Understanding Evidence Relevance: Key Rules and Analysis
School
University of California, Hastings**We aren't endorsed by this school
Course
LAW 368
Subject
Law
Date
Dec 12, 2024
Pages
31
Uploaded by seheememe
Evidence OutlineBig clusters of evidence (relevance, authentication, character evidence, hearsay…) Is it relevant?Write in question form Is the evidence relevant?(1) More or less probableoIt does not need to necessarily prove the fact it offered to prove, it just needs to make a fact of consequence more probableoEvidence does not have to be conclusive to be relevant o★Questions to ask during analysis1. Does the evidence move the needle even a little? 2. (not questions but check) Does not have to be conclusive3. Does not have to prove what it offers to prove, can help with any aspect of the caseoPUT KNAPP UNDER HERE (2) “of consequence” oI. Under the substantive law, providing the fact would help establish or defeat the claim. Providing the evidence would NOT help establish or defeat the claimEx) D is charged with murder and offers evidence that the person he’s accused of killing had several convictions for horrible crimesThat evidence is not of consequence The substantive law does not give that defenseYou are not more entitled to a murder a person over a good personoII. Under procedural law, the issue was lostEx) D claims that the contract is void for duressBut he lost the defense of duress for faltered to assert it in the pleadings Duress is an affirmative defense, so in order for a D to rely on the defense, he needs to assert duress in the PLEADINGS, or it is LOSTo★Questions to ask during analysis1. What is the evidence trying to prove?2. What is the relevant substantive law? 3. Does the provided evidence help establish/defeat the claim according to the substantive law and charged offense? 4. Procedurally… was the thing the evidence is trying to prove actually in the pleadings or did they just brought this up?OVERALL, whether the evidence is relevant depends upon the proposition it is offered to prove oLook at the statute/substantive law oDoes the evidence prove or disprove the proposition relevant to the law? oIs what the evidence is trying to prove relevant to the law? ★Always discuss relevance on exam CasesoKnapp v. StateProposed evidence – D thought P beat someone to death, his actions could be for self-defense, makesit more reasonable for him to react with deadly violenceRebuttal evidence – the old man died of senility and alcoholism + D could not name who told P Why is the rebuttal evidence relevant?It is more probable that he would have heard it if it was true than if it was not true Rule 401Evidence is relevant if – It makes a fact more or less probableThe fact is “of consequence”
Rule 402 Relevant evidence is admissible unless otherwise providedRule 403 excludes relevant evidence because the probative value < dangers o1. Evidence presented is relevant (so passes rule 401) o2. The relevant evidence is then examined★Does the evidence’s probative value outweigh the dangers listed in Rule 403?Yes – The court will admit the relevant evidenceNo – The court will exclude the relevant evidence★The trial judge is NOT ALLOWED to exclude under 402 on grounds that the evidence IS NOT TRUE – that is a question for the JURY o3. Did the other side already put in inadmissible evidence?By letting the inadmissible evidence in, they have forfeited their objection to additional inadmissible evidence as a response You can respond inadmissible evidence with additional inadmissible evidence BUT…Judge should consider…o(1) The prejudicial nature of the evidenceo(2) Whether the opponent made a timely objection to block the admission of the evidence Hypo)(ADD UNDER EACH CATEGORY)D is charged with being a felon in possession. D asks the judge to instruct witnesses to describe the weapon only as “firearm” because describing it in detail is unnecessary and prejudicial. What result? oWithout knowing the actual firearm how would the prosecution prove that he owned the firearm Ex. Discovering the firearm at his house, what model? Is it the same as the one the court is describing? Hypo) Q2, p. 100 oP v. D for personal injuries and wrongful death resulting from an accident in which P’s wife was killed and Pwas injured. oD admits liability. oP also seeks damages for emotional trauma resulting from his presence at the accident. oP testifies that he did not see his wife after the collision because he was rendered unconscious.oHe offers photos of the wife’s body and other evidence of its condition after the collision.oObjection, irrelevant – What result?The evidence shows a fact that is not “of consequence,” assuming that the substantive law only allows recovery for emotional damage only allows recovery for emotional damage that occurs at the time of the accident. Hence, it is not relevant.★Depends on substantive law Cases – put them under each category oOld Chief CaseD wanted to hide nature of his previous felonies for a charge of possessing firearmsThe name of the offense was relevant because it showed that D fell within the subclass of offenders for whom firearm possession was outlawedRule 403The court may excluderelevant evidence if its probative value is substantially outweighedby a danger of one or more of the following: oUnfair prejudice – add examples/casesoConfusing the issuesoMisleading the juryoUndue delay oWasting timeoOr needlessly presenting cumulative evidence
But the specificity was not necessary and was prejudicial. It would paint him as a violent convict and felon. oBallou CaseNurse’s testimony and actual test result in conflicting evidence of whether or not D was drunkIn deciding whether or not evidence is prejudicial…1. The trial judge has to accept the evidence AS TRUE2. The trial judge decides whether or not it is prejudicialoPrejudicial – deny oNot prejudicial – admit ★The trial judge is NOT ALLOWED to exclude under 403 on grounds that the evidence IS NOT TRUE – that is a question for the JURY oClark v. State (Fighting fire with fire) – you can just name description of caseProsecution put forth evidence that D was investigated for a prior rape, D counsel wanted to reveal that D was exonerated, trial judge did not allow to do so It should have been admissible to fight the inadmissible evidence from the prosecution The Court’s formula for FRE 403o1. The trial judge should weigh probative value against unfair prejudice in light of the alternativeso2. If this evidence is somewhat prejudicial, but the prosecution has other evidence that is just as good, then that is a reason for excluding this evidence The Ban on Character Evidence Evidence cannot be used to prove character which is used to prove action Evidence can be used to show character IF character is the ultimate issueoDefamation liar (truth is the ultimate issue)oKnowing how to make meth is a character issueCasesoCleghornP sued RR company due to injuries suffered from drunken worker, evidence of worker’s lack of control and moderation was offered despite character evidence objectionAllowed to show that RR was negligent in hiring him Rule 404(a)’s exceptions to the ban on character evidence: o1. Mercy rule: In criminal cases Applies when D calls witnessesThe witnesses can testify about D’s good characterBUT prosecution can rebut o2. Victim character (in criminal cases): In criminal casesD can put in evidence of relevant traits of victim’s character (but not in SA cases), But if that happens, prosecution can support V and attack character of D (can fight back)o3. The prosecution can also support the victim’s character in a homicidecase where D claimsV attacked first. The mercy rule The mercy rule, analysis stepsRule 404(a) Evidence of character is not admissible to show action in conformity… unless an exception applies. Rule 404(a)(2) CRIMINAL defendants may put in evidence of their good character, and the prosecution may rebut it Rule 405(Does not have to be a criminal D)The evidence has to take the form of REPUTATION or OPINION, but notSPECIFIC ACTS
o404(a)(2) 1. Is this a criminal case? 2. Is the criminal D calling witnesses to talk about D’s good character, putting in evidence for D’s good character? 3. Prosecution CAN rebut o405 (Does not have to be a criminal D to apply) 1. Is the evidence in the form of reputation?2. Is the evidence in the form of opinion?3. Is the evidence a specific act? No – ok goodoIs it essential to proving the case? Essential – must be part of the elements Liar = fraudNot like violent nature and assault Yes – does it apply to the exceptions for specific acts?o(1) Character witness is being cross-examined ORo(2) Character is an essential element Fraud = liarCasesoMichelson v. U.S. D was charged with bribery. Character witness testified to his good reputation. On cross-examination, prosecution asked the witness about a specific past arrest of Michelson (D). The Court noted that the D’s character witness may be questioned about events that reflect on D’s character in order to test knowledge of the witnessAnything that others do not know is not for reputation but is a character evidence★Reputation = everyone knows oLimits on Michelson questions to character witness The cross-examiner can’t just make things up.Questions on good faith basisThe cross-examiner has to “take the answer”The judge has discretion to exclude after weighing prejudice and probative valueThe judge should warn the jury that the evidence is to be used only to test the character’s witness’sstandard for assessing reputation and not as proof the D did the bad act o★Changes since MichelsonTestimony can take the form of reputationAn opinion character witness may be asked “Do you know…?” Other/prior crimes evidence oSuppose the prosecution offers evidence that the D committed crimes other than the one chargedThe evidence is ordinarily not admissible if it is offered to prove bad characteroBut when other crimes evidence is offered to show something other than character, then it is admissible under FRE 404(b) Provided that there is not too much danger that the jury will use it as character evidence (FRE 403) oEx) A character witness testifies to D’s good reputation for truthfulness. May the prosecutor ask, “Have you heard that yesterday he lied to the grand jury?”Is it relevant to reputation? No?How is it not relevant to reputation? Because its not like everyone knows he is a liar, he just did one bad thing, that is a specific incident
403 – character evidence?, character impeachment?, best evidence rule?, hearsay? excited utterance?… wherever you see it★First take out any other issues not relevant to the sectionThen end of the section write if 403 is relevant 401,402 in the beginning of analysis Prerequisites for admission of FRE 404(b) evidence of other crimes/prior crime evidenceoWhen other crimes evidence is offered to show something other than character, then it is admissible under FRE 404(b)oThree prerequisites(1) The evidence is offered for a proper non-character purpose (KIPPOMIA) State v. Arrendondo oThe majority in the Arrendondo case said that evidence that D had been involved in an earlier drive-by shooting against the same rival gang was admissible to show motive and intentShowed animosity towards the rival gangCEC § 1109 oThis statute creates an exceptionto the rule against character evidencefor evidence of defendant’s other actionsof domestic violence or child abuse oHowever § 352 still applies and can be the basis for an argument that the evidence ought to be excluded (CEC § 352 is the California equivalent to FRE 403) FRE 403 – judge can exclude evidence if substantially dangers (waste of time, prejudice, etc.) substantially outweighs the probative value oEx) D is charged with a crime of domestic violence against his wife. Evidence is offered that he previously assaulted her. It is admissible in California It could be admissible under FRE to show animosity towards the victim. US v. CunninghamoDemerol (opioid) case oDesire of compulsion can be used to show motive (addiction is not character evidence if it can show motive) oEvidence can be admitted if it used to show that the D had the same motive for the prior and current crime – both crimes are charged by the same desire or compulsionOther examples of same-motive evidenceoAddiction (Posner)oChild molestation (Posner)o“Firebug” activity – setting fire? (Posner)oIndecent exposureRule 404(b) Evidence of other (prior) crimes or acts may be received for purposes other than showing character, such as… KIPPOMIA – put cases under here oKnowledgeoIntentoPlanoPreparationoOpportunityoMotiveoIdentityoAbsence of mistake or accidento(Showing consciousness of guilt)
