Trial Procedure and Relevance PDF

Trial Procedure and Relevance ============================= Rule 104. Preliminary Questions ------------------------------- - - Judge asks themselves **could a reasonable jury find enough evidence here by a preponderance standard????** (from *Huddleston v. U.S. "*sufficient to suppor...

Trial Procedure and Relevance ============================= Rule 104. Preliminary Questions ------------------------------- - - Judge asks themselves **could a reasonable jury find enough evidence here by a preponderance standard????** (from *Huddleston v. U.S. "*sufficient to support a finding" inquiry means: Whether a reasonable jury find enough evidence here by a preponderance standard.) - **Preponderance** = 51% = slightly more likely than not - Two ways 104(b) (conditional evidence) can work: 1. The foundational evidence comes in first, or 2. The evidence is admitted first, "on the condition" that the foundational evidence will come in as promised. If the foundation never materializes, judge will instruct jury to disregard. - These decisions are made outside of the hearing of the jury. - Judge is not bound by the rules of evidence !!!!!!!! - U.S. v. Zolin held that in deciding the privilege issue courts can consider potentially privileged information but should intrude cautiously, requiring a showing that the privilege has been breached, and conducting an in camera examination rather than a public adversarial one - Examples of preliminary questions include the judge deciding whether hearsay is admissible, whether a witness has personal knowledge, and whether a photograph is too inflammatory. Ultimately, the judge is deciding whether a given piece of evidence can come in. - Note: Under this rule, the foundational evidence can either come in first or the evidence is admitted first on the condition that the foundational evidence will be introduced as promised. If this never materializes, the judge will instruct the jury to disregard the evidence. Rule 105. **Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes.** If 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 scope and instruct the jury accordingly*.  ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ **WHEN PROSECUTION ASKS FOR A LIMITING INSTRUCTION THE COURT MUST ISSUE A LIMITING INSTRUCTION** - If a party timely requests an instruction under Rule 105, the court **must** give a curative instruction. Rule 401. Test for Relevant Evidence. Evidence is *relevant* if: (a) it has any tendency to make a fact *[more or less probable]* than it would be without the evidence; and (b) the fact is *of consequence* in determining the action.  ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- - 401(a): whether it has probative value - 401(b): materiality/whether it matters when it comes to the substantive law - **Probative** doesn't have to prove anything *conclusively*; it merely must have some *tendency* to make a fact more or less probable (must tend to prove or disprove a face by making it "more or less probable than it would be without the evidence.") - Evidence is ***material*** if it bears on a fact "of consequence in determining the action." - Turns on what issues are at stake in the proceeding (often turns on the substantive law of jurisdiction) Materiality doesn't require that the evidence bear on the *ultimate* issue in the case. - A piece of evidence is relevant if it has "any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." \ - iii\. Relevance analysis steps: (1) is the evidence probative of a fact?; (2) is that fact of consequence in determining the action? - Relevance is the first question one must ask about any piece of evidence - Logical relevance, governed by Fed. R. Evid. 401, is an easy standard to meet, requiring that the evidence has some tendency, no matter how small, to make a fact of consequences more or less likely. - Sometimes a piece of evidence is not relevant because it does not address a fact of consequence. In the older parlance of the common law, it is not material. To figure out whether a fact is a fact of consequence, one must know the substantive law. - Even when evidence is logically relevant, the trial judge may exclude it if the probative value of the evidence is substantially outweighed by unfair prejudice, confusion, distraction, or waste of time. Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: ------------------------------------------------------------------------------------------------------------------------------------ - - - - - Thus, under the rule, not all relevant evidence is admissible, but all irrelevant evidence is inadmissible. Rule 403. Excluding *[Relevant]* Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. 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. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- - 403 Analysis Steps: 1. 2. 3. - Remember that every piece of evidence subject to a 403 analysis will have *some* bearing on the case. - If it didn't at least have *minimal* relevance, you wouldn't even get to 403. (The evidence would be ***excluded*** under 401-402.) - Text, letter Description automatically generated - If the probative value and "dangers" are **equal**, the trial judge should **admit** the evidence. - If the "dangers" **somewhat outweigh** the probative value, the trial judge should **admit** the evidence. - If the probative value is slight, but the "dangers" are also slight, the trial judge should **admit** the evidence. - If the probative value is great and the "dangers" are also great, the trial judge should **admit** the evidence. - **Only if the "dangers" substantially outweigh the probative value should the trial judge *exclude* the evidence.** ----------------------------------------- -------------------------------------------------------------------- ------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ Relevance = Probativeness + Materiality Evidence which makes a fact more or less probable is **probative** A fact which is of consequence to the issue in dispute is **material** Rule 401: Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence \[probativeness\] and the fact is of consequence in determining the action \[materiality\]. ----------------------------------------- -------------------------------------------------------------------- ------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ - Rules 407 to 411 are each a specific application of Rule 403, with the judgement around the probativeness/prejudice balance already determined by the rule writers - Only forbid certain uses of the evidence they govern, but allow other uses of that same evidence - Note: every piece of evidence subject to a 403 analysis will have *some* bearing on the case. If it didn't have at least minimal relevance, the evidence would be excluded under 401 or 402. Rule 407. *Subsequent* Remedial Measures ---------------------------------------- - Boiled Down Rule: - Four specific uses of subsequent remedial measures are **not admissible**: (1) negligence, (2) culpable conduct, (3) a defect in a product or its design, or (4) a need for warning or instruction. - BUT use for "any other purpose" is permitted, **such as** (these are just most common): - \(a) proving ownership **(if disputed)** \*old mcD hypo !!!!\* - \(b) control **(if disputed)** - \(c) feasibility of precautionary measures **(if disputed)**, or - \(d) impeachment - OTHERS because just \*\*another purpose\*\* - Must be ***after accident (prior remedial measures not barred)*** - **Evidence of measures taken by the defendant [prior] to the \"event\" causing \"injury or harm\" do not fall within the exclusionary scope of Rule 407 *even if* they occurred after the manufacture or design of the product.** - Rule rests on two grounds: 1. The conduct is *not in fact an admission*, since the conduct is equally consistent with injury by mere accident or through contributory negligence. 2. A social policy of encouraging people to take, **or at least not discouraging them from taking, steps in furtherance of added safety**. ***Examples***: The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, Prime versions of machines, and discharge of employees, and the language of the present rules is broad enough to encompass all of them. - Policy rationales: (1) we want to encourage individuals to implement cautionary measures in furtherance of safety; (2) a subsequent remedial measure is not an admission of fault because such conduct is equally consistent with injury by accident (not probative of negligence). Rule 408. Compromise Offers and Negotiations -------------------------------------------- - In other words, anything not specifically prohibited is permitted. - Examples of **permissible** **purposes** include: - Proving a witness's bias or prejudice - Negating a contention of undue delay - Proving an effort to obstruct justice - Other non-specified purposes. - Helps parties come to agreements through settlement and negotiation rather than always going to court - **Disputed Claim**: When someone has filed papers and brough a case against someone else - [Ordinary business DOESN'T qualify ] - If someone says they have retained counsel, threatens breach of contract, could be a disputed claim, decided by the judge (104(a) preliminary question) - Disputed Claim Examples: Floyd runs over Randolph's foot while backing out and Floyd runs over Randolph's foot while backing out of parking space. Randolph retains counsel and sues Floyd. 1. We now have a **disputed claim**. 