzanatto. b. Circuit split on whether waived statements may be used in prosecution’s case-in-chief and not just for impeachment. iv. Payment of Medical Expenses 1. FRE 409: Payment of Medical and Similar Expenses: Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. a. Excludes (1) actual payment or (2) offer to pay. i. Does not exclude statements made during any discussion wherein medical expenses are paid or offered to be paid. Admissions of fact accompanying offers to pay medical expenses are admissible. ii. Examples of Admissible Statements – “I feel so bad;” “Responsibility is all mine;” “I want you to get the best medical care.” b. Impermissible Purpose – To prove liability. i. Other purposes are permissible. c. Rationale – Think of the safe driver hitting a little kid—want to encourage humanitarian activity d. Only the actual offer to pay medical expenses is excluded if offered to prove liability. Still admissible to show damages or as part of a contract theory v. Liability Insurance 1. FRE 411: Liability Insurance: Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. a. Impermissible Purposes – To show negligence or other wrongful action. i. Permissible Purposes – To prove ownership or control; for impeachment purposes; as part of an admission; etc. List is illustrative. b. Insurance must be AGAINST LIABILITY. i. Other kinds of insurance are not within scope of FRE 411. c. Weak rule because there are many different ways that you can get that evidence in and it may prejudice uninsured defendants who may want to demonstrate to the jury that they do not have insurance d. Low probative value; high risk of prejudice  Can still have lively 403 argument vi. Similar Happenings 1. No rule against using it. Use usual balancing efforts under FRE 403 if evidence is relevant per FRE 402. a. Need to show substantial similarity between the two instances: probative value increases as similarity of circumstances of SH increase, number of instances increase, and closeness of time. b. Unless these elements are presents, courts are skeptical of admitting. c. Case-by-case analysis. 2. Used in situations of standardization – Basis for admitting SH evidence. 3. Responses a. May be 403 offsets as undue consumption of time or confusion of the issues (you have to prove the event happened) i. Important basis for objection (undue consumption of time or confusion of the issues). b. Absence of similar accidents shows a safe condition or that defendant was reasonable in not anticipating a dangerous condition. i. Absence of complaints is relevant to show lack of notice. 4. Contract contexts – See p. 311. 5. Evidence of Accident Proneness a. To show negligent causation – usually inadmissible. b. To show negligent hiring or employment – sometimes admissible.</p><p>11 6. “I know that there have been no similar accidents for the last 15 years.” – Declarant must have personal knowledge that this is so. Possible FRE 602 objection. VII. CHARACTER AND CREDIBILITY a. Propensity Rule i. FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes 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 [see three exceptions below]: 1. NOTE: admissible for all purposes except as a basis of inferences from propensity, i.e., that a person acted in the present situation as he or she acted in a previous instance. ii. FRE 405: Methods of Proving Character 1. FRE 405(a): Reputation or Opinion: In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. a. On cross, need a good-faith belief that the instance actually occurred b. Form of the question depends on whether witness testified as to reputation or opinion c. Cross-Examination – By putting character witness on the stand, defense opens the door to character attacks. Must be related to the same pertinent trait as the direct examination questions. Opinion testimony gets only opinion cross; reputation gets reputation. i. Opinion Witness – Prosecution asks, “Do you know about the time that Joe did X terrible act?” Permissible only if prosecution has a good-faith belief that party actually did it. 1. “Did you know…” is proper language. ii. Reputation Witness - Prosecution must have a good-faith belief only that there is a widespread rumor that party committed the terrible act. It need not have a good-faith belief that she actually committed the act. 1. “Have you heard…” is proper language. d. Reputation – Goes to individual’s standing in community. e. Opinion – Witness’ subjective beliefs about a party. f. Extrinsic evidence is not permitted. 2. FRE 405(b): Specific Instances of Conduct: In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. a. When character is a part of a claim or defense. b. Entrapment – Once the defendant has raised an entrapment defense, propensity evidence may be admitted the prosecution. Defendants are wary of pleading entrapment. i. Entrapment is a lack-of-propensity defense. c. Extrinsic evidence of specific instances may be used to prove character or trait of character. iii. Rationale 1. Desire to avoid evidence that invites sympathy or antipathy towards a party, irrespective of his behavior on the occasion in question 2. Overestimation of probative value, especially when identity is in question, character evidence will often be overestimated. 3. Preventing use of resemblance to stereotype 4. Character traits are dynamic rather than static aspects of personality a. When innocent defendants are prosecuted, they will be innocent defendants with prior similar records b. Especially true in plea bargaining situations: Guilty defendants who go to trial will be less likely than innocent defendants to have prior records—the other two options will tend to plead out 5. Encourages police to conduct more thorough investigations 6. Character evidence often deals with conduct that was never the subject of prior official proceedings 7. Individuals should not be defined by past acts or by immutable traits of character, judged by what they do, not who they are iv. Evidence that is not excluded by the propensity rule</p><p>12 1. 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, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. a. Other crimes, wrongs, or acts: 404(b) only serves to reemphasize that the rule only excludes for the basis of trying to prove current conduct—character evidence is admissible for a vast amount of other reasons. b. FRE 404(b) is subject to FRE 403 balancing. 2. Character in Issue: E.g., unfit parent, corrupt plaintiff, reckless driver, convicted felon in possession of firearms, defamation (character of defamed is in question), negligent entrustment, etc. Recklessness and negligence are character issues for the most part; entrapment depends on predisposition of defendant to engage in alleged conduct. a. FRE 405(b): In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. b. Less danger of prejudice—the LSF is the very fact that character evidence most directly proves c. But the danger is that the jury will extend the application of that evidence 3. Other crimes, wrongs, or acts (remember: 404(b) is only illustrative—if you’re arguing against the introduction of the evidence, refer to 403) a. Res Gestae: wrongs committed or detected simultaneously with the conduct at issue are admissible to give a fuller understanding of what happened i. Two Kinds 1. Alleged crime or tort occurred contemporaneously with a separate one, and both must be described to give jury a convincing account of what happened. 2. Alleged crime or tort is an aggregate of multiple offenses or wrongs over a period of time, only some of which are charged in the case. ii. Old Chief narrative relevance – Make argument along with res gestae. b. Identity: no strict definition and, accordingly, has the potential to swallow up the purpose of the Propensity Rule (don’t forget 403 offsets) i. Specific skills ii. Specific opportunities iii. Knowledge iv. Opportunity, ability, and skill are bases for inferring identity. c. Motive i. Other crimes evidence particularly important here b/c jury might regard the absence of evidence of a motive as evidence of innocence ii. Often difficult to distinguish from the forbidden inference that defendant had a propensity 1. I.e., d was poor and addicted to drugs (but everyone wants $) 2. Motive issues often come down to discretion of judge. iii. All motive evidence is relevant only via propensity. What really matters is whether the propensity at issue is general or specific. 1. General – All homeless people have a propensity to rob. 2. Specific – Jerry has a propensity to kill people that have seen him commit robberies. iv. Response – Propensity exclusion  FRE 403 exclusion. d. Common Plan or scheme/Distinctive MO i. One crime is predicated on the commission of another (arson to cover up a theft) ii. Also used when defendant is charged with an offense based on his connection to an event with innocent as well as criminal explanations (evidence of absence of mistake or accident) iii. Most often used when 2 or more crimes appear to have been plotted by the same individual because they exhibit a similar unusual pattern 1. “novel means” or “modus operandi” 13 2. Depends on the strength of the link between d and the other crimes (just a gun that may have been purchased, or multiple eyewitnesses, bizarre murders, etc.) a. Even so far as other crime was committed by a female b. As the distinctiveness of the M.O. increases, the chances of getting it in increase 3. Really quite similar to the idea for propensity 4. Another balancing test—propensity may be more probative in these instances iv. Room for FRE 403 argument because you would have to show how all of the crimes are related/describe small details. e. Knowledge i. When D has to have knowledge of certain facts, evidence of other crimes tends to demonstrate that knowledge, i.e., had to know that it was counterfeit or that it was cocaine or how to roll a joint f. Intent i. When commission of the act is not in question, courts will admit other-acts evidence to prove that the act was done with the requisite intent to establish liability 1. Past payment of bribes—acting now with the hope and knowledge, based on past experience, that the recipients would alter their actions 2. Or civil discrimination suits ii. Still a thin line between intent and propensity to commit those acts iii. When commission of the prior act is in question, prior-acts evidence offered to prove intent is problematic b/c it gets really easy for the jury to blend the application of the prior acts g. Notice; proof of involvement in other crimes i. Prosecutor must have a good-faith belief that defendant committed the crime to delve into other-crimes evidence. ii. FRE 404(b) requires notice before trial of the general nature of other-crimes evidence the state intends to introduce at trial iii. Bad acts evidence is admissible under FRE 404(b) w/o proof of criminal conviction 1. Few jurisdictions regard acquittals as conclusive proof of noninvolvement in prior bad acts a. No double jeopardy or collateral estoppels bar to the admission of evidence following acquittals 2. Prosecutor must have good-faith belief that d committed the act a. Many different tests for resolving disputes regarding the act i. Beyond reasonable doubt ii. Clear and convincing (authors like this strict test) iii. Preponderance of evidence iv. Proof sufficient to support a reasonable juror’s finding by a preponderance of the evidence b. Lower standards really run the propensity risk, confusion of the issues risk c. But SCt adopted broad rule of admissibility in FRE 104(b), conditional relevance rule—as long as a reasonable juror could find by a preponderance of evidence that defendant committed the other crime, it may be admitted. iv. Response – Still need to do 403 weighing (jury confusion, taking up time), which may keep evidence with a weak connection to the defendant out v. Consider Black Widow Case – At a certain point, jury has a right to know about all of the dead husbands. h. Protocol for when the admissibility of other-crimes evidence is at issue i. Identify all the ways in which the other-crimes evidence tends to establish a material and contested fact ii. Whether any of those uses relies on an inference other than the propensity inference (e.g., habit). 14 iii. If inference other than propensity, is it more prejudicial than probative? 1. Doubts about d’s connection to the other crimes 2. Don’t weigh too heavy the limiting instruction 3. How else can the proffering party prove what they are trying to show 4. Habit and Routine practice a. FRE 406: Habit; Routine Practice: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. i. PAY ATTENTION TO CIRCUMSTANCES. ARE THEY THE SAME OR DIFFERENT IN ANY SIGNIFICANT RESPECT? ii. Essentially, habit evidence is admissible for propensity purposes. iii. No eyewitnesses to what occurred/events in question are necessary. iv. A witness need not have observed a habit on every occasion for 50 years, but he or she must have observed it more than a handful of times. 1. A few exceptions to the habit are not fatal. v. Judge must determine that habit exists before admitting evidence of habit. Implicates questions of how broadly or narrowly to define habit. vi. No exclusion rule. vii. May need more evidence if the practice is one about which there is a lot of prejudice (e.g., texting while driving). b. Differs from character because it deals with one’s regular responses to a repeated specific situation and not a general description of a person’s disposition—semi-autonomous response to specific stimuli/habitual response i. More probative of behavior ii. Less likely to lead to prejudice iii. Jurors can determine probative value of habit more than with character iv. Even less troublesome in business practices where there are pecuniary reasons for following standard practice and procedure v. Habit evidence does not usually stoke jurors’ ire, so FRE 403 danger of unfair prejudice is lower. c. Forbidden and permitted inferences i. Permitted inferences occur when the stimulus and response associated with the evidence is specific and very similar to the stimulus and response alleged here ii. Propensity Rule does not bar evidence where 1. Evidence reveals a behavioral trait that is specific in time and space (or a habit that is consistent across time and space) and manifests itself in only a limited range of actions 2. The action alleged in the lawsuit occurred at or in the specified time, place and manner iii. Align over a strength-of-inference continuum 1. Habit: specific and reflexively repeated response to a particular stimulus d. Common Law – Habit evidence is not admissible if eyewitness testimony is available. v. Exceptions to the Propensity Rule: Substantive evidence 1. FRE 404(a)(1): Character of Accused: In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; a. Requirements i. Only in criminal case. ii. Trait must be pertinent. iii. Contexts 1. Offered by accused. 2. If accused offers evidence, this opens the door to the prosecution. 3. Accused offers evidence of X trait of victim under FRE 404(a)(2), prosecution may offer evidence of X trait in accused.</p><p>15 b. D is trying to prove that she has character traits that would make it unlikely she committed the crime. Also, if case is publicized, then D has a chance to maintain her good reputation. c. FRE 405(a) governs—Only reputation and opinion evidence are admissible. Specific instances evidence is NOT admissible. i. FRE 405(b) applies only on cross and when character is at issue, e.g., libel, negligent hiring of a negligent person. ii. Specific instances testimony is admissible for non-propensity purposes. d. Some of the misleading effects are offset by the ability of the prosecutor to inquire into the relevant bad acts using specific instances (see FRE 405 above) i. Thus the only times it will be used is when the defendant really does have an impeccable character. ii. The inquiry into the prior bad acts ends with the prosecutor’s question—no extrinsic evidence on whether the event did or did not take place 1. May attack good-faith basis for prosecutor 2. FRE 405 allows D to respond to cross about specific instances of bad behavior with redirect on specific instances of good behavior e. Good character harder to show than bad character—often cannot be observed directly (vis-à-vis a murder). Use FRE 405 reputation and opinion testimony i. Reputation witness: if they have heard of the defendant’s bad acts ii. Opinion: do they know of D’s bad acts iii. Reputation evidence is also much less time-consuming iv. Reduces emotional appeal and makes the evidence less likely to draw the jury’s attention away from the core facts v. Courts make sure that a proper foundation is laid for the offering of an opinion vi. On cross, P can ask D’s witnesses (FRE 405(a)) about specific instances if he has good faith that D committed those acts f. May be a limit as to how far back in time the prosecutor can reach i. Michelson: judge has discretion, connect it to the amount of time that the witnesses knew the defendant in the light of the other evidence offered ii. Interpreted to apply no limits to the acts on which D’s character may witnesses may be crossed 2. FRE 404(a)(2): Character of Alleged Victim: In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; a. Some courts interpret FRE 404(a)(2) to require defendant to introduce other evidence of self-defense before attacking the victim’s character i. FRE 405(a) governs—Only reputation and opinion evidence are admissible. Specific instances evidence is NOT admissible. b. If self-defense is claimed, FRE 404(a)(2) permits the accused to present evidence relating to the victim’s propensity to be the aggressor i. (1) D alleges self-defense and claims that victim was first aggressor. D need only allege this defense—need not present evidence that victim was first aggressor. (2) Prosecution introduces evidence of victim’s peaceful character. ii. If D knows (need to show knowledge) the victim was a violent person, then that goes to support the reasonableness of her response and is a nonpropensity use of evidence, outside the scope of FRE 405(a); thus D can use specific instances iii. Sometimes the “reasonableness” route is better (in a homicide case), b/c you don’t open the 404(a)(2) door c. Defendant gets to decide whose propensities will get to be discussed 3. Door opening takes places if and only if character evidence is offered for propensity purposes under either of the exceptions to FRE 404(a). vi. Exceptions to the Propensity Rule: Impeachment Evidence: FRE 404(a)(3): Character of Witness: Evidence of the character of a witness, as provided in rules 607, 608, and 609. 