oCruelty to animalsoPointless vandalismoExcessive greed (2) It passes the FRE 403 test Evidence’s probative value must outweigh dangers like wasting time and prejudice. (3) There is sufficient evidence that D was guilty of the other crime See Tucker v. StateoTucker was not charged with the first murder, but he was for the second oThe trial judge allowed evidence of the first murder to be admittedoThis evidence should not have been admitted because there was insufficient proof that D committed the prior crime oThe standard of proof (on state level)for the crime is clear and convincing evidenceSee Huddleston v. USoD, charged with selling stolen cassettes, said he did not know they were stolen. US proposed evidence that D previously sold other stolen goods obtained from the same source. oUnder federal law, the standard for proving a crime, required to bring the evidence to a jury, is evidence sufficient for a reasonable jury to support a finding. (very low)Too many bullets put it above in the boxKnowledgeoPrior crime: Tax evasionoCurrent crime: Tax evasion oThis would be character evidenceoThe prior crime shows knowledge IF the first time led to a warning by the IRS that D was required to pay FICA taxes on her nanny. She SHOULD HAVE KNOWN the second time she committed tax evasion because she got a notice the last time. o“I did not intentionally evade taxes” – shows knowledge; she knew she had to pay the taxes because she was noticed before during her prior crimeIntent:oPrior crime: sales of cocaineoCharged crime: Possession of cocaine with intent to distributeoIf that is all there is to it, it would be character evidence and therefore inadmissible oThe prior crime is admissible if it shows INTENTIf D claims she possessed the cocaine for her own use, and not for sale it could show INTENT Plan:oPrior crime: murder of duke AoCharged crime: murder of duke BoIf that is all there is then it is character evidence and therefore inadmissibleoThe evidence would be admissible as showing PLAN IF the D had the PLAN of killing everyone who had a superior claim to the dukedom Preparation: oPrior crime: stealing keyoCharged crime: Burglarizing houseoThe evidence would be admissible if stealing the key was done to prepare for the burglary to get into the houseOpportunity: oD claims he could not have stolen from the secure room because he didn’t have access o???Motive:oPrior crime: D robbed a bank with BuzzyoCharged crime: D murdered BuzzyoThe prior crime shows motive if the prosecution claimed that D killed his accomplice to prevent him from helping police solve the bank robbery Identity:
oPrior crime: stealing jewelryoCharged crime: stealing antiquesoDefense: mistaken identityoIf the thief used a distinctive M.O. for example distracting a sales consultant by pretending to bleed from the mouth, then the prior crime could show identityAbsence of mistake or accident (with purpose, intent)oPrior crime: stealing mailoCharged crime: stealing from mail HyposoCould evidence that an accused robber was a drug addict be admissible?Yes, could be used to show motive (need money for the addiction)No, because it could be character evidence and that would influence the jury to think that drug addicts are likely to rob a bankoAssassination suspect shoots police officer when stopped for traffic violation – could this be admissible?Yes, it shows consciousness of guiltConsciousness of guilt – a type of circumstantial evidence that can be used to show that a defendant may be aware of their guilt in a crimePreliminary Facts/QuestionsProof of foundation facts (preliminary fact)oOften the admissibility of evidence depends upon whether the proponent has “laid the foundation” for the evidence by establishing prerequisite factsEx) For a confession to be admissible, the proponent must establish that Miranda warnings were givenMiranda rights are important because they protect individuals from self-incrimination during a custodial interrogation. The rights, which must be read to a suspect before questioning, inform the individual of their Fifth Amendment rights against self-incrimination and their Sixth Amendment right to legal counsel.Disputed evidence = confessionFoundation fact = Miranda warningoWho decides whether the foundation fact is true? The judge Rules 104(a) and (b) set forth procedures for establishing foundation factsRule 104(a) The judgeapplies to preliminary questionsthat determine whether evidence is admissibleThe judge decides, not the juryIn so deciding whether any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible, the court is not bound by evidence rules, except those on privilege.Standard is preponderance – a superiority in weight oThe proponent must persuade the judge that the foundation fact is true by a preponderance of the evidenceRule 104(b) Exception to Rule 104(a)When the relevance of evidence depends upon whether a fact exists, juries determine whether the fact existssubject to minimal screening by the judge. If there is evidence sufficient to support a finding that the fact exists(whether something is true or false), the issue goes to the jury. The court may admit the proposed evidence on the condition that the proof be introduced later.Standard is sufficient to support a finding (Huddleston) oThe proponent need only provide the judge with evidence sufficient to support a finding that the foundation fact is true
104(a) question: evidence is not admissible, unless a foundational fact is true. Judge should decide. oFoundation fact has to be true for evidence to be admissibleoThe evidence would be relevanteven if the foundation fact was not true oHearsay can be used to lay the foundation for hearsayYou can use an out of court statement that would not be admissible to lay the foundation for an exemption to the hearsay rule because in deciding preliminary questions, the judge is not bound to the rules of evidence oEx) Miranda rights were not told to D. Confession is not acceptable according to law. So, evidence/confession isnot admissible.104(b) question: The evidence is not relevantif the foundation fact was not true. Jury should decide. oRecap: Rule 401 RelevancyEvidence is relevant if – It makes a fact more or less probableThe fact is “of consequence”oEx) If court decides the D wasn’t the one who killed the victim’s cat, then evidence is irrelevantsince it doesn’t show the motive of D killing victim’s cat. ★How do you decide whether it is a 104(a) or (b) question? SEE SLIDEHow do you decide whether 104(a) or (b)?oDefinitional approach(1) The existence of the preliminary fact is 104(b) question when the basis for objection is that because the PF has not been established, therefore the proposed evidence is not relevant(2) It is a 104(a) question when the basis for objection is that because PF has not been established, therefore the proposed evidence should be excluded for another reasonoPolicy approach (1) Where there is no danger that the jury will give weight to the proposed evidence even if it decidesthe foundation fact is not true, then the jury should decide. 104(b) applies. (2) Otherwise, the judge should decide. 104(a) applies. Habit (goes under character/excption)Perrin v. AndersonoThe evidence was admissible because it was evidence of habit, not characterThe court allowed four of the officers to testify at trial that they had been involved in previous violent encounters with Perrin, and that Perrin apparently hated police and always reacted violently when he came into contact with them.oWould not be allowed under current FRE 404(a)(2) because it was a civil case, and even if it was, specific acts are not allowed, only reputation and opinion (FRE 405) It is a specific act because not enough repetition to be a habitRosebrock v. ESE PhysiciansoDr. Davis did not make note of Philips’ back pain (noted knee and hip pain) oThe doctor testifies that she saw patients on backboards several times per shift. She routinely examined their neck and spine, never taking them off the backboard without doing so.oHeld, it is a HABIT. Even a complex medical procedure can be a habit.oUltimately, it was determined that Phillips had a burst fracture on her backInfected wound resulting from corrective surgery caused brain injury and ultimately her deathoDr. testified her process (involving checking the spine) was admitted to show her habitRule 406 Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated (verified) or whether there was an eyewitness.
oFactors that favor calling it a habitConsistent response to stimulus, uniformityAdequacy of sampling (repeated many times)Reflexive, almost instinctiveHypooD is accused of murdering V with an insulin injection. His defense is alibi. Evidence is offered that he killed another person the same way. Objection, characterOverruled, the M.O. shows identity oSuppose D was acquitted of the prior insulin murder. Could evidence of the prior murder still be used as KIPPOMIA evidence?Yes, it could be still used if there was evidence sufficient to support a finding that D committed the prior crime Dowling case – evidence of the prior crime is admissible and not double jeopardy since the prior crime is just being used as evidence The Rape Shield RuleThe defendant is not allowed to put in evidence of the sexual predisposition or sexual behavior of the alleged victim In criminalcases, Rule 412 sets forth a flat rule of exclusion with 3 exceptionso(1) To show that the source of physical evidence, such as injury to the victim (such as semen, DA evidence)o(2) To show prior consensual sex with the accusedo(3) When the Constitution requires that the evidence be admittedIn civil cases, it is a balancing test between prejudice/harm and probative value (like Rule 403), tilted towards exclusion. If it is close, the evidence stays out oCompare: Rule 403 balancing testoTilted towards exclusionoRule 404(b) – KIPPOMIA? Rule 412(c) contains an important procedural requirementoD’s evidence about D’s prior sexual behavior must be examined at a pretrialhearing before it can be offered at trial D must give notice that they plan to introduce sexual behavior evidenceD must describe this evidenceThe hearing is on cameraThen the judge decides whether it is admissible before trialExcluded evidence is sealed HyposoD is accused of robbing a bank with a weaponized guitar and Elvis disguise. Would evidence that he robbed other banks using the same equipment be character evidence?Rule 404(b) KIPPOMIA – IdentityNot a habit if done once or twice before oD is accused of forcing V to engage in sex acts involving bizarre equipment. Evidence that V consented to acts with other using similar equipment is. Not admissible even if it is character evidence Under 412, anything that indicates sexual predisposition and sexual behavior is excluded oV testifies that she was raped in a park by a stranger. She flagged down a police car. Does Olden mean that Dcan put in evidence that she was having an extramarital affair? NoThe Oldencase says that the testimony was central and crucial to showing something helpful to the defense (that she would be likely to lie – motive), but in this case it does not carry the same weightoV, a 16 year old girl, testifies that D sexually assaulted her. D testifies he caught V having sex with his son and reported that to V’s father. Is D’s testimony admissible?There is a reason to lie. Rape as a reason to not get in trouble with the far.Rule 412Excludes evidence of both sexual predisposition (tendency) and sexual behavior with narrow exceptions.