2. Floyd runs over Randolph's foot and they have an 3. argument about whose fault it is. Even though Randolph is 4. likely to sue at this point, this is **not yet a disputed claim**. - 408(a)(2) wrinkle: - This exception only applies when evidence is used in a criminal case - The exception only applies to conduct or a statement made during compromise negotiations, not the offer itself. - These are typically statements made to government agents. - 408(a)(2) exception: only applies when the evidence is used in a criminal case and concerns conduct or a statement made during compromise negotiations of the civil suit involving a government agency. Note that the exception only applies to conduct or a statement made during negotiations and *not* the offer itself (offer is still inadmissible under 408(a)(1)). - Example: John hasn't paid his taxes and he and his lawyer meet with an IRS agent to determine the fines he will pay. During the meeting, John says, "I did have \$3 million in unreported income, but how about we settle for \$50,000?" In a criminal trial for tax evasion, only the first part can come in. The second part is excluded under Rule 408(a)(1). - Policy rationales: (1) the evidence is irrelevant because an offer may be motivated by a desire for peace rather than from any concession; (2) we want to promote settlement of disputes. - iv\. Note: the rule excludes the evidence *only* when its purpose is to prove the validity or invalidity of a claim or its amount or to impeach. - a\. Impeachment example: Floyd says during settlement negotiations that he wasn't paying attention while backing out. At trial, he says he was being careful and paying attention. The statement during the settlement conference *cannot* be introduced to impeach. - **Rule 407 v. 408: Impeachment** - Rule 407 allows a subsequent remedial measure to be used for impeachment (i.e. Undermining the credibility of the witness) - Rule 408 **explicitly forbids** using evidence of the terms of a settlement or offer or statements made during the settlement negotiations to be used for **impeachment** - For example, Floyd runs over Randolph's foot while backing out of parking space - Randolph retains counsel and sues Floyd. During settlement negotiations, Floyd says "I'm sorry I was distracted" - At trial, Floyd LIES and says opposite of settlement, Floyd CANNOT be impeached with his statement during settlement conference. Rule 409. Offers to Pay Medical and Similar Expenses ---------------------------------------------------- Rule 407 Rule 408 Rule 409 ----------------------------------------------------------------------- ---------- -------------------------------------------------------------------------- ------------ Evidence admissible to impeach through a prior inconsistent statement Yes No Statements surrounding offer Not Admissible other than 408(a)(2) criminal case negotiations exception Admissible Rule 410. Pleas, Plea Discussions, and Related Statements ---------------------------------------------------------  - Rule 410 is nearly an absolute ban on using certain types of criminal evidence, except in two narrowly-defined circumstances: 1. 2. - statements made during plea proceedings are made under oath, on the record, and with counsel present - iii\. Scenarios not covered by Rule 410(a), making the evidence admissible: (1) a guilty plea that is not withdrawn; (2) statement made during a guilty plea that is not withdrawn; (3) a statement made during plea negotiations that ends in a guilty plea. - a\. Thus, if the guilty plea is not withdrawn, the plea itself and any statements made during the plea proceeding are not excluded. Equally, if statements are made during plea negotiations and the negotiations end in a guilty plea, those statements aren't protected either. Rule 411. Liability Insurance ----------------------------- Witnesses ========= Rule 601. Competency to Testify in General ------------------------------------------ Every person is competent to be a witness unless these rules provide otherwise.. This rule basically abolished a number of common law restrictions on the ability to testify, including religious belief, conviction of a crime, and connection with the litigation as a party or interested person, or spouse thereof. Rule 602. Need for Personal Knowledge ------------------------------------- - Standard for personal knowledge = ***preponderance of evidence*** - **Personal knowledge is what makes a witness competent to testify** - **Sufficient to support a finding** = means that a reasonable jury could find by a preponderance of evidence that the witness has personal knowledge Rule 701. Opinion Testimony by Lay Witnesses -------------------------------------------- - All lay witnesses need personal knowledge to be competent. - Rule 701 creates a broad rule that lay witnesses can give opinions so long as those opinions are rationally based on the witness's perception and helpful to the jury - Witnesses just "guessing" what happened is not "rationally based on the witness's perception" -- this is speculation not based on - Helpfulness has two components: - 1\. That the jurors **could not have** judged the matter for themselves - 2\. The witness's opinion adds information that is over and above what might have been conveyed by more fundamental facts - Witness's opinion cannot invade the province of the jury - Witness telling the jury how to decide the case violates Rule 701 - You do not need a handwriting expert to give an opinion on authorship. A lay witness who is familiar with the handwriting can do just as well. - The objective of lay witness testimony is to put the trier of fact in possession of an accurate reproduction of the event - Lay opinion testimony is admissible for "[sense impressions]" within the everyday experience of ordinary people. (testimony regarding an almond smell is admissible from a lay witness even tho it's the way sodium cyanide smells; lay witness is competent =) - i\. 701(a) imposes a requirement of first-hand knowledge or perception. 701(b) recognizes that witnesses find difficulty in expressing themselves in language not that of an opinion or conclusion. Example: can say "the car was going fast" instead of being required to say "the car was traveling at a rate of 77MPH." - ii\. Generally, Rule 701 classically deals with things that cannot be described factually without using inferences, i.e. appearance of persons or things, manner of conduct, competency of a person, lightness and darkness, sound, size, weight, and distance. - iii\. 701(a) examples: (1) Witness says she did not see a gun in the defendant's hand because "she had probably stashed it by then." This testimony would be inadmissible because it's not rationally based on her perception and instead involves speculation or guessing. (2) Heavy meth user can testify that a substance on a table appeared to be meth because of personal knowledge given prior experience with the drug. - iv\. 701(b) example: Witness testifies that "I don't even know why we need a trial. Everyone knows he killed her, as I always said he would." This testimony is not helpful because it *simply tells the jury what result it should reach* and thus usurps the jury's function as factfinder. - v\. 701(c) example: Witness testifies that he saw Bill at 6PM, that Bill was dead, and that Bill hadn't been dead for too long. The last part of the statement would be most problematic because this kind of statement would require specialized knowledge of time of death factors which a medical examiner would know. - a\. Whereas lay testimony results "from a process of reasoning familiar in everyday life," expert testimony results "from a process of reasoning which can be mastered only by specialists in the field." Example: testifying that substance looked like blood vs. testifying that bruising around eyes is indicative of skull trauma. Rule 702. Testimony by Expert Witnesses --------------------------------------- - **Daubert** v. Merrell Dow (1993) (court held that \"general acceptance\" is not a precondition to admissibility of scientific evidence under FRE) - Trial judge\'s task is to *ensure* that the expert\'s testimony both: 1. *Rests* on a reliable foundation *and* 2. Is *relevant* to the task at hand. - Moved the authority from the expert\'s peers in the field to the courts - Daubert v. Merrell Dow- held that "general acceptance" is not a precondition to the admissibility of scientific evidence and that the trial judge's task is to ensure the expert testimony (1) rests on a reliable foundation and (2) is relevant to the task at hand. - Daubert Factors (not exclusive): 1. Whether the technique can be (and has been tested) 2. Whether it has been subjected to peer review and publication 3. The known or potential rate of error 4. The existence and maintenance of standards controlling the technique\'s operation, and 5. \"General acceptance\" in the relevant scientific community - just from FRYE (in fed courts frye no longer applies) - Expert opinions are often excluded because they are unhelpful and a waste of time - Examples of unhelpful testimony: telling the jury what conclusion to reach, matters of common sense, weighing on credibility of other witnesses, saying what the judge is supposed to tell the jury. - Trial court\'s gatekeeping will be reviewed for *abuse of discretion* - b\. Generally, *Daubert* shifted the authority of determining whether a technique was reliable from the expert's peers to the courts. *Frye* is still adhered to in 13 states, not including Georgia. - c\. Kumho Tire Co. v. Carmichael- extended *Daubert* to apply to all expert testimony, whether scientific, technical, or other specialized knowledge and held that the trial judge may consider *Daubert* factors, but they are not a definitive checklist. - d\. Generally, rejection of expert testimony is the exception rather than the rule given existence of cross-examination and presentation of contrary evidence. Note that proponents don't have to demonstrate that their expert's opinions are correct, only that they're reliable. Rule 703. Bases of an Expert's Opinion Testimony  ------------------------------------------------- - \"An expert may base an opinion or inference on facts or data perceived by or made known to the expert **at or before the hearing**.