Evidence Outline 1

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Evidence Watts Fall 2008 Chapter 1: Introduction to Evidence Law

Class Notes: 8/18/08 o Nature of Evidence law Evidence law is ruled based. State rules are based on federal rules The rules are for Judges and lawyers. Juries do not decide evidentiary disputes. Most of the rules are there to protect the jury from learning things (that might unduly influence the jurys decision). Judge decides to exclude it. Attorneys need to know the rules so they are aware of what they are getting into o Trial Most complicated evidentiary issues are decided at the motion in limine. If there is something damning to your side, you can have it excluded from the trial. The list of evidence that a party plans to submit is given to other side. So you basically know what they are going to say. Jury selection voir dire process varies from court to court. Selection may take a day or two depending jurisdiction. Opening statement plaintiff goes first because they have the burden of proof. Not supposed to argue. Your chance to tell the jury what the case is about and what they might hear. Study shows that many jurors decide after opening statements and do not change their minds. Case-in-chief you decide what order you want to put on evidence Judges usually anticipate objections so you may not have much time to argue your side. Can only ask leading questions on cross-exam o Judges authority Most decisions will not ever get appealed Occasionally, though, judges will be loose with the rules Class Notes: 8/19/08 o FRE 101: scope 102: purpose - its a balancing. You want justice to prevail, but its balanced against efficiency. E.g. how many people need to come in a give the same testimony? 103: Rulings and Evidence (Important rule) Have to make a contemporaneous objection (just cant set back and accept the error). Exceptions? o Jursidiction o Plain error o Judges discretion 5th cir std: Reversal is required unless the court is sure that the error did not influence the jury, or had but slight effect. When no objection is made at trial, the appellate court will reverse only if it finds plain error 103 (d)
The Role of the trial judge
United States v. Walton, 7th Cir (2000) o When reviewing a trial judges ruling of the admissibility of evidence, great deference is given to the trial judges rulings because he observes first-hand the evidence that is submitted Bandera v. City of Quincy, 1st Cir (2003) o Ouch, this was an error by counsel. He failed to preserve his objection. o put a witness on the stand that was also sexually harassed by ; testified what happened to her, as well as what she observed of the . o Before trial, counsel, in a motion in limine, tried to keep out this witnesss testimony on the grounds that it was irrelevant or, if relevant, unduly prejudicial under FRE 403. The D.J. denied the motion w/o discussion. o The counsel failed to appropriately object to improper opinion testimony by a lay witness; therefore, the circuit court had no choice to only review plain error. o Remanded on other grounds Class Notes: 8/19/08 o FRE 401: def of Relevant o FRE 402: Irrelevant evidence is never admissible; Relevant Evidence is admissible subject to some exceptions. The biggest single exception is 403 Page 1 of 58
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FRE 403: Exclusion on the grounds of Prejudice, Confusion, or waste of time The problem was that it was an opinion by a lay witness, but objects only on the irrelevancy grounds. What do you do if the judge does not let you speak? FRE 103(a)(1) state the specific ground of objection. Watts: have to make it clear on the record that you might lose on appeal because he is not letting it in the record. Watts: Make sure you get side bars on the record
Chapter 2: Relavance
Relevance and Irrelevance
o o o o o From book: Evidence is relevant if it is rationally probative in any way; and irrelevant if it is not. Even extremely weak evidence is relevant if it can be rationally presented with some probative value Will it make the fact proved probably or less probable? Fact that is of consequence to the determination of the action FRE 401, def of relevance Class Notes: 8/19/08 Dont forget the two basic rules: Irrelevant issues is never acceptable; relevant evidence is acceptable subject to some exceptions Watts: always start with this on the exam
Knapp v. State, Ind. 1907, p. 19 o wanted to show killing was done in self defense. claimed he was frightened for his life because of a story he had heard about the deceased. He said he heard that the deceased had beaten an old man to death. o State put on evidence that the old man died from something else; claims that evidence is irrelevant because the question is not how the old man died, but rather if the had heard it that way. o The court disagrees because the fact proved by the state tends to discredit appellant. Class Notes: 8/19/08 o The court basically says it is true that the docs testimony does not change what the thought, but the question is whether really thought he had beat an old man to death (puts a shred of doubt on s testimony). United States v. Dominguez, 1st Cir 1990, p. 20 o wanted to keep out evidence that he owned a gun and that he changed the barrel of the gun o The Court allowed the evidence o The fact that owned a gun makes his guilt more probable than if he had not owned a gun; same with the replacement of the barrel. The fact that he had reason to own the gun makes it less probative, but not irrelevant o He had a good reason to own the gun because he was a customs officer. o Court cites advisory committee notes: the government is perfectly free to introduce weak, as well as strong, evidence Class Notes: 8/21/08 o Government wanted to introduce evidence that he had a gun and that he had sought to alter the gun in someway o What is the claim on the that is not relevant? That he uses the gun for work, so its irrelevant. o Court ruled that it was inadmissible evidence o What is the oft quoted statement? A brick is not a wall. You are allowed to build your case however you choose, not every piece of evidence has to be the smoking barrel, it just has to add a piece to the wall State v. Larson, Mont. 1992, p. 21 o consumed alcohol at a picnic to an extent that experts determined he was over the legal limit to drive safely o The borrowed a horse (that the owner warned was inexperience) and took a five year on a ride. o The horse reared and fell backwards, crushing the 5-year-old, causing fatal injuries. o claims evidence of BOC is irrelevant when comparing to driving a vehicle because he was riding a horse. o The court disagreed and held that it was relevant The probative value outweighed any prejudice The comparison aided the jurors to apply their experience and logic Class Notes: 8/21/08 o What was sought to be excluded? The ability to operate a motor vehicle with that BOC. o Watts: This is simple o Just because it is not significant, does not mean that it is irrelevant. Now, weight does matter when you are talking about prejudice Page 2 of 58
Probative Value and Prejudice; FRE 403 Probably more evidence is excluded under this flexible rule than under the rest of the rules of evidence combined.
United States v. Noriega, 11th Cir. 1997, p. 26 o Noriega was a drug trafficker that had come under the USs custody during a military operation in Panama. Apparently, the US had previously paid Noriega for intel work. Noriega claims the amount was $10mill, but US says it was $320k. The district ruled that the content of the intel was inadmissible because it would confuse the issues rather than help. The DC, however, ruled that the amount of $ and time was free to admit. Noriega did not submit that evidence because he felt he would not seem credible w/o the info of what he was actually doing. o The issue is whether this evidence should have been admitted. o The court holds while the amount of money given to Noriega had some probative value, the court held this evidence was inadmissible. o Submitting this evidence might shift the focus of the case from drug trafficking to geo-political intrigue. (FRE 403 - confusion) Class Notes: 8/21/08 o Why is it important to bring in the money? Because the government is going to show he had a lot of unexplained $$$. Noriega had his explanation. U.S. wanted to stipulate that it was $320k. o The issue is whether: can he present the particulars what he did for the U.S. Why would this be relevant? To make his claim of $10 mil more credible. o Always want to use thus term: mini-trial getting off the issue. Trying to distract the jury from what the actual issue is in this case. o FRE 403: 1) substantially outweighed by the danger of unfair prej., confusion of the issue, or misleading the jury OR by undue delay, waste of time, or needless presentation of cumulative evidence o The court rules that this does not aid significantly. WATTS: Is the true? Its highly probative to know what this guy did to make $10mil. His point? Cases can easily come out the other way; there is an argument for the other side. United States v. Flitcraft, 5th Cir., p. 27 o Couple was charged and convicted of failing to file a tax return. o s claim that they truthfully thought, rather than intentionally acted, that his wages not taxable income. testified that the materials he had read gave him the impression that he did not have to pay. He also wanted to submit in evidence the materials that he read. The DC judge denied it. o The issue is whether this evidence should have been submitted. o The court held, considering that DCs ruling will only be disturbed only for an abuse of discretion, that the evidence was correctly held out of trial. o Court focused on waste of time and confusing the jury (he had already testified to what he had read; the jury would be confused on what the law is, when it is actually established law) Class Notes: 8/21/08 o Why would it be excluded? Because the evidence would confuse the issue: the issue is not whether the income was taxable, but that law is well settled. o What could the judge to prevent the jury from being confused? Give a limited instruction. FRE 105 instruct the jury to only consider this evidence when deciding a certain issue. o FRE 403 not just a question whether the probative value is outweighed. It has to be substantially outweighed. What are you weighing? Balance test: probative vs. unfair prejudice. Could a limiting instruction shift the balance? (FRE 105). Abernathy v. Superior Hardwoods, Inc., 7th Cir 1983 o was hit by a log from his flatbad when s forklift begin lifting before could get back in the truck. o wanted to submit a video (made years later) of a demonstration of how they unload the equipment and what the noise situation is. The DC Judge allowed the video evidence, but not the audio that accompanied it. claims the audio is important to establish, but the judge refused. o This court agreed with the DC judge. This audio had many flaws (not taken where was standing; produced by an amateur; and the speakers in the courtroom may not accurately portray the decibel level. While this is all evidence that can be rebuttal during cross, a DC judge is not required to encumber a trial with evidence of slight probative value merely because effective cross might expose its weakness. o DC courts are becoming busier; these judges should commended for disallowing slightly probative evidence. Class Notes o What is your argument that is relevant? The audio is important because of the noise going on at the time. Page 3 of 58
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Watts: this is a case where you get to 403, it is somewhat probative. What is the fear on the part of the ? Mislead the jury because they might believe that it sounds exactly that way. If your , what do you say: you can bring it up on cross. A judge is not required to submit everything that is slightly probative.
United States v. McRae, 5th Cir. 1979, p. 29 o Another case where the court refused to interfere with the trial courts exercise of its discretion.\ o was convicted of shooting his wife in the head with his deer rifle. His only defense is it was an accident. o The has issue with two photographs that are horrific in nature. The court says that these photos portrayed the gruesome nature of the crime. o Good point the court makes: Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under rule 403. It is not designed to even-out the weight of evidence to mitigate a crime Class Notes: 8/22/08 o always wants to produce gruesome photos and will always object. is concerned about over-persuading the jury. o Obviously its relative; but again, this is balancing whether its more probative than prejudicial o Judges tend to exclude this stuff, even though it is relevant. Jury might thing, Geez, somebody ought to help them out. If youre on the side of the , raise the issue because it can be extremely prejudicial. Old Chief v. United States, U.S. 1997, p. 30 o was arrested for a fracas involving at least one gun shot; he was charged with 1) assault with deadly weapon; 2) using a firearm in relation to a crime of violence; 3) violation of 18 USC 922(g)(1). This statute makes it unlawful for a person previously convicted and jailed for one year to possess a fire arm. o The issue is to what extentshould the s previous conviction be disclosed to the jury. wanted to stipulate that the previous conviction fell w/I the provisions of 922. o Prosecution claims they should be able to put on evidence in any manner that they choose ( may not stipulate out of the full evidentiary force Parr v. U.S.) However, it is established that a prosecution cannot present evidence of s evil character to establish probability of guilt A previous record is said to weight too much with the jury so as to over-persuade them. o relies on the danger of unfair prejudice o State claims the jurors with not get the complete picture. The Court disagrees, stating that all the jury needed to know was that the prior conviction falls within the class of crimes that Congress thought should bar a convict from possessing a gun. o Hold: it was an abuse of discretion to admit the record when an admission was available. o Reversed. Class Notes: 8/22/08 THIS IS A GOOD EXAM ISSUE o Is it relevant to the charge this time? Isnt past behavior somewhat probative? No everyone goes around killing people. Its deemed relevant, but thats not why it was excluded. Why was it excluded? Because the jury may be predisposed to find him guilty. o Typically you are not required to accept relevant evidence; you have a right to put on evidence anyway you choose o Generally, you are not allowed to show other crimes for ONLY PURPOSE to prove that they did it this time. o So why does the government want to put on its own evidence? A naked admission might have the effect to rob the evidence of much of its fair and legitimate weight. Watts [as a juror]: You tell me what he did, or Im letting him go! o The jury has the power to disregard a law. (some people think thats what happened to O.J.) Its a check on the government. o The Court distinguishes this type of case with other cases by setting up categories: Stipulations as to status the only need for the details is for an improper purpose to show that he is a bad person. Stipulations as to acts o Problem 2.1, p. 38 is going to rely on old chief. Want to prove the only reason to put on the evidence is an impermissible purpose. Jurors may become prejudicial. will say that this paints an incomplete picture. Here, this is not a status, but is in fact an act. Watts: why should they be able to establish what type of gun? You should be able to paint the whole picture. The jury should not be left with holes in the brick wall. This is not clearly a status question. It would be an abuse of discretion not to follow Old Chief. But this case is not exactly Old Chief.
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Conditional Relevance
State v. McNeely, OR 2000, p. 40 o was convicted of aggravated murder; prosecution put a former cell mate on the witness stand that testified about statements made. o The problem is that the witness could not positively identify that the person he spoke with was the . o Trial court ruled that a reasonable jury could gind that was the person with whom Thompson had spoken in. o Witnesses testimony was only relevant on the condition that was actually the person who the witness spoke to. Class Notes: 8/25/08 o Watts: the thats him doesnt take place o How do we determine that it is relevant? Rule 104(b) if there is something that could be relevant provided on some other evidence then it is conditional. The judge makes this intitial determination. o There was evidence that it could have been , they served at the same jail at the same time (that makes it more probable) o Reasonable juror could find that was the person with whom Thompson had spoken in jail.
Question 2.2
Chatpter 3: Hearsay