A form of revengeOlden v. Kentucky (SCOTUS)oAccording to the SC, what was the principal justification for admitting the evidence of the affairwith Russell? It gave the victim a motiveto lieoWhy is it unconstitutional to exclude this evidence?SC said it was unconstitutional because it violates the D’s right to cross-examine Due process – 6thamendment Is Rule 413 inconsistent with the rape shield rule (412)?oOpponents of Rule 413 argued that:It is inconsistent with the rape shield rule. If the sexual history of the alleged victim is not admissible, then the sexual history of the alleged perpetrator should not be admissible. Rule 404(a)’s exceptions to the ban on character evidence: 2. Victim character (in criminal cases): oIn criminal casesoD can put in evidence of relevant traits of victim’s character (but not in SA cases), ★In sexual crime cases, victim’s sexual history is inadmissible oBut if that happens, prosecution can support V and attack character of D (can fight back)oNo, the two rules have different purposesThe rape shield rule not only prevents prejudice, but also it encourages reporting of crime and protects against victim humiliation oSex crime evidence is innately more probative than other prior history evidence Is Rule 413 inconsistent with the general rule against character evidence?oNo? Does FRE 415 override FRE 403?oTrial judge still has the discretion to rule it over FRE 403 oStill applies, can still exclude evidence for sexual assaultCommentators have made an understandable assumption that the higher rate of recidivism for a crime, the better the case for admission of propensity evidence when a D has been charged with that crimeHypo) Suppose that Bill Clinton is sued for sexual assault. Would an affair with an intern be admissible against him?oIf it was consensual, no?oIf it wasn’t – yes oAn affair is not a sexual crime Johnson v. Elk Lake School District oTrial court excluded evidence of prior incident where teacher threw student over his shoulder and possibly touched her crotch in the processoThe CoA upheld the exclusion of evidence because even if it was a crime, the other incident was different, it was isolated, and the proof was unclear (Rule 403) Rule 413-415Prior sex crimes of accused are admissible (exception to rule against character evidence) o413: in sexual assault prosecutions, prior sexual assault crimes are admissible to prove D’s propensity (tendencies). o414: in child molestation prosecutions, prior sex crimes against children are admissible. o415: the evidence is also admissible in civil cases based on sexual assault or child molestation note: Rule 403 – balancing test
Civil Case Evidence ExclusionSome of the FRE can be used in civil cases to exclude evidence of oSimilar prior accidentsoRemedial measures (Rule 407)oSettlement negotiations (Rule 408)oOffers to pay medical expenses (Rule 409)oExistence of liability insurance (Rule 411) Similar Prior Accidents oHyposP sues after falling off of the sidewalk. She wants to put in evidence that other people fell on the same sidewalk. Objection!Rule 403 governs. The evidence might be admissible to show dangerousness if the conditions were similar.Suppose P offers evidence that the other people fell on the sidewalk when P was injured. Why might other falls that happened BEFORE P fell be more probative than falls that happened AFTER P fell? Prior falls could be evidence that D had notice of danger More probative if conditions were similar and if others fell after her incident occurred Remedial measures (Rule 407) Impeachmentof a witness refers to the process of discrediting or undermining the credibility of a witness during a trial, by presenting evidence or asking questions that contradict their testimony or reveal a bias, inconsistency, or falsehood in their statements. But the court may admit this evidence for another purpose, such as impeachment or – if disputed – proving ownership, control, or feasibility of precautionary measures Examples of testimony by defense witnesses that would make remedial measures admissibleo★only applies to subsequent remedial measures (subsequent to incident) o(1) Impossibility – you can’t make a locomotive that doesn’t throw off sparksA remedial measure would show it was possibleo(2) Economic infeasibility – making it safer would cost so much we would go out of businessA remedial measure would show it was feasibleo(3) Impeaching inaccurate testimony – the carpet was firmly attachedA remedial measure would show that the testimony was inaccurateThe FRE Committee lists two grounds for a rule excluding subsequent remedial measuresoSee slide Tuer v. McDonaldoHeparin caseRule 407Prohibits evidence of safety improvements that are offered for certain purposes, such as showing negligence, culpableconduct, a defect in a product of its design; or a need for a warning or instruction.
oP claimed Ds were negligent in failing to continue to use blood thinner. D changed protocol to continue administering blood thinner.oTestimony of remedial measure evidence was not admissible to show feasibility. oThe mere fact that it throws some doubt on their testimony doesn’t mean it should be admitted. oIt the medical context, the feasibility is put in issue if the D claims:The measurewould have been economically or physically impossibleThe measure would likely cause “paramount harm to the patient” oQ: Tuer held that evidence of the remedial measure was not admissible. Would the result be the same if the doctor had testified that continuing the thinner would be deadly?No, it impeaches them Would be deadly = makes them not using the blood thinner more negligent = there were dangers that they should have known = against their testimony = impeachment o★The mere fact that a safety measure casts some doubt on the testimony of a defense witness is not enough to justify letting in the evidence to impeachoThe exception for impeachment should not be allowed to destroy the rule The California difference – California rule is more narrowHyposoAn engineer who works for D Co. testified that a product is safe. Evidence is offered that he sent a letter to customers warning that the product had “deadly propensities.” Does the subsequent remedial measures rule apply here?Inconsistent. Testimony – it is safe; Letter – sends a warning that it is dangers. So… impeachment purposes it would be admissible.oP buys a car in 2014. Ford improves roll over safety in 2015. In 2016, P is injured in a rollover of his 2014 model. Is the 2015 improvement admissible?No because it was not after the injuryoIn 2017, Ford improves rollover safety. And 2018 there is a trial. Is the 2017 improvement admissible?Yes, evidence of Ford’s safety improvements to prevent rollover would be excluded by Role 407 if it was made AFTER the P was injured The rule only applies to SUBSEQUENT remedial measuresSettlement Negotiations/Compromise offers and negotiationsTo encourage settlement offers, the rules prevent use of offers and compromises and statements in conjunction with those against the person making the offerEx) “Sorry I was texting, how about you drop the claim and I will pay you $10,000?”oThe texting claim is not admissible because it was made in conjunction with the compromise offer.They are admissible for other purposes such as showing a witness’s bias. Hypo) Rachel sues Joey and Ross. She settles with Ross. Ross testifies on her behalf against Joey. Joey wants to put in evidence of Ross’s settlement with Rachel. Outcome?oExclude, because of witness bias. Davidson v. Prince – a letter seeking compensation is not made in “compromise negotiations” so it is acceptable oThe letter was merely recounting the facts of the case so it was admissibleCalifornia differenceoThe current federal rule prohibits offer in compromise evidence to impeach with an inconsistent statement (See Rule 408), while CA (CEC § 1152 does not forbid them for purposes of impeachment) Offers to pay medical expenses Rule 408Settlement offers and statements made in conjunction with them are not admissible to show validity or amount of the claim or to impeach with inconsistent statement of contradiction Rule 409Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury
Hypo) After hitting a pedestrian, a driver said, “I am sorry. I was texting. I will pay your medical expenses.” Later thepedestrian sued and offered the statement in evidence. Admissible?oThe statement is admissible in part (note that the conjunction rule as in 408 does not apply!) “I am sorry. I was texting.” – admissible? The rest is not? oThis is not a compromise offer because he did not ask to relinquish claim in exchange for money Existence of liability insurance Liability insuranceprotects you financially if you're responsible for someone else's injuries or property damageHow could liability insurance be relevant to negligence?oShows knowledge possiblyHow could this be prejudicial?oJury aims for higher damages to get into pockets of D (past insurance premium) Hypo) Personal injury case. An investigator for D’s insurance company testifies for D. D’s lawyer asks the judge not to allow P to ask the witness whether he is an insurance investigator for D. The judge should – oAllow P to ask “isn’t it true that you are an investigator for the defense?”Leave out “insurance” to prevent prejudiceoYou can’t use insurance to show negligence or fault, but you can use it for other purposes Hearsay IntroductionHearsay evidence is considered to be inferior/dangerous because the credibility of the out of court declarant has not been tested by cross-examination in courtoElements of credibility – sincerity, clarity, memory, perception★Definition: hearsay is an out of court statement offered to prove the truth of the matter assertedCategories of statements that are not hearsaybecause they are not offered for their truth: oStatements offered for their effect on the listenerEx) why the listener did something in reaction to the statement oStatements offered as circumstantial evidence(indirect evidence) of thedeclarant’s state of mindStatement is circumstantial evidence if it say something other than the fact it’s offered to prove, but itis a clue to that fact “You cheated on me!” angry guilty knowledge; using phone numbers to show people know each other Direct evidence = “I am confused!” is still admissible for state of mindoLegally operative language = statements that in itself change a legal relationship (ex. offer/acceptance)Ex)A statement that by itself is a crime, like a threat Rule 411Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control Rule 408Hearsay within hearsay is admissible if each level meets a hearsay exception. Ex) Nurse’s record says patient says he was hit by a car. Nurse’s statement (803(6)) / Patient’s statement (803(4))