\" - \"Perceived by\" the expert = first-hand observations - \"Made known to\" the expert = second-hand information (facts reported to the expert, hearsay, etc.) - If experts in the particular field would **reasonably rely** on these kinds of facts or data in informing opinions, the facts or data need not be admissible themselves for the opinion to be admitted - Expert is the only type of witness who can sit in on trial - Last sentence is **reverse** of Rule 403 balancing test - Rule 403 tilted in favor admission while 703 is tilted away from admission - The expert is under no obligation to disclose the factual basis of his opinion, but must disclose those facts on cross-examination if asked. - Causal connection goes beyond what we expect for a lay witness - i\. Per the first sentence of the rule, **experts** may base their opinions on three kinds of facts: (1) facts personally observed/first-hand observations, i.e. expert examined piece of clothing under a microscope; (2) facts "made known to" the expert at trial/hearing, i.e. second-hand info/being asked a hypothetical/expert hears testimony at trial; (3) facts "made known to" expert outside of court/before hearing by ways other than his own perception, i.e. physician bases diagnosis on info from statements of patient's relatives who don't testify at trial/reads records/consults with other doctors who have treated the patient. - a\. Note: Experts may rely on second-hand information so long as other experts in the field would reasonably rely on such facts or data in forming an opinion on the subject. However, reliance on otherwise inadmissible facts does not make those facts admissible. Only the expert's opinion based on those facts is admissible. - ii\. Under the rule, the lawyer sponsoring the expert witness may not disclose otherwise inadmissible facts to the jury unless they pass a reverse 403 test. This creates a *presumption of exclusion* and even if the hearsay is admitted, it is only admissible to help the jury assess the reliability of the expert's testimony and not for its truth. Even if this test is satisfied, a judge must give a limiting instruction under Rule 105 upon request. - a\. Example: In re Melton- expert based his opinion that Melton was a danger to others on Melton's mother's statements (she did not testify at trial) that he punched her in the face. The court held that the underlying info (that Melton punched his mother in the face) was inadmissible to help the jury evaluate the basis for the expert's opinion because it failed the reverse 403 test and a limiting instruction would've proved ineffective. Rule 704. Opinion on an Ultimate Issue -------------------------------------- - **Ultimate issue** \-- no exact definition, usually context based - NOT \"whether defendant is guilty\" or \"whether the plaintiff was contributorily negligent\" or \"whether he could not tell right from wrong at the time of the killing\" - One of the important inferences a jury must make in order to decided the case - Examples: whether death was caused by gunshot wound, whether the substance was really cocaine, whether the accident caused paralysis, diagnosis of psychosis - Numerous penultimate issues that help the jury - Cannot usurp the jury - Bc role of judge to instruct jury on the law, legal opinions given by experts do not \"assist\" the jury as required by Rule 702 - Expert ***cannot*** say defendant had requisite intent, was negligent, acted improperly - Assessments of *witness credibility* are reserved to the jury alone - An expert\'s opinion can bear on an ultimate issue ***unless*** it tells the jury what result to reach (ie defendant is guilty) - ***[CANNOT TELL JURY WHAT RESULT TO REACH !!!!! OR WHOOOO TO BELIEVE]*** - ***[Diagnosis of psyochosis is allowed but can't say that defendant didn't know right from wrong and was deluded at the time of killing]*** - AN EXPERT OPINION CAN BE COUNTERED BY A LAY OPINION - No requirement that an expert be countered by another expert - Experts may rely on **inadmissible hearsay** to reach their conclusions - In sum, an expert's opinion may bear on an ultimate issue (victim was killed by a blunt instrument, these ingredients are used to make meth, cause of death was poisoning), unless it tells the jury what result to reach. - Further, assessments of witness credibility are left to the jury alone, i.e. psychiatrist cannot testify that one witness was "exceedingly credible." - Per 704(b), experts can give diagnoses (psychotic, delusional, insane) but can't say that a defendant couldn't distinguish right from wrong or conform actions to the law or appreciate consequences of actions (at the time of the offense). - What is an opinion about whether did or did not have the mental capacity to do the crime at the given time. - In a criminal case, an expert cannot give this type of opinion on an ultimate issue:\ An opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime or a defense? - The expert witness in a criminal case is prohibited from stating conclusions about the defendant's mental state in connection with any required element of the charged crime per Rule 704(b). Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion --------------------------------------------------------------------- Hearsay ======= - What is the evidence being offered to show? - If we're concerned with the out of court speaker sincerity - Did the declarant intend to communicate the matter sought to be proved by the statement - Chief motivation behind the hearsay ban seems to be court's unwillingness to rely on declarant's sincerity, when that cannot be tested by contemporaneous cross-examination - Who is the declarant? - Statement made? - What is the contested evidence? - Was it out of court? - What is it being offered to prove? - Hearsay is admissible because there are circumstances indicating the out of court declaration is reliable, thus eliminating to some extent the need for cross-examination. The declarant's sincerity, perception, and memory are all factors making an OOCS more or less reliable. Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay ------------------------------------------------------------------------- - Oral assertion = spoken assertions - Fred watches a car run a red light and says "that car just ran a red light" - Written assertion - Fred texts his friend "just watched a car run a red light LOL", he is making a written assertion - Nonverbal conduct, if the person *intended* it as an assertion = **any gesture with communicative intent is an assertion** - If Fred comes out of a meeting, shakes his head, and mimes shooting himself in the head, that is nonverbal assertion - **An assertion presupposes an *audience*** - Drug dog cannot be a declarant -- must be a person - Hearsay is an out-of-court statement, offered in evidence by a litigant, and to prove the truth of the matter asserted by the declarant - Most common nonhearsay uses of out of court statements: - Effect on the listener of the statement (only works if the listener does something legally significant upon hearing the statement (statement provides motive, or reasonable fear etc.) - Legal right or duty, or crime, triggered by statement ("verbal acts", e.g. "I do" when getting married, or "we have a deal" when agreeing to a contract) - Showing that the statement is false - Impeaching later in-court testimony - **Steps in hearsay analysis:** - **Identify the declarant** - **Put the contested statement in quotes so that you id the statement** - **Next, find out what is asserted in the statement in other words, what was the declarant actually intending to say?** - **Next, ask yourself, what is the statement offered to prove? (If what is asserted is the same as what is offered to prove; then the statement is being offered for its truth)** - What is an "assertion"? - Hearsay is an OOCS offered by a litigant to prove what the declarant intended to communicate - NON hearsay: - Nonassertive words ("OUCH") (involuntary) - **Words offered to prove something other than what they assert** - Assertions offered as circumstantial proof of knowledge - Child described room that person abducted her to help identify defendant; proved that she really had been in his room - An inadvertent demonstration of knowledge is not an assertion. Instead, there must be intention to communicate the matter asserted in the statement. (ice pick bullshit) - Offered to prove effect on the listener- this only applies if the listener does something legally significant upon hearing the statement, i.e. statement provides motive, statement creates reasonable fear. - Example: Alice tells Bill that Joey was looking for him with a gun. If, as part of a self-defense claim, Bill offers Alice's statement to prove Joey had a gun, this would be hearsay. But if he offered the statement to prove he had reason to fear Joey at the time of the shooting, this would not be hearsay. - Verbal acts- a legal right or duty, or crime, is triggered by the statement itself. Examples: "I do" when getting married (not when you say "I do" when asked if you want to marry someone 6 months before the wedding), "We have a deal" when agreeing to a contract, "I will kill you" (threat), "this is a holdup" makes one guilty of robbery. - Impeaching later in-court testimony- introducing the out-of-court statement to prove the witness has said different things about this fact at different times, meaning that the current testimony cannot be trusted. The theory for introduction is not to prove the out-of-court statement is true. Rule 802. The Rule Against Hearsay ---------------------------------- Hearsay is ***not admissible*** unless any of the following provides otherwise: - DEFAULT RULE: Hearsay is not admissible. - If a statement is hearsay, it doesn't fit any exception to the hearsay rule and the other party objects to its admission, the statement ***must*** be excluded. Rule 801(d)(2). Opposing Party Statement Definitions That Apply to This Article; Exclusions from Hearsay \ --------------------------------------------------------------------------------------------------------------------------- A. B. C. D. 1. 2. E. 1. 2. - **801(d)(2)(A)**: The Party's Own Statements (Exemptions!!) - Just has to be a relevant statement (Does not have to be an admission) - Generally, circumstances under which make the statement is made are not part of the admissibility inquiry - No requirement of first-hand knowledge. The party does not need to have actual knowledge of the facts, so long as it made the statement. - Admissibility inquiry is PARTY-SPECIFIC (admissible only against "opponent" **So party can't introduce their own statement under this rule.