Understanding Evidence Standards and Relevance in Legal Cases
School
University of California, Los Angeles**We aren't endorsed by this school
Course
LAW 211
Subject
Law
Date
Dec 12, 2024
Pages
26
Uploaded by BailiffFieldCheetah36
Evidence: Fall 2024Evidence: Fall 20241Standards1Relevance (401, 402, 403, 104)2Conditional Relevance2Legal Relevance2Demonstrative Evidence2Competency of Witnesses5Examination and Cross-Examination of Witnesses6Form of Questioning6Hearsay7NOT Hearsay9The Confrontation Clause14Lay Opinions and Expert Testimony15Assessing Reliability: Frye vs. Daubert16Character Evidence16Authentication and Best Evidence Rule20Best Evidence Rule23Privileges24Judicial Notice25Standards104(a) vs 104(b)●104(a): preponderance of evidence ○Higher standard○For the judge ●104(b): sufficient evidence standard○Only ADMISSIBLE evidence may be used to prove contested preliminary facts: “proof be introduced sufficient to support a finding that the prelim fact does exist”○For the judge to decide if there is sufficient evidence in order for a JURY to find1
Relevance (401, 402, 403, 104)Rule 401●Evidence is logically relevant if:○It is PROBATIVE (it tends to make a fact more or less probable than it would be without the evidence) AND○The fact is of consequence in determining the action●CA is similar: § 350 provides: “No evidence is admissible except relevant evidence.”Rule 402●Relevant evidence is admissible UNLESS otherwise provided in the rules, COnstitution, federal statute, other rules prescribed by the SUpreme Court ●CA is similar:○§ 351 provides: “Except as otherwise provided by statute, all relevant evidence isadmissible.”Conditional Relevance Rule 104(b)●(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the courtis not bound by evidence rules, except those on privilege. ●(b) RELEVANCE THAT DEPENDS ON A FACT. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a findingthat the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. ●Case: Cox v. State Legal RelevanceRule 403●The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. ○Note that Rule 403 is discretionary. A court may exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice and the like.○Unfair prejudice = will cause judges to make decision not based on fact but something elseDemonstrative Evidence Computer Generated Models●Case: Commonwealth v. Serge○To be admissible as demonstrative evidence, a CGA must 1. be a fair and accurate representation of the evidence it purports to portray; 2. be relevant to 2
the dispute; and, 3. have probative value that is not outweighed by the danger of unfair prejudice.Circumstantial Evidence of Flight●RULE: Analytically, flight is an admission by conduct. Its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: ●4 inferences have to be drawn in order for flight instruction to be appropriateProbability Evidence ●RULE:no introduction of mathematical probability evidence but math still allowed in some contexts such as DNA evidence when it is based on fact not conjecture)Even if you get over hearsay→ might be excluded under one of these policyexceptions!Rule 407: Subsequent Remedial Measures●Most courts conclude evidence of a third party repair is not excluded●Strict Liability cases:○The amendment to Rule 407 makes clear that subsequent remedial measures are not admissible to show that a product was defective in a strict products liability action●CA → does NOT exclude evidence of subsequent remedial measures in strict liability Rule 408: Compromise●Validity of amount of claim must be disputed○Then may be admitted to show bias or negating ●KEY exception: admissible to rebut a contention of undue delayCA Rule●CA Rule○California’s rule is basically similar. California also provides that, if the parties agree to mediate statements made in the course of a mediation are not admissible in a later civil action if the mediation does not succeed.Rule 408. Compromise Offers and Negotiations (a) PROHIBITED USES. Evidence of the following is not admissible—on behalf of any party—either toprove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. (b) EXCEPTIONS. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Rule 409: Medical Expenses●Other similar expenses: medical equipment, therapy, renting a wheelchair, funeral3
●Only applies to the offer itself (statements made in conjunction are NOT covered!!!)○CA Rule■Distinction here: INCLUDES any statements made in conjunction with these statementsRule 408 (compromises)Rule 409 (medical)Conduct/statements made during talksGenerally excluded to prove liabilityNo protection for statements made–only protection for the offerRule 409. Offers to Pay Medical and Similar Expenses Evidence 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. Rule 410: Pleas in Criminal Cases ●Rule 410 operates differently than other policy rules. The evidence it addresses is always barred except where specificallypermitted. ●CANNOT be used for impeachment○BUT:○However, that protection can be waived by a criminal defendant. A prosecution can demand from a defendant a waiver which would permit any statements a defendant makes during plea negotiations to be admissible for impeachment purposes if the matter is not settled and the defendant testifies at trial. Some prosecutors have gone further and demanded that defendants, as a condition of plea negotiations, agree that statement they make can be used in the government’s case in chief. ○Also, note that statements a defendant made under oath can be used against him in a subsequent perjury prosecution. Rule 410. Pleas, Plea Discussions, and Related Statements (a) PROHIBITED USES. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney f or the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) EXCEPTIONS. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present. 4