Ex) Ross hands Rachel a book saying, “this is a gift.” Later Ross sues to get the book back, claiming the statement was hearsay. Not hearsay because it was offered to show Ross made a gift. ★This is legally operative language – handing over something (the action) and then saying that it is a gift (statement) is the legal definition of a gift HyposoDenny is accused of burning down Victor’s house. Evidence that a neighbor told Denny, “Victor stole your horse,” is admissible to show – Denny BELIEVED Victor stole the horseProves motive oRachel says “You cheated on me.” This statement is offered to show she is angry. Hearsay?No, if it is circumstantial evidence to show her state of mind and not to prove that he cheated“I am angry at you” could be hearsay? – because it is direct evidence of the state of mind oDuring surgery, a nurse announces, “a sponge is missing.” Later the patient sued because a sponge was left inhis body. The nurse’s statement is admissible to show – That the surgeon should have checked (effect upon the listener) The fact that she states that the sponge was missing shows that she knew ad that she should have checked if it was misplaced or in the bodyNOT admissible to prove a sponge was left in the bodyIt is a hearsay if the statement, that is hearsay, should be assumed to be true before moving onto the next part of the argument(1) Sponge is missing (2) So sponge is in the body oIf the sponge was missing, the sponge could have and would have been in the body. oBuzzy was arrested at the post office after picking up a package. The package contained 40 pounds of marijuana. He claimed he didn’t know there was pot in there. Before, his girlfriend sent him an email saying, “Buzzy, I mailed you 40 pounds of pot.” Objection. Hearsay.Overruled, offered for their effect on the listener (Buzzy) = he was informed, he claimed he wasn’t He went to go pick it up? How is this an effect on the listener? NOT admissible if offered to prove he believed the package contained MJ ThreatsoA threat can be legally operative language if it is offered to prove that the person who made the threat committed a crimeBut if the threat is offered for some other purpose, you need some other theory just so that it is not hearsayoSubramaniam v. Public ProsecutorSubramaniam was found guilty of possession of ammunition without lawful authorityOn 4/29/1955, he was found wounded and when he was searched there was a belt containing the ammunitionDefense said he was acting under duressSubramaniam tried to give evidence of what terrorists said to him, but the trial judge said evidence was the conversation was not admissible unless they were called to the standThe statement “fight with us or we will kill you” is not hearsay because even though it was offered for its truth, it was used to prove its effect upon the listener If there is a presented evidence that can be used against ONE but not ANOTHER party, the court MUST RESTRICT THE EVIDENCE TO ITS PROPER SCOPE Hypo) Assume both notice and slickness are disputed. What should the judge do about the “slick when wet” statementoAdmit it with a limiting instruction about what they are allowed/prohibited from using the statement for Rule 105If the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request, must restrict the evidence to its proper scopeand instruct thejury accordingly
Example) In a criminal trial, the D has a prior conviction for a similar crime. The prosecution may want to introduce this prior conviction as evidence of the D’s propensity to commit the crime in question. However, this is generally not allowed under the rules of evidence because it would be unfairly prejudicialoRule 105 allows the court to admit the prior conviction for a different purpose, such as to impeach the D’s credibility if they testify, but the jury is instructed to consider it only for that limited purpose and not as evidence of the defendant’s guilt in the case Ries Biologicals, Inc. v. The Bank of Santa FeoDs contend that the court erroneously admitted declarant’s oral agreement, out-of-court statements guaranteeing payment for approved shipmentsoThe relevance of the statements is not their truth or falsity, rather it is the fact that the statements were madeOffered to show NOT THE TRUTH OF THE MATTER ASSERTED BUT offered to show that the statements were made by Mr. Levitt – not hearsay purposeThe relevance of the statements depends not on the credibility of the declarant but on the credibilityof the testifying witnessTheir guarantee is not hearsay becauseit is legally operative language (oral argument definition)Statements showing confusionIdaho Golf Partners caseoIGPI operates golf course in Idaho; TSM (Timberland Stone Management) operates the golf course in Michigan oIGPI sued TSM. Alleging a claim for tortious interference with prospective economic advantage (trademark case) – they used the same golf course name oP (IGPI) seeks to preclude D from including evidence referring to telephone calls from anonymous callers to show consumer confusion (requirement for trademark cases) oThe judge set forth guidelines for admitting evidence:Statements by customers that show confusion without saying “I’m confused” are NOT offered for their truth and NOT HEARSAYStatements by customers that directly say “I’m confused” are hearsay, but admissible because of the state of mind exception in 803(3) Statements by customers saying they were confused in the PAST do not fit 803(3), which covers the PRESENT state of mind Statements showing present state of mind are admissible whethero(1) they directly asserted the state of mindHearsay but an exception under Rule 803(3) o(2) they are used as circumstantial evidence of state of mind Circumstantial = not hearsayRachel finds out Ross cheated on her and they argue. She says, “how could you do this to me?!” in an angry tone. FRE 801(c) = not hearsay Hypos) Assume that the witness is a scheduler for the Michigan gold course, and the witness’s testimony is offered toprove consumer confusionoAn employee who works for MI Timberstone would testify she got a call from someone in Idaho who asked how far Timberstone was from Boise (city in Idaho) Admit, it is not hearsay because it shows confusion without saying they are confused (circumstantial evidence of confusion) FRE 801(c)A statement showing declarant’s state of mind is not hearsay it it’s not offered for the truth of the matter assertedoExample: The fact that Rachel said “you cheated on me” is admissible to show her angry state of mind. FRE 803(3) Creates an exception for statements of presentstate of mind that are offered for the truth of what they assert. oExample: Rachel says, “I am angry” and that statement is offered to show she is angry. It is admissible.
o“I’m confused because the names are the same.”Admit, 803(3)o“Last week I nearly made a reservation with you because I thought you were the course in Idaho”Exclude, statement saying he was confused in the PASToWitness: The scheduler told me she gotten at least 10 calls from golfers who thought they were calling the Idaho courseHearsay Not present state of mind?Hypos) D claims that a detective manufactured a baseless drug case against him because the detective had a grudge against him. The state offers testimony that X told the detective he bought drugs from D. oIf the D is directly challenging the procedure of what the officer did, it would not be hearsay for the detectiveto respond with the action or the event that led him to take that action (state of mind, effect on him)oSo this is to show that the officer has a state of mind of not fabricating the case, that he has a legitimate reason to investigate this defendant United States v. KizzeeoDetective arrested Brown and took him back to the station for questioning, this led to the officer securing a warrant to search Kizzee’s house oThe government argues that no statement made by Brown was ever introduced at trial and the detective testified only as to his own observations (no real reason to search his house, arrest him?)oHere, the detective’s testimony introduced Brown’s out-of-court testimonial statements for their truth by implicationThe detective’s testimony was not being used to show WHY the officer took actions that he did, but rather to show that Brown’s statements that Kizzee had drugs must be true which is WHY KIZZEE WAS ARRESTED ★offered for the truth of what they asserted – by implication – it is hearsayIf the statements are offered merely to show that detective believed D had drugs, it is not hearsay Examples of situations where a detective’s disbelief in a suspect’s guilt would be relevant o★not hearsay because it shows effect on the listeneroThe D claims the detective framed an innocent person because he as prejudiced against himoThe suspect sues the detective for making a false arrestDispatcher communications★Dispatchers statements can be offered on the theory that they are not being used for the truth of what they state, but to explain the subsequent conduct of the officer – may require a 403 analysis Hypos o“The dispatched reported a hit and run in which a red SUV hit a pedestrian. I went to the scene and measured the skid marks.” (Later, D, owner of the red SUV, was arrested) Admit; not hearsay; shows state of mindThere is a danger that the jury could use this statement for the truth of what it asserts So, add an instruction to redact the red SUV description because it can prejudice the jury to thinking it had to be D because of the red SUV instead of the skidmark evidence o“As a result of a dispatcher’s call about a crime in progress, I went to the Jug Shop, where I saw a car that fit the description given by the dispatcher pulling out of the parking lot. I pursued it and made an arrest.” When the out-of-court statement says the car fit the description given by the dispatcher, that is the same as putting in an out-of-court statement that the dispatcher said, “the crime was committed by someone with this car’s description.” However, we can admit because the officer needs to explain their reason for chasing the individualSo it is hard to see how you could explain why the police officer did what he did with a legitimate purpose without also telling the jury that they arrested somebody with that car description Rule 403 comes into play when there is a permitted use and a prohibited use You gotta weigh probative value against prejudice in light of alternativesoAlternatives include repharsing and redactionImplied assertions ●Statements that are circumstantial evidence of the declarant’s state of mind ●Wright v. Tatham
○Question about whether the testator was competent to make a will ○He had devised everything he owned to his steward and a relative (the admiral) said that the testator must have been out of his mind – was he mentally competent to make a will? ○One piece of evidence was that he received a lot of letters from othersand they were offered to prove that he was mentally competent ■The letters are written to someone of ordinary understanding (make it more probable!)○Hypo) Apply the FRE. Is the letter saying “there’s a plague in Alexandria” hearsay when offered to show thatthe addressee is mentally competent? ■No it is not offered for the truth of what it asserts ●(from top of section) Hearsay evidence is considered to be inferior/dangerous because the credibility of the out-of-court declarant has not been tested by cross-examination in court○Elements of “credibility:” sincerity, clarity, memory, perception ○Hypo) Arguably one hearsay danger is reduced when the letter says “there’s a plague in Alexandria” instead of “Marsden is competent” – what is it?■Sincerity ●It’s less likely that the value of the evidence will be diminished by danger that the declarant is lying. If he is lying about the plague, that doesn’t matter, and it is unlikely that he is cooking up a scheme so that people will think that Marsden is competent ●It’s hard to foresee that applicability ●United States v. Zenni○Issue: whether implied assertions are hearsay – whether calls to a bookie placing bets were admissible ○During an authorized search, the government agents answered the telephone several times ○The government wants to introduce evidence to show that the callers believed that the premises were used in betting operations ○This was admissible because it was a “direction” and not an “assertion”○FRE: ■No oral or written expression was to be considered as hearsay, unless it was an “assertion” concerning the matter sought to be proved and ■No nonverbal conduct should be considered as hearsay, unless it was intended to be an assertion concerning said matter■As an implied assertion, the proffered evidence is expressly excluded from the operation of the hearsay rule by Rule 801 of the FRE, and the objection thereto must be overruledNonverbal conduct under the Federal Rules ●(1) Nonverbal conduct is wordless conduct, like pointing a finger or driving a car ●(2) Nonverbal conduct has to be a “statement”in order to be hearsay The burden of proof on whether the conduct was intended as an assertion is on the party claiming that the conduct was intended as an assertionHypos)oThe teacher told her class, “If you started the fire, raise your hand.” Becky raised her hand. Later Buzzy was charged with the crime. To prove someone else did it, he wants to put in testimony that Becky raised her hand. Hearsay? Yes – Buzzy is asserting that Becky’s nonverbal conduct is proof that she did it and not her oSomeone died in the fire. Buzzy wants to put in evidence that when she learned of the death, Becky, the othersuspect, ran away from home. Hearsay?No, because she is not intending it as an assertion that she did the action oOn a battlefield, a paramedic covered a soldier's body from head to toe. The action is offered to show the soldier was dead. Hearsay?The answer would depend upon what the other evidence is, like what is the paramedic’s purpose in doing this? Yes, because it could be a statement to the people around him that he is dead FRE 801(a)“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as anassertion.