Sir Walter Raleigh case, 1850 o Lord Cobham asserted that Lord Raleigh had conspired with himself to assassinate James I and place Lady Stuart on the throne. o Raleigh wants somewhat to come face-to-face in the court o He was executed. Class notes: 8/25/08 o Why would he want the jury to see him? The concept of the oath is always important Maybe not willfully confessed; want to see the sincerity of the witness. Watts: [In regards to Guantanmo bay] Are we going to allow coerced statements to come into evidence? Watts: Is it likely she will be tortured again? Yes, then why have her on the stand. So that the jury can see demeanor of the witness. o THREE THINGS THAT SUPPORT THE HEARSAY RULE: The oath How does this help? Perjury. Scared of perjury. Historically, it was to ensure the creditability of witnesses (scared of the supreme being if you lie; used to not be able to testify if you did not believe in God). Social stigma with lying. There are studies that indicate that juries are not good at sensing liars I never had sexual relations with that woman Demeanor be able to see the person at trial (I think the notes above mesh with this) Cross-examination point out things that cant be done if he was not there. Whatever flaws there are with the oath and demeanor, cross examination somewhat makes up. What kinds of witnesses would cross be ineffective? o Some experts are experienced and very difficult to cross (maybe some engineers who just testify and are frequently in court and cross-examed dozens of times). o Same goes for police officers on top of being experienced, dont like you to take charge, and you are taking a chance by accusing a policeman of being a liar. Leake v. Hagert, N.D. 1970, p. 46 o leakes complaint was based on the alleged negligence of the in operating motor vehicle. Claiming she carelessly drive her automobile into the rear of the plow being towed by a tractor driven by . Pain, suffering, property damages, bills: $27,600. o denies the collision proximately resulted in her negligence, but in fact, was caused by the negligence of (malfunctioning taillights after sunset). She counterclaimed for $32,000. o HISTORY: all claims were dismissed. o ISSUE: whether testimony by adjuster about what s son said about the taillight (that it had been out for awhile) is hearsay. Court held that it was hearsay. o Sub-ISSUE: whether excluding this evidence would have had an effect on the trial? Court held that it did not because there were other witnesses that testified to the condition of the taillight. Class Notes: 8/25/08 Page 5 of 58
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Why should this testimony be excluded? Because it is being offered for the truth that the tail was out. Attorney defn: Out of court statement offered for the truth of the matter asserted What do we mean by that? Hearsay Risks: Narration: Does the witness language convey that impression accurately? Sincerity: Is the witness, with varying degrees of intention, testifying falsely? Memory: Has the witness retained an accurate impression of that perception? Perception: Did the witness perceive what is described and perceive it accurately? What does out of court statement mean? Meaning, the trial or hearing AT ISSUE. What does matter asserted mean? Its the truth of the matter asserted by the declarant (e.g. not that Barney was actually at the party, but that the kids thought it was Barney). Watts: Its the assertion of the declarants statement. If it is offered to prove that statement true, then it is hearsay)
Class Notes: Prof Tribes Triangulating Hearsay o DECLARANT SAID IT ----narration sincerity----> DECLARANT BELIEVED IT -------Memory Perception-----> IT WAS TRUE Missing safeguards: oath, demeanor, cross-examination o When you have to get into the mind of the declarant, that is when the hearsay rule is important Lyons Pship v. Morris Costumes, Inc., 4t Cir. 2001, p. 53 o Lyons Pship is the company that trademarked Barney, the fat, purple dino. Morris Costumes is a N.C. company that rented a Duffy the Dragon costume and Lyons claims that it infringed Lyons trademark of Barney. o HISTORY: trial court said that Lyons had not established with evidence that its trademark was infringed. Trial court threw out evidence of witnesses that could testify that children claimed it was barney because it was hearsay. o ISSUE: whether that evidence is hearsay. o HELD: No o The statements were not used to prove that the person wearing the outfit was barney, but that the children and newspaper reporters expressed their belief that the persons were Barney. Class Notes: 8/25/08 o Claim is they are essentially profiting from Barney o The out of court statements we are worried about : Barney, Barney, Barney Do we need to get into these kids heads? o Why would they want to enter this evidence? They want to show confusion, not that it was in fact Barney o Whats the inference you draw from the kids remarks? Not that it is Barney, but that the kids were confused. o WATTS: we still do not know why the kids were saying it. So why is that not a problem? Its not hearsay because nobody is claiming that it is Barney. United States v. Parry, 5th Cir. 1981, p. 54 o was convicted of conspiring to distribute PCP and possessing with intent to distribute. He did not deny that he participated in the drug transactions, but claims he did so I the good faith belief he was working for the agents (assisting them find drug dealers) o To support his position, claims he had conversations with his mother about the man that had called him (claiming he knew that the man was an agent). o called his mother to the stand, but the court instructed her not to mention any conversations she had with her son. o Court said that it was not hearsay evidence and that it should have been admitted o It was not used to establish that the man calling was in fact an agent, but that Parry had knowledge of his identity. o Government claims that the jury could use the out-of-court statement as an assertion, but the court stated the judge could provide limiting instructions. o The jury could have been influence by the error; conviction reversed and remanded. Class Notes: 8/26/08 o first testified that he was under the impression that he was helping the agent. Watts: there is some confusion here o Is the moms statement offered for the truth of the matter asserted? No, we are not offering his statement to prove they were actually narcotics officers. o It cannot come for the fact that the officers were really working for the agents. So what is permissible? Offering the evidence to establish that had knowledge of the agents identity. o Judge can give limiting instructions. Depends on who the jury believes. Page 6 of 58
Subramaniam v. Public Defender, Privy Council 1956, p. 55 o found guilty of being in possession of 20 rounds of ammunition and sentenced to death o was found wounded by security forces with a strap containing 20 live rounds, but no ammunition o claims that the terrorist were taking him to their leader. Judge claimed that any conversation with bandits was inadmissible as hearsay because they are not there to testify. o HOLDING: this was in error. o The fact that the statement was made, apart from its truthfulness, is relevant in considering the mental state and conduct thereafter the statement was made. Class Notes: 8/26/08 o Watts: Do what I say, or Im going to kill you. Whats the matter asserts? That in fact they were going to kill him. So whats the value? To consider the mental state of the . Southerland v. Sycamore Community School District, 6th Cir. 2004, p. 56 o Southerland was a bus driver; she sued the school district for sexual harassment and negligent retention; she recovered $50,000. o This suit was the result of harassing conduct by a fellow male bus driver: tailgated her, stared at her, spread rumors about a sexual relationship, and he ignored warnings from company officers to stay away from her. He was finally suspended after nearly two years of abuse. o has a problem with evidence that was let in, claiming it was hearsay. The evidence: rumors floating around the bus compound that the two were having a relationship. o The court held this was not hearsay because the testimony was used to show that Sycamore officials had knowledge of the problem, which was an essential element of the negligent-retention claim. o The court also gave limiting instruction to the jury: ...it is being offered to show what [the principal] had in his mind when he was deciding or recommending to his superior what should be done in this case. Class Notes: 8/26/08 o The person on the stand was testifying that they had heard these rumors. o Why do we know she is not offering this for the truth of the matter asserted? Why would she want to prove that these statements are true!?!? Offered for quite the opposite. o When you have a situation where a jury might consider it for an improper purpose, you have to do the 403 weighing and possibly limiting instructions. United States v. Johnson, 6th Cir. 1995, p. 57 o convicted on nine counts of distribution of controlled substance four counts of mail fraud. o and a fellow doctor were accused of distributing controlled substances and illegal medical billing practices o argues the court erronesouly allowed hearsay evidence. The evidence: employee testified that pharmacies had called questioning the scripts and she told Dr about it. And she once heard Dr. Uppal tell over the phone that he was going to have to stop writing scripts like that. o Government argues this goes to the element of the state of mind of the . Claiming they are not trying to prove the truth of the matter asserted. Knowing he was doing it was an essential element. o The court agreed. Class notes: 8/26/08 o What is the truth of the matter asserted? This is a little complicated. It does not have to be as direct as a classic hearsay (someone told me the light was red). So what is it? That he has to stop writing scripts like this. There are a lot of inferences you can draw. o So what is the proper purpose for what it is to come in? The s state of mind is an essential element and this evidence went to prove that element. o Watts: Most of the cases are affirmed. Why? They would be affirmed either way? United States v. Jefferson, 6th Cir. 1981, p. 58 o Appeals from conviction for possession with intent to distribute heroin and bond jumping. o submitted two mailgrams into evidence to show that Jefferson ahd been sent notice of the hearing that he failed to attend. o They were only provided to show that he had been sent notice. United States v. Saavedra, 9th Cir. 1982, p. 58 o convicted of three counts of wire fraud and three counts for conspirace to commit wire fraud. o was involved in a scheme to use stolen credit card numbers to get money orders from Western Union. Her accomplances, prison inmates, made random phone calls and get credit numbers by fraud (claiming they needed verification of a number). The inmate directed the money to a western union, and would pick it up. o has a problem with testimony from three of the people that were victims of the credit card fraud. Page 7 of 58
Court disagreed. Finding that this evidence was used to show how the credit card numbers were fraudulently obtain by persons posing as law enforcement officers. Class Notes: 8/28/08 o Whats the truth of the matter asserted? The out-of-court declarant is asserting they are law enforcement officers, problems with credit card, and verify information. is introducing this to actually saying this is false. o Watts: there are often times that evidence is being offered beside the truth that is being asserted. o In all of these cases it deals with: why is this evidence being admitted? Hanson v. Johnson, Minn. 1924, p. 59 (verbal acts) o Civil case. owned rights to some of the corn crop on anothers land. The tenant of the land gave mortgage to bank on his share of the crops. This property was sold at auction and claims some of the bushels of corn was his. o The evidence that has a problem with: a conversation that claims to have had with the tenant, saying that which bushels were his. Another bystander testified to have heard the same conversation. o Court held this evidence was admittable because it was necessary to prove the fact. o Court says the was a verbal act; the verbal part of the act was necessary (aided in giving legal signifcants to the conduct of the parties) Class Notes: 8/28/08 o If all you need to know if in fact it was said, that is ok. To know whether it is true we would have to get into the head of the speaker. o Watts: if youre confused on this case, its because this case is confusing Creaghe v. Iowa Home Mutual Casualty Co., 10th Cir. 1963, p. 60 o was involved with an collision. is an insurance company who was the insurer of Osbornes truck. claims that the accident occurred after cancelation of the policy. o Evidence takes issue with: Testimony from insurance agent that the insured stated he wanted the policy cancelled. And a check for some of the premiums that were returned. o Court said it is admissible because it is part of an oral agreement. Oral agreements can only be established by testimony. was given the opportunity for Cross examination . Class notes: 8/28/08 o This is a common situation where insurance does not pay o Sounds like hearsay. Why is it not? We do not have to get into the speakers mind (just that it is mearly being said is important). You can always question the guy on the stand. o Why is it important merely because it was said? a verbal act; because saying it makes it true. o Is there some reason we would want to x-examined the declarant. o Always go back to the start: 1) is it relevant? United States v. Montana, 7th Cir. 1999, p. 61 o was the driver of the getaway car for a robbery. He is charged with robbery and related offenses. s accomplice had already pleaded guilty and testified at trial that was not aware of what his accomplice was doing. o Just before the end of the trial the accomplice sent a note to s mother through s lawyer demanding money in exchange for the favorable testimony. The next morning a marshall heard the accomplice tell the to tell s dad its going to be $10,000 for the testimony. Marshall testified to what he had heard. o says this testimony is hearsay. o After a confusing discussion, Court held that it wasnt. o Court said that this was a performative utterance. It requires further act, so it is not judged solely by its truthfulness. Court says that a performance utterance is not within the scope of the hearsay rule. It would be different if the testimony was your father has promised me $10,000. o In fact, this was a demand, so the only issue is whether the marshall was reporting the demand correctly. Class Notes: 8/28/08 o Doesnt matter that it was actually true; just that he said it. o There is an implied truth behind it: I said what I said in court for $10,000 o Probably a better objection would be more prejudicial than probative (always want to keep in mind all the rules at your disposal) o A demand for $10,000 is not a demand for anything. Its true because he said it. If we have a question about what was said, we can always cross (at least that is the argument) Class Notes: 8/29/08 o Heasary review Risks Page 8 of 58
Narration Sincerity Memory Perception Missing safeguards Problems, p. 61 o 3.2: No, because it is not offered to show that he was actually going to kill him; it was used to show his state of mind o 3.3: No, not offered to show she actually was intoxicated; offered merely for the value of being said o 3.6: Depends on what they are trying to prove; might also be used to show the hospital had knowledge because this was said
Implied Assertions
United States v. Zenni, E.D. Ky. 1980, p. 63 o This is a prosecution for illegal bookmaking. While conducting a legal search on the premises of , officers answered the telephone several times. The callers placed their bets with the officers. Government wants to introduce this evidence to show that the c allers believed that the premises were used in betting operations. o The issue is whether this is hearsay. o Government argues the evidence is offered to make an inference, not for a stated fact. argues the evidence was being offered to show declarants believe in an implied proposition, and he was not available to be cross examined. o Court heavily considered advisory committees note that said no oral or written expression was to be considered as hearsay unless it was intended to be an assertion (as well as non-verbal). Previous common law view was different. o This court held that FRE 801 (a)(2) removes implied assertion from the definition of statement. o The better telephoning in their bets were non-assertive conduct, offered as relevant for an implied assertion to be inferred from them. Class Notes: 8/29/09 o No question this is relevant o So what is the assertion? They want to place a bet. Sorta by saying it, it is true. But whats important about it? The inference drawn that he is a booky. o Court does not think sincerity is a risk in this case because someone will not lie to themselves. Watts: Its something they did not intend to communicate, so how can they be insincere o Whats the problem? Watts: the best way to lie is to let the listener infer it People do deceive with implied assertions, so it is not true that we did not need to worry about sincerity. o If they said, [] is my booky, I want to place a bet, that would be excluded, but sense it is implied assertion it is allowed. o Implied assertions come in, but should it? Argument why it should not Watts: you still have all risks as regular hearsay: narration, sincerity, memory, perception) o Why is it allowed? Maybe rulemakers thought more relevant evidence would make it to a jury. State v. Dullard, Iowa 2003, p. 66 o was convicted of possession of ephedrine or psuedoehpedrine with intent to use it as a precursor. Officers found three unopened boxes of Benadryl (psuedoehpedrine) and other equipment that is commonly used to make meth. The evidence at issue is a spiral notebook that contained letter to that seemed to say the letter writer was nervous about cops watching the house. o claims this is hearsay. o Government claims the author of the note assets he is nervous and that police are watching the house. o Courts test: the best approach is to evaluate the relvant assertion in the context of the purpose for which the evidence is offered (recognizing that this would have a tendency of making implied assertions hearsay). Court followed states definition of hearsay. o Court held this was hearsay; Second issue was whether an exception applied. claims that a note written by a co-conpirator is not hearsay, but the state has failed establish any conspiracy.
Hearsay and Confrontation