Rule 411: Liability Insurance ●ONLY LIABILITY not life, healthcare etc●Can be uesd to show MOTIVE (not an improper purpose)!●CA Rule○Cal. Evidence Code § 1155. This section provides that proof of liability insuranceis inadmissible to prove negligence or other wrongdoing.Competency of WitnessesRules 601, 602, 603, and 610Rule 601. Competency to Testify in General●Every person is competent to be a witness unless the rules provide otherwise. But in a civil case, state law governs the witness competency regarding a claim or defense for which state law supplies the rule of decision●F.R.E. 601 basically provide that every person is competent as a witness unless otherwise provided. In diversity actions, competency shall be determined according to the law which governs the dispute.Rule 602: Need for Personal Knowledge●A 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. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. ○F.R.E 602 requires a witness to have personal knowledge about the matter unless the witness is an expert witness. Experts are permitted to testify based on facts made known to the witness. ○A witness may testify ○CANT SAY “SOMEONE TOLD ME” (unless an expert)Rule 603. Oath or Affirmation to Testify Truthfully●Before testifying, a witness must give an oath or affirmation to testify truthfully. It must bein a form designed to impress that duty on the witness’s conscience.○F.R.E. 603 requires the witness to declare that he will testify truthfully, by oath or affirmation. The witness is not required to give some type of religious oath. Nor can the witness be impeached for failure to swear to god or swear on a religious text. ●Cant be impeached on grounds that you refused to swear to God/the bible602 and 603 interpreted to mean requiring 4 prereqs:1.Must have ability to communicatea.Does not need to be oral; can be through an interpreter 2.Ability to observe or perceive the events to which they are testifyinga.You had to have seen it, heard it, smelled it, felt it or sensed it. If you weren’t in aposition to observe, you can’t competently give testimony.3.Ability to recollect or remember what happeneda.You must have a present recollection of what took place. [Although, there are some situations where we will be able to refresh your recollection by referring to documents or where we can get in a document in which you previously recorded your recollections]5
4.Honesty a.The witness must understand the obligation to tell the truth. Contrary to the historic view, no particular religious belief or belief in God is required for this to bepossible. In fact, F.R.E. 610 specifically provides that a person’s religious beliefs or opinions or lack thereof are not admissible for the purpose of casting doubt on their credibility.Incompetency of Judges and Jurors●Judges cannot be called as witnesses in a trial over which they are presiding. Likewise,jurors cannot be called as witnesses in a trial in which the juror is sitting.●California Code is mainly consistent with the Federal Rules. Cal. Evid. Code. § 700-704; §710.Examination and Cross-Examination of WitnessesRule 611. Mode and Order of Examining Witnesses and Presenting Evidence (a) CONTROL BY THE COURT; PURPOSES. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) SCOPE OF CROSS-EXAMINATION. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) LEADING QUESTIONS. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.●Scope of Cross-Examination○Generally limited to the subject matter of direct and to matters affecting the credibility of the witness○You can also show Qs as to matters which tend to show a lack of credibility○Can also cross-examine regarding■inability to perceive or know■Bias■Interest■Unworthiness of belief 6
Form of Questioning●1. Compound questions–You can’t ask 2 questions at the same time.○Ex. What did the 5 people do next? ■This can be a type of compound question because it is asking for the actions of 5 people. Unless the 5 people were moving in lockstep, this might be considered compound.●2. Repetitive or duplicate questions○On cross-examination some probing will be allowed –the atty will be allowed to slightly vary the question●3. Argumentative, Badgering and Harassing questions are prohibited. ○Supposed to be asking questions of the witness, not questioning their responses○You are considered to be badgering the witness when you don’t give them time to respond or interrupt their answers.○Harassing questions are those questions which seem to be designed for no otherpurpose than to embarrass the witness. ●4. Your question can’t assume facts not in evidence. ●5. You can’t ask questions which call for a witness to speculate. ○Witnesses are supposed to testify based on personal knowledge. ●6. You can’t ask questions which are ambiguous, confusing, vague or which call for a narrative. ●7. You generally can’t ask leading questions on direct examination. ○A leading question essentially tells the witness how to answer. It is phrased in such a way that the answer is suggested.○Leading questions are permitted on direct when questioning a frail, young or frightened witness. The witness who is paralyzed and can only respond by blinking the eyes can be led.○Leading questions are also allowed on direct when you are questioning a hostile witness or an adverse party.Hearsay Rules 801●Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.○CA Rule is essentially the same●WitnessDeclarantY is the witness in court.Y is testifying that X said,“The green car ran the red light.”X is the out-of-court declarant who said, “The green car ran the red light.” ●Out of Court statement○Look for a live witness testifying as to what someone else said ■Might be something the witness previously stated (for our purposes analyze under hearsay_○Look for a document which contains assertions○Statement■Includes assertive conduct–conduct which is designed to communicate 7