1. FRE 607: Who May Impeach: The credibility of a witness may be attacked by any party, including the party calling the witness. a. Party may impeach even its own witnesses. 16 2. Impeachment by evidence of bad character a. Impeachment by reputation and opinion evidence i. FRE 608: Evidence of Character and Conduct of Witness: a. FRE 608(a): Opinion and Reputation Evidence of Character: The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. i. Character evidence must relate to a pertinent trait, viz. truthfulness. ii. Rationale – Once someone offers a witness at trial, then the probative value of that witness’ character for truthfulness becomes an important issue. iii. Door Opener – Once you offer a character witness, you open the door to attacks on his or her character for truthfulness. This then opens the door to rebuttal evidence. iv. Contradictory Evidence – For contradictory evidence to be an attack on a witness’ character for truthfulness, it must be so contradictory on such an important matter. b. FRE 608(b): Specific Instances of Conduct: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. c. NO extrinsic evidence. d. Rationale – Concerned with time and efficiency. e. Court must exercise discretion to allow inquiry on cross- examination. f. Prosecutor must have good faith belief that instances occurred. g. Last sentence of FRE 608(b) – Preservation of 5th Amendment right against self-incrimination. 2. Applies in all civil and criminal cases a. Danger for misuse is collateral because it is not directly related to the merits, though there still possibility exists for distortions and misdirection on the part of the jury ii. Impeachment by bad acts 1. If dishonest behavior has not resulted in a conviction, FRE 608(b) allows inquiry into the matter at the discretion of the court, but does not allow extrinsic evidence that the bad act occurred 2. Acts must be probative of truthfulness 3. Cross-examiner must take the witness’s answer as given iii. Impeachment by prior convictions 1. FRE 609: Impeachment by Evidence of Conviction of Crime: a. (a) General Rule: For the purpose of attacking the character for truthfulness of a witness, 17 (1) [1] evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable [read to include MAX punishment, not the actual punishment on d] by death or imprisonment in excess of one year under the law under which the witness was convicted, [2] and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused [non-titled balancing test]; and i. Requires conviction. Arrests, indictments, etc. are not convictions. ii. Witness is not accused.  Subject to FRE 403 balancing weighted in favor of admission. iii. Witness is the accused.  Subject to even FRE 403 balancing—not weighted in favor of admission. Will probative value (below) outweigh 403 offsets? COMMON 403 OFFSETS: unfair prejudice (change in regret matrix; impermissible propensity purpose). iv. Probative value on truthfulness = seriousness of the offense. Used as a proxy. v. Extrinsic evidence is allowed.  See FRE 608(b). (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. vi. Refers to crimes requiring dishonesty as an element, e.g., perjury, fraud, bribes, understating income, etc. Not any crime and not necessarily breaching a contract. vii. Conviction is required. viii. No requirement that crime be punishable to any degree. ix. Most courts treat this as covering crimes committed through dishonesty, even if dishonesty is not an element of the crime. x. No FRE 403 (or other probative value/unfair prejudice) balancing test. These convictions are always admissible. xi. FRE 609(b) still applies. If conviction is stale, you would need to overcome reverse FRE 403 balancing test tilting against admission. b. (b) Time Limit: Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. i. 10-year time limit.</p><p>18 ii. FRE 403 balancing test tilts against admission, again, because evidence of old convictions is not as probative as evidence of recent convictions. iii. Notice Requirement – Evidence of a conviction older than 10 years may be admitted if fair notice is given to the opposing party. c. (c) Effect of Pardon, Annulment, or Certificate of Rehabilitation: Evidence of a conviction is not admissible under this rule if i. (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. d. (d) Juvenile Adjudications: Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. e. (e) Pendency of Appeal: The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. 2. Remember, FRE 608(b) permits the use of specific instance testimony with crimes (otherwise, you would have to have a witness who was in the courtroom and heard the verdict to satisfy the personal knowledge requirement). 3. Extrinsic evidence is permissible to admit evidence of prior convictions under FRE 609. b. Impeachment for bias, interest, or motive i. Suggest that witness is likely to shade her story to support the side she favors (no FRE, but SCt says that bias is an important factor and that jury has a right to be aware of any sources of bias). 1. The weaker the motive, the less likely it gets in under judge’s discretion 2. With arrests, they usually come in as bias against police officers ii. 3 specific manifestations of the favored status of bias impeachment 1. Impeachment is constitutionally protected when a criminal defendant is doing the impeaching a. Protected by 6th amendment right to confront witnesses b. No protection for cross that is addressed to general attacks on the credibility of the witness 2. Bias is not collateral and can be proved with extrinsic evidence a. Even though trying to show bias will often implicate situations that reflect poorly on the truthfulness of the witness, bias is preferred and will often be sufficient to get a lot in 3. FRE 403 objections fail in many such cases because “bias” is such a broad, open-ended concept, and because it is “favored” as a mode of impeachment. iii. Subject to FRE 403 balancing. c. Impeach by Contradiction—Collateral Matter Rule i. Collateral Matter Rule: extrinsic evidence offered for the sole purpose of contradicting a prior witness is inadmissible if it is not relevant independently of the contradiction, and so would tell the jury nothing if the evidence did not differ from an adverse witness’s testimony. 1. Only if the SOLE purpose 19 2. If extrinsic evidence goes to an element of the offense, Collateral Matter Rule does not apply. If it doesn’t go to an element of the offense, Collateral Matter Rule applies. 3. Not adopted by FRE, doesn’t apply, and it’s stupid 4. This is the common law rule. a. Contradictory evidence is not admissible if it goes only to a collateral issue (i.e., not an element of the crime/claim). A lot of evidence is inadmissible for this reason. b. Rejected by the FRE. Fact that evidence goes to a collateral issue suggests possible exclusion under FRE 403. This is the only basis for exclusion. ii. There still are instances where a collateral contradiction would seem to have overwhelming probative value regarding the credibility of another witness’s testimony, e.g. lying or inaccurate 1. There is no RIGHT to impeach an opposing witness with extrinsic evidence of collateral contradictions 2. Use FRE 403 balancing test. Courts apply the balance of probative weight against prejudice, distraction, and waste of time d. Impeachment by Prior Inconsistent Statements i. FRE 613: Prior Statements of Witnesses: 1. (a) Examining Witness Concerning Prior Statement: In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. 2. (b) Extrinsic Evidence of Prior Inconsistent Statement of Witness: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require [witness disappears or can no longer testify for other reasons]. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). ii. CL Approach – Must confront witness with prior inconsistent statement and ask whether he or she made it. Only if witness answered negatively could one introduce extrinsic evidence supporting the fact that witness made statement. 1. This sequence must be followed at CL. iii. Two Ways to Show (Under FRE) 1. Cross-Examination 2. Extrinsic Evidence a. Proper foundation must be laid. b. Must be relevant to some issue in case (i.e., not collateral). iv. FRE: Laying Proper Foundation – Witness must have opportunity to admit, deny or explain allegation. Statement may be introduced before opportunity is given. 1. Sequence at CL need not be followed. 2. When Not Required a. When “the interests of justice otherwise require,” e.g., witness has left stand and is not available when P.I.S. is discovered. b. Impeaching hearsay declarant. FRE 806. v. Evidentiary Import of Prior Inconsistent Statements 1. Usually, they are hearsay, admissible only for impeachment. 2. FRE 801(d)(1)(A) – Admissible for (1) impeachment and (2) truth of matter asserted. vi. Another door-opening gambit vii. Typical problem: Jury will believe the witness’s prior statement is more true and rely on it for impeachment AND the truth of the matter asserted (usually hearsay) viii. No collateral matter rule, but if the portion of the testimony being contradicted is collateral, there are 403 grounds for exclusion</p><p>20 ix. Courts must decide whether a statement is “materially” inconsistent with the other description – FRE 104(a). 1. Does the testimony and the statement appear to be based on different beliefs of the truth x. Probative v. prejudice test still applies if material inconsistency is found 1. Probative factors: extent of inconsistency, centrality of issue on which statements differ, importance of witness being impeached 2. Prejudice factors: danger that the jury will rely on the prior statement for its truth xi. Cannot call a witness just so you can impeach them with evidence that is inadmissible on substantive issues 1. Permit impeachment if the government’s primary purpose in calling witness was not to impeach her e. Impeachment by Defects in Perception, Memory, and Description i. All three bases for impeachment (reputation, expert or lay opinion, and examples) can be developed on cross-examination and through extrinsic evidence ii. Disfavor inferences based on general psychological traits iii. Generally, evidence that the witness lacks the ability to perceive, remember or describe the particular event in question is admissible on cross and through extrinsic evidence iv. Only if condition invariably manifests itself in predictable ways v. Prefer lay opinion, sometimes expert testimony is required; depends on 1. Importance of the testimony being impeached 2. The jury’s ability to gauge the issue w/o expert 3. Expert’s knowledge of the witness 4. Quality of scientific evidence in field vi. Evidence of alcoholism or drug addiction is not permitted as a basis for inferring a general defect, but can be if it is at the time of the event or during testimony 1. Generally, drug addiction has nothing to do with perception or memory. 2. Judge may call expert to discuss effects of drugs if in doubt. vii. Evidence of an identifiable mental abnormality (retardation, psychosis) may be admissible impeachment if it manifests itself predictably in ways that affect perception, memory or clarity viii. Extrinsic evidence may be admitted. f. Impeachment by Religious Beliefs i. FRE 610: Religious Beliefs or Opinions: Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. ii. Inferences based on propensities ground in religion have limited probative value 1. High probability of prejudice iii. Only forbids evidence of religious belief to attack or support a witness’s credibility iv. If witness answers any nonreligious question with reference to his religion, counsel may move to strike on the basis of FRE 610. v. To avoid falling under FRE 610 trap, attorney could ask witness about his personal beliefs concerning X subject, and witness could answer without mentioning religion. 1. E.g., Are you two members of the same organization [not church]? vi. Maybe use habit to get some potentially excluded evidence in. vii. Rehabilitation 1. PREREQUISITE – Evidence to support credibility admissible only if it has first been attacked for truthfulness per FRE 608(a)(2). a. May not call vouching witness outright. 2. FRE 801(d)(1)(B) authorizes courts to admit statements (which are not hearsay because excluded by definition) “consistent with the declarant's testimony and … offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive” a. Need not have been made under oath. b. Pay close attention to timing.  recent fabrication or improper influence or motive. 3. Must respond directly to a form of impeachment that has taken place.</p><p>21 a. With bad character, rehabilitation takes place through examples of good character—even when the witness on cross denied the prior bad acts. i. Rehabilitating Prior Witness: Can only use specific instances with a witness who has provided unfavorable reputation or opinion testimony about a prior witness OR ii. Rehabilitating Current Witness: When cross was on specific instances of dishonesty b. With prior inconsistent statements i. CL: evidence that witness made statements consistent with her testimony before motive to lie arose was admissible to show she had told the same story that she testified to at trial 1. SCt approved this approach ii. FRE 801(d)(1)(B): admissible for rehabilitation AND for the truth of the matter asserted 1. Need not have been made under oath. 2. What about FRE 801(d)(1)(A)? – Statements were made under oath. iii. Permit prior consistent statement whenever it tends to rebut a specific attack on the witness’s credibility. viii. Ethical Notes on impeachment 1. Criminal: paramount objective is to avoid false positives, so the crim defense lawyer must be aggressive and seek to impeach the prosecution witnesses, even if the lawyer believes she is telling the truth. a. Must attempt to persuade jury to disbelieve witness. 2. Lawyer cannot have purpose to embarrass, delay, or burden a third person 3. In civil cases, less of an imperative to be as aggressive a. Still have duty… (to defend client zealously). 4. If witness has moved to a new community where his prior convictions/bad acts are unknown, lawyer should at least consider this when impeaching witness. 5. Cannot ethically call a party to the stand if you know (1) that she committed the crime and (2) that she will testify otherwise. 6. No ethical problem if lawyer is too lazy to rehabilitate a witness. 7. Prosecutor must have a good-faith belief… 8. Ethical lawyering ≠ moral humanism. ix. Character and Credibility in Sexual Assault and Child Molestation Cases 1. Rape Shield Rules a. FRE 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition i. (a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): 1. (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. a. Can’t say victim had sex with 29 other guys b. Protects ordinary as well as complaining witnesses c. Can’t say the children all had a different father 2. (2) Evidence offered to prove any alleged victim's sexual predisposition. a. No dress issues, no “flirty” accusations—all of that is sexual predisposition b. Also covers sexual orientation. c. [Wouldn’t need this rule if judges actually exercised their discretion under 403—high level of prejudice: jurors’ sexism, they would overestimate the probative value of (a)(1) and (2). Also want to overcome the massive underreporting problem and the deterrence revelations about their past sexual history] i. Danger of Unfair Prejudice ii. Many jurors are stupid. They think that evidence of prior consensual sex indicates willingness to have consented on the occasion in question. 22 iii. A victim will be grossly embarrassed if her sexual history is revealed in open court. iv. If evidence of prior consensual sex is freely admissible, this will discourage victims from bringing rape allegations. d. 412(b)(1)(C): maybe introduce to show consent e. Evidence excluded by FRE 412(a)(1)–(2) makes it very difficult to achieve rape convictions/contributes to rape underreporting  exclusion. 3. Does not exclude sexual evidence offered for other purposes, e.g., character for truthfulness. ii. (b) Exceptions. 