Book notes: p. 72 Page 9 of 58
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Three limitations on the Confrontation clause that are uncontroversial The clause applies on in criminal prosecutions The clause grants a right of confrontation only to the accused The right is satisfied if the accused is confronted The remaining questions: when does the Constitution prohibit the introduction of hearsay from a declarant who does not testify? As recent as 1980, the court allowed normal exceptions to the hearsay rule; that changed with Crawford. The test now: was the statement testimonial?
Crawford v. Washington, U.S. 2004, p. 73 o Lee was stabbed in his apartment. and his wife were interrogated about the murder. The claimed that the victim had a knife so was asserting self-defense. s wife told a different story about what happened that made it seem it was not self defense. s wife did not testify at trial, but her statements were recorded. State was trying to admit that recording into evidence to help prove that it was not self defense. o claims that this evidence is inadmissible as a violation of the 6th amendments confrontation clause. o Issue: whether this testimonial evidence is admissible o There are two principals to confrontation: 1) Hearsay evidence is not allowed in criminal proceedings, and the 6th amendment primarily concerned with testimonial evidence; 2) testimonial hearsay evidence is admissible if : is unavailable to testify and had a prior opportunity to X. o The Court rejected this exception holding: where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: Confrontation. Notes: 9/2/08 o Up to this point the traditional rule was: the confrontation clause and the hearsay rules are parallel as long as it meets one of the exceptions in the FRE, it is deemed reliable and can come in. o Crawford does away with the traditional view. o Confrontation clause only applies to criminal cases; only applies to the accused (meaning hearsay offered by the accused is not subject to confrontation); accused is confronted o What counts as a confrontation? o When do you have the right to confront? o Concern for confrontation: will want the jury to hear the evidence first-hand, not related from an investigator or a magistrate. Does that mean that no hearsay comes in? only for non-testimonial statements. o Here it was evidence gathered by police in an official statement. o Then the issue becomes whether all questioning is part of the hearsay clause. Davis v. Washington, U.S. 2006, p. 81 (two cases) o Davis Davis revolves around statements made during a 911 emergency call. This call reveals the womans attacker, Davis, because the operator asked who was attacking her. The State charged Davis with felony of domestic abuse. Neither officer could testify as to the cause of her injuries, so the evidence of the 911 call is paramount. The issue is whether these statements are excluded under the confrontation clause (as testimonial) Court held that these statements were not testimonial. o Hammons v. Indiana Similar to facts above, this time the statements came from a police officers questions in victims living room while was in another room with another officer. When the police arrived, the victim was calm and sitting on the front porch. Charged with domestic battery Issue is whether here statements that she made to the officer were testimonial (and should be excluded) Court held that these statements were testimonial. o Testimonial when the circumstances objectively indicate that there is not such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution. o Nontestimonial made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Class Notes: 9/4/08 o Why is it important whats going on when the cops show up? Every fact is important because of the definition that the Court has given testimonial o Whats the purpose of the 911 operator in asking the questions? She is trying to resolve an emergency. Watts: that turns out to be critically important Page 10 of 58
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Why is knowing his name important for resolving the emergency? Police might want to know if this suspect has a history of violent conduct. Plus, what if she is gone? What if he killed her? 911 operators questioning primary purpose is not prosecution. WATTS: In Hammons, it could be argued either way. The cop could always say, I dont want to get killed. Or have her be killed when I leave. (me: this is a good criminal pro argument because this was not custodial) Guiles v. Cal. (new case watts talked about) wants to get in evidence that murdered spouse told police she was scared and her life was threatened. FRE 804(b)(6) rule of forfeiture by wrongdoing: one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. Court concludes that with regard to confrontation clause the must have had the intention of keeping the witness from testifying. Review Notes: 9/2/08 Non-verbal conduct intending to assert something can be regarded as hearsay Problems, p. 70 3.12 I think it could be argued that the actor is not intending to assert anything, there are a number of reasons for someone to leave the U.S. 3.13 Passengers taking off sweaters because taking off their sweaters could assert that it was hot. This is implied assertion that is admissible according to the FRE. Not speaking up is not an assertion. Relevant Evidence
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Review Notes: 9/4/08
Can come in for one purpose, but part is hearsay (limiting instr) 804 (same ) 803 (but still could be excluded by 403)
Hearsay Hearsay
Review Confrontation Clause: 9/4/08 o KNOW THIS: does not apply to civil cases and can only be raised by the accused! o Entitles you to right to confront. What does that mean? Prior to Crawford, common law regarded it as a usual hearsay issue Crawford said no: the CC is not concerned expressly on reliability; it demands a particular way of determining reliability; it is not about substance, it is about process What is meant by confrontation? The process that is deemed important is X-examination. Nothing else is a substitute. o Watts: if you dont have the opp to X-examine then it aint coming in.
Exceptions to the Hearsay Rule 1) Prior Statements by Witnesses