** - 801(d)(2)(A), **the party's own statements**: (1) the statement is relevant; need not be an admission or confession; (2) circumstances under which the statement is made are generally not part of the admissibility inquiry, i.e. don't care when/to who/how it was said; (3) no requirement of first-hand knowledge- party just needs to have made statement; (4) admissibility inquiry is party-specific; statements are admissible only against the "opponent" and parties cannot introduce their own statements under this rule. - **801(d)(2)(B):** Adoptive Statements - Statements "the party manifested that it adopted or believed to be true" - Part can overtly adopt someone else's statement. "That's right!" - Infer adoption by silence in the following circumstances: - [Party heard and understood statement.] - [Party was at liberty to respond] - [The circumstances naturally called for a response] - [Party failed to respond] - 801(d)(2)(B), **adoptive statements**: can occur when the party overtly adopts someone else's statement, i.e. "that's right!" On the other hand, when the party says nothing at all, adoption can be inferred through silence when: (1) party heard and understood the statement; (2) party was at liberty to respond; (3) circumstances naturally called for a response; and (4) party failed to respond. - If an accused in a criminal case stays silent after invoking the Fifth Amendment right to remain silent, the fact of remaining silent after arrest is not admissible THOUGH pre-arrest silence may be admitted if a reasonable person would have spoken to protest innocence. - **801(d)(2)(C)** reaches a statement "made by a person whom the party **authorized** to make a statement on the subject" - Someone **authorized** to speak (spokesperson, press agent, sales rep, lawyer); most agents NOT authorized to speak (truck driver) - 801(d)(2)(C), **authorized to speak by the party on the subject**- includes spokespersons, press agents, sales reps, and lawyers. Speaking on the party's behalf is that person's job. Most agents, such as a truck driver, are not authorized to speak. - **801(d)(2)(D)** does NOT require that an agent have authority to speak for the principal. All that is required is: - That the statement concern **a matter within the scope of the agency or employment,** AND - That the agent or servant **still be employed at the time of making the statement.** - 801(d)(2)(D), **statement by the party's agent or employee**- does NOT require that the agent have authority to speak for the principal. Instead, the requirements are simply: (1) the statement concerns a matter within the scope of the agency or employment; and (2) the agent or servant still be employed **at the time** of making the statement. - a\. Note: it doesn't matter whether the statements are made to a third party or to another employee within the organization. Also, the statements don't have to be made in a work or business setting to come in against the company (can be talking to a friend at the bar). - b\. Scope of employment example: Suppose a man slips and falls on ice outside a resort. If an employee of the resort from the *accounting department* shows up to remove the ice and says "the people on the day shift were supposed to shovel this ice," that statement is NOT admissible against the company given that removing the ice is not within the scope of his employment in the *accounting department*. - **801(d)(2)(E)** **Requirements for co-conspirator statements**: - **Declarant and defendant conspired** - Conspiracy need not be one of the charged offenses or claims, but the opposing party must prove to the judge by a preponderance of evidence that a conspiracy existed. - **Statement was made during course of that conspiracy** and - The statement must have been made before the conspiracy ended. It is usually safe to say that the conspiracy is over when the co-conspirators are in custody. - **In furtherance of the conspiracy** - Means advancing the main objectives of the conspiracy. Statements of idle chatter or bragging about the conspiracy do not count as furthering the conspiracy. - THE STATEMENT MUST BE CONSIDERED BUT DOES NOT BY ITSELF ESTABLISH THE EXISTENCE OF THE CONSPIRACY OR PARTICIPATION IN IT UNDER (E). - 801(d)(2)(E), statements by the party's coconspirator, requirements: must show by a preponderance under Rule 104 that (1) the declarant and defendant conspired; (2) the statement was made during the course of that conspiracy; and (3) in furtherance of the conspiracy. Note: the defendant **doesn't have to be charged with conspiracy** for this exception to be used. - Example: a statement to police detectives, after being arrested, that it was all the coconspirator's idea, is not in furtherance of the conspiracy. Also, having been arrested, the conspiracy is arguably over. Thus, such a statement could not be introduced under this exception. - Existence of conspiracy is under preponderance of evidence standard decided by judge. Rule 801(d)(1). Prior Inconsistent and Consistent Statements. (MORE EXEMPTIONS) ------------------------------------------------------------------------------- (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 (**Thus, if the declarant never appears in court, these exceptions CANNOT apply), and the statement: - **DOES NOT MEAN THAT THE WITNESS HAS TO ADMIT TO HAVING MADE THE STATEMENT** - All that is required is that the declarant be on the stand, under oath, and be willing to give responses - In all of the 801(d)(1) exception/exemptions, the declarant must currently be a witness and be **subject to cross-examination regarding her prior statement**. - IF THE DECLARANT NEVER APPEARS IN COURT, THESE EXCEPTIONS CANNOT APPLY. Gots to be THERE. - **Past inconsistent statements:** - **Two uses:** 1. Past inconsistent statements **offered substantially** under Rule 801(d)(1)(A). These statements are offered for their trutttthhhhhhh, BUT they must have been: a. Made under **oath** b. At a "proceeding" (including grand jury) or deposition c. **There is no [cross-examination] requirement (unlike 804(b)(1) Former Testimony where declarant is unavailable)** 2. Past inconsistent statements **offered to impeach** under Rule 613. These are not offered for their truth, just to show that the witness has said **different things at different times**, hence might be disbelieved at this point. - **801(d)(1)(B) Prior Consistent Statements** declarant is now a witness and is subject to cross-examination concerning the statement - **1. Past consistent statements offered to rebut** a charge of recent fabrication or improper motive - **Note** that these statements DO NOT have to have been made [under oath at a proceeding, like prior *in*consistent statements] - **BUT** the statements must have been made **before the alleged influence or motive to fabricate arose. (TOME rule: In Tome v. United States (1995), the Supreme Court held that 801(d)(1)(B) permits the introduction of prior consistent statement to rebut a charge of recent fabrication or improper motive "only when those statements were made before the alleged influence, or motive to fabricate arose." So you have to consider the timing of the statements in order to use them as prior consistent statements.** (judge decides whether statements really predated motive under 104(a))**)** - Example of *Tome* principle: (1) Prosecution alleges that wife killed her husband for insurance money and shows that she took out a policy six months before the murder. If the wife claims self-defense out of fear of her husband, she could bring in prior consistent statements (of fear of husband) if they were made *before* she took out the insurance policy. (Note: the judge will decide if the evidence predated the motive under Rule 104 preponderance standard). - **2. Past consistent statements offered to rehabilitate** the declarant's credibility as a witness when attacked on another ground (could be faulty memory) - **801(d)(1)(C) Prior statement of identification** - litigant cannot use any of the subsections of Rule 801(d)(1) unless \"the declarant \[here, Maria\] testifies and is subject to cross examination about \[the\] prior statement.\" - Unlike prior inconsistent statements under Rule 801(d)(1)(A), prior consistent statements need not have been made under penalty of perjury at a trial, hearing, or other proceeding, or deposition. - Doesn't matter if you forgot - So long as **declarant witness testifies and is subject to cross-examination about the statement**, the statement of identification is admissible under 801(d)(1)(C). - The prior statement is ONLY who the person is and NOT what they did. Example: If the statement is "it was number 5. Number 5 killed my brother," only the first sentence of the statement can come in under this exception. - Even when a witness is unable to explain the basis for a prior identification because of memory loss, the prior, out-of-court identification is admissible so long as the witness testifies and is subject to cross about the prior identification. Rule 613. Witness\'s Prior Statement ------------------------------------ (b) **Extrinsic Evidence of a Prior Inconsistent Statement.** Extrinsic evidence of a witness\'s prior inconsistent statement is admissible [only if the witness is given **an opportunity to explain or deny the statement** and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.] **This subdivision (b) does not apply to an opposing party\'s statement under Rule 801(d)(2).** \- Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement is not admissible **unless**: 1\. The witness is afforded an opportunity to **explain or deny the same** AND 2\. The opposite party **is afforded an opportunity to interrogate the witness** thereon, 3\. or the interests of justice otherwise require \ - 613 has less stringent requirements than 801(d)(1)(A) but cannot be offered for its truth unlike 801(d)(1)(A) - Extrinsic evidence of prior inconsistent statement could be either a document memorializing that statement, or the testimony of a witness who heard that statement. - impeachment by a prior inconsistent statement, which can be proved by extrinsic evidence once the witness has a chance to explain or deny the statement. - When admitted under Rule 613(b), the prior inconsistent statement is introduced to impeach trial testimony, NOT for its truth. - PROCEDURAL HURDLE: Under 613, the witness must be afforded an opportunity to explain or deny the prior inconsistent statement. - Extrinsic evidence is allowed under 613(b), but only for impeachment.  