No, because he could be preserving the body to keep it sanitary…oUnder the FRE, a witness testified he looked out the window and saw pedestrians walking with their umbrellas open over their heads. Offered to show it was raining, is it hearsay?No, the pedestrians were not intending to assert it was rainingCircumstantial evidence? Nonverbal conduct is wordless conduct – for example, gestures In order for nonverbal conduct to be hearsay, it must be a statementEven if nonverbal conduct is a statement, it’s not hearsay unless it’s offered to prove the truth of the matter asserted in that statement Hypos)oSuppose X shakes his fist at Y, intending to make a threat. The fist-shake is a statement, but its not hearsay if offered to show the effect on Y, because then it’s not offered to show the truth of the matter asserted oTo encourage a staffer to testify in his favor, the mayor appeared for a photo op wearing a necktie the staffer gave him as a love gift. The photo op is offered as evidence the staffer gave false testimony to help the mayor.Step 1: Is it an assertion? Yes Step 2: Is it offered for the truth of what it asserts?This is not hearsay because it is not offered for the truth of the matter asserted (just shows effect on observer) Verbal conduct offered to show the state of mind of the declarant Hypos) oSuppose declarant said “D tried to kill me” It’s hearsay if offered to prove D tried to kill him It’s not hearsay if offered to prove declarant’s hostility toward DIn that case, it’s circumstantial evidence of declarant’s state of mindThe judge should give a limiting instruction (don’t use it to show proof) oQ1, p. 213) X is charged with assault on A and claims self-defense. The prosecution offers testimony that before the event A told someone X had attacked him with a baseball batIt’s hearsay if offered to show that X did attack AMost analysts would say it’s not hearsay if offered to show as evidence that A is afraid of XBut if A is lying about the attack, does the statement really show that A is afraid of X?The statement HAS TO BE TRUE for A to be afraid of XWhat about Rule 403? Is this overly prejudicial? oQ3, p. 213) X is accused of shooting his wife while she watched TV. He claims lack of premeditation due to stress of marital difficulties. The state offers testimony that the wife told someone that X threatened to kill her. Admit or exclude the evidence? Admit, to show her state of mind? Use to show that they had a rocky relationship which gave him motive to kill her (but also shows he could have been acting under stress of marital difficulties)Exclude, overly prejudicial? In the OJ case, OJ claimed that Nicole was friendly toward him during the dance recital just before her death. Other witnesses said she rebuffed him. Ps claimed this caused him to fly into a rage and to murder her.oTestimony is offered that just before the dance recital, Nicole called her mother and said "OJ has been stalking me and I'm sure he's going to kill me."The statement shows her state of mind, that she is afraid (the effect it had on her)Shows that they didn’t have a friendly relationship as OJ claimed; that they had a hostile relationship; she was afraid of him It cannot be used for the truth of the matter asserted People v. ThomasoEntries on D’s cellphone were names followed by dollar amounts, D argues that these entries were inadmissible hearsay oThe evidence was not admitted to prove the truth of any particular transaction recorded on the cell phone
It was admitted as circumstantial evidencethat drug sales were taking place – not hearsay Hypos)oTo prove that Buzzy and Wanda know each other, P offers evidence that Buzzy’s contact list contains Wanda’s name and number (Hearsay?) [evidence of association]Not hearsay because it is not offered for the truth of the matter asserted (that it is her phone number), it is circumstantial evidence that they know each other ★United States v. RhodesoRhodes charged with conspiracy oOne of his alleged co-conspirators transmitted biographical info about Rhodes and it was admitted (is it hearsay?)oIt was not hearsay when offered to show the Soviets were interested in him Recap – Hearsay: Out of court statements offered by the truth by the prosecution in criminal cases1.Not offered for their truth a.Not hearsay and no problem with Confrontation 2.Statement of party opponenta.Not hearsay and no problem with Confrontation3.Out of court statementsa.To be admissible, the statement must:i.(1) satisfy a hearsay exceptionii.(2) satisfy the Confrontation ClauseThe prosecution is allowed to introduce an out of court statement over a Confrontation Clause objection if – 1.The statement was nottestimonialbecausea.Its primary purpose was something other than prosecution, ORb.It was not formal2.Though testimonial, the statement was a dying declaration (maybe)3.Confrontation was provided because declarant testified as a witness (a) at this trial or (b) if unavailable, at an earlier hearing or trial subject to cross examinationConfrontation★If it is testimonial hearsay, for it to be admissible o(1) satisfy the Confrontation Clause ANDo(2) satisfy a hearsay exception If it is NOT testimonial hearsay, for it to be admissibleo(1) satisfy a hearsay exceptiono(2) no need to worry about CC6thamendment right to confront witnessThe 6thamendment provides that “The accused shall enjoy the right… to be confronted with the witnesses against him.” The statement is testimonialwhenoOne that looks like the kind of testimony that would be offered at trial in aid of prosecutionoIt identifies the D, accuses him of wrongdoing, describes the circumstances of the crime, establishes elementsof the offense, and is made with some formality after the event is order If the statement was "testimonial" (i.e., factual and either accusatory or important in making out the case against the accused), then the confrontation clause prevents its use against a defendant unless the defendant has an opportunity attrial or in another context (e.g., a deposition) to cross-examine the declarant.Testimony examplesoEmergency 911 calls which are made to seek help ARE NOT testimonial (Davis v. Washington) However, parts of the call that provide accusatory information that is not necessary to getting help may be testimonialoStatements to police about a suspect’s identity, type of vehicle, and state of mind that will assist them in resolving an “ongoing emergency” where the suspect is still at large ARE NOT testimonial. (Michigan v. Bryant)
oStatements by victims and witness describing the defendant’s conduct, made to police after the investigation have begun, are testimonial oDepositions, affidavits, transcripts of prior testimony are testimonial oPolice investigative records, such as lab reports of drug tests, are testimonial (Melendez-Diaz v. Mass.) The D has the right to cross-examine the technician who performed the test (Bullcoming v. New Mexico) Routine information gathered in the booking process for administrative reasons are not testimonialoDocuments and hearsay statements admitted to lay an evidentiary foundation ARE NOT testimonial (Speers v. State) – evidence establishing chain of custody oReference materials such as a glossary of abbreviations used on a cell phone bill ARE NOT testimonial If the declarant is unavailable to be cross-examined, the Confrontation Clause permits the admission of a hearsay statement in a criminal trial only if: (1) the statement falls within a firmly rooted hearsay exception, or (2) it bears other particularized guarantees of trustworthiness★CrawfordoThe Confrontation Clause allows out of court witness statements to be admitted only if the declarant is unavailable and the defendant had an opportunity to cross-examine the witnessoThen in 2004, in Crawford v. Washington, the Court radically changed direction, and held that the right of confrontation overrode the hearsay exceptions.oFormal statements made by a declarant that foreseeably aid in criminal prosecution are “testimonial.”E.g. grand jury, former trial, preliminary hearing, police interrogationoIf it is testimonial, then confrontation must be provided for it to be admissibleoIf the declarant is not available to testify at the present trial, there are two ways to provide confrontationWitness testified at a prior testimony and now the person is unavailable (e.g. preliminary hearing) Another is if the person made the testimony at trial because they could have been cross-examinedoConfrontation Clause (1) NOT ADMITTED – out of court statements offered to establish the truth of matter asserted (2) ADMITTED – statements for another purposeSuch as to form the basis of an expert’s opinionQ: When would an out of court statement be admissible over a Confrontation Clause objection even though it was formal and made for the primary purpose of prosecution?oA Confrontation Clause objectionis a legal objection that can be made in a criminal trial when a defendant believes that the admission of certain evidence violates their right to confront witnesses against them.oExamples mentioned in Clark – others way it may be admitted into evidence (without confrontation)Crawford, note 6 (dying declarations)Dying declarations may be admissible under an exception to the Confrontation Clause The right to confrontation can be forfeited When one doesn’t object to out of court statements offered against clientStatements not offered for the truth are admissible, so there is no confrontation problemoOther examples:Cases where declarant testifiedStatements not offered for their truth Primary purpose test oStatement is not testimonial and is also admissible if…Primary purpose was to deal with an ongoing emergency regardless if declarant could foresee its use in prosecution (Davis) no Confrontation neededoDavis v. Washington P involved in domestic dispute and allegedly hit partner, partner made 911 call detailing assault that was admitted but partner did not testify; holding the frantic nature of 911 call was not testimonialCompare to Hammon testimony when couple were separated by police and independently questioned, no emergency and calm environment, must be excluded for lack of confrontationHeld that her statements were testimonial confrontation necessary Oral statements (i.e. interrogation with police) can be sufficiently formal to be testimonialoMichigan v. Bryant D was alleged to have spoken with V and shot him through a door, V drove to gas station where police quickly questioned him but V later died, police went to D’s home based on questions and arrested him;
Holding NOT testimonial hearsay, police were dealing with ongoing emergency to deal with unknown shooterDISSENT: perspective of declarant mattersShould be testimonial, police were not afraid of emergency, V was recounting past events Circumstances of emergency must be considered; exigency, medical conditions, type of threat (a shooter might be ongoing vs. a stabbing)oOhio v. ClarkD was alleged to have abused children when child reported to teacher about injuries and later identified D was abuser, child was not allowed to testify Holding child’s statements not testimonial because of ongoing emergency, no indication primary purpose was to gather evidence for prosecution, informal and spontaneous discussion, statements by young children will rarely implicate CC; teacher’s potential agency with police’s duty to report is irrelevant In the context of crime lab reports (see also FRE 803(6) Business Records): oMelendez-Diaz v. Mass.Affidavit saying that a substance was cocaine formalCreated for use as evidence at trial prepared for the purpose of prosecutionSo it is testimonial has the right to confront oBullcoming v. New MexicoProsecution had offered lab report about the blood alcohol level of D without putting the technician who did the test and prepared the report on the stand though it did present another witness from the laboratoryConfrontation Clause objectionHolding testimony of substitute witness violates confrontation, report was formally certified and primary purpose was used in prosecution Confrontation not provided here because witness testifying was not the preparer of the reportoWilliams v. IllinoisAfter victim was raped, she went to hospital where staff ran a rape kit and prepared a semen swab sample test. Them, hospital sent swabs to a third party lab for DNA testing. Up to this point police did not have a suspect. Police sent vaginal swab to match DNA to third party lab who was not called to testify when a matchoccurred, D offered their own tech as witness The person that created the DNA profile or made the report was not called to testify Holding – admitting the report did not violate Confrontation Clause because it was not used to prove that truth of anything asserted in it, not prepared for prosecution because no suspect had been identified and intentional to catch rapist ALSO not formal This was to capture a rapist, responding to emergency; need specific person to say it is for prosecution FRE 703 Expert witnesses may offer opinions based on facts experts assume to be true, even if the experts can’t testify to the truth of those facts The profile match didn’t accuse Williams (D) of anything – just that his profile matched the test HypotheticalsoTestimonial out of court statements are admissible when declarant testifies at trial subject to cross-examination True, confrontation has been provided oTestimonial out of court statements are also admissible if the declarant is unavailable AND defendant had a prior opportunity to cross-examineTrueBut if the declarant is still available, they have to be called because the cross examination at present trial is a better opportunity than the prior cross examinationoThe CC allows out of court statements to be admitted whenever the declarant is unavailable through no fault of the party offering the statementFalse oIn D’s trial on the merits, the prosecution offers evidence that M testified in a preliminary hearing that D solddrugs to her/ M is in in jail and has not been called to testify in the present trial. Admitting her prior testimony against D would – Violate the CC because just because M is in jail does not mean she is unavailable for a subpoena