1. (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: a. (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence. i. the issue is whether the rape occurred at all ii. e.g., whether the victim had sex in between the time of the alleged rape and when it was reported. This would contaminate any evidence. iii. Subject to FRE 403. b. (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and i. Reflects low threshold for relevance. ii. Existence of preexisting consensual sexual relationship is highly probative. E.g., flirting may be part of an ongoing relationship. iii. May also be relevant to question of whether it was reasonable to believe that accuser gave consent.  there are always powerful FRE 403 arguments. iv. does not apply to sexual predisposition evidence v. Reputation or opinion evidence may be constitutionally required (see (C) below) if the evidence is offered to show what d knew of the woman’s reputation (Nonpropensity purpose) vi. Look at date of instances—can only be pre-crime and d must have known about it vii. Look at number of instances and length of time since those instances viii. Subject to FRE 403. c. (C) evidence the exclusion of which would violate the constitutional rights of the defendant. i. Is the evidence relevant to an issue that is plausibly in dispute? ii. Is it offered for some purpose other than a propensity inference? iii. Does its probative value outweigh its prejudicial impact, including prejudice to the complainant? iv. All 3 must be yes for the Constitution to likely require admission of the evidence v. Argue that evidence should be admitted to achieve 5th Amendment due process. vi. POWERFULLY EXCULPATORY evidence may be admitted under this theory. vii. Rationale – want to avoid wrongful convictions. 23 viii. Subject to FRE 403. d. Only SPECIFIC INSTANCES testimony is admissible; reputation or opinion testimony is not. 2. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. a. Applies in civil cases. b. Reversed 403 balancing test (tilts against admission); catchall that is more narrow b/c of less constitutional issues iii. (c) Procedure to determine admissibility. 1. (1) A party intending to offer evidence under subdivision (b) must -- a. (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and b. (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. 2. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. 2. Prior Offenses by the Defendant a. Rule 413 [and 414]. Evidence of Similar Crimes in Sexual Assault [Child Molestation] Cases i. (a) In a criminal case in which the defendant is accused of an offense of sexual assault [child molestation], evidence of the defendant's commission of another offense or offenses of sexual assault [child molestation] is admissible, and may be considered for its bearing on any matter to which it is relevant. 1. Not an automatic admission, can still raise objections on other grounds (hearsay, lack of PK, etc.) 2. ONLY for sexual assault/child molestation 3. Reverse of FRE 404 in context of sexual assault  evidence of prior bad acts is admissible and may be considered for its bearing on any matter to which it is relevant. 4. No time limit on how long ago the offense occurred 5. Often, government will charge rape/sexual assault to get in this evidence to show that d is a bad person a. Bootstrapping otherwise impermissible character evidence (barred by FRE 404) under FRE 413/414 rationales. 6. Courts have not read FRE 413-14 literally because they recognize their deficiencies. 7. Child Molestation – If it is not clear that child molestation occurred (e.g., “The man did dirty things to me.”), evidence may be admitted under FRE 413 because “doing dirty things” would be an “offense of sexual assault.” a. Child Molestation  FRE 413 and 414 are available. 8. Every Circuit Court has said that FRE 403 applies (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.</p><p>24 (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, "offense of sexual assault" ["child" means a person below the age of fourteen, and "offense of child molestation"] means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved -- 1. any conduct proscribed by chapter 109A of title 18, United States Code [that was committed in relation to a child]; 2. contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person; [any conduct prescribed by chapter 110 of title 18, United States Code] 3. contact, without consent, between the genitals or anus of the defendant and any part of another person's body; [contact between any part of the defendant’s body or an object and the genitals or anus of a child] 4. deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or [contact between the genitals or anus of the defendant and any part of the body of a child;] 5. an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4). [deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or] 6. [an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).] b. FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation i. (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. ii. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. 1. Procedural matters. iii. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. 1. Admission of evidence. iv. Applies only in civil cases. v. Reversal of FRE 404 with respect to crimes of sexual assault. c. Main purpose is to permit evidence of prior rapes and child molestations in support of a propensity inference VIII. CONSTIUTIONAL PROVISIONS a. Compulsory Process Clause i. 6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.” ii. Rationale – Relates to our desire not to wrongfully convict people. If someone has exculpatory evidence about a defendant’s case, defendant can demand that the government compel the individual to appear in court and testify. iii. Functions well when government is able to reach the individual, i.e., has jurisdiction over individual. iv. If the witness is outside the jurisdiction of the court, it depends on the importance of the testimony that would be offered. 1. How powerful is the exculpatory testimony? 2. Is there access by any other means? 3. was there prior opportunity to examine or cross the witness in another case or through pretrial deposition? 4. messy jurisdictional stuff v. May be used to trump a hearsay exception. 25 b. Due Process Clause: i. 5th/14th Amendments ii. Civil Cases – Often applies to property; criminal cases – much more often invoked. iii. Can trump any FRE in criminal cases where importance of evidence is high (exculpatory for def.) iv. Can also arise in civil cases where a high property interest is as stake v. Social Cost-Benefit Balancing Test – Interest at issue versus risk of error versus likelihood that safeguard will reduce risk of error versus cost to government. c. Confrontation Clause i. 6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” ii. The right to confront one's accusers could not be taken away in cases where judges believe that testimonial hearsay evidence is reliable, because such hearsay evidence had not had its reliability tested through the procedural crucible of cross-examination. 1. The Framers saw cross-examination as the only filter for evidence that would be hearsay 2. Crawford: OVERRULED Roberts, which stated that an item of hearsay can be admitted over a Confrontation Clause objection if one of two conditions is satisfied: (1) firmly rooted hearsay exception or (2) particularized guarantees of trustworthiness. a. Roberts – Made Confrontation Clause a dead letter; eliminated CC as an objection against hearsay for criminal defendants. 3. Crawford Test – In a criminal case (because Confrontation Clause only applies in criminal prosecutions), testimonial hearsay statements must be excluded unless: a. (1) The declarant is available at trial for cross-examination; or b. (2) The declarant is unavailable and the defendant against whom the statement is sought to be introduced had an earlier opportunity to cross-examine the defendant. c. If either condition is met, testimonial hearsay statements may be introduced. 4. Covers only testimonial evidence a. Testimonial – E.g., at least prior testimony at a preliminary hearing, grand jury testimony, testimony at a former trial, and statements made during police interrogations. b. Ongoing Emergencies – E.g., 911 call. Not testimonial when objective circumstances indicate that primary purpose of questioning was to enable police to respond to an ongoing emergency. Davis v. Washington. i. E.g., in domestic-abuse situation, if abuser is present during call  ongoing emergency; if abuser is absent  no ongoing emergency. ii. Certain questions can be intended to elicit testimony and those would be out iii. Testimonial – Primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution. Statements made during ongoing emergencies may be non-testimonial if they do not satisfy the Michigan v. Bryant test for testimonial evidence below. c. Testimonial – A statement is testimonial, if upon objective evaluation of the statement and action of the parties involved in the interrogation, along with the formality or informality of the interrogation, considered in light of the circumstances in which the interrogation occurred, the court concludes that the primary purpose of the interrogation was to establish or prove past events relevant to a later criminal prosecution. Michigan v. Bryant. i. Purpose of testimony must be interrogation/producing testimony for trial. ii. Testimony must have been elicited by a government official, not, e.g., mother or sister. 1. Suggests that statements elicited by relatives, friends, etc. are non- testimonial and therefore admissible over CC objection (if they fit within a hearsay exception). d. Drug Labs – Signed lab reports/affidavits offered as evidence are testimonial and may be introduced only if they satisfy the Crawford test. i. Melendez-Diaz 1. Affidavits that summarize the findings of forensic analysis (e.g., fingerprints, ballistics, etc.) are testimonial and thus may not be admitted into evidence unless (1) the technician is available for cross- examination or (2) the technician is unavailable and the defendant had an opportunity to cross examine.</p><p>26 2. Actual Lab Tech – The lab tech that actually conducted the analysis and prepared report must be available for cross-examination. A substitute lab tech that is familiar with the procedure is not acceptable. 3. Held: Functionally identical to live, in-court testimony 4. Dicta – In its simplest form, a notice-and-demand statute requiring the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence, absent the analyst's appearance time at trial is in accord with the CC. e. Dying declarations may also be exception (Scalia’s footnote in Crawford). iii. The government in a criminal case cannot offer any evidence against criminal defendant unless def. has had opportunity to confront and cross iv. Forfeiture by Wrongdoing – Withdraws Confrontation Clause protections if a person caused a declarant’s unavailability at trial by acting in a way that was intended to accomplish that result. Giles v. California. 1. See FRE 804(b)(6) (“The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.”) 2. Giles – Takes away Confrontation Clause objection to admission of statements. 3. FRE 804(b)(6) – Takes away hearsay objection to same statements. IX. HEARSAY a. Testimonial Triangle i. The trier of fact may be asked to believe only those statements made by witnesses testifying at the trial. May not be presented with the statements of non-witnesses and asked to believe they are true. ii. Use of the testimonial triangle 1. First, must infer that W really believes what she has said: does the actor really have the belief? a. Ambiguity and insincerity problems 2. Does the belief really reflect reality? We generally harbor more concerns about this leg. a. False memory b. Inaccurate perception 3. Tests (not available for hearsay) – Having a witness in court helps overcome these problems a. Oath – More effective when people were afraid of being damned to Hell for lying under oath. Effective nowadays to the extent that it compels people to tell the truth under conviction of perjury. b. Solemnity – People are more likely to tell the truth in the solemn environment of the courtroom. They recognize the importance of the occasion and avoid exaggeration. c. Context – Other facts often shed light on the facts that are being attested. What does it matter if the witness claims that she saw a red car if she is red-green color blind? Knowledge of this fact would put her attestation in a different light and affect its probative value. d. Cross-Examination – Contextual facts are brought out on cross-examination. e. Demeanor – Pierce does not think that this is a very effective test. i. Many legal rules are based on the premise that demeanor is important, but this is premise is unsupported by evidence. b. Defining Hearsay i. FRE 802. Hearsay Rule: Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. ii. FRE 801. Definitions: The following definitions apply under this article: (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A "declarant" is a person who makes a statement. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. a. Hearsay is an out-of-court statement offered for the truth of the matter asserted. iii. “Out of court” 1. Any statements other than those made by witnesses during the current trial. 2. Statement may have been made in another courtroom or during another judicial proceeding in the same courtroom.</p><p>27 iv. “The truth of the matter asserted”: Not that statement was made, but that the conclusion is justified only if the statement is true 1. Verbal Acts: out-of-court statements that are not hearsay because the very fact that they were spoken or written carries legal consequences; not whether the words spoken were true (we have a contract), but whether they were made. a. Does not depend on truth of matter asserted. b. The utterance is an operative legal fact. c. Independent Legal Significance – Words are introduced to prove that they were said, not to prove truth of matter asserted. d. Examples i. Swearing allegiance to a country. ii. Shaking hands and saying “It’s a bet.” iii. Showing that defendant uttered defamatory statement in a defamation suit. iv. Showing that defendant gave a warning in a warning defect suit. v. On the issue of whether doctor was negligent in hiring a nurse, the words “does excellent work” in a reference are not hearsay on question of whether doctor acted reasonably in hiring nurse. vi. As a defense to a trespass claim, defendant wants to introduce plaintiff’s statement that “you’re never a trespasser on my land.” vii. Language showing that a contract was made. 2. Verbal Parts of Acts: when conduct is ambiguous, but accompanying words clarify the conduct, indicating its proper legal significance—not hearsay a. E.g., A repays a loan to B, saying, “Here is repayment for the loan that you made me.” A’s statement is a verbal part of an act, (1) making it clear that A was repaying B and not simply making a gift of money and (2) clearing up any ambiguity. Not hearsay and may be admitted. b. See also FRE 803(3) for statements manifesting present intent. 3. Statements Manifesting Awareness: often claims or defenses rest upon the allegation that an individual was or should have been aware of a particular fact. (self defense, negligence claims) a. E.g., passenger yells to driver, “Hey, watch out, that road turns sharply.” Statement is not being offered for truth of the matter asserted, but rather to show that the driver should have been aware of the fact that the road was turning sharply. 4. States of Mind: statements made by person whose mental outlook is in question are admissible b/c it is not their truth that is at issue, but the speaker’s beliefs. E.g., on question of establishing residency, “Because I love Hawaii so much, I intend to live here forever.” a. Where the acts or utterances of one person are claimed to create or affect the state of mind of another, who hears the utterance or observes the conduct. i. E.g., in a design defect suit, reports of earlier injuries that manufacturer had received are not hearsay to show that manufacturer had received information that a reasonable manufacturer would investigate. (Relevance does not depend on reports being true.) b. Circumstantial Evidence of a State of Mind – If a woman were to tell her husband that she has been having an affair with another man, the utterance, by the mere fact that it was made, shows that the woman has lost affection for her husband. 5. Impeachment: if used for impeachment, not hearsay 6. Opinion Surveys: used to show a belief or state of mind and not the truth of the respondent’s answers 7. Permissible Uses (not for truth of matter asserted) – To show that statement was in fact made; to show reasonableness of belief; to illustrate a belief held by a person. v. “Statement” 1. Two conditions: (1) must be a claim that some fact or circumstance exists (description of some aspect of the world) and (2) the speaker must intend to make such a claim 2. Assertive Conduct: Nonverbal acts can be assertions. E.g., nods, winks, granting security clearance, etc. 3. Implied Assertions: E.g., “Why did Belinda go to the store with Aretha?” May be a statement. 4. Silence: in the face of an accusation = hearsay; can be considered an intention to assert something, but it depends on the context a. Most courts treat silence in the face of an accusation as hearsay.