Rule 804. Unavailability Exceptions to the Rule Against Hearsay---When the Declarant Is *Unavailable* as a Witness (Declarant MUST be unavailable) (Better than nothing exceptions) (admissible when the alternative is to do without the evidence altogether 804 -- where's that whore) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 804(b)(1) *Former Testimony.*  ------------------------------ Testimony that: \- Summary of 804(b)(1) requirements: (1) declarant must be unavailable at the current trial; (2) declarant's prior testimony was given at a trial or other proceeding; and (3) prior testimony must be offered against a party (or predecessor in interest) who had **opportunity** and similar motive to develop it by direct, cross or redirect examination. - **804(b)(1)** Former Testimony requires: - Declarant must be **unavailable;** - Declarant's prior testimony was given at trial or other proceeding; and - Prior testimony must be offered against a party who had (or a **predecessor in interest** who had) an opportunity and similar motive to develop the testimony (cross examination requirement!!!). 804(b)(2) Dying Declarations *Statement Under the Belief of Imminent Death.* In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant\'s death to be imminent, made about its cause or circumstances. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ - **804(b)(2)** Dying Declarations require: - Has the be a **civil case** or **homicide prosecution** - Declarant must **believe they are about to die** (but declarant does not have to actually die) - **Statement must be about the cause or circumstances of the declarant's *imminent death*** - **HAS TO ALSO HAVE FIRSTHAND KNOWLEDGE** - Summary of 804(b)(2) requirements: (1) must be a civil case or a homicide (not attempted) prosecution; (2) declarant must believe they are about to die at the time the statement is made, but he does not actually have to die; (3) statement must be about the cause or circumstances of the **declarant's** imminent death (can't be about anyone else's death!). - Additional requirements: (4) declarant must have first-hand knowledge of the facts asserted and cannot be based on speculation, i.e. "I believe Fred poisoned me." (See *Shepard*); (5) declarant must be unavailable. 804(b)(3) *Statement Against Interest.*  ---------------------------------------- A statement that: - **804(b)(3)** Statement against interest requires: - At the time of the making - So far contrary to the **declarant's pecuniary or proprietary interest**, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, - That a reasonable person in the declarant's position **would *not* have made the statement unless believing it to be true** - Special requirement of **corroboration if offered by *either side* to incriminate the declarant** - **Against interest part must be clear and immediate:** - Losing property - Losing money - Going to jail - Losing a lawsuit - Getting sued - (Statements tending to subject the declarant to "**hatred, ridicule, or disgrace**" will ***not*** suffice) - This rule rests on the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true. - A statement admitting guilt and implicating another person, made while **in custody**, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest. BUT the same words spoken under different circumstances, e.g., to an acquaintance, would have no difficulty in qualifying. - Supreme Court has held that if a person makes an OOCS to the police, only the parts that implicate the speaker **directly** can be admitted as against interest. - 804(b)(3) does not allow the admission of non self-incriminating remarks, even if made within a general self-incrimination context (at least to police). - Williamson v. United States- For out-of-court statements that inculpate both the declarant and the defendant, only the parts of the statement that inculpate the speaker/declarant directly can be admitted as a statement against interest, if that statement is made to police. - **804(b)(3)** Statement against interest requires (differently that 801(d)(2)(A)): - Declarant has **first-hand knowledge** of underlying facts (not required for admissions by party opponent under 801(d)(2)(A)) - Declarant **unavailable** to testify - Statement against declarant's interest at time he made it - Not party specific---admissible against the world. - If the statement tends to expose the declarant to criminal liability and it's offered to exculpate the accused, it is admissible under 804(b)(3) if supported by corroborating circumstances that clearly indicate the statement's trustworthiness 804(b)(4) Statement of Personal or Family History. A statement about: --------------------------------------------------------------------- 804(b)(6) *Statement Offered Against a Party That Wrongfully Caused the Declarant\'s Unavailability.* A statement offered against a party that wrongfully caused---or acquiesced in wrongfully causing---the declarant\'s unavailability as a witness, and did so intending that result. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- - **804(b)(6)** Forfeiture by wrongdoing - **NOTE** the party need only have intended in part to procure unavailability of declarant---allows mixed motives. - **The OOCS** can come in against both the actual party that caused the declarant's unavailability OR if the killing was getting the person out of the way was in furtherance of a conspiracy, then the statement can come in against each member of the conspiracy. - **If a party wrongly prevents a person from testifying, for example by being involved in bribing, intimidating, or killing that person, any statement that person ever made can be introduced against the party under Rule 804(b)(6).** Rule 803 says availability of declarant is ***immaterial**.* Rule 803(1). Present Sense Impression ------------------------------------- A statement **describing** or **explaining** **an event or condition**, made *while* or *immediately after* the declarant perceived it **is not excluded by the rule against hearsay**, [regardless of whether the declarant is available as a witness.] - **Key to this exception is timing**---the statement needs to have been made nearly contemporaneously with the event it's describing. Some time lapse is allowed, but generally it's measured in minutes. - **CONTEMPOREANOUS** - The declarant must have personal knowledge/see what's happening. Thus, "I *think* x is happening" is not a present sense impression. Rule 803(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 **is not excluded by the rule against hearsay**, regardless of whether the declarant is available as a witness. - **Statement can go *beyond*** simple description, so long as it **relates to the startling event** - **NOTE:** MUST BE FIRST EXCITEMENT---no calming down and getting upset again that will not count as excited utterance - **The stress of the excitement generated by the event minimizes the possibility of fabrication, because the declarant doesn't have time (or at least, doesn't have non-stressful "reflective" time), to concoct a false account of the event.** - The declarant of an excited utterance may be a bystander (rather than a person actually involved in the event) and needn't be identified by the person giving the in-court testimony about what the declarant said. Rule 803(3). Statement of Then-Existing 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 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** is not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness. - Literally how a person is feeling at the time - 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 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 declarant\'s will (no past plans, no memory or belief bullshit) - Can only do your own plans and not anybody else's because that would require depending on a statement of memory or belief - The out of court statement "Just yesterday I disinherited my good-for-nothing son" is admissible under Rule 803(3) even though it is evidence of a memory or belief because it relates to the terms of the declarant's will. Rule 803(4). Statement for the Purpose of Medical Diagnosis ----------------------------------------------------------- A statement that: \(A) is made for---and is reasonably pertinent to---medical diagnosis or treatment is not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness; and - **Statement does not need to be made to treating physician**. Can also be medical expert hired solely for the purpose of litigation - Statements made to people **other than the doctor** (family members, EMTs, ambulance drivers) **are admissible** under this exception **if it seems that the declarant intended for a doctor to ultimately get the information** - Declarant can describe the cause of symptoms BUT **not assign fault**. So person could say that they broke their leg because they were hit by a car, but not that they broke their leg when Defendant Doofus ran a red light and plowed into them - The rule is not limited to statements of present symptoms. If made for purposes of medical diagnosis or treatment, statements of past symptoms (for example, "my right side has been hurting for week" or "I felt numbness in my left hand") are admissible. Rule 612. Writing Used to Refresh a Witness's Memory ---------------------------------------------------- \(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: \(b) Adverse Party's Options; Deleting Unrelated Matter. Unless 18 USC § 3500 provides otherwise in a criminal case, an adverse party is **entitled to have the writing produced at the hearing**, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. (reason for that is to avoid direct coaching of witness; can redact or delete unrelated matter) \(c) Failure to produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue an appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or---if justice so requires---declare a mistrial. - **If a witness does not remember something, counsel may attempt to refresh her memory be showing her *some object*** (usually a writing under 612) - **ANY OBJECT** fair game (map photograph pasta) - **Reminder must serve only to stimulate the witness's recall** and is not itself independent source of evidence. - If witness regains her memory of the event, she may continue to testify and her testimony will constitute the evidence received - **Purpose