oDomestic violence case. D attacks V, then leaves before police arrive. During interrogation, V gives police a statement to aid in prosecution. It fits a firmly rooted hearsay exception. She does not testify at trial. Her statement isAdmissible under RobertsOhio v. RobertsHearsay may still be admissible under the CC if the declarant is unavailable, and the statement has adequate “indicia of reliability.”o“indicia of reliability” – signs or circumstances that indicate the existence of a factPersonal Knowledge If there is no foundation showing that the witness is reportingan event perceived with thewitness’s five senses, then the proper objection is “no foundation showing personal knowledge”oEx) Without foundation, the witness testifies “Jim went out with Sarah”One does not know whether this statement is based on speculation, on hearsay, or something else. If there is a foundation showing that the witness did personally perceive an event, but the event that the witness was perceived as an out of court statement, then the proper objection is hearsay oEx) The witness testifies “Jim told me he went out with Sarah on July 1.”Here, the witness perceived an event personally (he heard what Jim said), but Jim’s statement is hearsay if offered for its truthHypotheticalsoSuppose this testimony is given at trial: Q: Did you notice anything unusual about Buzzy” A: Yes, he had a tattoo on his forehead. Q: Where did Buzzy get the tattoo?Objection; no personal knowledge Note: There is a distinction between objection on grounds of personal knowledge and hearsayoIf there is no foundationshowing that the witness is reporting an event perceived with the witness’s five senses, then the proper objection is “no foundation showing personal knowledge” Ex) Without foundation, the witness testifies “Jim went out with Sarah.” One doesn’t know whether this statement is based on speculation, on hearsay, or something elseoIf there is a foundationshowing that the witness did personally perceive an event, but the event that the witness perceived was an out-of-court statement, then the proper objection is “hearsay” Ex) “Jim told me he went out with Sarah last night.” Witness perceived an event personally (he heard what Jim said), but Jim’s statement is hearsay IF offered for its truth FRE 801: Exemptions from Hearsay – Opposing Party StatementsThe following are exclusions from hearsay (i.e. it is hearsay but excluded/exempted – so admissible)★Opposing Party Statements FRE 801(d)(2)(A)Anything a party says is admissible when offered by the opposing party so far as the hearsay rule is concerned oStatements made by the opposing party are admissible even if they did not have personal knowledgeReed v. McCordP died in some machine accident. D made a statement to an officer about the mechanical set up of the machine which could lead to an accident. D’s statements were admitted; holding it FRE 602A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter FRE 801(d)(2)(d)Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:(A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject;(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
was proper to admit, not hearsay because it constituted facts about the machine’s operation, not D’s personal knowledge of hearing about the accident. There is no Confrontation Clause issue when D’s own statement is offered against them. They cannot complain aboutnot being able to confront themselves. Adoptive AdmissionsFRE 801(d)(2)(B)Statements offered against a party and that party manifest (in any matter) that it adopted or believed it to be true is admissible (ex. nodding when in response to another statement) oUS v. Hoosier D had robbed a bank and a witness testified that he was with D prior and after robbery. After robbery, D, D’s girlfriend, and witness spoke about robbery where girlfriend mentioned “sacks of money” and D did not deny / was silent; holding the statement was not inadmissible hearsay, even though D did not deny / was silent it was admissible given the facts. If the statements had been false, it is likely that the D would have spoken up and denied it. He did not. Therefore, he is deemed to have adopted the statement. Note: test for adoption by silence is whether a person would, under the circumstances, protest the statement made in this presence, if untrue; however, silence does not always constitute adoption (ex: angry truck driver accuses a timid motorist of stopping suddenly; D gets a credit card bill saying she owes $900 and throws it away, no obligation to respond, impractical to respond to every letter) oMaxon v. BellP was convicted of sexual misconduct with underage step-daughter, police office called to give P opportunity to tell his side of story, set up follow up appointment but P never replied; holding silenceas evidence is admissible if outside of interrogation or no Miranda warning, was used to rebut argument the investigation was not thorough Under FRE 104(a), judges decide whether a party adopts a statementoState v. CarlsonD was questioned by officer about needle marks on arms and his distraught wife yelled at D had beenusing which D denied, encounter was admitted and D convicted of drug possession; holding court should decide whether D’s headshake was admission or not, fear of jury misusing evidence; the headshake was ambiguous and not sufficient to support admission of wife’s hearsay statement Party’s Authorization to Make a StatementFRE 801(d)(2)(C)Statements that are offered against a party and where the person was authorized to make the statement is admissibleoBordelon v. Board of Educ. Chicago P was an older principal whose contract was not extended, believing it was age discrimination, P submitted an affidavit of a witness stating they know that schools with older principals were given less resources due to discussions with other principals, court excluded as hearsay; holding it is admissible because the statements did not fall under exclusion for opposing party’s statement, other principals not authorized to speak on behalf of D nor did D adopt it Note: one could make the argument that they (???) had control over the spending of funds and therefore had a say over questions of funding Statements Made by Agents or EmployeesFRE 801(d)(2)(D) Statements offered against a party are admissible if: (1) they were made by an employee/agent; (2) while in the scopeof employment; and (3) while employment existedoMahlandt v. Wild Canid Survival & Research CenterD’s employee kept a wolf at home for school visits and was well mannered animal. P’s child went through fence and wolf was later on top of child who had lacerations, court excluded several notes stating wolf had bit child made by employee as hearsayand D won; holding – employee’s statementsare admissible against himself and D, not necessary for the party to have had personal knowledge about the events described in his statement; BOD meeting minutes admissible against D but not employee because he was not there NOTE: BOD were authorized to make statements on behalf of company and therefore admissible against company; not admissible against employee because BOD is not an agentof employee NOTE: 801(d)(2) does not require personal knowledge of employee Note: This does not apply to independent contracts
oex. a pediatrician seeing patient is not employee of patient, only an independent contractoroTest is agency law: primary factor of whether someone is an employee is whether the principal exercises control over conduct of that person/employeeCo-Conspirator StatementsFRE 901(d)(2)(E)Statements are admissible if:oOffered against another member of the conspiracyoIn furtherance of the conspiracyUS v. Doerr Ds were part of scheme to operate illegal prostitution clubs, two statements made by patrons/acquaintances noting the illegal activities were admitted under co-conspirator exception; holding the statements should not be admitted because they were not made in furtherance of the conspiracy; one was mocking one of the Ds for feigning ignorance of activities while other customer just nothing the curtains used to conceal looked ridiculousoNote:if not trying to get someone involved, then likely no furtherance oDuring the course of the conspiracyUS v. Goldberg D convicted of crimes and challenged admissible hearsay statements; holding test for hearsayexception to conspirator is Baines – conspirator takes conspiracy as he finds it and assumes responsibility for prior statements even if late-joining Where the declarant is a member of the conspiracy Co-conspirator statements can be used as evidence as proof of conspiracy under FRE 104(a) but statement alone is not enoughoBourjaily v. US P wanted to buy cocaine, talked to L as broker who contacted G who was a criminal informant, G arranged and recorded discussions for purchase, G delivered cocaine to L then to P and they were arrested; holding party offering facts of conspiracy must prove by preponderance, bootstrapping rule no longer applies; conspirator’s own statements are probative for existence of conspiracyDissent: independent evidence requirement should be retained The Bootstrap Doctrine is a legal principle that prevents a party from challenging the jurisdiction of a court that has already made a final decision in a case.Note: trial judge does not tell jury whether he has decided there is a conspiracy or not, only admits the evidence while jury decides whether the crime of conspiracy has been committed beyond reasonable doubtNote:using the statements to lay foundation is allowed in case of (1) co-conspirators, (2) agents, and (3) persons authorized to make a statementCf. CA LAW: Standard for evidence is sufficient to support a finding but the statement itselfcannot be used to lay foundation, requires independent evidence FRE 803: Exceptions to the Rule Against Hearsay Hearsay that falls under an exception is admissible for the truth of the matter asserted oConventional wisdom is that every hearsay exception is supported by considerations of trustworthinessHearsay exceptions require personal knowledge Present Sense ImpressionPresent sense impression requires immediacy of the declarant’s statements when describing or explaining an event or condition (ex. roughly 15 minutes following an event is considered immediate)oDeparvine v . StateP answered offer to buy Vs truck and later convicted for their murders, V called mother and told her Vs were going with P to get cash to pay for truck, M heard sound of truck running; holding – the statement of V driving and following was contemporaneous statement exception describing the FRE 803(1) (1)Present Sense Impression. A statement describing or explainingan event or condition, made while or immediately after the declarant perceived it.