</p><p>28 5. Non-assertive conduct is not a statement, usually—should the jurors be asked to infer from conduct that someone would have made a declaration if they had only been asked? a. Crying is circumstantial evidence of sadness, not hearsay 6. Assertions implied from other assertions: Should be considered hearsay as long as the validity of the implicit proposition depends on the existence and accuracy of a belief that the speaker of the actual statement apparently intended to convey 7. Self-quotation in court may still be hearsay, e.g., declarant is called to the stand and repeats his hearsay statement. vi. Other hearsay-related problems 1. Personal Knowledge – Hearsay distinguished from lack of personal knowledge: Often, the lack of personal knowledge objection can be used to get at anonymous hearsay 2. FRE 805. Hearsay within hearsay: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. a. Must have an applicable exception for every level of hearsay. 3. Machine or animal statements: the 5 checks that exist in court have no effect on animals, so such statements are not hearsay a. Machines i. Not hearsay, but foundational requirement. 1. Accuracy of machine’s information. 2. That machine was used properly at time in question. ii. E.g., surveillance cameras. 4. FRE 806. Attacking or supporting Credibility of Declarant: When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. a. Rationale – Want to impeach the hearsay declarant so that jury will discount or assign less probative value to hearsay statement. b. Treat hearsay declarants as any other witness; use same impeachment techniques. c. Only Difference – Not required to provide an opportunity to examine the declarant over the prior inconsistent statement; not required to give declarant opportunity to explain or deny prior inconsistent statements. i. The inconsistent statement can be after the hearsay d. Party against whom out-of-court statement is offered may call declarant as witness and examine as if on cross about the statement. c. Exceptions to the Hearsay Rule (Definitional Exclusions) i. FRE 801(d)(1): Prior Statement by Witness: [A statement is not hearsay if] The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; 1. Narrow exception. 2. Typically these statements are used solely for impeachment; cannot be considered for truth of matter asserted, nor can it be considered part of the record on a motion for a directed verdict a. When prior statement by witness is offered for impeachment, it is not hearsay because it is not being offered for truth of matter asserted. It may be offered to show character for truthfulness. 3. FRE 801(d)(1), however, let’s you offer it for the truth of the matter asserted. 4. FRE 801(d)(1)(A) – Prior Inconsistent Statements a. Must be under oath at prior proceeding or deposition. E.g., grand jury testimony. b. Admissible for (1) impeachment and (2) truth of matter asserted. c. “I can’t remember what I said/what happened” is not grounds for finding a P.I.S.  No grounds for impeachment. 29 5. FRE 801(d)(1)(B) – Prior Consistent Statements a. Need not be made under oath. b. Must rebut express or implied charge that witness is lying or exaggerating because of some motive. c. Admissible only when made before alleged motive to lie or exaggerate came into being. i. Prior consistent statement made after motive to lie arose is inadmissible. 6. FRE 801(d)(1)(C) refers to photo arrays, etc.—so long as the previous identification was done in a reliable manner a. Must be the declarant/witness who made the identification, not a police officer who happened to be there. ii. FRE 801(d)(2): Admission by Party-Opponent: [A statement is not hearsay if] The statement is offered against a party and is 1. (A) the party's own statement, in either an individual or a representative capacity or [Personal admissions] a. Admits a party’s statement against her in a representative capacity, even though the statement was not made in that capacity (i.e., trustee talking to a friend) b. Works as long as statement satisfies relevance c. Representative Capacity – E.g., corporation (President of corporation may make a statement for the company in a representative capacity.) d. If your opponent made the statement and you’re offering it for its truth, it’s in e. Overcomes lack of personal knowledge objection and it doesn’t have to be against interest when made f. Accountability rationale: if you’re stupid enough to say something w/o investigation 2. (B) a statement of which the party has manifested an adoption or belief in its truth, or [Adoptive admissions] a. FRE 104(a) – Judge determines whether party manifested adoption of belief or truth. i. Preponderance of evidence. b. Can be express (“yes, I set that world record”) or implied (a nod) c. Includes nodding d. Classic problem: silence i. To determine whether silence constituted an adoptive admission, you must put yourself in the position of the person that remained silent. ii. Not admissible under an adoption rationale if judge determines that the listener for some reason did not appreciate the accusation or if the statement was made in a context where an untrue accusation would probably not be denied 1. Valid Explanations for Remaining Silent a. Maybe you are silent because you have not heard the person. b. Maybe you are silent for the same reason that you are silent to beggars: you do not wish to engage with the person because you do not want to be inconvenienced. iii. Silence in the face of accusations by the police while in their custody is not admissible to support an inference of guilt post-Miranda warnings iv. There are circumstances where silence would be bizarre unless statement was true (not so for majority of cases). e. Scientific Report – If a company president sends a note to his public relations specialist with an attached scientific report and says, “This reports says that our ingredients are dangerous. We’ve been selling dangerous stuff,” both the note and the scientific report are admissible as adoptive admissions. 3. (C) a statement by a person authorized by the party to make a statement concerning the subject, or [Authorized admissions] a. Includes internal reports b/c insider’s access, based on full and frank info b. So long as those reports were created at the insistence of the party c. Two Common Law Approaches i. Authorized speaker may speak to anyone. ii. Authorized speaker may speak only to hiring partner. 4. (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or [Vicarious admissions of agents] a. Based on respondeat superior. 30 b. Courts have refused to treat statements by government agents in criminal cases as admissions admissible against the government c. Engineers, etc. i. Must have some way of showing that the declarant actually was an employee and that this was in the scope of her employment  Judge/FRE 104(a). d. You cannot stop someone from, e.g., making statements about the toilets in the law school if you have hired this person to maintain the toilets in the law school. i. But some states would not allow such admissions because the employee is not authorized to speak. 5. (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. [Partners and co-conspirators] a. Business partners: unless the offense is one for which the firm might be held liable, criminal activity is assumed to be beyond the scope of the partnership b. Book thinks there is no good analytical justification for admitting the statements of co- conspirators c. 3 step process i. Show that speaker and def against whom the statement is being offered were both members of existing conspiracy by preponderance of the evidence 1. Conduct a minitrial outside of the jury 2. Government may have already introduced enough evidence 3. Statement may be admitted subject to connecting up ii. Show statement was made in furtherance of the conspiracy 1. Statement expressing desire to back out of conspiracy may not be in furtherance. iii. Statement must be made during the life of the conspiracy 1. If all of the conspirators have been arrested and they are in interrogations rooms talking to cops, the conspiracy probably has ended and the statements will not be admissible under FRE 801(d)(2)(E). 2. Considered over when conspiracy has achieved its goal or when it has been broken up or disbanded 3. When conspirator breaks, he is not liable for statements made post- conspiracy 4. When conspirator joins, he IS liable for statements made previous to his joining The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). d. Hearsay statements of agents can be considered in deciding whether agency relationship existed, but they cannot be the sole basis for that determination  This is about satisfying a factual predicate. iii. Availability Immaterial 1. Present Sense Impression a. FRE 803(1): Present sense impression: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. b. The described event or condition need not have caused excitement; declarant may be calm when making statement. c. The declaration need not directly relate to principal litigated event and the speaker need not have been a participant in the perceived event, but the speaker must have been a percipient witness. d. Speaker need not be identified. e. Speaker need not be shown to have been oath-worthy. f. Subject matter is restricted to a description of the observed event. i. Contrast with excited utterances, where description need only relate to the event. g. Minimal time-lapse permissible. i. Different courts have allowed different standards. h. Present sense impressions are not cumulative. i. Impressions in opinion form are admissible. 31 j. More accurate and reliable than excited utterances. k. Eyewitness statements that police take down. 2. Excited Utterances a. FRE 803(2): Excited utterance: A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. b. Subjective test c. The length of the stress depends; courts usually place a 1-2 hour limit i. Reawakened Excitement Argument – E.g., victim was almost killed but assailant got away. 6 months later, victim sees assailant, excitement is reawakened, and she makes an utterance. d. Degree of reliability i. Unlikely to have fabrication b/c of smaller window of time to reflect ii. Unlikely to have memory problems if still excited. iii. But stress distorts perceptions and narration  Ultimately, these are among the least reliable statements. e. Difference among courts when the only evidence of the exciting event is the statement itself i. Most allow; some do not. Should allow if the statement and surrounding circumstances provide sufficient evidence for a rsnble jury to conclude that the even in question has occurred f. Key is identifying the event that the declarant is speaking about  statement must relate to startling event or condition i. Relating standard looser than the FRE 803(1). g. For some testimony, court probably will require corroborating evidence in addition to excited utterance. i. E.g., if an employee admits an agency relationship after a car crash, court probably will require other evidence of his employment—will not rely exclusively on the excited utterance to prove it. h. Be sure to make sure that the utterance meets the other requirements—like personal knowledge. 3. Statements of Physical Condition a. FRE 803(3): Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. i. When Used – To obtain evidence on declarant’s internal state of mind or emotion. 1. Statement often is offered to establish a person’s intent, either (1) as a direct fact to be proved as such (domicile, criminal intent) or (2) as a basis for a circumstantial inference that intent probably was carried out. 2. Statements of belief are covered by FRE 803(3) if a speaker’s possessing that belief is relevant independent of whether the belief is accurate. a. E.g., if you believe that someone owes you money, you have an incentive to beat that person up. Belief is relevant on motive. ii. Admissible when declarant’s state of mind is in issue and material to controversy. iii. Rationale – Then-existing helps to eliminate memory problems 1. Some conditions may last a long time, e.g., anxiety about divorce. iv. Offered to Show Subsequent Acts of Declarant 1. Intent (which is the then existing mental condition) – Cannot use 803(3) to show that another person engaged in the same activity, unless you have corroborating evidence. Hillmon; Shepherd. a. E.g., someone says, “I’m going to the movies with John.” You can use that statement to show that John went to the movies only if there is independent corroborating evidence. In 32 prosecution of husband for murder of wife, wife’s prior statements that she intended to commit suicide are admissible. b. State of mind is not directly in issue. c. Declaration of intent to do something in future is admitted as circumstantial evidence tending to show that intent was carried out. v. With one exception, it must be a present state of mind, which eliminates many of the left-leg hearsay problems. 1. Exception – Past statements are admissible in “will cases” on the belief that the speaker would want them to be admitted. 2. Inadmissible – Statements expressing a memory or belief to prove truth of fact remembered or believed. E.g., “I think I left my keys in the car.” b. FRE 803(4): Statements for purposes 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 sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. i. Broader than 803(3)—no contemporaneous requirement 1. Does allow for past statements. E.g., “I started feeling ill ten days ago.” ii. The statement must be spontaneous 1. Usually, the mere concurrence of the statement and the condition described provides sufficient evidence of spontaneity unless the circumstances suggest there is a danger of manufacture (made pending litigation) iii. People have powerful motive to be truthful when trying to get medical diagnosis and treatment iv. The doctor’s diagnosis is not relevant; just the statements v. The declarant only has to believe that she is making a statement for purpose of medical diagnosis or treatment 1. E.g., declarant could make statement to a friend if for purpose of medical diagnosis or treatment; child telling parent what is wrong with him 2. Applies even if declarant does not believe in third party’s medical qualifications but still hopes for some treatment (acupuncturist) 3. This requirement is a preliminary inquiry that judge must make. vi. “Medical treatment” probably refers to just that, i.e., medical treatment—not counseling or therapeutic treatments. 1. Mental-health services are questionable. vii. Many state versions allow this exception only for statements made to treating physicians, not to diagnosis physicians. FRE allows the exception for statements made to diagnosing and treating physicians. 1. Most state exceptions are narrower. 2. FRE is broader, i.e., treatment or diagnosis. 3. Rule 803(4) eliminates the distinction between examining and treating physicians: an examining physician may now testify to statements made for the purpose of medical diagnosis to the same extent as the treating physician, even though the only purpose of the examination was to enable him to testify. a. Examining physician – hired solely to testify. 4. Other existing states of mind: statements that circumstantially suggest a speaker’s state of mind are not hearsay a. To show feelings (FRE 803(3)) i. Whether a state of mind at one time tends to prove a state of mind at another time is a relevance inquiry and not a hearsay question ii. There is an exception in the last clause of 803(3) for statements describing past states of mind when those facts relate to the execution, revocation, identification, or terms of the speaker’s will 33 iii. Nothing prevents a speaker from asserting whatever feeling or other state of mind it is convenient to possess 1. Courts will often admit statements that assert both a feeling and the circumstances giving rise to that feeling on the grounds that those circumstances shed light on the strength of the asserted feelings 2. Judge has significant discretion to sever the statements, etc., b/c the jury could take them to be the truth of the matter asserted and they would be inadmissible hearsay b. To show behavior: when statements asserting a state of mind are offered to establish behavior consistent with that state of mind i. Two situations 1. To prove that the speaker has taken some action consistent with her state of mind 2. To show the behavior that caused the state of mind ii. Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past iii. Cannot admit statements of memory or belief to prove the fact remembered or believed 1. Often arises in situations where there are expressions of fear 2. Except with wills, etc. b/c that’s the best evidence they would have iv. Courts will often allow statement of an intention to do something with another to support the inference that the other person did what the speaker expected in the speaker’s company 1. Expressly disavowed by the House Committee, but unclear the role of the disapproval 2. Best policy is to require corroborating evidence 5. Recorded recollection a. FRE 803(5): Recorded recollection. 