Albert v. McKay & Co., Cal. 1917, p. 92 o Widow brought suit to recover for damages of her husbands death against his former employer. Page 11 of 58
Her husband was got in a mill shaft. The main issue of the case was whether the shaft had been turned AFTER decedent went down to the area. The sub-issue we are concerned about is testimony by another employee. During trial the witness testified on direct examination that the mill had been running continuously; on x, sought to impeach by introducing a rebuttal witness who testified that the employee said shortly after the accident that the machinery had not been running and that somebody must have left the tightener down after albert started working. o This court holds that the former inconsistent statement do not constitute evidence of the truth of the facts so stated by him. o Judgment reversed. Class Notes: 9/5/08 o Why are they alleging that the machine turned on? They are basing it on what the witness said before the trial. called a rebuttal witness to impeach the witness (theory could be that the witness was scared to lose his job). o The evidence was solely used for impeachment (not for the truth of the matter asserted) Jury can consider for the purpose of how much weight to give to the witness. This will be accompanied with jury instructions. o Watts: critical distinction for truth of the matter asserted or for impeachment o Look at the rule to see how it would be decided today FRE 801(d)(1). He was there and available for X and (A) inconsistent w/ declarants testimony BUT has to be under oath It can still come in for the impeachment purpose, but it would have done zero good because did not have any other evidence directed verdict would be appropriate. o Using Depositions in civil cases United States v. Owens, U.S. 1988, p. 96 o was charged and convicted for assault with intent to commit murder o The victim was a correctional officer at a prison. He was attacked and beaten with a metal pipe. The attack led to injuries that adversely affected his memory. While victim was laying up in the hospital, victim spoke to FBI agent Mansfield on multiple occasions. At first he could not remember his attacker. But at a later visit and after much improvement to his health, the victim was able to name and ID him in photos. o While testifying, victim said he remembered IDing and talking to Mansfield, but he remembered little else (including who is other visitors where) o FRE 801(d)(1)(C) a prior statement of identification is not hearsay if the declarant testifies at the trial and is subject to X. o Court holds that it can come in Class Notes: 9/5/08 o Does he ID owens at trial? Its not clear because he says, I remember IDing him before. Plus, he does not really remember much that went on in the hospital. o So what is the issue: whether the evidence of the prior identification is admissible when the witness cannot remember at trial (only that he remembers Iding the in hospital) o The reason for the rule: the judicial process is slow. Witness memory can often fade. Watts: If all we are worried about is reliability, this rule makes it more reliable. o Watts: So how do you deal with suggestive IDing? X-exam needs to address it.
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2) Admission by Party-Opponents -Direct Admissions, generally

Salvitti v. Throppe, PA. 1942, p. 99 o Salvitti and his wife were injured when a car that the husband was driving hit a tree. claims that he swerved to avoid a negligently driven truck that was driven by an employee of . o s claims that the truck driver and admitted the accident was their fault and that the company would take care of everything o urges that this testimony should be excluded from evidence as an excpetion to the general rule of acknowledgement of guilt. claims he was basing his statement only on what the driver told him and not actual knowledge. o Court held that personal knowledge is not required in case of an admission by party. Class Notes: 9/8/08 o Should have been argued that statements made in settlement negotiations must be excluded (this encourages people to be direct) o Whether or not he had direct knowledge just goes to weight. o Admission by party the out of court declarant has to be a party. It fits in the rule as long as it is being offered against him (meaning a party cannot introduce his own statements) Page 12 of 58
U.S. v. McGee, 7th Cir. 1999, p. 100 o was found guilty of bank robbery. provided three different stories to the detective. The detective testified at trial that he was told these different stories. o The objects to the admission of this testimony. o The issue is whether it is a requirement that the admission by inculpatory o The court held that it did not: we agree with other circuits that FRE 801(d)(2)(A) should be interpreted on its face value to require only a partys own statement offered against the party. Class Notes: 9/8/08 o Does it have to be a statement that is against your interest? No. o There in here because they are thought to be inherently more reliable than other hearsay. United States v. Phelps, E.D. Ky. 1093, p. 101 o was charged with willful possession of 160 pounds of marijuana and a 1.5 pound cocaine with intent to distribute. o wanted to submit evidence through a police witness that said that is my bag, but Taylor put it in the trunk. Whats interesting is that his co-, Taylor, is objecting o Court held that this statement was hearsay and it is not excluded as an admission by party. o It may not be offered in his favor, but only against him. Class Notes: 9/8/08 o When you are dealing with this exception, it has to be offered by the party opponent (not a co-party)
-Direct Admissions, Multiple Hearsay

Reed v. McCord, N.Y. 1899, p. 102 o is suing to recover damages of personal injuries and death that was based on s negligence. o wants to submit stenographer for the board of coroners testimony of the conversation that the coroner had with that basically proved the negligence o Problem is that was not present at the time the accident occurred, so his statement was no based on personal knowledge, rather it was based on what he learned from others. o Court held this evidence is inadmissible. o If he had merely admitted that he heard that the accident occurred in the manner stated, it would have been inadmissalbe, as then it would only have amounted to an admission that he had heard the statement... Class Notes: 9/8/08 o Hearsay within hearsay 1st level: what said to coroner (this is not defined hearsay as an admission) 2nd level: heard somebody say it o How is it different from Salvitti? He is saying, I heard someone else say (different than saying this is what happened) Foster v. Commissioner of Internal Revenue o hearsay within a admission is subject to hearsay, unless of course, an exception to the hearsay rule applies. o A party cannot say that A said X is a fact. Rather, they can say, X is a fact. Lack of personal knowledge does not render inadmissible even if it is based on someone telling him.
-Direct Admissions, Completeness

Beech Aircraft Corp. v. Rainey, U.S. 1988, p. 104 o Two pilots were killed a jet plane crash during a training exercise. The two surviving spouses brought claim against manufacturer in a product liability suit. o The husband of the instructor pilot who was killed wrote a letter detailing what he thought had caused the crash (rollback), and basically he attributed it to a defect in the fuel system o The Navy had concluded that it was pilot error (also s contention) o During the trial part of s letter was submitted for the : the part detailing that the instructor nearly canceled the training because of the students fatigue; however, the trial did not allow the portion of the letter which detailed the husbands theory (because it asked for his opinion). o The jury was not given a complete picture of what the letter said and might have thought s current theory was something that is recently concocted. o FRE 106 was designed to prevent exactly this type of prejudice (Remainder of or Related Writings or Recorded Statements). Class Notes: 9/8/08 o Jury did not get the main point of the letter Page 13 of 58
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He was actually called by the to testify to only part of the letter. tried on cross to show why the he wrote the letter, but was objected and sustained on opinion by a lay witness. Is it necessary that the rest of the statement be admitted? When you start introducing parts of a statement, you have to be sure that you do not want the rest of it to come in or you better have a good exclusion rule. Watts: should not have introduced this evidence. The rule of completeness will allow the rest of it.
-Adoptive Admissions, FRE 801(d)(2)(B)