event, V blurted out she was following P and husband; other statements about paperwork/cash not descriptive nor about perception and is error to admit oNote: FRE 803(1) does not require the statement to be spontaneous nor does it qualify the statement on its trustworthinessCf. CEC § 1241: requires statement to be offered to explain conduct of declarant and made while declarant was engaged in conductExcited UtteranceExcited utterances required that there to be (1) excitement, (2) startling event, and (3) a related statementoState v. YoungD accused of molesting child who appeared at neighbor’s house claiming D had grabbed her inappropriately, D later denied accusation; three elements for excited utterance (1) starting event, (2) declarant’s statement elicited under stress of event, (3) utterance related to event causing statement Holding – circumstantial evidence can be used to corroborate startling event, enough circumstantial evidence to show molestation had occurred Note:under WA rules, could use statement as foundation when there was corroborating evidence of starling event Note:There is no time limit for excited utterancei.e. as long as declarant is still stressed, statements may be excited utteranceex) traffic accident and person is writhing ion pain for an hour before making excited utteranceThe startling event must be objectively startlingEx) stealing parking spot probably not startling Cf. CEC § 1240: similar to excited utterance but does not require objectively starting event; only an event with excitement and spontaneous statement Statements of Present State of Mind or BodyThe statement cannot be offered to prove a fact remembered or believed (i.e. statements based on memory or past events can’t be admitted to prove the event happened) oEx) “I believe that that is the man who robbed me” is inadmissible because used to prove that was the man who robbed him, used to prove the fact believedCasesoAdkins v. BrettP’s wife was allegedly seduced by D and P sought to sue D for alienation, P admitted conversation between wife about D’s activities in seducing wife; she was happier with D and disliked P because ofit, trial court should have given instruction on how to use conversationoShepard v. US P accused of killing wife at military base, P wanted to marry another woman and poisoned current wife with bottle, W recounted to nurse that P had poisoned herFRE 803(2) (2) Excited utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.FRE 803(3) (3) Then-Existing Mental, Emotional, or Physical Condition.A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physicalcondition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
Holding – not admissible because it was statement about a past act, not present state of mind of W who was suicidal Note: 803(3) allows statements of memory or belief to be received to show “the validity or terms of the declarant’s will” Statements of intent to do something are admissibleoMutual Life Ins. Co. NY v. Hillmon D claimed insurance based on a body found and believed to be decedent (dead person), P contends it is another person, letters were offered to show decedent traveled with another person and excludedHolding – letters admissible as evidence of other person’s intent Note: this can be arguableRecounting an immediate past event is more accurate that intending to do something (might change mind); however, some future intent to do something might be pretty accurate (ex. studying for the bar exam in July to show a specific date is more accurate than trying to recall the date of the exam five years later) oUs v. PheasterDs were accused of kidnapping son of millionaire, decedent’s friends stated decedent had been with D priorHolding – evidence was admissible under Hillmon despite criticism, evidence is admissible if it goes to the state of mind of the declarant when that state of mind is in issue, does not have to be just state of mind at issue, can also be used to prove other matters at issue inferentially Note: evidence of declarant’s intent can include declarant’s intent to cooperate with another personCf. CEC § 1250: same as FRE 803(3) but the evidence can be excluded if it is untrustworthy Statements for medical Diagnosis or Treatment Exception for admissibility of statements made for medical diagnosis of treatment based on trustworthiness (i.e., someone would not lie about things when to obtain treatment or diagnosis; somewhat debatable)oException covers not only present symptoms, but also past symptoms and cause of the injury if pertinent to treatmentoStatement is admissible even if made only for diagnosis, not for treatment (as in the case of a doctor retained only for testimony who essentially makes a diagnosis) US v. Tome D accused of sexual abuse of daughter, daughter examined by three witness pediatricians whose statements were admittedHolding – each of the statements by the pediatrician witnesses were admissible, doctors needto know identity of sexual abuser in order to give proper treatment to patients, statements to caseworker, babysitter not admissible because they were not diagnosing or treating child oStatement is admissible even if made to someone other than a medical professionaloStatement need not be made by the injured person Ex. a mother’s statement describing the cause of her child’s injury is covered Recorded RecollectionFRE 803(4) (4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for – and is reasonably pertinent to – medical diagnosis or treatment; and(B) describes medical history; past or present systems or sensations; their inception; or their general cause FRE 803(5) (5) Recorded Recollection. A record that:(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and(C) accurately reflects the witness’s knowledge If admitted, the record may be read into evidence but may be received as an exhibit only ifoffered by an adverse party
Foundation required forpast recollection recorded:oMust be recordedoMust be accurateoWitness had personal knowledge oMade or adopted by witnessoRecorded when memory was freshoWitness cannot remember well enough to testify fully and accurately without recording from the recordThe document can be read to the jury but not received as an exhibit ★Past recollection recorded is distinguished from present recollection revived (refreshing memory) FRE 612oBaker v. StateD involved in murder, sought to introduce evidence that police bought V to lineup and pointed out D not murderer, also wanted to admit a report not written by police witness to refresh his memory about incidentHolding it was error to deny D’s introduction of report to recollect police witness, writing is not admitted as testimony, only to help police remember what happened so as to testify oIn the case of (past) refreshing recollection, that something can be virtually anything. In short, it can be anything needed to jog the witness’ memory so that the witness can testify from her now refreshed memory. In this case, it is the testimony of the witness, not the memory aid, that serves as the evidence. That’s why there is no problem with hearsay. Note: anything can be used including a document prepared by another; must be presented to witness and then taken away, document cannot be read to the jury Generally, not preferred to use leading questions to refresh memory; should ask judge for permissionprior to askingFRE 611(c) provides that “Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony.” oIn the case of “past recollection recorded,” the witness fails to have her memory refreshed after being presented with the writing. At the same time, the witness can affirm that she recognizes the writing as a memorandum made when the facts were still fresh in her mind, that she had first-hand knowledge of the event, and that she can vouch for the accuracy of the memorandum. In this case, it is the writing itself, not the oral testimony, that becomes the evidence. And because this writing constitutes a prior out-of-court statement that is offered for the truth of the matter, a hearsay exception is required.Business Records ExceptionIn order for evidence to be admitted as a business record exception, foundation requires: oRecorded (no oral statements)oAct, event, condition, opinion, diagnosisoKept in course of a regularly conducted activityoBusiness, organization, occupation or callingoWhose regular practice was to make such recordsCf. Williams v. AlexanderP alleged D had hit him in cross walk but D later admitted evidence of medical records where P said a car had pushed D’s car into P and caused injuryFRE 803(6) (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:(A) the record was made at or near the time by – or from information transmitted by – someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit (C) making the record was a regular practice of that activity; (D) all the conditions are shown by testimony of the custodian or another qualified witness, or by a certification thatcompiles with Rule 902(11) or (12) or with a statute permitting certification; and(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness
Holding – record detailing how the crash happened not relevant to treating P and not admissible under exception, not the business for hospital to find fault oMade at or near timeoFrom person with knowledge oParticipants had “business duty” Meaning person must have had obligation to record as part of employmentUS v. Vigneau D brothers were convicted of drug scheme and used Western Union to launder money, formsused to send money required filling out contact info, P used computer records which transcribe forms that are destroyed to prove money launderingHolding – business exception does not assure truth of statements to a business, sender name should not have been admitted for truth, no verification process used by business oA business record is admissible if made in the regular course of business if it is the regular course of business to make such a record. However, the source of the information contained in the business record must be trustworthy.othe business records exception does not apply to statements within a business record that are made by an individual who is not a part of the businessobecause the sender’s identity was not verified, the information is not trustworthy because it theoretically could have been anyone who wrote Vigneau’s name on the formoexception to the exception: Source or circumstances indicate not untrustworthy(party seeking to excludehas burden of proof by preponderance of evidence) oThe regular practice of making records can be debated when the event concerns something that seldom occurs but is otherwise necessary/ordinary (i.e. interviewing following accidents) (is it customary in the particular business?) Palmer v. Hoffman P suffered injury due to train accident. D sought to admit interview of engineer who had diedbefore trial detailing account. D alleges interviews were standard after accidents. Holding – it was properly excluded, engineer’s statement not related to course of business, not typical entries madeoNote: Palmer interpreted course of business as literally; dealing with lawsuit not related to railroadIs a statement made in an employer’s post-accident interview by an employee involved in theaccident admissible as a statement made in the regular course of business for a railroad company? oNo. A business record is admissible if made in the regular course of business and ★it is the regular course of business to make such a record. oHowever, the fact that a company regularly makes a record in certain situations does not necessarily mean that that record is the regular course of business as contemplated by the hearsay exception. oThe record must actually be made for the “conduct of the business as a business.” oThus, although the railroad company always interviews those employees that get intoaccidents, this conduct is still not within the regular course of business for a railroad company. Unlike recording transactions, payrolls, trip routes, etc., interviewing employees after an accident is not a systematic routine of the railroad business. A railroad company’s business is the railroad business, not the business of litigation.Lewis v. BakerP injured by faulty brake. D sought to admit incident report routinely prepared after accidents.Holding – admissible because reports did not involve interest parties like in Palmer; no one who contributed to the report was present at accidents or were targets of P’s lawsuit oNote: focus is on interested parties; unlike in Palmer where the accused engineer interviewed (could have motive to lie), Lewis’ investigation conducted by third parties not involved in accidentSana v. Hawaiian Cruises