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, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. b. Allows witness to read into the record a memorandum that she previously made or adopted that describes the critical events. c. Must be in writing and by a witness d. Recollection just has to be sufficiently bad, not completely gone. e. Not automatically received as an exhibit because we do not want to privilege this evidence. i. May be admitted as an exhibit if opponent offers it. f. Witness does not need to have made the record, but simultaneous transcription is crucial i. Often a police taking a statement g. Best Evidence Rule (Original Writing Rule) – If a writing is going to be used under FRE 803(5), it must satisfy the Best Evidence Rule, FRE 1002. h. FRE 612: Writing Used to Refresh Memory: Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either-- (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the 34 order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. i. Gives opposition access to any writing used to refresh witness recollection. ii. Applies usually with police reports, business memoranda, etc. iii. Witness could read writing into the record and then withstand cross- examination. iv. FRE 612 is preferable when witness cannot withstand cross-examination. Under FRE 803(5), witness could read writing into the record and then, upon cross- examination, simply state that she cannot testify fully and accurately as to the event. v. can use a writing to refresh recollection, must produce the writing to the adverse party 1. None of the 803(5) prereqs attach to FRE 612. If writing does not qualify for FRE 803(5), it still is useable for FRE 612. vi. Having refreshed her memory, witness now must be able to testify fully and accurately to the event described. This is different than witness’ responsibilities under FRE 803(5). 6. Business records a. FRE 803(6): Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. i. Requirements for Admissibility – See BARBRI 76. 1. “Business” 2. Entry made in regular course of business. 3. Personal knowledge - 4. Entry made near time of event 5. Authentication 6. Entrant need not be unavailable. 7. Trustworthiness ii. Important temporal requirement  Must have been made at or near the time of the event. iii. Scope – Applies to many sorts of evidence. Very broad. 1. E.g., medical patient charts, records in a law office, etc. 2. Some state rules do not allow opinions or diagnoses. iv. Describing Regular Practice – There must be an employee that is able to testify as to how business records are ordinarily kept and, by doing so, show that the record desired to be admitted is of the sort normally kept. Any witness that can describe this process is acceptable. 1. Requires custodian of the record or another qualified witness (with requisite familiarity). 2. Neither the original entrant nor the individual possessing personal knowledge of the event itself need be produced nor identified. v. Personal Knowledge – Laying foundation  it is not necessary that the party seeking to introduce the record be able to produce, or even identify, the specific individual upon whose first-hand knowledge the record was based. vi. Powerful incentive to keep accurate business records already exists. 1. If opinion is not necessary for accurately carrying out business functions, it may not have been recorded accurately.  Less firm basis for admission. vii. The lack of trustworthiness language provides a hook to keep some of the evidence out 35 1. Judge may demand that the declarant be produced if there is a trustworthiness question. viii. Recognition that the situation must be different when litigation appears likely 1. Accident reports, though complied regularly, are often used in preparation for litigation and the reporter does not have the incentives to be overly candid. a. But see 803(8), where accident reports may be admissible. 2. Must show some motive to misrepresent, though. ix. Opinions in business records 1. Inverse relationship between admissibility and speculative nature of opinion 2. Look for standard expert judgment in diagnoses 3. The more speculative, the less likely to be admissible. Courts are more reluctant to introduce medical opinion evidence on cause or prognosis. (E.g., “He’ll never walk without a slight limp.” “His career as an NFL quarterback are over.”) These are more speculative than objective diagnoses. a. If a doctor says that he’ll never walk again, you’ll want to bring the doctor up to testify. If you can’t bring the doctor to the stand, this may indicate a lack of trustworthiness. b. Doctor may be more qualified to say that a patient may be out for 6-12 months. Doctors make these determinations all the time. x. Computer Records 1. Necessity of establishing a technical foundation for the preparation of the report 2. If the process involves several people, the “custodian” may be ambiguous. Just need to have one individual qualified to give all the steps xi. Lack of Trustworthiness – Wiggle room for the judge. xii. Professor Laughlin’s Test – If a witness could have testified, it should be admissible. If lay opinion, it must be subject to FRE 701. b. FRE 803(7): Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. i. Can try to prove non-occurrence of a matter that would normally be recorded ii. E.g., “I paid my bill.” “No, you didn’t. We have no record of it.” i. Courts look harder at the “ordinary course of business” requirement than in FRE 803(6). 7. Public Records and Reports a. Nested Hearsay – There are lots of nested hearsay problems when dealing with record exceptions. First layer: statement appears in business record. Second layer: communication from third party to the business party that made the record. There must be applicable hearsay exceptions for each tier of hearsay. b. FRE 803(8): Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. c. Cannot be used to admit records of police observations against a criminal defendant. d. Evaluative reports are generally admissible</p><p>36 e. Applies to the records of all public offices and agencies, state or federal (and even some foreign agencies, according to certain courts) i. Applies in most jurisdictions. f. This is why government investigation spawns so much litigation g. Importance of the Freedom of Information Act h. 803(8)(C) opens a massive door i. Government can’t use this evidence in a criminal case. ii. Factual findings are interpreted broadly to include opinions or diagnoses. Beech Aircraft Corp. v. Rainey. 1. Distinguishing fact from opinion is often impossible  supports broad admissibility. iii. Administrative hearings, accident reports all come in—duty to investigate is not needed for a report to be admissible; it must only be authorized iv. Hearsay statements included in an examiner’s report may be excised even if the factual findings that are made are admissible 1. The more hearsay in the report, the more indications of “untrustworthiness” under 803(8) v. Many government agencies do not want their reports to be used in litigation. They argue that it undermines their availability to compose reports. Sometimes, an organic statute might specify that agency reports are not admissible, and when that is the case, courts generally will defer and exclude reports. 8. Other Exceptions a. FRE 803(9): Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. i. Must be made to a public official pursuant to law. b. 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, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. i. E.g., if a ship does not record that it passed lighted buoy #73, this may be admitted to show that lighted buoy #73 was not operating properly at the time. ii. Court looks hard to see if the record is the kind ordinarily made. c. 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. i. LDS records more comprehensive d. 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. e. FRE 803(13): Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. f. 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 that office. i. Has to do with title to property. g. 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 </p><p>37 property since the document was made have been inconsistent with the truth of the statement or the purport of the document. i. Has to do with title to property. h. FRE 803(16): Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established. i. Probably no living persons to testify as to the matters described in ancient documents. ii. 20 years or more older. i. 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. i. Powerful incentive for newspapers, market reporters, etc. to report financial market matters accurately. ii. Any compilation of data from a newspaper or magazine is admissible. j. FRE 803(18): Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. i. Learned Treatise – Treatises, articles in scholarly journals, etc. ii. Subjects – Science and art cover just about everything. Very broad. iii. Useful when a party cannot find an expert to testify. Party may rely on a learned treatise to present its side of the story. iv. Used in crossing expert witnesses: you would take W through any statement in a treatise that may be inconsistent v. All treatise statements come in for the truth of the matter asserted vi. Prerequisite: Have to get W to admit treatise is a reliable authority (or get judicial notice) 1. Read everything W has written to look for contradictions 2. Look in all fns, citations to other people. Ask W if W thinks X is a reliable authority, if not, then why cite to unqualified? 3. Judicial Notice – FRE 201. vii. “To the extent called to the attention of an expert witness” 1. Can bring it out on cross-examination if (1) you get the witness to recognize the source as authoritative and (2) you get the expert witness to read the source. Live expert witness must have an opportunity to examine source and explain its context and the extent to which he or she agrees with it. k. FRE 803(19): Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. l. 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. m. FRE 803(21): Reputation as to character. Reputation of a person's character among associates or in the community. n. 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 crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.</p><p>38 i. Justified by the faith we place in the fact-finding process in criminal proceedings. ii. Not applicable to misdemeanor offenses. 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. i. Judgment analogue to FRE 803(19), (20). If we are going to allow reputation evidence, then we should allow this evidence as well. iv. Exceptions conditioned on unavailability 1. Generally a. Rules of Preference – It is preferable to admit the evidence as live testimony, but if no witness is available to testify, then it is preferable to admit the evidence rather than not admitting it. b. Considered to be less reliable than FRE 803 hearsay, where the declarant is available. 2. Requirement of unavailability (live testimony > deposition testimony > hearsay) a. FRE 804(a): Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant-- (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or 1. Declarant will be held in contempt. (3) testifies to a lack of memory of the subject matter of the declarant's statement; or 2. Complete loss of memory. Witness must testify that he cannot remember what happened. 3. Courts view this as gaming the system; incredulity. (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. 1. E.g., declarant is outside jurisdiction of court. Caveat: A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 3. Former Testimony a. 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 the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. b. Requirements for Admissibility i. Unavailability of declarant ii. Same parties 1. Applies only to the party against whom the evidence is offered. iii. Same subject matter iv. Opportunity to develop testimony at prior hearing 1. Goes to same motive requirement. 2. Address (1) opportunity and (2) motive to cross-examine. v. Under oath c. Opportunity for cross: former testimony given under the same circumstances as present testimony i. Grand jury hearings are inadmissible. ii. Not clear if this requirement could be met with pro se parties. d. Identity of issues: must be substantial. Issues in the first proceeding, and hence the purpose for which the testimony was offered, were such that, the present opponent had an adequate motive for testing on cross the credibility of the testimony 39 i. Goes to Same-Motive Requirement. e. Same party: person must be the person against whom the evidence was originally offered or in civil actions, someone in Privity i. Predecessor in Interest – If a larger company absorbs a smaller company, the former, smaller company is a predecessor in interest. (Better to admit hearsay evidence than forego it entirely.) f. Proving prior testimony: the obvious choices, but the rule does not set a limit and can include testimony of an observer g. Objections to prior testimony: only those that go to relevance or competence of the evidence h. Predecessor in interest: defined narrowly, deceased to estate. i. Party-Opponent – If declarant is a party-opponent, then one need not invoke FRE 804(b) (1). 4. Dying Declarations a. FRE 804(b)(2): Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. b. Justifications i. People are likely to be truthful when they are dying. ii. People have no motive to lie when they are dying. (Not true.) c. Applicable Contexts i. Homicide prosecutions. ii. All civil cases. d. Person must have a belief in her impending death. i. Judge must determine this in accordance with FRE 104(a). a. Statement must concern the cause or circumstances of her impending death. b. Declarant must be dead or unavailable, but need not have died immediately after making the statement c. May override Crawford CC objections. 5. Statements Against Interest a. FRE 804(b)(3): Statement against interest. A statement that: i. (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and ii. (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. 1. Applies only in criminal cases. 2. Must have corroborating circumstances. b. Requirements for Admissibility i. Against pecuniary, proprietary, or penal interest when statement was made 1. Think about ways in which a statement may or may not be against interest. Same statement could go both ways. ii. Personal knowledge of facts iii. Aware that statement was against her interest & not motive to misrepresent iv. Unavailability of declarant. c. Justification - Greater degree of reliability i. People do not lie when it is against their interest to lie. d. Applies regarding any interest that is formally cognizable (not social or emotional) e. Key ?: Could the statement be introduced against the declarant in some future action? Is there any lawsuit where this might be introduced against declarant? f. “Against interest” i. Non-exclusive list of examples: declarations acknowledging indebtedness, declaration acknowledging payment of a debt, declarations acknowledging contingent contractual liability, statements of agents acknowledging receipt of money on behalf of principals, declarations admitting less than a FSA in 40 property, declarations by an heir acknowledging that property has been left by will to another, declarations by beneficiaries of insurance policies tending to defeat claims thereunder, and statements acknowledging tortuous liability in specific amounts. 1. Social Interests - Some states include statements against social interests: statements that stigmatize the declarant. E.g., “I’m a liar; I have an STD.” a. FRE does NOT include these. 2. Pecuniary Interest – If someone has $100 in her wallet, the baseline assumption is that she has a right to that $100. A statement that she collected the $100 for another person, i.e., a principle, would be against her pecuniary interest because it shows that she does not have a right to the $100 dollars in her wallet. 3. Parentage – Admitting parentage is against one’s formal legal interest because one then becomes financially responsible for the child. ii. If a declaration has both self-serving and disserving aspects, court has 3 options 1. Admit the entire declaration on the strength of the part which is disserving 2. Admit the entire statement if the disserving part predominates and to exclude it entirely if the self-serving part predominates a. Some federal courts follow this approach 3. Admit only those parts of the statement that are disserving a. SCt likes this approach g. Against penal interest i. 804(b)(3) extends the statement against interest exception to criminal cases only where there exists corroborating circumstances that indicate trustworthiness when a statement against penal interest is offered to exculpate an accused ii. Implicating others in crimes 1. Fed cts will parse confessions to see which portions that implicate others were truly against the confessor’s interest when made 6. Statements of Personal or Family History a. FRE 804(b)(4): Statement of personal or family history. i. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or ii. (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. b. Justifications i. Necessity – These relational matters are difficult to prove. It often is hearsay evidence or nothing, and therefore, the drafters wanted to admit this evidence. ii. No one knows personal or family history better than the declarant or his or her family. c. Declarant does not need to be related, usually involves statements passed on through the family d. w/in the circle of people where someone had personal knowledge at some point regarding a matter intimate to that circle 7. Forfeiture by wrongdoing a. FRE 804(b)(6): Forfeiture by wrongdoing: A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. b. Pay off or threaten W c. If judge can make a finding supported by preponderance that makes a causal link, then the statement comes in i. Not just the reaction of the witness, etc.