ideas without using words or speech. Pointing out an item or person, shaking or nodding your head, putting your to your lips to ask for silence all raise potential hearsay issues because they are considered statements.■By contrast, conduct which is not designed to communicate ideas is not covered by the hearsay rule. ●Examples: how fast the ∆ was driving or testimony that the ∆ threw a knife at her victim the day before she shot him.●Notice, throwing a knife at someone communicates a message, but it isn’t designed primarily for that purpose. Under the Federal Rules, that kind of conduct is not hearsay.■Statements made by animals or objects are NOT covered by hearsay!!!●Offered for the Truth of the Matter Asserted○Figure out what the statement says and ask whether the evidence is offered to show that the statement is true.○OR is it offered for a purposeindependent of the statement’s truth○NOT offered for the truth of the matter asserted it:■Offered as circumstantial evidence of the D’s state of mind■Offered to show the effect upon a listener●Ex. that the listener was put on notice or scared!○Problem 7.5 pp 410 ■Verbal acts/Legally Operative Facts●Statements that have legal significance regardless of whether theyare true○1. Defamatory statements○2. Words of an offer, acceptance, assignment, delegation○3. Words of donation, assignment○4. Words of threat■Statements offered for impeachment purposes onlyMultiple Hearsay●Multiple hearsay arises when we have an out-of-court declarant or document which is related what someone else said out of court. For multiple hearsay to be admissible, eachlayer must fit within an exception or exclusion to the hearsay rule. ●Example:Officer OliverRat/RoommateDThus, cant testifyNo exception here that we’ve talked about so farException - statement of a party opponent→ How to get around this–get the roommate to testify! Only 1 layer of hearsay and no problem Sequential Hearsay●SERIES OF hearsay “and then I heard this and then I heard the response”Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay 8
(a) STATEMENT. ‘‘Statement’’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. (b) DECLARANT. ‘‘Declarant’’ means the person who made the statement. (c) HEARSAY. ‘‘Hearsay’’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.(d) STATEMENTS THAT ARE NOT HEARSAY. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarant’s testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted froma recent improper influence or motive in so testifying;or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground;or (C) identifies a person as someone the declarant perceived earlier. (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. The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E). NOT Hearsay GENERAL CATEGORIES OF STATEMENTS THAT ARE NOT HEARSAY:I.Statements that are not hearsay under 801(d)A.Declarant-witness Prior Statements: if the declarant testifies and is subject to cross-examination about a prior statement and the statement:1.is inconsistent with declarants testimony and given under perjury at a trial,hearing, or other proceeding2.Consistent buta)offered to rebut charge that declarant recently fabricated it or acted from a recent improper influenceb)Offered to rehab the declarant’s credibility as a witness when attacked on another ground3.Identifies a person as someone the declarant perceived earlier B.Opposing Parties Statements (statement is offered against them or representative)1.Made by the party in individual or representative capacity2.One that party manifested that it adopted or believed3.Was made by a person whom the party authorized to make 4.Was made by the party’s agent or employee on matter within the scope of9
that relationship OR5.Was made by the party’s conspirator during and in furtherance of conspiracyII.Inconsistent statements used for impeachment (613)III.Exceptions under 803 (availability does not matter)A.(1) Present Sense ImpressionsB.(2) Excited UtterancesC.(3) Statements of Then-Existing Mental,D.Emotional, or Physical ConditionE.(4) Statements for Medical Diagnosis orF.TreatmentG.(5) Recorded RecollectionsH.(6 & 7) Business RecordsI.(8 & 10) Public Records and ReportsIV.Exceptions under 804 (declarant must be unavailable)A.(b)(1) Past TestimonyB.(b)(2) Dying DeclarationsC.(b)(3) Statements Against InterestD.(b)(6) Forfeiture by WrongdoingV.Additional Exception: Residual under Rule 807Rule 801(d)(1) Statements that are not hearsay: Declarant-Witness Prior Statements To qualify - the person has to be a witness in this preceding and subject to cross-examining concerning their statements of identification (for all of the below):●(d)(1)(A): offered substantively–differs from 613 where past statements are used only forimpeachment○If offered under oath, can be used substantively and for impeachment○United States v. Ince: Court says you can introduce prior inconsistent purposes but cant be for something else–if prior statement was not under oath then it can only be used for impeachment NOT substantive purposes●(d)(1)(B): improper motive/recent fabrication○Can be used to say testimony is recent fabrication or improper motive ○Statement can be used to rebut recent fabrication (bleu vs yellow car)○Prior consistent statements of a witness are admissible only when they were made before an alleged motive to fabricate arose ○Cant bring in a consistent prior statement until this persons credibility has been questioned (need an attack on credibility)●(d)(1)(C): statement of identification○Can use identification of someone in a lineup ○The fact that he does not remember not change the fact that he is a person with statement of identification■that opportunity is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even the very fact that he has a bad memory.10