U.S. v. Fortes, 5th Cir., 1980 o s were convicted of armed robbery o The evidence at issue is a conversation that the two s had with a witness that s want to point on the stand. o In that conversation, Fortes made incriminating statements about himself and co-. was present for this conversation and made no denial, according to the witness. o Holding: the testimony was properly received under FRE 801(d)(2)(B), which allowed introduction of adoptive admissions. Class Notes: 9/9/08 o What do we need to know to determine that this was an adoption? That she was present; that she did not object. o How does not disputing indicate that I am adopting it? In this case, the inference the court is making is that she would same something if she disputed. Attorney could argue, I wanted to keep my mouth shut; these are dangerous people that could possibly hurt me. o Southern Stone Co. v. Singer, 5th Cir. 1982, p. 109 o S&M materials owed money to Southern Stone Co for limestone. They brought action to collect the money against Susan and Sam Singer and Thomas Moore (unable to pierce the corporate veil) o Jury returned verdict in favor of Susan and Company, but against appellants Sam Singer and Thomas Moore. o Apparently S&M stopped doing business and Moore started his own business that racked up more debt w/ Southern Stone. o SS counsel sent a letter to Moore that contained comments that Moore made about the final months of S&Ms operation (must have been damning statements). This letter was admitted, s counsel claims that it ws adopted by s because they did not respond stating any inaccuracies. o This Court held that the letter was inadmissible. Mere failure to respond to a letter does not constitute adoption, unless it was reasonable for the sender to expect a response. Court referred to Moores statements as mere hearsay (SSs client saying what Moore said) Class Notes: 9/9/08 o How is it distinguishable from the previous case? Less likely that silence is going to be a reliable indicator. o Watts: But this letter is actually asking if everything is correct. If you disputed this, why would you not reply? o This is really a double hearsay because the attorney is saying (first level) what Moore is saying (second level) o Why would he not want to respond? He may not know the ramifications of admitting something.
-Authorized Admissions, FRE 801(d)(2)(C)

Hanson v. Waller, 11th Cir. 1989, p. 110 o Action brought on behalf of the deceased who died after being hit by a truck that was driven by Waller. o takes issue with a letter that was submitted to evidence. It was a letter from s former attorney sent to Wallers attorney seeking a settlement or something. In it, there was a statement that admitted it was impossible for the to see the woman crossing the street. o Court held that this was properly admitted because of FRE 801(d)(2)(C): statements used against a party which were made by another person authorized by the party to make a statement concerning the subject is excluded from hearsay. Class Notes: 9/9/08 o This is to give us a clear example of these statements.
-Agent and Employee Admissions, FRE 801(d)(2)(D)

Mahlandt v. Wild Canid Survival & Research Center, 8th Cir. 1978, p. 112 o So s little boy was found underneath a wolf that was being kept by one of their neighbors. The boy was taken inside and eventually to the hospital (the extent of the boys injuries were never made clear). The neighbor was a director at the research center, keeping the wolf at his house. Page 14 of 58
s are trying to claim that the injuries did not come from the wolf, but from crawling under the fence. There are three items of evidence that were excluded, which takes issue Guy keeping the dog left a note on the door of the President of the Research Center saying that Sophie bit a boy New Holding: admissible against Poos because this is his own statement, and adopted it to be true Conversation the guy had with director stating Sophie had bit a child New Holding: same Meeting minutes that discussed at great deal the legal ramifications of Sophie biting a child. New Holding: admissiable because officers had authority (FRE 801(d)(2)(C)) o At trial They were excluded because Mr Poos did not have direct knowledge of the facts o Subissue: can Poos statements be used against the principal? o Yes FRE 801 (d)(2)(D), employee making a statement within the scope of employment o Subissue of 403? Poos statements are still admissible. Evidence is inherently prejudicial The meetings minutes are not: low probative value; evidence repetitive in nature Class notes: 9/9/08 o Watts: 403 is always out there. But should it have been excluded? Argue that this is the boards statements, not poos; so, it is not repetitive. Board can say they were basing it his statements and his statements were erroneous. Boards statement shows that they bought into Poos statements. (they believe a year later that this happened!) o o Sea-Land Service, Inc. v. Lozen Intl, LLC, 9th Cir 2002, p. 116 o Sea Land sued Lozen to recover money owed under a shipping contract. Lozen counterclaimed for damages resulting from a failure to timely deliver. The parties came to an agreement on Sea Lands claim. District entered SJ in favor of Sea Land. o Lozen claims that the district improperly excluded evidence an internal email that basically said note the rail screwed us up. This email was forwarded to Lozen by Martinez. o The trial court excluded it because Lozen did not provide any indication of the employees capacity to send it to him. o Jacques wrote the email; he was an employee at the time he wrote it. He sent to Martinez; Martinez forwarded it to Lozen o Court held that Martinez adopted the truth of the email; and her admissions fall under (d)(2)(D). Class Notes: 9/11/08 o Why is not a problem that she is saying what he said: she adopted those statements under FRE 801(d)(2)(B)
-Co-Conspirator Admissions, FRE 801(d)(2)(E)

Bourjaily v. United States, U.S. 1987, p. 118 o FBI informant arranged to sell a kilogram of cocaine to Lonardo. Lonarda was suppose to find a buyer and setup the deal with a friend through telephone conversations o FBI agent spoke the friend on the phone about quantity and quality. The exchange was to take place in a parking lot where the cocaine would be exchanged. Went as planned and the FBI arrested the friend in the car, the petitioner. FBI found $20k in the car. o charged with 1) conspiring to distribute cocaine and 2) possession of cocaine with intent to distribute. o The evidence that takes issue with: Lonardos telephone statements regarding the participation of a friend o 801(d)(2)(E) rule: there must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made during the course and in furtherance of the conspiracy. FRE 104(a) admissibility of evidence shall be determined by the court. o Regarding the amount of evidence required: Court held the offering party must prove to them by a preponderance (more likely than not) o Main issue here: when deciding to admit this type of evidence, whether the court should only consider independent evidence that is evidence other than statements sought to be admitted. o Court held that the statements can be considered. o wants Congress to affirm that is what they meant, it would be extraordinary to require legislative history to CONFIRM the plain meaning of rule 104. o Reason: each statement alone may be unreliable, but taken as a whole the entire conversation was corroborated by independent evidence (money in the car, in the car) o Breakdown of issues and holding: Page 15 of 58
Whether the court must determine by independent evidence that the conspiracy existed: NO. Amount of proof necessary: Preponderance of the evidence. Whether a court must examine the circumstances of such a statement: Yes, take the evidence as a whole o DISSENT: These statements are unreliable Class Notes: 9/11/08 o Preponderence of evidence makes sense because the Judge is not determining guilt, but whether the evidence needs to come in. o This evidence alone is not sufficient. FRE 801(E): ...not alone sufficient...
-Admissions and the Bruton rule

Bruton v. United States, U.S. 1968, p. 125 o Evans and convicted of armed postal robbery. Evans confessed. In the original trial, these statements admissible against Evans but jury was told to disregard it when considering Brutons conviction. Evans conviction was overturned because of Miranda issues, but it did not affect Evans because this was inadmissible to him in the first place. Evans went back to trial and was dismissed. Bruton is still appealing. o ISSUE: Whether a conviction should be set aside when the jury heard it and was told to disregard a confession of a co- o In this case, the Court held yes because the cos confession violated petitioners fundamental right to X-exam. o Delli Paoli held that it is possible for a jury to disregard confessions. o Reason: the effect of such a nonadmissable declaration cannot be wiped from the brains of the jurors. o Argument: this goes against judicial economy (juries, witnesses, money, time...) o Argument: for our system to work, we have to believe that a jury will be able to follow a judges instructions o Holding: we cannot accept limiting instructions as adequate; the effect is the same as if there had been no instruction at all. o Dissent: believes in the jury system. Class Notes: 9/11/08 o (E) does not apply because the statements were not made in furtherance of the crime.\ o The rule is simple: o Possibility Separate trials Not have the evidence at all Delete the reference to the co. Gray v. Maryland, U.S. 1998, p. 130 o Victim was beat to death o Bell confessed that he, petitioner, and a dead guy participated in the beating. The two were indicted for murder and tried jointly o has takes issue with the confession that was entered into evidence against his co and the jury was instructed to disregard it. o At trial the Sheriff read the statement redacted petitioners name, but in its place saying the word deleted so that it was obvious someones name was deleted. Prosecture: So after that statement did you have enough information to arrest this man o Court held that this is not admissible. o relies on Richardson, where: A redacted confession was ok so that it omitted all indication that anyone other than and a third person committed the crime. Other independent evidence was used to prove that the co- was present at the scene. In this case, the confession had been redacted to omit all reference to the co. o Reason. In this case, the confession refers directly to a co. o DISSENT: Invariable assumption of law that jurors follow their instructions This did not facially discriminate anyone Redacted a statement to the point where we are admitting statements that are not what the actually said. Class Notes: 9/11/08 o Watts advice: In civil cases, only object when it is meaningful; the jury focuses on that evidence if it is let in
Page 16 of 58
3) Spontaneous and Contemporaneous Statements; FRE 803 (1) & (2)