—need something substantial ii. FRE 104(a). d. Procedure 41 i. First – Get the declarant’s testimony on the record, i.e., in a grand jury testimony. ii. Second – The declarant must be missing, and the person against whom the hearsay statement is offered must be responsible for the unavailability of the declarant as a witness. e. Acts as a waiver of Confrontation Clause objection. 8. Residual Exception a. FRE 807: Residual Exception: A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. b. Three Requirements i. Circumstantial Guarantees of Trustworthiness  Equivalent to those of statements admitted under other hearsay exceptions. ii. Statement must be offered on a material fact and must be more probative as to that fact than any other evidence that the proponent can reasonably produce so that the “interest of justice” will be served by its admission. 1. Statement is of higher quality than any non-admissible hearsay evidence. iii. Must give notice in advance of trial to adversary as to the nature of the statement (including name and address of declarant) so that adversary has opportunity to prepare to meet it. c. Near miss argument with reference only to one exception i. Almost never works. ii. “Statement is almost within the scope of FRE 803x or FRE 804x, but it fails only because of this one little requirement.” Judges almost always reject these. Congress already has ruled on these questions (through enacting FRE). d. Double or Triple Near Misses i. Work much more often. ii. A statement almost fits within two or three exceptions. Congress has not considered these situations. X. PRIVILEGES a. Privileges in general i. FRE 501: General Rule: Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. 1. When federal law applies, common law of privilege applies. 2. When state law applies, applicable state law of privilege applies (in federal court). ii. Proposed Rules – Series of proposed rules for privileges were never ratified by Congress.  Courts routinely refer to the proposed rules to determine whether privilege applies. iii. Privilege is based on two-fold belief: 1. Particular relationships are very important to society. 2. Value of those relationships is dependent on the ability of the parties to engage in confidential communications. iv. Privilege applies in every context: jury trials, bench trials, administrative proceedings, etc. 1. Unlike FREs, which effectively apply only in jury trials. b. Attorney-Client Privilege i. PFRE 503: Lawyer-Client Privilege 42 (a) Definitions. As used in this rule: (1) A “client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtain professional legal services from him. (2) A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. (3) A “representative of the lawyer” is one employed to assist the lawyer in the rendition of professional legal services. (4) A 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 the client or those reasonably necessary for the transmission of the communication. (b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (1) Between himself or his representative and his lawyer or his lawyer’s representative. (2) Between his lawyer and the lawyer’s representative. (3) By him or his lawyer to a lawyer representing another in a matter of common interest. E.g., two plaintiffs injured in the same accident have different lawyers. They meet before trial to review strategy. Plaintiffs and lawyers may not testify to what the others said at the meeting. (4) Between representatives of the client or between the client and a representative of the client. (5) Between lawyers representing the client. (c) Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary. (d) Exceptions. There is no privilege under this rule: (1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or (2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction (3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or (4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or (5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients. ii. The privilege in detail 1. Being a Client a. Doesn’t need to hire—key is using or seeking to use a lawyer, or someone reasonably believed to be a lawyer for professional legal services b. Communications not relating to legal services are not privileged c. Filling out tax returns is an accountancy function and giving general BUSINESS advice is a consulting function, and if you hire an attorney to do that it is not privileged 2. Attorney a. Anyone that is an attorney or reasonably believed to be an attorney by the client. b. E.g., real lawyers, law students, law school graduates that have not passed the bar. Depends on what client believes. 3. Privileged Communications a. Must be for purpose of provision of legal services b. If there are different purposes behind the communication, courts look to the primary purpose 43 i. Close cases tend to be resolved against the privilege claimant c. Communications are privileged even if the lawyer turns down the case d. PRIVILEGE ONLY PROTECTS THE COMMUNICATIONS, NOT THE FACTS COMMUNICATED e. The privilege exists forever after trial f. Confidentiality i. Different than client confidence: going around and revealing information about a client, even if it is not an FRE confidential communication; anything that you learn from or about C that C has not authorized you to say 4. Identity as a Confidence a. Not Intended as Confidential – Meeting dates, fee arrangements, and client’s name and address are not typically taken to be intended as confidential (fees are not communications) b. Exceptions (Courts are unlikely to sustain when there is a suggestion of criminal enterprise) i. Bagman: taxpayers gave attorney check to give to IRS, he refused to identify, held that he properly could invoke privilege. Baird v. Koerner. ii. Whistle blower: lawyer did not need to identify informing member who had told him about illegal activity. In re Kaplan. 1. Lawyer may provide pertinent information and refuse to disclose client’s identity. Courts usually respect. iii. Sugar daddy: lawyer’s services fulfilled a promise that had been made by outsider to arrestee that “he would be taken care of.” Pavlick. c. Rationales for sustaining claims of privilege (Again, courts will try to admit if there is a suggestion of a criminal enterprise) i. Communication: disclosure would connect the client to an already disclosed but otherwise privileged communication ii. Legal advice: when the name of the client would show her guilt in the very matter for which the attorney was employed 1. Sometimes the question will only be relevant to show the forbidden inference, i.e. that C committed the crime iii. Last link: when the client’s name or information about fee arrangements is the last link in a chain of incriminating evidence 5. The Privilege holder a. Privilege belongs to the client, who retains discretion to invoke or waive it b. Corporations current management can waive the privilege for past management’s disclosures c. The privilege may be claimed under the proposed federal rule after the death of the client 6. Breadth of protection a. Includes communications to those who assist lawyers b. Also, A-C privilege only applies in legal proceedings c. However, classic CL considerations apply d. Personal observation (outside professional role) may not be within scope of A-C privilege. 7. Intent of Confidentiality a. Must have the intent of confidentiality b. Electronic surveillance does not negate intent of confidentiality. c. A close friend or relative may be able to invoke privilege if they were present to help the client communicate effectively or aid in the rendition of legal services d. Statements made in the presence of third parties, e.g., patrons at a bowling alley, are not confidential. i. Presence of bystanders negates the intention claim ii. Only persons necessary to procuring legal advice or services may be present. E.g., a CPA may be present with lawyer if soliciting tax advice; interpreter may be present with lawyer if client speaks Spanish; spouse may be present; paralegal; etc. e. Must take reasonable means to keep communication confidential. 8. Corporate Clients a. Privilege does not apply 44 i. When an attorney is consulted for a reason other than securing legal advice ii. If a communication to an attorney is treated by the corporation in a way that negates an intention of confidentiality iii. Does not apply automatically when a corporation asks an employee to talk confidentially to a lawyer so that the corporation can secure legal advice 1. No reason why the employment nexus should give the worker’s statements greater protection than that accorded other witnesses b. Three Tests for Scope of Attorney-Client Privilege i. Control Group Test 1. Eight states have retained. 2. Test – Only communications that qualify for corporate A-C privilege are communications that otherwise would qualify, but they must come from a member of the control group. 3. Control Group – Usually people with corporate titles. Corporate officers, etc. ii. Upjohn: rejects the “control group” test (only the senior management can be said to possess an identity analogous to the corporation as a whole); some communications with regular employees are protected as well—when made by employees to counsel acting as such, at the direction of corporate superiors in order to secure legal counsel 1. Majority test. 2. There must be a directive from someone high up in the corporation to lower level employees to make otherwise qualified communications to a lawyer. 3. Communications must be related to employees’ responsibilities. iii. EU Court of Justice recently held that A-C privilege does not apply to communications made to corporate in-house counsel. 1. In-house lawyers are not sufficiently independent to be worthy of inclusion in the scope of the A-C privilege. 2. Problem – Eviscerates confidentiality between in-house counsel and clients. Whatever the corporate client says to in-house counsel is not privileged. Difficult to frankly discuss liability, etc. 3. EU Court of Justice announced this test in a particular case with a particular set of facts. It is difficult to know how it will apply to new situations in subsequent cases. c. Justification for extending the privilege to corporations: the guarantee of confidentiality helps induce corporations to conduct investigations that plumb the depths of employee knowledge d. Core principles with corporations (from Upjohn) i. The communication should stem from a need to secure legal advice ii. Disclosure should reflect corporate policy or be at the instance of some high- level employee iii. Employees talking to a corporation’s attorneys should know that confidentiality is intended iv. The corporation should keep the disclosure confidential, which means not circulating it beyond those with a need to know v. The communication should relate to a matter w/in the scope of the employee’s business duties e. Multinational Corporations – Difficult to know which test will apply. 9. Physical Evidence a. Physical objects almost never are protected by the A-C privilege. Confidential communications associated with objects may be covered, however. b. As long as a party could have acquired and introduced evidence had the opponent’s attorney not acquired it, the party may acquire and introduce evidence that the opponent gave to her attorney c. The privilege applies only if the evidence would have been privileged had it remained in the hands of the client i. Pre-existing documents: if a doc was prepared before a legal controversy arose, it can be subpoenaed from a party’s attorney because the fact that it pre-existed 45 the controversy usually means that it was not prepared to secure legal advice. Cannot transmit a pre-existing report to a lawyer to attach a privilege 1. Pre-existing documents also may be covered by 5th Amendment right against self-incrimination. d. When the opponent seeks to link the evidence to the client by showing that it was acquired from her attorney, the privilege usually applies because the act of providing includes communicative elements e. When attorneys have to turn the evidence over i. Take possession of physical evidence that is either contraband or the fruit or instrumentality of crimes—must have sure knowledge of it 1. E.g., client says, “here is the knife that I used in the crime. Check it out.” 2. Taking possession of the knife for any period of time distinguishes this situation. Taking possession means that the lawyer may have to testify. ii. Lawyers must not advise or assist in the disposal of evidence or contraband 1. Stay silent—no “be careful” if C shows you something iii. Ordinarily, the fact that something is not privileged does not mean that a lawyer has an affirmative duty to take some action.  Generally, no duty to report anything about a criminal activity. 10. Ethical Duty a. Much broader than scope of attorney-client privilege. b. Lasts forever, like A-C privilege. c. Essentially, anything learned about a client through any means that the client has not specifically authorized you to disclose. i. May include what client testified to in court or discovery documents. ii. Not free to voluntarily disclose any client confidence, even if it falls outside A-C privilege. d. Lawyer must weigh harm of court sanctions against the expected harm of violating his client’s confidence. e. Enforcement – Two main enforcement measures: (1) Bar sanctions and (2) Tort liability. iii. COMMUNICATIONS THAT ARE NOT PRIVILEGED: 5 exceptions in PFRE 503 1. When an attorney serves as an attesting witness 2. When two persons are claiming through the same deceased client 3. When two clients consult a lawyer jointly about a matter of common interest 4. When the communications are relevant to a breach of duty between lawyer and client a. Courts interpret narrowly: just enough to allow lawyer to disclose communications essential to the case 5. When a lawyer’s services are alleged to have been sought to aid in the commission of a crime or fraud a. Anything looking towards the future gets you into the hornets’ nest: Tomorrow I will kill my wife = not privileged i. Statements of past crimes, e.g., “I just shot my husband, and I need legal help,” are privileged. ii. Not Privileged – Communications regarding services enabling someone to commit or plan to commit a crime. b. Fraud, Continuing crimes – Hard Cases i. Client’s Intent – If client says he killed his wife yesterday but actually plans on doing it tomorrow, then this qualifies as a continuing crime. ii. Must have enough evidence to suggest likelihood/substantial probability of continuing crime or fraud. Need some evidence. iii. Judge could take information in camera to determine whether a crime was ongoing. Judges review information under FRE 104(a). iv. Waiver 1. FRE 502. Attorney-Client Privilege and Work Product; Limitations on Waiver: The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. a. Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver- When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver 46 extends to an undisclosed communication or information in a Federal or State proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) They ought in fairness to be considered together. b. Inadvertent Disclosure- When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). c. Disclosure Made in a State Proceeding- When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a Federal proceeding; or (2) is not a waiver under the law of the State where the disclosure occurred. d. Controlling Effect of a Court Order- A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other Federal or State proceeding. e. Controlling Effect of a Party Agreement- An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. f. Controlling Effect of This Rule- Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision. g. Definitions- In this rule: (1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and (2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial." 2. Waiver occurs when a party reveals in some non-privileged setting confidential communication to her attorney. No waiver of privilege unless the communication or some part of it is disclosed. E.g., “Guess what I just told this lawyer….” a. A-C privilege lasts forever unless it’s waived. b. Can be waived by PRIVILEGE-HOLDER, i.e., client. Attorney cannot waive. c. Not necessarily waived if the subject matter of the disclosure, rather than the communication itself, is discussed with friends or others who cannot legally keep confidences d. If a person defends an action by claiming she was relying on advice of counsel, the privilege will be deemed waived for all convos relating to that advice 3. Cannot get away with partial disclosure in waiver settings. It’s an all-or-nothing game. v. Attorney Work Product 1. SEE FRCP, much more broad than A-C privilege 2. WP protects what attorneys (or assistant of a lawyer if involved in providing legal services) learn, whether confidential or not, from all sources a. Applies only to information prepared in anticipation of litigation b. Qualified privilege: Can be overcome if the opponent can show the information is no longer available or can only be had at an exorbitant cost that is far higher than the first party had to bear 3. Attorney’s mental processes, impressions, etc. are not discoverable/absolute work-product privilege —means that many mix up the notes with impressions to avoid turning evidence over a. E.g., instead of recording witness interviews, attorneys could just take notes</p><p>47 4. Potentially Discoverable - Anything covered by W-P privilege is potentially discoverable and potentially admissible. c. Fifth Amendment Privilege Against Self-Incrimination i. Civil or criminal proceedings; ii. Objects, preexisting documents are not within the scope of the privilege. iii. What is covered: anything testimonial 1. Any witness may refuse to answer question that would incriminate. 