○Cant just be a statement back about someone’s identity–must be a statement made while perceiving someone (ex. Point at someone and say that was him)Rule 801(d)(2) Statements that are not hearsay: Opposing Parties Statements●Requires a statement being offered against its speaker○BUT NOT admissible against other parties ●= A party’s own words are not hearsay●I can always offer the statements of a party opponent against them (but I can’t offer my own out of court statements)Statements of a party opponent (onyl admissible agains that person):1.(A) A Party’s Own Statements: The opponent's own statement, in either an individual or representative capacitya.If making as a rep of the city – that statement is still admissible against that person2.(B) Adopted Statements: The statement of which the party has manifested an adoption or belief in its truth4 Preconditions to deeming silence and adoption:1.The adopted statement was heard and understood by the party against whom it is offered2.The party was at liberty to respond3.The circumstances naturally called for a response4.The party failed to respond 3.(C) Statements by Spokespersons: Statement made by a person authorized by the party to make a statement4.(D) Statements by Agents Statements by a partys agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship5.(E) Coconspirators’ Statementsa.3 preconditions (trial judge decides these under Rule 104(a)--standard = preponderance of the evidence)Inconsistent Statements Offered to Impeach: Rule 613Unavailability:1.Exempted from testifying about subject matter bc of the court rules that a privilege applies2.Resfuses to testify despute a court order3.Testifies to not remembering 4.Cannot be present or testify at the trial bc of death or then-existing infirmity, physical illness or mental illenss5.Absent from trial and the party cannot procure their attendance a.Unless they wrongfully caused their absence11
Declarant is unavailable: former testimony●was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and●is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.Declarant is unavailable: statements under the belief of imminent death●Must have actually believed they were going to die–cannot have hopeDeclarant is unavailable: statements against interest●In criminal case: Needs corroborating evidence to show the self incriminating statement is trueDeclarant is unavailable: statement of personal or family history●(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or ●(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate. Exceptions Against Hearsay (R. 803): Present Sense Impressions●A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Exceptions Against Hearsay (R. 803): Excited Utterance●A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Exceptions Against Hearsay (R. 803): 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 physical condition (such as mental feeling, pain, or bodilyhealth), ●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.Exceptions Against Hearsay (R. 803): Statement Made for Medical Diagnosis or Treatment●(A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and ●(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.Exceptions Against Hearsay (R. 803): Recorded Recollection●RULE: 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 12
○(C) accurately reflects the witness’s knowledge. ●If they remember the wrong thing it does not affect admissibility–but opposing side can attack credibilityExceptions Against Hearsay (R. 803): Records of Regularly Conducted Activity●RULE: 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 these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies 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.●Possible scenario:Exceptions Against Hearsay (R. 803): Absence of Records of Regularly Conducted Activity●Evidence that a matter is not included in a record described in paragraph (6) if: ○(A) the evidence is admitted to prove that the matter did not occur or exist; ○(B) a record was regularly kept for a matter of that kind; and ○(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness. Exceptions Against Hearsay (R. 803): 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 authorized investigation; and ●(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. ●Exceptions for some religious docsExceptions Against Hearsay (R. 803): Public Records of Vital Statistics●RULE: A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty. Exceptions Against Hearsay (R. 803): Statements in Ancient Documents●A statement in a document that was prepared before January 1, 1998, and whose authenticity is established. Residual Exception●(a) IN GENERAL. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: 13