U.S. v. Obayagbona, E.D.N.Y. 1985, p. 138 o An undercover agent Turner worked out a drug deal w/ petitioner Obayagbona and Onaiwu. According to Turners testimony took a sample of heroin out her purse and handed it to agent. claims that the other girl actually did this. o State admitted the tape recording where the agent said after the arrest that the girl wearing black and white handed him the vile (this was almost 15 minutes after receipt of the sample) o Petitioner claims this is hearsay; states offers it as an excited utterance, FRE 803(2). For admissibility the trial court must find: There must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer; The statement of the declarant must have been spontaneous reaction to the occurrence or event and not the result of reflective thought o The court determined his excitement based on the recording. o Reason to allow this evidence: it is not likely that the witness was deliberately fabricating evidence. He was too excited to do so. o Also admissable under 803(1), as a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. o The court this evidence was admissable and the convictions were upheld. Class Notes: 9/15/08 o Why do they want to get this hearsay statement in anyhow? To show Obayagbona gave him the dope. We have testimony that is directly contradictory. o Makes it less likely that he is lying because he said it twice. But maybe he is lying twice? o The notion is that he did not have the time to think up a lie. o Present Sense Impression Could argue that it was too long o Exicted utterance He is excited, and has not had the opportunity to conceive a lie Argument: would you want to know how routine drug bust are for Turner; he cant let the system let these people go o Advisory committee notes: 1) negate the likelihood of deliberate or conscious misrepresentation; (2) temporarily stills the capacity of reflection and produces utterances free of conscious fabrication o My problems: still relying on how they perceived and relay the information, ignoring the fact that they could be wrong. o Why are they let in? Because the FRE says they are inherently reliable. Bemis v. Edwards, 9th Cir. 1995, p. 140 o This is a 1983 action against police officers of the City of Bend, Oregon. claims they used excessive force. o wanted to introduce a 911 recording from his neighbor across the street. The neighbor relayed information the the 911 operator as the event was taking place: ...I mean, the cops are beating the shit out of the guy right now... o s claims this was hearsay. claims this falls under the 803(1) or (2). o Trial court disagreed and this court affirmed. o The observers was actually relaying what others were saying. He could be heard repeating the words of an unidentified voice in the background Class Notes: 9/15/08 o 602 must have personal knowledge. Court said he did not meet this requirement. o So whats the problem? Have to lay the foundation (provide enough evidence to the judge so that he can determine whether it is admissable). o 803 implicitly says you need personal knowledge: ...perceiving the event... This is lack of foundation according to FRE 602. Argument: it says witnesses and not declarants. o The gist: you have to have personal knowledge even though it does not specifically say that U.S. v. Elem, 8th Cir., p. 141 o convicted for possession of a firearm by a convicted felon. wanted to introduce statements he made to police. you want be able to make that. o claims this should come in under FRE 803 (2) o Seems like there are a lot of facts missing in this case. Just went into detail about res gestae the verbal acts doctrine o Court did not find that excitement existed Page 17 of 58
Class Notes: 9/15/08 o Distinguish from Obayagbona There was evidence that the police officer in Obayagbona was excited Maybe the statement is more reliable because it came from a cop in Obayagbona in this case has reasons to lie; not hard to come up with this lie (Watts: everybody always says it was not mine) o Could be a confrontation clause problem; issue is whether it is testimonial
4) State of Mind; FRE 803(3)

U.S. v. Harris, 2nd Cir. 1984, p. 145 o Harris and co Mamone convicted of 1) conspiracy to distribute heroin; 2) attempted to possess heroin with the intent to distribute o These s were the product of an undercover investigation where the DEA enlisted the help of one Steward who was facing drug charges. o The defense wanted to establish that Harris knew steward was an informant and only played along with him out of fear of what would happen to him if he refused. o want to have his parole officer testify that harris had said that the government was after him. Same w/ harris previous counsel. Both were refused as blatant hearsay. o This court held that this evidence would be admissable either as nonhearsay (not provided to prove the truth of the matter) or as an exception to hearsay (state of mind FRE 803(3)) Class Notes: 9/16/08 o What is your defense? Scared of drug dealer is not a defense, so what is the defense? That he knew Steward was an informant. o The most first and most important way to defend hearsay: it is not offered to prove the truth of the matter asserted o Is this hearsay? The court said he could both be considered non-hearsay or as an objection to the hearsay rule. o Difference b/w I think [x] is true and [x] is true: Saying I think, you are providing the evidence to prove your state of mind (this is hearsay), not that [x] is true. o He believed he was an agent: Hearsay if you are using it prove what he believed, but this falls under the exception.
-The Hillmon Doctrine

Mutual Life Ins. Co. v. Hillmon, U.S. 1892, p. 147 o sued 3 different life insurance companies(Mutual, N.Y., & Connecticut) for failure to pay a claim of her husbands death, John Hillmon o s all refused to pay because they claimed that s husband was still alive. s wanted to put on evidence so that jury could infer that it was in fact another mans body o Facts: s husband and a companion went looking for land to purchase for a ranch. Companion claims that while at camp Hillmon was killed accidently by a the discharge of a gun. o s wanted to show that it was not the Hillmons body, but was in fact the body of Adolph Walters. The evidence at controvery: letters written by Walters to his sister and fianc just before his death. (the one to his sister was lost and she was citing from memory). Both letters indicate that Walters intended to company Hillmon as a potential employee at the ranch. Walters was never heard from again. o The trial court excluded this evidence; the Court reversed o The can be no other way of proving his intentions o Holding: Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Their truth or falsity is an inquiry for the jury. Class Notes: 9/16/08 o Why are these letters relevant? Want to prove that he was there and with Hillmon at the time (helps piece together s theory). Apparently, this is the last time that anyone heard from him. o The chain of inferences you are drawing include a link that he went on the trip because that was in fact his intention. o Watts argument: Lying about intent is easy Id love go, but... & I love you (LOL!) o Its not just the lie that we are concerned about, but it is all of the reasons that we want to leave out hearsay (perception, etc...) o Watts: The Hillmon example is odd. Shepard v. U.S., U.S. 1933, p. 151 o Shepard was convicted for the murder of his wife. Sentenced to imprisonment for life. o The crime is charged to have been committed by poisoning the victim with bichloride of mercury. Page 18 of 58
Evidence at issue: Nurse claims the victim directed the nurse to a bottle of booze and asked her if there was enough left to check for poisoning because it tasted funny. This statement was followed by, Dr Shepard has poisoned me. o The theory is that he wanted to be with his mistress so he offed his wife. o The trial court allowed it, the Court reversed o HOLDING: Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. This is not and 803(3) exception. o This evidence is seriously damning and is more the unsubstantial error because of its accusatory nature. o The evidence was not used to prove her present thoughts and feelings, or even her thoughts and feelings in the past; the evidence was used as proof of an act committed by someone else. Class Notes: 9/18/08 o FRE 803(3) Why does the government think this should come in? At the time you speak of your current state is more reliable than testifying about it further down the road. Also, it is sort of a necessity to learn their intent. o Does not allow statements from memory or believe. Why? Because that would essentially make everything an exception to the hearsay rule. o Remember that 403 is always in play. U.S. v. Houlihan, D. Mass. 1994, p. 155 o Boyden was killed, found shot in the back of the head. The night before he was killed he told his sister that he was going to meet up with s. o The evidence at issue: what he told his sister Subissue: whether Congress codified in full the reasoning of Hillmon or whether it sought to limit its application. Under Hillmon, out-of-court statements are admissable to prove the conduct of others. o The government says it is addmissable under FRE 803 (3) statements of an existing or emotional condition o s claims that it cannot be used to prove the conduct of others o Advisory committee notes and report of the house judiciary committee are conflicting. Jurisidictions are divided as well. o This Court upholds the admissibility of the statements. Further holding that 803(3) does not have limitations put on it that are not in the text (e.g. adding cannot prove others conduct). o This Court rules that FRE 803 (3) codifies Hillmon as written and does not disturb its conclusion or its reasoning. Class Notes: skipped
5) Injury Reports; FRE 803(4)

Rock v. Huffco Gas & Oil Co., 5th Cir., 1991, p. 159 o Richard Rock was employed by a food service that serviced off shore oiling platforms. o There are two incidents in question Rock claimed that he fell through a rusted step on the stairs and sprained his ankle. This is what he told the doctors. The doctor told him to stay off it. After a few days rest, he reinjured his ankle and claimed that he slipped in some grease. No one saw any of these incidents o His ankle injuries actually led to quite a serious condition known as venous insufficiency o He died from a heart attack a little over a year later. o The statement made to his doctor is the evidence in question. The lower court denied admissibility. This court affirmed. o ISSUE: whether these statement he made to this doctors fall under the exception in 803 (4). o RULE: Before adimitting such hearsay statement, the judge determines whether the statements were reasonably considered by the declarant as being pertinent to the diagnosis or treatment sought. o Court held that the statements made by rock detailing how he sprained his ankle were not needed. Class Notes: 9/18/08 o Why is it limited to just the treatment? The thought is youre concerned that you will get the correct diagnosis and treatment so you are going to be perfectly honest o He thought it was important that the doc know it, so why shouldnt it come in? Would you want to tell the doc that the step was rusted. o You would have a chance to X this doctor to get him to say that it does matter
Page 19 of 58
State v. Moses, Wash. App. 2005, p. 161 o Moses was convicted of murdering his wife in 2002 o In 2001, a neighbor called 911 because Moses was assaulting his wife. Wife made statements to police, a social worker, and doctor that he had kicked and punched her. o The trial court admitted these statements as excited utterances. o This also has testimonial undertones. o The children also made statements to the social worker. This court held that these statements were not offered to prove the truth of the matter asserted, but to show why the social worker contacted CPS. o Court also held that the statements made to her doctor were not testimonial. o Statements made to the police should not have been admitted as they were testimonial, but court held this to be harmless error. o *ID of the abuser is important for treatment Class Notes: 9/18/08 o Dont rely what this court says on Crawford because it has not been decided yet. o Confrontation Clause Criminal proceeding Testimonial Against
6) Recorded Recollection; FRE 803(5)