of writing = to jog the witness's memory** - **ONLY the opponent** can introduce the writing into evidence - It can be *anyone's writing*; it does not have to have been written by the witness, and it doesn't have to be something the witness has ever seen before. - Rule 612 takeaways: (1) the purpose of the writing is simply to jog the witness's memory; (2) the proponent of the testimony may not introduce the writing into evidence as an exhibit; only the opponent may do that; (3) it can be anyone's writing and doesn't have to have been written by the witness or even something the witness has seen before; (4) if the witness regains his memory of the event after seeing the writing, he may continue to testify and his testimony will constitute the evidence received. Rule 803(5). Recorded Recollection ---------------------------------- The following are not excluded by the rule against hearsay: **If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. (Going to read document aloud to jury)** - **Information itself was required for the testimony to be fully and accurate** - Witness has to of adopted when it was fresh it in its mind and close to the document's production. - Doesn't have to have been written by witness tho (boss employee inventory list) - **Rule 803(5)** provides a hearsay exception when: - A witness once had knowledge of a matter in a record, but **now cannot remember it well enough "to testify fully and accurately;"** - The record **was made or adopted by the witness** when the matter was **"fresh in the witness's memory;"** and - The record accurately reflects the witness's knowledge at the time. - As a practical matter, **the declarant must actually be available to testify to the preliminary requirements of Rule 803(5)**. - If the witness has a complete memory of the event, Rule 803(5) does not apply. - THE WITNESS LIKE ACTUALLY HAS TO TESTIFY FOR THIS ONE. - When Rule 803(5) is applied, the witness will read the document aloud and into evidence, thus giving it the same effect on the jury as live testimony. This is unlike with Rule 612, where the witness will read the document **to himself** and then put it away and testify based on his refreshed memory. - Note: the writing is admissible as an exhibit only if offered by the opposing party, just like with Rule 612. +-----------------------+-----------------------+-----------------------+ | | **Rule 612 Refreshing | **Rule 803(5) | | | memory!** | Recorded | | | | Recollection!** | +=======================+=======================+=======================+ | **Applies when:** | Witness can't | Witness can't | | | remember something | remember something, | | | but just needs a push | and it is often too | | | to help them remember | long and detailed for | | | | them to remember | | | | "fully and | | | | accurately" | +-----------------------+-----------------------+-----------------------+ | **Foundation** | Nothing specific, so | 1\. Witness must | | | long as it does the | have "made or | | | job | adopted" the | | | | document when the | | | | matter was fresh in | | | | her mind | | | | | | | | 2\. Document must | | | | correctly reflect | | | | witness's knowledge | | | | at the time | +-----------------------+-----------------------+-----------------------+ | **How the writing is | Witness reads | Witness reads | | used:** | document to herself, | document into | | | then puts it away and | evidence (so it has | | | testifies on the | the same effect on | | | basis of her | the jury as live | | | refreshed memory | testimony, more or | | | | less) | +-----------------------+-----------------------+-----------------------+ | **Is the writing | Only if offered by | Only if offered by | | admissible?** | the opposing party | the opposing party | +-----------------------+-----------------------+-----------------------+ Rule 805. Hearsay within Hearsay -------------------------------- Hearsay within hearsay is **not excluded by the rule against hearsay** if each part of the combined statements **conforms** with an exception to the rule. - **Each separate level of hearsay has to be admissible in order for the entire statement to come in** A picture containing venn diagram Description automatically generated - If statement A is inadmissible but statement B is admissible - Only allow the outer statement within the inner statement redacted - If statement A is admissible and B is not, then none of it is admissible - Under Rule 805, hearsay included within hearsay is not excluded under the hearsay rule provided that each part of the combined statement satisfies an exception to the hearsay rule. - How many layers of hearsay do we have! Rule 803(6). Business Records ----------------------------- The following ***are not excluded by the rule against hearsay***, regardless of whether the declarant is available as a witness: - Logic is that the business itself benefits from accurate recordkeeping - So long as the first three requirements are fulfilled, the records will be admissible UNLESS "the source of information or the method or circumstances of preparation indicate lack of trustworthiness" - The term "business" includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit (can include illegitimate business DRUG records) - The business record exception works best when it reflects the kind of **ordinary transactions that no one would remember without the record** - Can cover admission of phone records, bank records, personnel records, appointment records, appointment books, inventories, and more! - Wrt to an accident report probably not qualifying as a business record\-- This is a direct parallel to ***Palmer v. Hoffman***, where the Court refused to consider an accident report as a business record. \"Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like, these \[accident\] reports are calculated for use in the court, not in business. Their primary utility is in litigating, not railroading.\" - 803(6)(A): Note that the record must be made by someone with personal knowledge or by transmitting information from someone within personal knowledge (which is technically hearsay within hearsay). - Note: As per 803(6)(D), the party introducing the record need not identify or produce the specific individual upon whose personal knowledge the record is based or the specific individual who made the record. The custodian can testify that these requirements have been satisfied or the proponent can simply send in a certification. - The "at or near the time" requirement is more flexible than that required for present sense impressions. - 803(6)(B): To be "kept in the ordinary course of business," the record must be kept in company files as a matter of course, i.e. kept memo into company files. - 803(6)(C): The record must be of the kind that is ordinarily kept and records regular practices of the business. Typically, this requirement will be met when the record reflects the kind of ordinary transactions that occur with such regularity that no one would remember them without the record. - Example: An employee of Wild Canid, a canine conservation business, writes up a memo reporting an attack by one of its animals on a child. The memo would not qualify as a business record because Wild Canid's business is research and preservation of canine species, not writing up reports of their animals' attacks. - Some examples of admissible business records: phone, bank, personnel records, appointment books, inventory records, etc. - Related issue: once a document qualifies for the exception, it must be authenticated before it is admissible. FRE 901. This authentication may occur either: (1) by testimony form a witness who describes the circumstances under which the record was made (FRE 901(b)(1)) or (2) by a written declaration by a person with knowledge, certifying that the document meets the four requirements of 803(6). - **[To qualify under the business record exception to the hearsay rule, the document must be: "a record of an act, event, condition, opinion, or diagnosis," made "at or near the time" of the act, event, condition, opinion, or diagnosis, made by a person with knowledge, or made from information transmitted by a person with knowledge, made by and transmitted to someone acting in the regular course of business, made "in the course of a regularly conducted" activity of a business or organization; and created in the "regular practice" of that business activity.]** Rule 803(8). Public Records --------------------------- The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: - Unlike with Rule 803(6) business records, this Rule has **no requirement that the report be made "at or near the time" of the event being described and has no regularity requirement/regular practice to make such a record**. - 803(8)(A)(i): "office's activities" can include payroll records and generally internal office operations of a government department. (Examples: federal agency reports, title/deed records, school board minutes, payroll, inventories, disbursements, etc.). Note that reports of an agency's own activities can be introduced to show that those activities occurred (for their truth). - 803(8)(A)(ii): tends to refer to observations "made in the field," such as the Weather Bureau's records of rainfall and safety inspector reports detailing safety violations. - Note: This part of the rule makes clear that **police reports cannot be used against a defendant in a criminal case and the officer who wrote the report will have to testify**. Police reports do remain admissible in civil cases, however, and can be admitted without officer testimony. Reports that present a low risk of bias, such as fingerprints and mugshots, will be admitted usually, even if against a defendant in a criminal case. - 803(8)(A)(iii): This part of the rule can include records such as investigative reports by an agency, reports by an agency detailing the causes of an explosion, crash, etc. Note: criminal defendants are protected under this subsection as well, unless the records are sufficiently general such that there's no risk of manipulation by authorities. - Note: "factual findings" can include conclusions reached per the Supreme Court. - Means that an agency's report of its own activities can be used to show that the activity occurred. This is true regardless of whether the agency is a state, local, or federal entity - Unlike 803(6), no requirement that report have been made at or near time of event being described. There is also no regularity requirement. - **POLICE REPORTS** - Report putting "That big guy in red" from patron saying it into police report is admissible in a civil tort action against the big guy in red (t's hearsay within hearsay and both layers are admissible. The inner layer is the patron's statement to the officer. That is admissible as a present sense impression, since she said it right after the commotion. The outer layer is that the police report is a public record under 803(8)(ii)) and because it's a civil case, there is no bar to use this type of record, as there would be in criminal case - Anyone who can authenticate the document can come in (cop does not have to be on the stand) - CANNOT come in against guy in red if he is charged with criminal mischief (Rule 803(8)(A)(ii), excludes \"in a criminal case, a matter observed by law enforcement personnel.