●(1) the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and ●(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. ●(b) NOTICE. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant’s name—so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice. ●But almost imposisble if the declarant is available in practice – Bc of the second prong - if declarant is available then how can we show the OOCS is more probativeThe out-of-court statement must have circumstantial guarantees of trustworthiness equivalent tothe other exceptions and (A)the statement is offered as evidence of a material fact; and,(B)the statement is more probative on the issue than any other evidence which the proponent islikely to obtain through reasonable efforts; and,(C)the general purposes of the rules and the interests of justice are served by offering the evidence.The statement may not be admitted under the exception, however, unless the proponent gives the other side advance notice.The Confrontation ClauseCC Analysis1.Criminal case and something offered against D2.OOCS statements must decide what is testimonial and nota.If testimonial then D has right to cross examineb.If not testimonial – CC is not triggered3.Exceptions (CC is not violated and they can be admitted)a.Dying declaration b.Former testimony and D had the opportunity to cross-examinec.Where declarant is a witness in this case and subject to cross-examinationi.Maddoxd.Forfeiture by wrongdoingWhat istestimonial?○Testimonial (triggers CC)Non-Testimonial (No CC issue)a.statements aimed primarily to assist a criminal investigation b.An analysis of a defendant’s blood alcohol level certified by an absent lab technician is testimonial even though another technician from the labtestified about the lab's procedures and equipment.a.statements made to police in response to an ongoing emergency b.A dying gunshot victim’s answers to police questions c.An expert witness who relies heavily on the lab report prepared by an absent technician does not violate the 14
Confrontation Clause when theexpert is subject to cross-examination at trial. ○Ongoing Emergency→ courts should look to totality of circumstances○Lab technicians■Blood alcohol analysis by absent tech = testimonial■Melendez-Diaz5th Amendment and the Bruton Doctrine5th Amendment–if not read Miranda rights then not admissibleProblem in joint trials where 5th A conflicts with 6th ASolutions○Severed or separate trials○Testimony at trial by the confessing accomplice ○Past testimony by the confessing accomplice (if D had opportunity to cross the now accomplice–but this is often not present)○Redaction○Admissibility of statement against the non-maker■Ex. if sylvias statements =coconspirators statements and thus not hearsay then no CC grounds for objection■Go back to problem 8.8○When none of these options applies■BRUTON DOCTRINELay Opinions and Expert TestimonyRule 701. Lay OpinionIf a witness is not testifying as an expert, opinion testimony is limited to:1.Rationally based on witness perception (knowledge)2.Helpful to understanding the witness testimony or determining a fact at issue(helpful)3.NOT based on scientific, technical, or other specialized knowledge (common knowledge)Rule 702. Expert TestimonyA witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court thatit is more likely than not that:1.Expert’s scientific/specialized knowledge will be helpful to understand or determine a fact in issue2.Testimony is based on sufficient facts or data3.Testimony is product of reliable principles and methods; and4.Reflects a reliable application of principles and methods to the facts of the case Rule 703. Bases of ExpertAn expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect15
Rule 704. Opinion on Ultimate Issuea.Not automatically objectionable because it embraces an ultimate issueb.In criminal case→ expert cannot testify that the D did or did not have a mental state that constitutes an element of the crime charged or of a defenseAssessing Reliability: Frye vs. Daubert ●Frye:Must gain general acceptance in the particular field in which it belongs○Methodology must be generally accepted○Ex. courts generally do not allow lie detector tests●Daubert:whether a theory or technique is scientific knowledge under Fed. R. Evid. 702 → the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operationCharacter Evidence SubstantivelyImpeachment (more below)To show that the D did it! Or that someone else did it (acting in accordance with their character)Character = reputation, someones opinion of them, general tendencies, NOTE: rules differ in civil vs criminalCriminal1.Main Rule: character is not admissible to show propensity 2.D can put on evidence of his good character and prosecution can respond3.“Mimic” - motive, intent, mistake, identity, common plan or scheme4.Character of victim 5.Sexual assault/child molestationa.Restriction on character of victim/complainant Civil1.Character not admissible unless character is indispute 2.“Mimic”3.Sexual assault casesEvidence that goes to credibility–makes us not believeCharacter as it relates to the witnesses credibilityFactors that make you believe or not believe?-Prior false statements -Reputation-Bias/prejudice -Opinion-Convictions-Felony-Crimes involving dishonesty16