P was hired to work on D’s boat and had swelling at head, later hospitalized for viral encephalitis. P attempted to call D’s insurance company to use a report collected about P bumping head at workHolding – statements are admissible under declarant’s then existing physical condition, also considered admissions by party opponent because coworkers made statement in scope of employment; also business record exception because it was created by insurer who had no incentive to gather evidence, was circumstantially trustworthy, it was considered routine for ship owners to investigate seamen’s injuries oNote: not excluded for untrustworthiness because report was prepared by the insurance company for the opposing party, no incentive to twist in Sana’s direction Public Records ExceptionIn order for evidence to be admitted as a public record exception, foundation requiresoActivities of the office Ex. internal matters, such as personnel recordsoMatters observed under legal duty Ex. weather records, maps, fire damage but not law enforcement records in criminal casesoFactual findings of the investigationEx. FAA findings about aircraft safety, finding about employment discrimination, finding about whether coats guard officer was drunk on duty, finding that vessel was sanitary Beach Aircraft Corp . Rainey Ds were deceased pilots in plane crash, no clear reason whyReport admitted detailing possible reasons like pilot errorHolding – factually based conclusions or opinions are admissible, reports that state conclusions/opinions are different from conclusions/opinions themselvesCourt must make determination of whether it is trustworthyoNOTE: as long as there are factual findings, mix of opinion is still admissibleNOT findings offered against a CRIMINAL defendant oCan be used in CIVIL PROCEEDINGS or in CRIMINAL cases AGAINST THE GOVERNMENT Differences between business record and public record exceptions: oFor public records, there is no requirement of regularity and findings can be based on statements of outsiders FRE 804: Exceptions to Hearsay when Declarant is UnavailableThe following are not excluded by the rule against hearsay if the declarant is unavailable as a witness oDeclarant is considered to be unavailable as a witness ifdeclarant:Successfully asserts a privilege Refuses to testify after being ordered to do so Testifies to not remembering the subject matterCannot be present because of death of illnessCannot be produced despite reasonable efforts by proponent oHearsay exceptions require personal knowledge FRE 803(9) (8) Public Records. A record or statement of a public office if: (A) it sets out:(i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter Observed by law-enforcement personnel; or(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorizedInvestigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness FRE 804(1) (1) Former Testimony. Testimony that:(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or adifferent one; and (B) is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity
Foundation required for former testimony exception oIn criminal cases: There must be former testimonyDeclarant is unavailableOffered against a party who had an opportunity to cross-examine and had a similar motive oIn civil casesThere is a predecessor in interest that had the opportunity to cross-examine and had a similar motivePredecessor in interest– someone from whom the present party received the right, title, interest or obligation that is at issue in the current litigationCf Lloyd v. American Export LinesCoast Guard hearing transcript admitted against electrician to prove he started fight against engineerHeld that Coast Guard was predecessor in interest for engineer, both had similar interests in two cases and similar motive to cross-examine On September 7, 1974, Roland Alvarez (defendant) and Frank Lloyd (plaintiff), fellow crew members on the SS Export Commerce (Export) (defendant), got into a fight aboard the ship. A Coast Guard hearing was held to determine whether Lloyd should lose his mariner’s license. The Coast Guard investigator served as prosecutor and sought to prove that Lloyd had a history of hostility toward Alvarez, was intoxicated at the time of the altercation, and was theaggressor. Separate from the Coast Guard proceeding, Lloyd sued Export, seeking compensation forinjuries. Export joined Alvarez as a third-party defendant, and Alvarez counterclaimed against Export, alleging negligence. Alvarez claimed that despite awareness of Lloyd’s prior hostility toward Alvarez, Export negligently failed to protect Alvarez. Lloyd failed to prosecute his case, and the district courtdismissed his complaint. However, the court proceeded to trial on Alvarez’s counterclaim. Export attempted to call Lloyd as a witness, but Lloyd refused to appear.Export then attempted to introduce excerpts from the transcript of Lloyd’s testimony at the Coast Guard hearing.oIn the excerpts, Lloyd denied prior hostility with Alvarez and being the aggressor in their altercation. oThe district court deemed the excerpts inadmissible, and the jury found Export negligent and awarded Alvarez damages. Export appealed.Why is Export a predecessor?oAlthough Congress does not expressly state who qualifies as a predecessor in interest, in this case the Coast Guard investigator is a predecessor in interest to Alvarez. The nucleus of operative facts was the same in both proceedings because they both concerned Lloyd’s conduct. The investigator and Alvarez both sought to show Lloyd’s history of hostility, intoxication, and initial aggression. Further, both parties shared an interest in exacting a penalty for Lloyd’s behavior. Alvarez sought damages, and the Coast Guard sought to revoke Lloyd’s mariner’s license.NOTE – treates the “predecessor in interest” requirement as satisfied when a party in the prior case had similar interestsand motive to cross-examinebut this is a dubious result; Congress requires cross-examination by a “predecessor in interest” Under FRE 804(b)(1), a party must actually have a prior opportunity to cross-examine in order for the former testimony to be admitted against that party; not enough that an accomplice with a similar motive cross-examined the witnessoCf. Travelers Fire Ins. Co. v. Wright
J.B. Wright (J.B.) was charged with the crime of arson in the burning of his property. Subsequently, J.B., along with his partner, J.C. Wright (J.C.) (plaintiffs), brought suit against Travelers Fire Insurance (Travelers) (defendant) to recover under their fire insurance policy. Travelers sought to introduce into evidence the testimony of two witnesses who had testified against J.B. in the criminal trial, stating that J.B. had set up the burning of his property himself. The witnesses were not available to testify in the civil trial because they claimed the Fifth Amendment privilege against self-incrimination. The trial court excluded the testimony and found in favor of J.B., and J.C. Travelers appealed. In this case, the testimony of the two witnesses at J.B.’s criminal trial is admissible against both J.B. and J.C. in the present civil case. It is undisputed that the witnesses are unavailable to testify in this case because of their Fifth Amendment privilege against self-incrimination. In regards to the other requirement of former testimony admission, the witnesses were cross examined at the criminal trial about the same subject matter that is at issue in the present civil trial. Also, the issue they testified to in the criminal trial and the issue sought to be established here is the same: that J.B. willfully burned the property. Therefore, J.B. had the same motive and opportunity to cross examine the witnesses that he and J.C. would have in this case. Thus, there is no harm admitting the former testimony because it was made under oath and subject to cross examination. Although J.C. claims that he did not have an opportunity to cross examine the witnesses because he was not a party to the criminal trial, this claim is immaterial. A partner, even an innocent one, may not recover on a fire insurance claim for partnership property when his partner intentionally burned the property. Thus, to prevail in the present case, J.C. needed to prove that J.B. did not willfully burn the property, which is the same thing that J.B. is trying to prove. On that issue, J.B. had the same motive and opportunity at cross examination in the criminal trial that J.C. would have in the case at bar. ★As a result, because the issues are the same, it cannot be said that J.C.’s cross examination in this case would be any different than that of J.B.’s cross in the criminal trial.Note:this is not in line with current FRE; here exception is satisfied if someone with a similar motivehad the opportunity to cross-examineThe motive must be similar in order for the exception to applyoUS v. Salerno(Ds were members of a gang that rigged concrete bidding contracts, P tried to admit grand jurytestimony of some Ds who prior testified that they did not participate in a grand jury proceeding, P later tried to subpoena these Ds who invoked the 5th; holding admission of evidence must meet the similar motive requirement, here Ds want to use the grand jury testimony for their benefit when P used the grand jury testimony to indict)Note:here it is unclear if the prosecution had the same motive in admitting testimony before grand juryGrand jury background: secret, so right to attorney, used to investigate or indict, subpoena power; witnesses may be immunized under 5A or prosecution can grant immunityProsecutor motive might be different; want to protect secrets, know fewer case facts than at trial, be more willing to explore evidence helpful to the defense (to get discovery)oThe district court refused to admit the testimony, noting that Rule 804(b)(1) allows testimony to be admitted against a party only if that party had a "similar motive" to develop the testimony. The district court said that a prosecutor's motive in developing testimony during grand-jury proceedings is different from the prosecutor's motive during trial. Salerno and the other defendants were convicted, and they appealed to the United States Court of Appeals for the Second Circuit. The appellate court reversed, holding that the trial court erred by not admitting the grand-jury testimony. The court stated that the similar-motive requirement of the rule does not apply when the government obtains immunized testimony in a grand jury proceeding from a witness who refuses to testify at trial. The United States Supreme Court granted certiorari.oIn short, the similar-motive requirement of Rule 804(b)(1) must be satisfied in order to admit a witness's ★former testimony under the hearsay exception.Cf.CEC § 1292:allows former testimony to be admitted against someone who was not a party to the prior case if thecross-examiner in the prior case had a similar “interest and motive”Possible uses of former testimony/judgement: testimony as evidence – former testimony rule, judgment as evidence –FRE 803(22), judgment as preclusiono