2. Defendant my refuse to take stand at all. iv. Privilege-Holder – Witness; party cannot assert on witness’ behalf. 1. ONLY natural persons, not corporations or associations. v. If something is not privileged and then it is relayed by a client to a lawyer, it still is not privileged. Handing preexisting documents over to a lawyer does not make them privileged. vi. Government can overcome privilege by conferring immunity. Government actually may compel self- incriminating testimony by conferring immunity. Two kinds of immunity: 1. Transactional – Immunity from suit for any crime related to any transaction related to the incident. “Protecting a witness from prosecution for offenses to which compelled testimony relates.” 2. Use – Prevents government from using information against a witness. Data requested will not be used in the government proceeding against you. “Preventing the prosecution from using the compelled testimony in a subsequent proceeding.” a. DC Cir. has interpreted use immunity broadly. b. Oliver North Case. 3.  Type of immunity defendant receives will depend on which circuit you’re in. d. Privileges for Health Care Providers i. The Physician-Patient Privilege 1. Elements a. Physician/medical professional must be present with patient. b. Information must be acquired while attending to the patient in the course of treatment. c. Information must be necessary for treatment. i. E.g., Details of an accident are not privileged if not necessary for medical treatment. ii. However, physician may testify that a heroine packet fell out of an unconscious patient’s pocket because this is necessary for treatment. 2. Justifications: Justifications are pretty weak; after all, people seeing doctors do not fear that confidential disclosures might harm them in future litigation 3. Scope a. Exists in every state, but non-existent in federal court i. State versions are full of holes and exceptions and implied waiver doctrines that they almost never apply. Apply in less than 1% of instances in which they are invoked. ii. Will apply in federal court only when there is diversity jurisdiction and court is applying law of the state. b. Same scope as A-C privilege: confidential communications to a physician, or one who is reasonably believed to be a physician c. Most situations where the privilege is claimed are i. Actions on life insurance policies in which the deceased’s health claims when he applied for the policy are challenged ii. Tort actions for injuries iii. Testamentary actions where the testator’s mental capacity is questioned iv. In all of these, medical testimony is absolutely needed for the purpose of learning the truth 4. Exceptions and Waiver a. Patient may waive voluntarily. b. Abrogate the privilege when a patient has consulted a doctor to facilitate the commission of a crime c. C waives privilege if C places physical or mental state in issue d. Putting a doctor on the stand to testify as to one’s state of health also waives the privilege in state court.</p><p>48 e. Dispute between physician and patient – Regarding communication relevant to an issue of breach of a duty arising out of P-P relationship, e.g., malpractice, failure to pay one’s bills. 5. Other Features a. Only patient holding the privilege may waive it b. Survives the death of the patient c. Extends to information that the physician learns from examining the patient even if that information was not actively communicated d. Presence of 3rd persons does not abrogate the privilege unless they are not necessary to the consultation e. Applies only to information which the physician receives for the purpose of diagnosis or treatment f. Patient need not have intended to communicate what the doc saw g. PP is more like a privilege for revelations of a kind that both physician and patient would have expected to be held in confidence ii. Psychotherapist-Patient Privilege 1. PFRE 504. Psychotherapist-Patient privilege. a. Definitions i. (1) A “patient” is a person who consults or is examined or interviewed by a psychotherapist. ii. (2) A “psychotherapist” is (A) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction, or (B) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged. iii. (3) 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. b. General rule of privilege: A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family c. Who may claim the privilege. The privilege may be claimed by the patient, by his guardian or conservator, or by the personal representative of a deceased patient. The person who was the psychotherapist may claim the privilege but only on behalf of his patient. His authority so to do is presumed in the absence of evidence to the contrary d. Exceptions i. (1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization. ii. (2) Examination by order of judge. If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise iii. (3) Condition an element of claim or defense. There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relied upon the condition as an element of his claim or defense, or, after the patient’s death, in any proceeding in which any party relied upon the condition as an element of his claim or defense. 1. NOT pain and suffering</p><p>49 2. Controversial exception (Terasoff (Cal. 1976)): if psychotherapist reasonably believes that patient will be dangerous to someone, attaches an affirmative duty to notify the potential victim. 2. Only privilege created by the SCt in Jaffee—exists in all 50 states a. Professional relationship itself is within scope of privilege. b. Absolute Privilege – No balancing of public’s need for information against social value of encouraging psychotherapy. Jaffee. 3. Underscored by the extreme need for confidentiality a. High incidence of mental illness in U.S. b. There is some stigma associated with seeing a psychotherapist  We want to encourage people to seek mental-health services, and to that end, we want to discourage any stigma associated with doing so. c. Overcome the reluctance to seek treatment 4. Operates in same manner as attorney-client privilege. 5. Social Worker-Client Privilege – Extends to licensed social workers (Jaffee), PhD psychologists or MD psychiatrists—must be licensed a. If not w/in scope, can try to latch onto someone else’s privilege (e.g. paralegals falling under A-C privilege, being affiliated w/ MD psychiatrist or PhD psychologist) i. BA is psychology does no create privilege. b. If your state extends the privilege to psychotherapists and PhD psychologists, social worker must work for one of these people. e. Marital Privileges – Two Varieties i. Adverse Testimony Privilege (Spousal Immunity) 1. PFRE 505. Husband-Wife Privilege a. General Rule of Privilege: An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him. b. Who May Claim the Privilege: The privilege may be claimed by the accused or by the spouse on his behalf. The authority of the spouse to do so is presumed in the absence of evidence to the contrary. c. Exceptions: There is no privilege under this rule: (1) in proceedings in which one spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other, or (2) as to matters occurring prior to the marriage, or (3) in proceedings in which a spouse is charged with importing an alien for prostitution or other immoral purpose in violation of 8 U.S.C.A. § 1328, with transporting a female in interstate commerce for immoral purposes or other offense in violation of 18 U.S.C.A. §§ 2421-2424, or with violation of other similar statutes. 2. Scope – Applies only (1) in criminal cases in which spouse is accused of a crime and (2) for duration of marriage. a. Applies when non-testifying spouse is defendant in a criminal case. b. Also stops spouse from testifying against her spouse in any criminal proceeding, even if non-testifying spouse is not a criminal defendant (e.g., grand jury proceeding). c. Privilege ends with divorce. 3. Spouse can’t be compelled to testify against his/her spouse. 4. Requirement – Rests upon the existence of a valid marriage at the TIME of claiming the privilege a. Privilege ends with divorce. b. If there is a valid marriage when privilege is invoked, it may cover events occurring before the marriage. 5. Many courts withhold the privilege if the marriage seems to be on the rocks a. Also will consider whether marriages were contracted to suppress testimony 6. Privilege-Holder – Most states and the federal courts now vest the privilege solely in the testifying spouse. Some states maintain that the defendant spouse can assert it even if the testifying spouse waives it. a. Privilege holder may waive privilege. Trammel (concerning testifying spouse waiving). b. Criticism – But authorities will use bargains to get spouse to testify (we’re thinking about charging you too, unless you testify) i. Very rarely is spousal privilege “voluntarily” waived. ii. The Privilege for Confidential Marital Communications 1. Recognized under FRE 501 in all federal courts 50 2. Closely analogous to A-C privilege 3. Applies when communication was made in confidence between him and the other spouse while they were husband and wife a. Applies in all litigation settings—civil or criminal proceedings b. Unlike adverse testimony, endures dissolution by divorce and, in some jurisdictions, death c. Applies to communications – not observations of what spouse is doing. i. Exception – If one came home and emptied the loot from a robbery on kitchen table in front of spouse (without saying anything), a minority of courts would say that this is protected. d. Can claim even if neither spouse was a party e. If the court doesn’t have access to the holder of the privilege, a 3rd party can invoke if he reasonably believes the privilege applies i. Someone in similar interest may object by invoking privilege arguing that since the unavailable spouse WOULD ALMOST CERTAINLY claim the privilege, and CERTAINLY HASN’T WAIVED the privilege. 4. “In Confidence” – Communication must be made in reliance upon intimacy of marriage. a. Does NOT apply to abusive language, exchanges of a business nature, misconduct directed at a spouse. b. Does not apply if statement was made in presence of third parties. 5. Privilege-Holder – Both spouses may claim privilege. a. Party spouse may prevent other from testifying by invoking privilege. 6. Exception for communications made to further a crime or fraud a. Must be “in furtherance” of a crime, i.e., forward-looking. b. Does not apply in cases of child abuse or crimes against spouse. 7. Ordinarily the presence of a 3rd person (child) destroys the confidentiality, unless the child is too young to understand a. Eavesdroppers in the world of surveillance today are generally forbidden from testifying if the communicants themselves could not 8. Include not only statements by also acts (nods, pointing) that are intended to substitute for statements a. Mere observations are probably a little iffy 9. Waiver – Only person who made the communication can waive it. f. Confessional/Clergy-Penitent Privilege i. If you are a member of any faith and engaged in confidential communication of any sort, it can be invoked. 1. Communication must be made to clergy in his capacity as a spiritual advisor. 2. Penitent must reasonably believer other party to be a member of the clergy. 3. Operates similarly to A-C privilege. ii. Tricky Cases – Court must decide whether confessional nature is bona fide. iii. Rationale – Stems from Roman Catholic confessional. g. Government Privileges – FOIA says government MUST provide everything in its record, subject to 9 exceptions/executive privilege (but one of these exceptions is a catchall that says “protected by federal statute” and there are TONS of federal statutes protecting all kinds of evidence). i. Executive Privilege – Supreme Court and Congress and The Executive have all broadened this privilege further over the past 10 years. 1. EXTREMELY broad: protects any advice that (1) did or (2) might ever find its way to the President’s (or vice-president’s) desk a. President is entitled to receive candid advice; unlikely to get candid advice unless it is kept confidential b. Applies to vice-president too. 2. Absolute privilege 3. Applies forever. ii. State Secrets Privilege (National Security Privilege) 1. Secret of state is a governmental secret relating to the national defense or the international relations of the United States a. Reynolds: test flight of experimental plane which crashed, govt successfully invoked state secrets for plane specifications i. Reynolds remains the law in this area. b. Invoking Privilege 51 i. Head of applicable agency must invoke national security privilege. ii. Head of agency has a broad enough view to know whether information should be kept confidential. Sometimes, they do not invoke privilege. c. Key: who is the moving party? i. If you are trying to get the info, you’re toast. You will not get the info admitted. 1. Government can claim sovereign immunity – have we waived it? NOPE. You cannot point to any statute in which we waived sovereign immunity in the context of national security information that someone needs for a tort case. So start by saying sovereign immunity – then say that the reason you can’t interpret any statute as waiving sovereign immunity in this case is because it’s a matter of national security. a. If the government makes the claim and it seems at all possible, that’s the end of it. b. If you’re a third party defendant – firm that made the plane, firm that made the electronics, etc. Government still hasn’t waived sovereign immunity, and so they don’t provide the information – Court wants to know what their option is at this point – NO WAY FOR PLAINTIFF TO WIN. i. if you need it to sue some third party, like gov’t contractor, and gov’t won’t give b/c nat’l sec priv, then you’re not getting it. ii. If government is a moving party, gray mail makes impossible to get some things done 1. Suppose defendant claims he was tortured. Confession inadmissible if defendant was tortured – application of poisonous tree doctrine – any evidence discovered as a result of torture must be excluded as fruit of poisonous tree. a. Government got information that led them to other information that led them to other information that led them to the defendant perhaps. b. TRY TO SUBPOENA GOVERNMENT OFFICIALS AS THE PARTICIPANTS IN THE TORTURE OR ONE OF THE OTHER PEOPLE WHO WAS TORTURED AT THE HANDS OF THE GOVERNMENT 2. Government refuses to produce evidence of the torture and the alleged third party or torturer. In THAT situation, if the defendant can convince the court that the claims are plausible, that there’s any plausibility at all, attitude of the courts is that government can invoke national security and we won’t inquire much beyond that if you invoke it, then it’s all over and so is your prosecution. 3. Gray mail – Government got this information from covert agent of the United States government so I need to call him as a witness – if there’s a plausible argument he possesses exculpatory evidence, then the case is dismissed. 2. Government has the privilege upon a showing of reasonable likelihood of danger that the evidence will disclose a secret of state or official information a. Mosaic Theory of Intelligence - We never know when one seemingly innocuous item is the last document needed to paint the full picture for some enemy. They may have 99% and this is last 1% - no way to know. 3. Judge is even instructed to give notice to the officer if it appears that the claim of privilege would be appropriate 4. Absolute privilege 5. Use affidavit from department head in ex parte or in camera proceeding to convince judge that info qualifies a. Only invoked at a sufficiently high level b. Reality is that judges are super reluctant to challenge government’s position iii. Official Information Privileges 1. PFRE 509’s official information privileges a. Deliberative process 52 i. This is basically executive privilege at a lower level ii. All government decision-makers should receive very candid communications iii. It’s important—need assurance of 100% candid communications to avoid politician BS iv. Not an absolute privilege like executive privilege (but pretty close to it)  courts sometimes allow evidence in b. Investigative files i. A completed investigation does not vitiate the privilege ii. Qualified privilege c. Privilege for material exempt from FOIA (5 usc 552) disclosure (9 broad categories) i. Wide range of records and information complied for law enforcement purposes ii. Records relating to banking regulation iii. Personnel and medical files d. Records relating solely to the internal rules and practices of an agency i. Can’t find out internal IRS materials regarding audits 2. Courts usually just look to FOIA precedent to interpret deliberative process and investigative files privileges a. Sometimes a litigant can prove a critical need that overcomes the FOIA exemptions, but courts use the 9 exemptions as proxy for the scope of the government’s privilege. Very difficult to admit anything falling within an exemption. b. (b)(1) EXEMPTION - Protects Classified Matters of National Defense or Foreign Policy c. (b)(2) EXEMPTION - Internal Personnel Rules and Practices d. (b)(3) EXEMPTION - Information Specifically Exempted by Other Statutes e. (b)(4) EXEMPTION - Trade Secrets, Commercial or Financial Information f. (b)(5) EXEMPTION - Privileged Interagency or Intra-Agency Memoranda or Letters g. (b)(6) EXEMPTION - Personal Information Affecting an Individual's Privacy i. Easier to get these into evidence h. (b)(7) EXEMPTION - Investigatory Records Compiled for Law Enforcement Purposes i. (b)(8) EXEMPTION - Records of Financial Institutions j. (b)(9) EXEMPTION - Geographical and Geophysical Information Concerning Wells iv. Informer Identity Privilege 1. Government need not disclose identity of informant who has furnished law enforcement with information purporting to reveal commission of a crime 2. Justifications a. Protect informers b. Avoid burning informers 3. Scope a. Privilege belongs to the government (i.e., prosecutor) to invoke as it sees fit b. NO PRIVILEGE if privilege-holder (prosecutor) waives privilege or calls informant as a witness c. Information provided by the informer is NOT privileged except insofar as it would tend to identify the informer d. Exception: if def. can provide evidence sufficient to cause judge to believe that informant is in possession of info that is exculpatory, govt must identify XI. EXPERT EVIDENCE a. Major litigation is all about expert testimony. Any case may be turned into a battle of the experts. High-stakes cases are more expert-dependent. i. Criminal Cases - outcomes rest much more on forensic evidence. 