Rule 404(a). Character evidence is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. a.But a D can offer evidence of a relevant trait (or the victims) and prosecution can offer evidence to rebutb.Witness evidence is allowed (608, 607, 609)Rule 404(b). Evidence of any other crimes, wrongs, or acts is also not admissible to show a person acted in accordance with the character:a.PERMITTED FOR OTHER PURPOSES: proving motive, opportunity, intent, preparation,plan, knowledge, identity, absence of mistake, or lack of accident. i.Prosecutor must give notice and purpose before trial in writingii.if the evidence has special relevance on a material issue, the court must then carefully conduct Fed. R. Evid. 403 analysis to determine if the probative value ofthe evidence is not substantially outweighed by the danger of unfair prejudice1.High degree of similarity between the other act and crime charged2.Adequacy of proof3.Proponent’s need for the evidence 4.Availability of less prejudicial evidenceRule 405. When evidence of a person’s character is admissible, it may be proved by testimony in the form of reputation or opinion.a.When a person’s trait is an essential element of a claim, charge, or defense, character may be proved by specific instances.●Reverse 404(b)○D puts on evdience to show someone else is more likely to have committed the crime○When D is offering – the similarities do not have to be that great (the degree required for reverse is not as stringent)Rule 406: Evidence of Habit○Routine habit practice○Habit is different ○Character = general characterSummary of Character for Substantive PurposesSUBSTANTIVELYCriminalCivil1.Not admissible for propensity2.D can open the door, P can responda.D can offer good character (if relevant) with reputation or opinion1.Not admissible unless character is an issuea.Ex. child custody, negligent entrustment, defamation2.MIMIC17
b.PR can respond with R, O, (or specific acts on cross)3.MIMICa.Can be used to show: motive, intent, mistake, common plan, notice, or knowledge b.D can offer reverse 4044.Character of the victima.D can offer evidence of relevanttrait of victim with reputation or opinion (PR can respond with the same)b.If D opens the door to victim’s trait, PR can respond with R and Oc.Homicide: PR can offer evidence of victim’s character to rebut assertion that victim was first aggressor (R, O)5.Special rules in sexual assaulta.D’s other specific acts are admissible for any relevant purposeb.P’s history generally not admissible (3 exceptions)a.Admissible for other purposesb.Motive is rarely relevant but notice and knowledge might apply3.Special rules in sexual assaulta.Defendant’s other acts of sexual assault or molestation are admissible for any relevant purpose. FRE 415b.The complainant’s sexual behavior is not admissible unless its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of the victim’s reputation can only be offered ifthe victim has placed her reputation in controversy. ●When complainants sexual history is admissible (but still have to get over 403):○1. Prior consensual activity with the D to show the D may have believed there was consent on this occasion○2. Sexual activity near the time of the alleged assault to show that someone else might be the source of physical evidence○3. Where necessary to ensure the D’s right to a fair trial○Note that the d’s acts are admissible for any relevant purposeIMPEACHMENT SUMMARY●Anyone including the party that called the witness, may attack the witness’s credibility○Rule 607●A Witness’s Character for Truthfulness or Untruthfulness○REPUTATION OR OPINION EVIDENCE. Awitness’scredibility may be attacked or supported by testimony about the witness’s reputation for having acharacter for truthfulness or untruthfulness, or by testimony in the form of an opinionabout that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. ■Rule 608○SPECIFIC INSTANCES OF CONDUCT■Cannot use specific acts to prove witness’s character for truthfulness unless on cross examination if they are probative of the truthfulness of the witness or other witness they have testified about18
●Impeachment by Evidence of Criminal Conviction (Rule 609)○When using conviction to attack a witness’s character for truthfulness:■(1) felony: ●(A) must be admitted, subject to Rule 403 (substantially outweighs), in a civil case or in a criminal case in which the witness is not a defendant; and●(B) must be admitted in a criminal case in which the witness is adefendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and ■(2) any crime involving a dishonest act or false statement. ■If more than 10 years have passed since the witness’s conviction or release from confinement (whichever is later) then only admissible if:●(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and ●(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. ■Evidence is not admissible if the conviction has been the subject of a pardon, annulment, certificate of rehab■Evidence of a juvenile adjudication is admissible under this rule only if:●(1) it is offered in a criminal case; ●(2) the adjudication was of a witness other than the defendant;●(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and ●(4) admitting the evidence is necessary to fairly determine guilt or innocence. ■Admissible even if on appeal!!! (and all other conditions met)●NO IMPEACHMENT ON A COLLATERAL MATTER!●Methods of impeachment○Reputation/Opinion○Prior inconsistent statements○Bias○Bad acts involving dishonesty■For instance, if the witness has lied on a resume or on a loan application, this suggests dishonesty on the part of that witness. ■We are allowed to ask the witness we are trying to impeach about the lie, but no extrinsic evidence is permitted. ○Convictions■CAN ONLY BE ESTABLISHED 2 WAYS:●Getting the D to admit they have been convicted●Getting the record of conviction■Crimes involving DishonestyFelonies Not involving Dishonesty1.10 year rule (need specific facts if it is a conviction)2.No 403 balancing (unless 1.10 year rule (need specific facts)2.Subject to 403 19