Fisher v. Swartz, Mass. 1955, p. 166 o Recovery for labor and materials allegedly furnished to . o While testifying, refreshed his recollection by looking at a carbon copy of an itemized statement, which contained more than 100 items. And the copy was admitted into evidence o Court held that the evidence has to be admitted on other grounds beside business records o relies on Bendett, where the court held that the writing should not have been introduced into evidence o Writings that are used to recollection will always be known to the jury, so it is not error at all to submit the writing. Class Notes: 9/19/08 o Present recollection revived handing a witness anything to refresh their memory and testify from actual memory o Past recollection recorded o You have to let the other side see what was being used to refresh the recollection o The question in this case is if the paper itself should be let into evidence o The rules say this can only be introduced into evidence by an adverse party o Watts: if you are allowed to read it verbatim, then why can you not just give it to them? Jury is going to put too much weight on this piece of evidence. U.S. v. Riccardi, 3rd Cir. 1949, p. 168 o convicted of wrongfully transporting chattels in interstate commerce with a value of more than $5k. o Evidence question: whether the witnesses who testified to these essentials were properly permitted to refresh their memory o They belonged to Farid. She testified to how much was stolen by using typewritten notes. The notes were originally handwritten to document what was being moved from the houses. o She was allowed to refresh her memory, in fact she read from the list. o The expert was also allowed to refresh his memory from the list; he had been there before, and noted what each chattel may be worth o claims these notes were made too far after the transaction o claims they gave their independent recollection, which is permissible. o The trial judged ruled that they testified from present recollection. o The number of items was so numerous that no one could remember all of them o Affirmed Class Notes: 9/19/08 o So why is this present recollection? Because the Judge asked her questions of whether she remembered and the witness said she remembered each one individually. o Watts: if they can refresh their memory before testifying, then why not just let them do it on the stand
7) Business Records; FRE 803 (6), (7)

Page 20 of 58
-Generally
State v. Acquisto, R.I. 1983, p. 173 o was convicted of sexual assault. o s two alibi witnesses said that was home with his mother. The reason they claim they were home was because of a strike going on at their place of business o Government put on evidence that they were actually working that day: payroll vouchers. o claimed these records could not come in because they did not meet the common law standard: which states that each human link in the chain of information has to testify o The court disagrees with the common law requirement, holding this evidence is admissible under FRE 803 (6) o Reasons: Ms Judge, the witness, was the custodian of the records She was responsible for administering payroll This is the type of information which her job is based Class Notes: 9/19/08 o What seems to be the rational for letting records into evidence? There is systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in RELYING upon them o Watts: they are inherently credible because businesses rely on them o Generally on these cases, a witness is not called at all.
-Qualifying Businesses
Keogh v. Commissioner if Internal Revenue, 9th Cir. 1983, p. 176 o was found guilty of income tax deficiencies o was a card dealer at a the Dunes in Vegas. The tip money is divided equally among the dealers. o IRS asserts that Keoghs had underreported that tip income in 1969, 70, and 71. o Whitlock, who worked for the dunes, meticulously recorded the tips divided among the dealers in a diary. This diary is the evidence at issue. o Keoghs argues that 803(6) does not apply because the diary was Whitlocks personal records. However, personal records kept for business reasons may be able to qualify. o No indication the entries were suspect; reliability is demonstrated by the fact that the entries in the diary match the payroll figures. Class Notes: 9/19/08 o The rule itself basically says it applies to someone, no matter what they do. U.S. v. Gibson, 9th Cir. 1982, p. 178 o among others was convicted of drug trafficking. o This brilliant kept a book that detailed how much product went out and how much money came in. o claims this is not a regular business activity and that the books were untrustworthy o It is a course of business entered recorded contemporaneously and she relied on them o Not trustworthy that doesnt fly because she had to rely on these entries Skipped
-Qualifying Records
Palmer v. Hoffman, U.S. 1943, p. 179 o These case stems from a train accident o The engineer, who died before trial, made statements to the asst super of the road. s wanted to get this in as statement signed during the normal course of business. o Court held this evidence is not allowed (affirming) o These reports are calculated for use essentially in court, not in the business; these reports are primarily for litigating, not railroading Class Notes: 9/22/08 o What exception are looking to get this in? 803(6). o What is it that the court things have a problem with? The Engineers statement was dripping with motivation to misrepresent. o Court said this is not a report in the ordinary course of business o Why would this guy? He wanted to avoid any fault on the railroad (the same guy that prepares the report would have been the same guy that screwed up and caused the accident) Lewis v. Baker, 2nd Cir. 1975, p. 180 o Another was injured in a rail car accident. He claims that the hand brake was faulty. Page 21 of 58
Railroad wants to submit evidence of the inspection reports and injury reports to show the handbrake worked just fine o Lower court let both in; this court affirmed o Its reasonable for the company to ascertain that the equipment was faulty; and a record keeping by law is still the regular course of business Class Notes: 9/22/08 o Why was no motivation found here? The people that did the report was not involved in the law suit. Not involved in the accident o Watts: Is there some reason they might misrepresent? Of course, your job might be at stake if you file a report saying your company screwed the pooch. o So what does the rule say now? ...unless the souce of information or the method or circumstances of preparation indicate lack of trustworthiness.
-Sources of Information
Wilson v. Zapata Off-Shore Co., 5th Cir. 1991, p. 183 o Wilson sued her former employer, Zapata, for sex discrimination and emotional distress. o She left her job because she was experiencing emotional problems and she was treated for anxiety-related disorders. o Here was have a case of multiple hearsay: her sister, told a social worker, who recorded that was a habitual liar. Class Notes: 9/22/08 o Why is this harmless error? There was abundant evidence casting serious doubt on her sisters credibility. o Watts: there is a tremendous amount of room to argue both sides o
-Absence of Record; (7)