\") - Strict reading = police reports cannot come in as public records in a criminal case, whoever is offering them - More lenient courts: allow police reports if offered by the defendant *against the government*, based on the fact that the intent of the FRE drafters was to protect the defendant - If there is no risk of bias (fingerprints, mugshots), courts will usually allow it - Factual findings: Supreme Court held that all the findings (report of JAG), including the investigator's opinion, were admissible under 803(8)(A)(iii) as "factual findings from a legally authorized investigation" by a public office **Admissibility of Public Records** --------------------------------------------------------------------------------------------------------------- --------------------- --------------------- ------------------------- ------------------------ **Can it be introduced by:** **Type of Report** **Civil Plaintiff** **Civil Defendant** **Criminal Prosecutor** **Criminal Defendant** **Activities of public office** Yes Yes Yes Yes **Matters observed and reported pursuant to legal duty by public employees except law enforcement personnel** Yes Yes Yes Yes **Findings from official investigations** Yes Yes No Yes **Matters observed and reported pursuant to legal duty by law enforcement personnel** Yes Yes No No\* \*This is the Rule's provision, but some decisions allow such evidence, influenced by the criminal defendant's constitutional right to introduce relevant evidence, reinforced by an analogy to the Rules' treatment of statements by a party opponent Rule 803(8)(A)(ii) admits matters observed by a public servant pursuant to a duty imposed by law when the public servant has a duty to report. It excludes, however, matters observed by law enforcement personnel in criminal cases. Rule 803(8)(A)(iii) covers factual findings resulting from an investigation made pursuant to legal authority. Public servants may rely upon inadmissible evidence in reaching their conclusions. This exception applies in both in civil and criminal cases. In criminal cases, however, only the accused may use the exception. Business Records Public Records ---------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Applies to any business Applies to public agencies only Record may be made by anyone in the business loop Covers matters that are not recorded with regularity Made at or near the time of observation No timing requirement Information must be both transmitted and received as part of regular business duty Business-duty rule does not apply. Public servant can make factual findings based on inadmissible evidence, including when the source of that information had no business duty to speak Foundation required via custodial witness or affidavit. Not all business records are self-authenticating Self-authenticating Trustworthiness requirement Trustworthiness requirement Rule 803(7). Absence of a Record -------------------------------- The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: \(7) *Absence of a Record of a Regularly Conducted Activity*. Evidence that a matter is not included in a record described in paragraph (6) if: \- Rule rationale: Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. \- Example: Widget Works, Inc.'s shipping department has no record of a shipment sent on a particular date. The absence of such a record---assuming Widget Works regularly keeps records of its shipments---can be introduced to show that there was, in fact, no shipment sent on that particular date. Rule 803(10). Absence of a Public Record ---------------------------------------- The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: \(10) *Absence of a Public Record*. Testimony---or a certification under Rule 902---that a diligent search failed to disclose a public record or statement if: - So if a public school board keeps minutes of its monthly meetings, and there are records for Sept. Oct. and Dec, the fact that there is no record of a meeting in Nov. can be used to show that the board did not meet in Nov. Rule 803(11)-(23). Additional Exceptions ---------------------------------------- The following are not excluded by the rule against hearsay, **regardless of whether the declarant is available as a witness**: \(11) **Records of Religious Organizations Concerning Personal or Family History**. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization. \(12) **Certificates of Marriage, Baptism, and Similar Ceremonies**. A statement of fact contained in a certificate: \(13) **Family Records**. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker. \(14) **Records of Documents** **That Affect an Interest in Property**. The record of a document that purports to establish or affect an interest in property if: \(15) **Statements in Documents That Affect an Interest in Property**. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document\'s purpose---unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document. \(16) **Statements in Ancient Documents**. A statement in a document that was **prepared before January 1, 1998**, and whose authenticity is established. \(17) **Market Reports and Similar Commercial Publications**. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations. \(18) **Statements in Learned Treatises, Periodicals, or Pamphlets**. A statement contained in a treatise, periodical, or pamphlet if: \(19) **Reputation Concerning Personal or Family History**. A reputation among a person\'s family by blood, adoption, or marriage---or among a person\'s associates or in the community---concerning the person\'s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history. \(20) **Reputation Concerning Boundaries or General History**. A reputation in a community---arising before the controversy---concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation. \(21) **Reputation Concerning Character**. A reputation among a person\'s associates or in the community concerning the person\'s character. \(22) **Judgment of a Previous Conviction**. Evidence of a final judgment of conviction if: The pendency of an appeal may be shown but does not affect admissibility. \(23) **Judgments Involving Personal, Family, or General History, or a Boundary**. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter: Character Evidence ================== U.S. Const. Amend. VI Confrontation Clause ------------------------------------------ In all criminal prosecutions, the accused shall enjoy the right... **to be confronted with the witnesses against him**; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. - Only protects **criminal defendants** - Only applies to **testimonial** and **hearsay that is coming in for its truth** - **Testimonial** = - made in response to interrogation designed primarily to "establish or prove" some past fact - **Solemn declarations made for the purpose of establishing or proving some fact** - Prior testimony at a preliminary hearing, before a grand jury, or at a former trial - Statements produced with the involvement of police officers **"with an eye toward trial"** - Statements made in the course of police interrogation when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution. - Shoplifting report things would be testimonial because would be with an toward trial - **Non-Testimonial** = - Made to police in circumstances "objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet in an ongoing emergency." - Casual remarks to an acquaintance - Off-hand, overheard remarks - Statements made in furtherance of a conspiracy - **At least some business records (because created for administration of an entity\'s affairs and not for the purpose of establishing or proving some fact at trial)** - Prosecutor 6th amendment obligations 1. Prosecutor may introduce nontestimonial hearsay as long as those statements comply with the hearsay rules. **The 6th amendment does not limit the admission of nontestimonial hearsay.** 2. Prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules, and the declarant is available as a witness. Under the circumstances, the defendant has a chance to cross-examine the declarant about the prior testimonial statement. 3. If the hearsay statement is testimonial and the declarant is unavailable at trial, the prosecutor may offer the statement only if the defendant had a prior opportunity to cross-examine the declarant. - The defendant must have a chance to see the witnesses who testify against them and get a reasonable opportunity to cross examine those witnesses in court - If the evidence is not offered against a criminal defendant, the CC does not apply. - If the evidence is not hearsay as defined in Rule 801(c), the CC does not apply. - If the OOCS is offered for a purpose **other than proving the truth of the matter asserted** (ie non hearsay purpose), the CC does not apply. - ***[Areas that escape the confrontation clause:]*** - Statements not offered for their truth (***Crawford*** provided "The Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted") - Statements offered in civil cases, or against the prosecution (6^th^ amendment only protects criminal defendants) - Past statements of trial witnesses (bc they can now be cross examined) - Statements by unavailable declarants previously subject to cross examination by the defendant (CC satisfied by past cross) - Statements admitted by forfeiture (Defendant must have had as (**at least one**) purpose to prevent declarant from testifying as a witness)  Diagram Description automatically generated **Even if the confrontation clause applies (hearsay statement is offered against criminal defendant), it can be satisfied by the following:** 1. **The declarant testifies at trial and is subject to cross examination** 2. **If the declarant is unavailable, but the previous OOCS was made under oath AND *subject* to cross** Rule 404(a)(1). Prohibited Uses of Character Evidence ----------------------------------------------------- \(1) ***Prohibited Uses***. Evidence of a person\'s character or character trait **is not admissible** **to prove** that on **a particular occasion the person acted in accordance with *the character or trait****.