older than 10)Note: if using against the D, then prosecution has the burden of showing more probative than prejudicial balancing (except in criminal case, if the D isa witness, special balancing test→ conviction must be more probative than prejudicial to be admitted for impeachment)■10 year Rule●Convictions over 10 years old can be admitted if●1. Advance notice is given; and,●2. The probative value for impeachment, supported by specific facts and circumstances, outweighs the risk of prejudice.○5 factors used to weigh probative value outweighs prejudicial (if using against D in criminal)■The five factors discussed by Judge Burger in Gordon are:■(1) the nature of the crime;●Violence generally does not weigh on honesty ■(2) the time of conviction and the witness’ subsequent■History;●Its been a long time, but his behavior does not show rehabilitation■(3) similarity between the past crime and the charged crime;●If same crime, should usually be excluded (too prejudicial)●One solution: only use 1 conviction where strong reasons for disclosure■(4) importance of defendant’s testimony; and●Suggests the more critical D testimony is to the case, the more hesitant the court should be to admit ■(5) the centrality of the credibility issue.Authentication and Best Evidence Rule●Standard of Authentication: the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is ●Must focus on HEARSAY as well as AUTHENTICATION○1. Have to get over hearsay hurdle then authenticate ●Wheneveroffering tangible evidence or telephone conversation→ the evidence has to be authenticated Rule 901. Authenticating or Identifying Evidence 20
●To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. ●Examples:○(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. ■Other side can offer testimony that it is not the K but all you need todo is to get a live witness testify it is–enough to support a finding that it is the K■Establishing a Chain of Custody: Offering evidence to show who had custody of an item before it was introduced in court. The chain of custody doesn’t have to be perfect. ■Another method of under (1) testimony of a witness with knowledge○(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. ■Ex. your brother can testify that you signed the K (as long as the knowledge is not gained for purposes of this litigation)○(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.○(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item,taken together with all the circumstances. ■Ex. I could authenticate based on the topic of the conversation that is unique (distinct characteristics)■Ex. the cocaine suitcase example○(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.■I know their voice○(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:■(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or ●Typically thinking about tangible items but also have to authenticate a call bc we don't know who is on the other side■(B) a particular business, if the call was made to a business and thecall related to business reasonably transacted over the telephone. ○(7) Evidence About Public Records. Evidence that: ■(A) a document was recorded or filed in a public office as authorized by law; or■(B) a purported public record or statement is from the office where items of this kind are kept. ○(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: 21
■(A) is in a condition that creates no suspicion about its authenticity;■(B) was in a place where, if authentic, it would likely be; and ■(C) is at least 20 years old when offered.○(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. ■Important with respect to authenticating security footage○(10) Methods Provided by a Statute or Rule. Any method of authenticationor identification allowed by a federal statute or a rule prescribed by the Supreme Court. Self AuthenticationRule 902. Evidence That Is Self-Authenticating (require no extrinsic evidence of authenticity in order to be admitted): ●(1) Domestic Public Documents That Are Sealed and Signed. A document that bears: ○(A)a seal purporting to be that of the United States; any state, district, territory; or a department, agency, or officer of any entity named AND○(B) a signature purporting to be an execution or attestation. ●(2) Domestic Public Documents That AreNot Sealed but Are Signed and Certified. A document that bears no seal if: ○(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and ○(B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine. ●(3) Foreign docs–very long rule●(4) Certified Copies of Public Records: copy that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by: ○(A) the custodian or another person authorized to make the certification; or○(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court. ●(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority. ●(6) Newspapers and Periodicals. Printed material purporting to be a newspaper.●(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting tobe in the course of business and indicating origin, ownership, or control. ●(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public etc.●(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law. ●(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic. ●(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)–(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before22