1. What criminal cases really turn on is the wealth of resources available to the defendant. Judges usually will not grant motions to provide additional funds for defense counsel to present and cross- examine experts. ii. Criticism – Near universal condemnation of this aspect of the U.S. legal system. 1. However, it is difficult to construct an alternative system. iii. Possible Alternatives 1. Science Courts – Never has gained acceptance. a. Is a sociology PhD qualified to testify as to physics topics? b. “Experts” frequently would be chosen for partisan reasons. b. Typical Expert Procedure i. Selection of Experts 53 1. Many sources of information on potential experts: trade journals; word of mouth; consulting firms; preexisting attorney relationship; Google; yellow pages; contacting university; etc. a. Most Common – Word of mouth. People talk about which experts win cases, and word gets around. These experts get more business. 2. Experts usually have an academic affiliation. Frequently associated with a consulting firm. 3. Preliminary Conversation with Expert a. First – Find out if there are any conflicts of interest, e.g., expert is testifying for opposing party. b. Provide general description of the dispute. Identify your client, the dispute, and the opposing party. Let the expert know what is going on. i. Expert may know only most basic facts as reported in media or trade journals. c. Tell expert which issues you would like her to address. State how you would like the expert to address them. i. Expert will determine whether she is qualified to testify or if her previous testimony/research/etc. contradicts what the lawyer is requesting. d. Conversation ends with a tentative agreement. 4. Lawyer then ships “initial care package” to expert. a. Usually two packages containing documentary summary, etc. b. Documentary summary is discoverable. Not covered by any privilege. c. Expert then will request supplemental documents, which she must review before she decides whether she can testify as an expert. 5.  Which person is selected as an expert depends almost entirely on the magnitude of the stakes. ii. Disclosure of Expert Information to Opposing Party 1. Judges like it when parties propose a discovery schedule, which he or she may rubberstamp. a. If expert’s name is disclosed in discovery, the expert is pretty much locked in (from the lawyer’s perspective). However, expert can drop out—no ban on doing so. b. If expert is not called, lawyer probably will have to explain why. This can be damaging. iii. Preparation of Expert Report 1. 4–20 pages. 2. Includes credentials and explanation of what expert is prepared to discuss at trial. 3. Drafts of expert reports are not discoverable. Only final expert report is discoverable. iv. Pretrial Expert Interrogation 1. 2–20 days of deposition. 2. A lot of time is invested in preparing an expert for deposition. v. Trial 1. Expert must undergo direct and cross-examination. 2. Directed Verdict – If the issue is one that requires expert testimony to resolve, then court may order a directed verdict if one party offers no expert testimony on that issue. vi. Likely Settlement of Civil Cases 1. Most civil cases are settled. 2. Amount – Biggest factor is choice of lawyer. Choice of expert witness also is a factor (second- most important). 3. Cases often are settled after expert witnesses are identified; expert reports are delivered; experts are deposed; or at 12:01 AM on the day of trial. c. FRE 702. Testimony by Experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. i. Scope of Expert Subjects – Very broad. ii. Qualifications for an expert—quite broad (can be Nobel laureate or welder w/ 30 yrs experience) 1. Governed by FRE 104(a) and determined by the court  Judge decides preliminary issues. 2. In practice, experts are almost always qualified—pretty low standard; very broad qualification possibilities. 3. The evidence of qualifications is to establish admissibility of the expert’s testimony AND bolster its weight a. Essentially character evidence—great opportunity to present specific positive character evidence b. Turns almost entirely on credentials 54 4. Process of qualifying expert witnesses and voir dire ordinarily is conducted in presence of jury since weight of evidence will depend on jury’s assessment of witness’ qualifications. iii. Opinion Testimony – Expert may answer questions about qualifications with opinion testimony. iv. If W can’t qualify as an expert, some opinions may come in under FRE 701. d. Expert Opinion Testimony i. Opinion testimony generally 1. FRE 701: any lay witness can testify to opinions that are (1) rationally based on the perception of the witness and (2) helpful in resolving the case a. Proponent must determine if 701 (lay testimony) or 702 (expert testimony) will apply— can’t do both. i. Must look at what specifically is being offered to determine whether it falls on the FRE 701 or 702 side. b. If FRE 702 applies, expert testimony need not satisfy FRE 701. 2. FRE 704: ultimate issue rules, including 704(b)—the Hinckley Rule a. Rarely admissible b/c unless the witness has legal training, they won’t be qualified to give an ultimate issue opinion b. Even if qualified, it’s not helpful to the judge or jury b/c judge is ultimate legal authority 3. FRE 704: Opinion on an Ultimate Issue: a. (a) In General--Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. i. Rejects old common law rule. ii. Jury still makes final determination. iii. However, many expert opinions on ultimate issues will be excluded on basis that they are not helpful to trier of fact. 1. Expert cannot testify that defendant was negligent. This is a legal conclusion. Judge will say that this is not helpful to the trier of fact. Only the judge gets to say what the law is. 2. Experts sometimes may testify on international law. b. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. i. Experts may not testify on ultimate issues as to defendant’s mental state when mental state is an element of a crime or defense. ii. The Bases for expert opinion evidence 1. FRE 703. Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. a. Facts can be made known to expert—the classic exercise of expert shopping, with “care” package 2. Reasonably Relied Upon by Experts – Judge must determine. FRE 104(a). a. Objective – Are they relied on? Does this happen in the field? b. Subjective – Are they reasonably relied on? 3. Need Not Be Admissible – Experts usually rely primarily on hearsay, much of which is inadmissible. This is OK. 4. Otherwise Inadmissible a. Expert cannot recite hearsay evidence on which she relies to jury. Can state only her conclusions. i. Cannot use expert testimony as a means of circumventing the other rules of evidence. Cannot use expert testimony to disclose inadmissible hearsay. b. Underlying evidence may be disclosed to jury in some cases. i. Balancing Test – Reverse FRE 403. Tilted against admission. ii. Probative value must substantially outweigh prejudicial effect. 1. Difficult to meet.</p><p>55 c. Opposing counsel on cross-examination has free range to impeach the expert. He or she may bring up this inadmissible evidence. i. This opens the door to rebuttal testimony. 5. The general body of specialized knowledge that constitutes her field 6. Other people’s observations about the person or object or event at issue. 7. FRE 104(a) – Judge determines whether sufficient basis exists. iii. Hearsay in expert testimony 1. FRE 803(4) (statements made for purpose of diagnosis) and 803(18) (learned treatises) 2. Can offer testimony based on hearsay or other inadmissible evidence a. Almost 100% of the materials relied on by the expert will be hearsay b. Entitled to a limiting instruction, but jury will undoubtedly conclude the factual basis for the expert’s opinion is true if they accept the expert’s testimony 3. Reasonable reliance requirement: for ordinary evidence, usually satisfied by the expedience of asking the expert herself iv. Presenting expert opinion evidence 1. FRE 705. Disclosure of Facts or Data Underlying Expert Opinion. The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. a. Allows the attorneys to organize the presentation of expert testimony as she feels best. b. Opposing lawyer is free to bring out inadmissible sources on cross; the reverse 403 test allows the court to let in otherwise inadmissible stuff on redirect if addressed on cross v. Cross and rebuttal 1. Most cases today amount to battles between the experts. 2. Attacking an expert on the grounds of her fee, her repeated use by one side, firm, etc. 3. Lots of opportunities for inconsistencies in lectures, speeches, books, etc. 4. FRE 705 permits full inquiry into the basis of the expert’s opinion 5. Experts are much harder to control than lay witnesses, though. a. Consistent opportunities to “explain themselves” and reveal damning evidence 6. One-sidedness of experts in criminal cases—the poor cannot afford the high price tag 7. Process of Cross-Examining an Expert a. In preparing to cross-examine an expert witness, you need a team of lawyers and consultants that are able to provide you with your own experts. b. Step One – Find every piece of testimony that this expert witness ever has provided. You want to find an inconsistency on which to base a prior inconsistent statement. c. Step Two – Someone must read everything that this expert ever has written, i.e., books, articles, etc., looking for inconsistencies. i. Look at the footnotes too. If the expert has cited an unreliable source or a source that is inconsistent with what the expert has said, this is gold. If expert says that cited source is unreliable or wrong, then this destroys her credibility. ii. You also can lead an expert witness to say something contradictory. e. SPECIAL ISSUES CONCERNING SCIENTIFIC EVIDENCE i. Distinguishing valid science from speculation and pseudo-scientific nonsense (junk science) ii. Daubert (did Bendectin cause birth defects, one guy going around even though FDA said no chance) 1. Under FRE 702, trial judge must decide whether the expert is proposing to testify to: a. Scientific knowledge that i. Whether the reasoning or methodology underlying the testimony is scientifically valid b. Will assist the trier of fact to understand of determine a fact in issue i. Whether that reasoning or methodology can properly be applied to the facts at issue 2. Four factors that will bear on this issue, decided by trial judge under FRE 104(a) a. (1) Is the theory or technique testable, and has it been tested? If not, it probably does not qualify as science b. (2) Has the theory or technique been subjected to peer review and publication? This is a relevant though not dispositive consideration. i. If something is published in any academic journal in a field other than law, this satisfies the peer review requirement.</p><p>56 c. (3) If the evidence concerns a particular scientific technique, what is known or potential rate of error? d. (4) General or widespread acceptance can be an important factor i. Restatement of Frye test. e.  (5) An additional factor from the circuit courts: whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation or whether they have developed their opinions expressly for the purposes of testifying. 3. Debate is over the right to a jury trial: if these matters are decided by a judge as a matter of law instead of the jury as a determination of fact 4. Daubert’s general holding on the gatekeeping function applies to all testimony based on “scientific,” “technical” or “other specialized” knowledge  need to establish reliability. Kumho. a. Supreme Court invites lower courts to use common law reasoning to add factors to the analysis if those factors are thought to be important.  Lots of discretion. Kumho. b. Court may consider one or more of the Daubert factors in determining reliability— Daubert factors are not necessary or exclusive in every case. Kumho. c. Reliability test is flexible. Kumho. 5. Standard of Review – Abuse of discretion is proper standard for appellate courts to use in reviewing a trial court's decision of whether expert testimony should be admitted. Joiner. 6. Focus must still be on the methodologies, not the conclusions under Daubert. BUT those two are not entirely distinct from one another 7. Praise & Criticism of Daubert a. Praise – Lay jurors lack expertise needed to evaluate expert testimony in many fields. Experts often say silly things, but jurors have no way of knowing that what has been said is silly. Daubert allows jurors to know what is going on. b. Criticism – We have made judges the gatekeepers of good and bad science, but they often are incompetent to evaluate the credibility/veracity/acceptance of the claims of expert witnesses—just as jurors are. Judges are not experts. 8. Impact of Daubert a. If a firm calls its work “cutting-edge” or “innovative” or “at the frontiers of knowledge,” there is a smaller chance that it will be admitted under Daubert. i. Cutting-edge technology may not be a tested, published, peer-reviewed. ii. Firms should excise all of this language from their publications. iii. Language is all hype anyway. Most firms do same work today that they have been doing for decades, or at least it is based in methods that have very long lineages. b. Voir Dire – Witness will have to review the methodology that she applied. i. Begins by describing foundation of the methodology, which should reach back hundreds of years. Ancient foundations/modern application. ii. Witness should be prepared to address every Daubert factor. Should have figures, citations, etc. on the tip of her tongue. f. COURT-APPOINTED EXPERTS as a solution to the battle of the experts i. FRE 706 provides the basis, but court-appointed experts are rarely invoked. (Rule is a dead letter.) ii. Criticisms 1. Gives no guidance as to how judges locate and select experts 2. Court-appointed experts have too much power—their testimony is essentially dispositive 3. Finding an expert without controversial views is nearly impossible. (Neutral) experts that say, “It could be A; then again, it could be B,” are not helpful to jurors. 4. Experts themselves are not neutral. They have scientific/political biases like everyone else. 5. Experts need to learn the facts of the case. This takes time and effort. iii. FRE 706 Court Appointed Experts (a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the 57 witness may be called to testify by the court or any party. The witness shall be subject to cross- examination by each party, including a party calling the witness. (b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. (c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. (d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.</p><p>Other Matters 1. If testimony is inadmissible but has been uttered, ask for it to be stricken from the record. 2. Always be mindful of asking for limiting instructions. 3. Lawyer may preserve evidentiary objection for the records. a. Rarely overturned on appeal. 4. Include a section on when Circuit Courts are willing to overrule evidentiary rulings. a. To order a new trial, appellate court must conclude (1) that there was an error and (2) that it had a substantial affect on the outcome of the trial. 5. Three Balancing Tests a. FRE 403 – Tilts in favor of admission. Unfair prejudice must substantially outweigh probative value for exclusion. b. Even Balancing c. Reverse FRE 403 – Tilts against admission. Probative value must substantially outweigh unfair prejudice for admission. i. Impeachment; something that is stale like a stale conviction 6. Matthews v. Eldridge – Hearsay constitutional trump. a. If evidence is powerfully exculpatory, due process requires it to come in 7. Hearsay a. Is it hearsay? b. Is there a definitional exclusion/admission? c. Is there an exception—declarant available or unavailable?</p><p>58</p>