* - **DEFAULT RULE**: Character evidence is not admissible to show action and conformity with that character on a particular occasion. - Rule 404(a)(1) forbids the use of character evidence to show action in conformity with that character on a particular occasion. - Three forms of character evidence: - 1\. Reputation - 2\. Opinion - 3\. Specific Acts - Evidence of a person\'s character, if offered to prove action in accordance therewith, is **generally barred**. - Seven exceptions to this general rule of exclusion: 1. **Rule 413**: Similar offenses in a sexual assault prosecution 2. **Rule 414**: Similar offenses in a child molestation prosecution 3. **Rule 415**: Similar offenses in a civil action concerning sexual assault or child molestation 4. **Rule 404(a)(2)(A)**: Character of a criminal defendant, offered by the accused; 5. **Rule 404(a)(2)(B)**: Character of a victim, offered by a criminal defendant; 6. **Rule 404(a)(2)(C)**: Character of a homicide victim\'s peaceful character, offered by the prosecutor to rebut evidence that the victim attacked first; 7. **Rule 404(a)(3)**: Character of a witness. - **Character Evidence Checklist:** - What is the **purpose** of this evidence? (What inference does the party putting forth the evidence want you to draw?) - It could be presented to prove an action in conformity with that propensity (character evidence) OR it could be used for another purpose (404b etc.) - If it is character evidence then **whose character**? - Defendant/victim? -- go through 404(a) list. (criminal case, pertinent trait, opinion/reputation unless on cross, defendant must first open door) - **Witness**? -- go through 608 list. (truthfulness/untruthfulness, opinion or reputation unless on cross, no extrinsic evidence, no evidence of someone's truthful character until it has been attacked) - Note: if a defendant/victim is testifying in a criminal case, they can be treated like any other witness for 608. - When you come across a situation where a defendant is testifying and is attacked on the basis of her character you must determine whether you are dealing with a 404(a)(2) relevant trait situation or a 404(a)(3) untruthfulness situation.  (could also be reputation or opinion in the place of past acts) - The **problem** with character evidence: - Character evidence may be too persuasive, thus lowering the burden of proof. Jury might convict on lesser evidence if convinced by character evidence. - May also make the jury more likely to convict either because: - They believe defendant to be a bad person, so they feel less regret if they get it wrong, or - They believe the defendant's prior acts deserve punishment, even if he "happens to be innocent momentarily" Text Description automatically generated with medium confidence Rule 404(b). Crimes, Wrongs, or Other Acts ------------------------------------------ - **DEFAULT RULE**: Character evidence is not admissible to show action and conformity with that character on a particular occasion. - 404(b)(2) is not an exception to the ban on propensity evidence, it's a completely different use of evidence that might otherwise be used CAN USE THIS FOR CIVIL!!!!!!!!! - **Preponderance of evidence** is the standard under which a judge must find that another act occurred in order for it to be admissible under Rule 404(b)(2) (under Rule 104(a)). - **Preparation or plan** = usually refers to component units of a larger whole, not simply the same crime done many times over. - Example: (1) Ira is charged with stealing a rare parrot, and the prosecutor wants to offer evidence that she previously stole nine other rare birds. That evidence does not show preparation or plan and is instead offered to prove character. - Ira is instead charged with opening an illegal endangered species store, and the prosecutor wants to offer evidence that she previously stole nine rare birds. Here, this evidence does show preparation or plan because theft of the birds was part of the plan to open the store. - **"Other acts"** under 404(b)(2) can be acts committed prior or subsequent to the events giving rise at trial, and they are *not necessarily* "bad" acts. - Acts don't have to have taken place before the conduct at issue in the trial - If evidence is NOT used to prove character, but for another purpose (404(b)(2)), there is no constraint on the form of proof, **including proof of specific acts** ("other crimes, wrong, or acts") - Identity with blue Chevrolet - **"Motive or opportunity"**- Rusty is charged with killing Carolyn, his coworker, who was killed in her home. The prosecutor wants to introduce evidence of Rusty and Carolyn's affair. The evidence could be used to show motive (Carolyn broke off the affair) or opportunity (Carolyn would've let Rusty into her home). - Compare to: Dan is on trial for murdering his wife, Amy. Evidence of Dan's prior act of attempting to shoot his brother, Chris, does not show motive given that the prior act sheds no light on Dan's feelings towards his wife given that a different victim was involved. - **Absence of accident/mistake**- Jill is charged with embezzlement and defends on grounds that the false entries into her employer's financial accounts were an innocent mistake. Evidence that Jill was fired at a different company five years earlier for making false entries is admissible because it shows that her claim that the false entries were an innocent mistake is less likely to be true/establishes absence of accident this time around. - **Knowledge**- Employer sues Dylan for industrial espionage, claiming that Dylan built a drone that looked like a bird and had it surveil its R&D office. Evidence that Dylan built a drone that looked like a bumblebee a year earlier could be introduced to prove knowledge because it shows that he is one of the few people capable of building drones that look like wildlife. - **Modus operandi**- only applies when the crime is so idiosyncratic that it couldn't have been committed by anyone else. Thus, a burglar committing an armed robbery with a semiautomatic gun would not qualify. On the other hand, a burglar who leaves a Shakespearean sonnet on a pillow in each house he breaks into would qualify. Rule 412. Rape Shield Law. Sex-Offense Cases: The Victim\'s Sexual Behavior or Predisposition --------------------------------------------------------------------------------------------- - **Victim reputation is never admissible unless the victim herself has put it into play** - Rule 412 **does not bar evidence offered to prove allegedly false prior claims by the victim** because a false claim of rape is not "sexual behavior" within the meaning of Rule 412. Additionally, because the false claim of rape evidence goes directly to the victim's credibility, excluding it would violate the defendant's rights to a fair trial. - Rule 412(b)(2) allows evidence of a victim\'s sexual behavior in a civil case if its **probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.** - Meaning of "sexual behavior"- includes actual physical conduct and those that imply sexual intercourse or contact (use of contraceptives, birth of an illegitimate child, STD contraction). It also includes statements of intent to engage sexually with the accused and expressions of fantasies/dreams with the accused. Again, sexual behavior does *not* include a victim's prior false rape accusations. - Often, the 412(b)(1)(C) constitutional rights issue will come up when there's been a material misleading of the jury that gives them the wrong impression, thus depriving the defendant of a fair trial. (Defendant cannot be railroaded/be subject to due process violation) - Curcio example: The prosecutor should note that Rule 412 governs this case and specifically bars this type of propensity character evidence. This is evidence that the victim engaged in other sexual behavior \[i.e. sex with other men\] and it is being offered to prove a character trait -- i.e.that she consents to sex easily and thus likely consented at this time. It does not fall within any of the exceptions in 412(b) -- it's not offered to prove another source of semen etc because it happened before the alleged incident; it is not offered to prove consent because it was sex with someone other than the defendant. This is exactly the kind of defense Rule 412 was enacted to prevent -- the policy is to stop victim's from being put on trial for their behavior and this kind of questioning does just that. The judge should sustain the objection. Rule 413. Similar Crimes in Sexual Assault Cases ------------------------------------------------ - Prior sexual assault record only needs to be proved by a preponderance of evidence, so it DOES NOT have to be a conviction - Under Rule 413, the court may admit evidence of "any other sexual assault," no matter when it took place, and that evidence "may be considered on any matter to which is relevant," **including propensity.** - **Rule 413 allows evidence of prior instances of sexual assault for any relevant reason, *including propensity*** Rule 414. Similar Crimes in Child Molestation Cases --------------------------------------------------- Rule 415. Similar Acts in Civil Cases involving Same ---------------------------------------------------- \- Rules 413-15 permit prosecutors and civil plaintiffs to offer evidence of the defendant's other acts of sexual assault or child molestation "on any ma