the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them. ●(12) Certified Foreign Records of a Regularly Conducted Activity.●(13) Certified Records Generated by an Electronic Process or System. ●(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11). Best Evidence Rule●If trying to prove contents of a writing, record, or photo then best evidence requires the original ○Required to use the original unless a satisfactory reason exists why it is not available■(a) All the originals are lost or destroyed (but not by the proponent acting in bad faith)■(b) The original cannot be obtained by any available judicial process■(c) The party against whom the original would be offered had control of it, was put on notice, but fails to produce it ■(d) The writing, recoding, or photo is not closely related to a controlling issue●A duplicate is admissible to the same extent as the original○Wide definition of duplicate: any mechanical reproduction of writing, record, or photograph as long as the reproduction exclude the risk of human transcription error ○UNLESSthere is a genuine question raised about the originals authenticity or circumstances make it unfair to use a duplicate●The proponent may use a summary,chart, or calculation to prove the content ofvoluminous writings, recordings, or photographs thatcannot be conveniently examined in court. Case Notes on Authentication and BER●Seiler v. Lucas ○Claims copyright infringement by Lucas○Are these covered by best evidence? Yes, they are records even though they don't have numbers, words 23
Privileges ●Federal courts: apply the common law - as interpreted by US courts in the light ofreason and experience-governs a claim of privilege unless an of the following provide otherwise (gives courts implied right to create new privileges based on CL principals but they are cautious about this):○The Constitution○Federal statute ○Rules prescribed by Supreme Court ●But if applying state law, then federal courts will apply the law of that state ●Types of Privileges: Atty-client, Clergy-penitent, Spousal comm, 5th A○BUT ONLY 3 recognized in federal courts: psychotherapist, clergy, and lawyer ○Doctor-patient (NOT applied in federal law but all states have a version)●Most courts either say the entire conversation is protected or it is notClergy-penitent privilege1.Confidential communication2.By pertinent to a member of the clergy in the person's capacity as spiritual adviser (for the purpose of seeking spiritual guidance). Any religion. in some jurisdictions, the privilege only applies if the religion requires the clergy to maintain the confidentiality a.Can't be talking to the priest at a baseball gameb.Comm not privileged if trying to elicit the leaders engagement in a criminalenterprise c.Does not go away after death!d.Crime/Fraud exception applies!Atty-Client Privilege1.Attorney-Client Relationshipa.Information disclosed during an attempt to obtain representationb.Privilege applies when the communication is to or from a representative ofthe client andwhen it is to or from a representativeof the attorney.i.E.g., secretary of client relays info to attorney on behalf of client; paralegal confers with client on behalf of attorney2.Confidentialitya.The privilege only applies toconfidential communicationsbetween the attorney and the client. Communications made in the presence of people who are assisting the attorney or client are still confidential.b.Communications: c.Communications in the presence of strangers are not. 24
d.In general, the presence of undetected eavesdroppers does not (or, at least, should not) destroy the privilege.i.Must take adequate steps to control who can listene.No privilege exists when a lawyer is acting for two parties and the two parties are now involved in a lawsuit against each other. Courts have concluded that there is no expectation of confidentiality as between the two parties.f.The client is the holder of the privilege and can waive its protections. But, the attorney must assert the privilege on the client’s behalf.3.Inapplicability of the Privilegea.Crime/Fraud: If a client seeks attorney’s advice on assistance to commit acrime or perpetrate a fraud in the future, the privilege does not apply. By contrast, if the client has already committed a crime and seeks advice, thecommunication is protected.Familial Privileges (both recognized by federal courts)●Spousal Communications○Confidential communications ■Does not apply to actions that are not intended to be communicative○Between spouse WHILE married (remain privileged if later divorced)○Either spouse can prevent the other from revealing ○What if children present? Depends if they are old enough to understand■A child in the crib – conversation remains privileged■A 5 year old - privilege is waived ○Crime/Fraud exception!!!●Spousal Testimonial ○Privilege belongs to the WITNESS–do not have to testify but CANJudicial Notice●Process where court accepts a fact as true without the need for the introduction of evidence ●Must be a fact–not a legal conclusion●What kinds of facts?○A. Facts of common knowledge - known everywhere in the jurisdiction OR■Ex. law of gravity ○B. can accurate and readily determined from sources whose accuracy cannot reasonably be questioned ■Ex. components of a pharmaceutical–can easily be looked up●Usually have to give notice to other side 25
○Other side has to be given opportunity to dispute that this can be judicially noticed●In civil cases → juries are instructed they must accept the fact as true●In criminal case → jurors are the finders of fact, so we instruct the jury that the fact has been judicially noticed and jury should give that fact whatever weight they think appropriate26