U.S. v. Gentry, 7th Cir. 1991, p. 185 o tried to make some money by putting a pin in his M&Ms. o He was prosecuted for and convicted of making a false report of food tampering in violation of 18 USC 1365 (c)(1). o The evidence at issue: testimony from an employee who stated there were no other reports of pins in the candy. o FRE 803(7) allows the use of business records to show the nonoccurrence of an event. Class Notes: 9/22/08 o What do you suppose would be the business report they are referring to? Maybe they check for things and put it in a regular report o So what is the hearsay? Problem 3.41, p. 185 o Would a ladies emails to her brother indicating her progress on a book be a business record? I think it depends on the reason she is emailing her brother. The problem is not that she is not a corporation, but the question is whether her actions are within ordinary business routine. Also determine whether her emails have a hint of untrustworthiness.
8) Public Records
Book Notes, p. 186 o Factors to consider when determining admissibility of evaluative reports The timeliness The special skill/experience of the official Whether a hearing was held Possible motivation problems suggested by Palmer v. Hoffman Beech Aircraft Corp. V. Rainey, 7th Cir. 1991, p. 185 o See Rainey above for facts o The evidence in question is a report prepared by Lt. Cmd. Morgan. The report was organized into sections labeled finding of fact, opinions, and recommendations. o The trial judge admitted some statements of opinion, including: the most probable cause of the accident was the pilots failure to maintain proper interval. o Jury returned verdict for ; COA reversed and remaned for a new trial, holding that the statements of opinion should not be admitted. o The issue is whether 803(8)(C) extends to conclusions and opinions contained in such reports. Page 22 of 58
The Court held that as long as the opinion was based on facts and satisfies the rule of trustworthiness, opinions in official reports should be admissible o Reasons It is not clear that the term factual findings should be read to mean simply facts The language actually does not say that facts are admissible, but that reports...setting forth...factual findings Not a clear line b/w fact and opinion (DO WHAT, NOW?) Class Notes: 9/22/08 o Basically they go with the notion that it is really useful to get this in. U.S. v. Oates, 2nd Cir. 1977, p. 192 o was convicted for possession of heroin with intent to distribute, and of conspiracy to commit that substantive offense o claims that the court incorrectly admitted evidence at trial of a official ropert and worksheet of the chemist who analyzed the substance o The chemist apparently was unable to testify o The government claimed this was a 803(6) exception because it would not be applicable under 806(8). It is undisputable this report can be characterized a report of factual findings resulting from an investigation made pursuant to authority granted by law o ...police and evaluative reports not satisfying the standards of 803(B), or (C) may not qualify for admission under 803(6) or any other exception of the hearsay rule. Class Notes: 9/23/08 o What seems to be the problem with 803(8)(B) and (C)? Regarding parenthetical C, it does not fit because this is not a civil proceeding or a proceeding against the government in a criminal case. Regarding B, it excludes matters observed by police officers and other law enforcement personnel. o So why does this not come in from the business records exception? If it is inadmissible under 803, it cannot be brought under another exception. A concern of the advisory committee was the rules be formulated so as to avoid impinging upon a criminal case right to confront witnesses against him. U.S. v. Brown, 11th Cir. 1993, p. 196 o Appellant was convicted and sentenced for possession of a firearm by a felon. o Officers followed for several block; then, began to run. The officers notice that he tossed a .38 aside while he was fleeing. The at that time got away. The police put the firearm into property as found property and not evidence. o The officers IDed Brown about a week later and arrested him. However, the gun was never moved from found property to evidence and because of police procedures it was destroyed. o The evidence at issue is the property receipt that was signed when the gun first was put into property. o claims that this evidence is excluded from 803(8) because of the language in (B). o HOLD: this evidence is admissible. The receipt is a product of ordinary practice and was not done for a prosecution. o This could be considerd a routine, non-adversarial report. Class Notes: 9/23/08 o U.S. v. Orozco, 9th Cir. 1979, p. 197 o Orozco and co Live-Corona were convicted of possession of concaine and heroin with intent to distribute o Heroin was found in the car that Liva-Corona was driving. Orozco was in a nearby second car and said that both cars were her own. o Evidence s have a problem with: computer data cards from the Treasury Enforcemet Communications System. o had claimed that the car was used for a double date, but the TEC cards recorded that cars license plate crossing the mexico border o District admitted the cards under the business records rule, but this court held that it fit better with public records rule (FRE 803(8)) o Subsection B excludes matters observed law enforcement personnel; however, this court held that Congress did not intent to exclude records of routine, nonadverarsial matters recording license plate numbers is nonadversarial. o Additionally, nothing about this recording indicates a lack of trustworthiness. o Affirmed the admission of the evidence Skipped Page 23 of 58
State v. Forte, N.C. 2006, p. 199 o convicted of sexually assaulting and murdering 3 elderly women. Sentenced to death o DNA at the scene indicated the murders were committed by the same person; The DNA matched that of the s. The SBI had record of his DNA because of a previous crime. o Evidence at issue: claims the reports that indicated that was not admissible because the person that prepared the reports was not there to testify. o His job was to test blood samples. o Court held that this evidence satisfies both 803(6) and 803 (8). o Regarding (8), the reports were common, nonadversarial matters . Potential use in court was not the only purpose. Class Notes: 9/23/08 o The rational goes back to brown. This is some scientist doing his science. He doesnt care one way or another. o What determines reliability? Whether you can X the person on the hand (procedural) Hinojos-Mendoza v. People, Colo. 2007, p. 201 o was convicted of possession of cocaine with intent to distribute. o The evidence at issue: lab reports that states as suspect along with the identification of a white substance that results concluded was cocaine. o The people introduced the evidence w/o calling the technician as a witness o Colorado statute allows this; claims that this is facially unconstitutional o The court agreed o Holding that not all exceptions to the hearsay rule will automatically be nontestimonial. o The sole purpose of the report was to analyze the substance found in s vehicle o However the ruling is affirmed on others grounds ( effectively waived his right to confront the technician) Class Notes: 9/23/08 o Similar to one he went over in class. Melendez-Diaz v. Massachusetts Recent Supreme Court case that tackled the issue of whether this report was testimonial Cops found cocaine in the police car after not searching the s This went to lab and said it was cocaine and how many grams Arguments for Crime labs can be adversarial What if your job is at stake and you screwed up Without opportunity to question, you would want to learn if he actually did follow the regulations and procedures truthinjustice.org scandal in elite labs
9) Former Testimony
U.S. v. Bollin, 4th Cir. 2001, p. 205 o Investmen fraud case. Government presented a redacted version of s grand jury testimony, but the court refused to allow him tp present the imutted portions under the rule of completeness or former testimony exception o had pleaded the 5th during trial So the issue becomes with the was unavailable. o Court held that made himself unavailable and therefore cannot invoke the exception (the government could use it) o The rule of completeness did not apply either because it was not necessary to avoid misleading the jury Class Notes: 9/25/08 o Argument: penalizing him for invoking his constitutional right o The reason it is in the book is to show what unavailability can include Kirk v. Raymark Indust., Inc., 3rd Cir. 1995, p. 206 o Husband brought wrongful death claim resulting from her husbands death. Husband had mesothelioma. o At trial, s put on expert testimony to show that the type of asbestos in the paint that the husband used does cause mesothelioma. o s wanted to read into evidence prior trial testimony of another expert that was used by s in another case. The expert said something inconsistent, saying that the chemical could cause cancer. o says this was hearsay o claims two theories Not hearsay because it was an admission by party opponent, 801 (d)(2)(C). Court said this did not apply because the expert was not an agent for the party (not authorized to speak on their behalf, just give his own opinion Page 24 of 58
804 (b)(1) previous testimony by unavailable declarant. Problem is, the declarant was not considered unavailable. The court held this did not apply. Class Notes: 9/25/08 o Whats another way to get it in? Maybe 801(d)(2)(B), an adoption for the truth. Watts: absolutely should have tried this. o What else? Hire your own expert and get him to read it in. o Have to make reasonable effort to make them available. Clay v. Johns-Manville Sales Corp., 6th Cir. 1984, p. 208 o Another asbestos case. s wanted to get in deposition statements made in another trial by a witness. o Supreme Court original rule: The rule says the statement is offered against a party with a motive or interest similar to him had an opportunity to examine the witness o Expressly changed by the house: substituted predecessor in interest o This was a confusing case that examined the defn of predecessor in interest. o The Court adopted Lloyds defn: having a like motive to cross examine o Holding: s in the case from where the statements want come in had the same motivation as the current s. Class Notes: 9/25/08 o Argument from House Committee: It seems unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled. o Criminal cases are different from civil: in civil cases you pay attention to predessor in interest; in criminal, it has to be the same person U.S. v. Salerno, U.S. 1992, p. 210 o were in a crime family and indicted with Racketeering. At the grand jury, two witnesses made exculpatory statements. s want to bring in these statements o At trial, government put on evidence that suggested that in fact these witnesses were involved with s. o s called the witnesses to testify, but they asserted their 5th amendment. o COA held that governments motive in examining the witnesses was irrelevant. The Court disagreed. o Court said that s are required to show that they had similar motive to introduce the statements. Class Notes: 9/25/08 o The question is: should it come in now? They are trying to determine whether the government had the same motive. o Why wouldnt they have the same motivation The prosecutor will not have the same motive to develop testimony in grand jury proceedings as he does at trial They may want to maintain secrecy (want to hit you with it for the first time at trial) o Watts thinks this is a good rule Problems, pg. 214 o 3.42 How would they get this previous testimony in? 1) If the declarant was unavailable; 2) If it was the same party (not coming because it is a criminal case and the director was not a party at the previous hearing). How could you use it? To impeach the janitor if he said something different in the second trial. Not coming in for the truth of the matter asserted, just something he said before that was different Confrontation clause at issue. Is it testimonial? Yes! The testimony from the newspaper is testimonial. Need to determine if the director was a party in the first case. If so, then the testimony can be used against him; if not, then testimony is inadmissible. o 3.43 How would they get this in? Its civil, so they have to establish a predecessor in interest. Would the motives for cross examination be the same in both cases? Maybe, in the criminal case the mgr would want to pass the buck on the upper guys, but in the civil action, the company might want to say we didnt do it.
10) Dying Declarations can show up on exam

Shepard v. U.S., U.S. 1933, p. 215 o Same facts as above (state of mind exception was rejected because it was from memory). s want to keep out wifes statement: Dr. Shepard poisoned me. o Government claims this statement as a dying declaration. o RULE: declarant must have spoken without hope of recovery and in the shadow of impending death o Government failed to make out imminence of death. REVERSED. Class Notes: 9/29/08 o Its not required by the rule that you have to die; it is the state of mind. o The notion: not getting anything out of your lie if you are dying. o The statement has to be concerning the cause or circumstances of what the declarant believed to be impending death Page 25 of 58
Not required that the declarant actually die; just required that the declarant believed to be impending death.
U.S. v. Sacasas, 2nd 1967, p. 217 o was convicted of bank robbery. motioned for new trial because of new newly discovered evidence Denied because it was held to be hearsay. o THE ALLEGED HEARSAY: A co died, just before losing consciousness he told another inmate, If anything happens to me tell them that the Greek had nothing to do with the job. o says the statement should be admissable under dying declarations o Court held it is inapplicable because was not being charged with homicide; therefore, the statements did not come from a victim. Class Notes: 9/29/08 o Does this make you question the rule? The guy could just be saying this to get his buddy off the hook because this guy is dying anyway. o Why are unreliable statements so vital in trial? State v. Lewis, Tenn. 2007, p. 219 o was convicted a criminally negligent homicide and facilitation of attempted aggravated robbery. o The robbery was a failed robbery where the stores owner was fatally shot o The victim was at the store waiting for a lady to bring two vases by appointment. After the shooting, as the owner was dying he described his attacker as a black male. He also said the ladys information is on the counter. He basically he said he knew the lady with vases was involved. o s name and DL was found on a piece of paper on the counter. o Trial court admitted the statements under dying declarations o This is testimonial, issue is whether dying declarations can be admitted when they are testimonial o The test the court used: if the victim had lived, would they been permitted to offer this testimony at trial (rationally based on perception, helpful determination of a fact in issue) o AFFIRMED conviction Class Notes: 9/29/08 o No jurisdiction has excluded a testimonial dying declaration. o There was also an issue of whether this was opinion testimony (talk about that later) Problem, p. 221 o 3.44 Can the declarants statement be offered to convict someone in a different homicide case? 1) thought he was going to die; 2) no confrontation clause problem; 3) concerning the cause of his impending death (maybe, maybe not this would be your argument)
11) Declarations Against Interest

U.S. v. Duran Samaniego, 11th Cir. 2003, p. 223 o Duran was a boxing champ and claimed his belts were stolen by his brother-in-law o Undercover agents arrested Baez who claimed that they were not stolen o The evidence at issue: statements Durans brother-in-law made to Duran and his family expressing apologies for stealing the belts o District allowed it under 803(3), existing state of mind. This court held that was wrong, but harmless error. o Because it falls under 804(b)(3), statement against interest. His statement falls under this exception because it would subject him to civil or criminal liability. o He has to be absent for the exception to work: s tried to procure but he was out of the country. They could not get him to come back from Panama. Class Notes: 9/30/08 o This was an interpleader action, the question was who owns the belt o If you cant compel a person to appear, what else can you do? Deposition o Who determines if he is unavailable? The judge. o This is definitely suspicious, but that does not matter. The suspicion would go to a jury. U.S. v. Jackson, 2nd 2003, p. 225 o was found guilty of conspiring to import 5 kilos or more of cocaine into the U.S. o wants to admit statements made by his co in a plea hearing that would exculpate . o Court held they did not fall under the previous testimony exception because the government does not have similar motive at a plea hearing as it would at trial o The next exception asserted statements against interest. o The problem is the statements that he made did not expose himself to criminal liability, they only exculpated the . Page 26 of 58
o o
o Even if they were against interest, he did not provide corroborating evidence Class Notes: 9/30/08 These statements are reliable because it is thought that people will not lie when they are incriminating themselves. Problems, p. 227 3.45 Dying declaration would not apply because it is not a homicide case. So is it a statement against interest? Well, he is dying, so he will not face criminal liability. Also, there has to be corroborating evidence. We want corroboration in order to verify the truth of the statement. Dont want people getting off to easily based on these statements requirement of other evidence. 3.46
12) Forfeiture by Wrongdoing

Giles v. California, U.S. 2008, p. 228 o was convicted of murdering his ex-girlfriend. Before her death, she made statements to officers about what happened. She was murdered, so government wants to get these statements in. o Cal admitted this statements as statements describing the infliction or threat of physical injury. o ISSUE: whether the theory of forfeiture by wrongdoing is an exception to the confrontation right o The rule: You have to consider the intent of the (if he intended to keep the witness from testifying) Class Notes: 9/30/08 o The supreme court cannot say if California applied their evidence code correctly. They dont care. The court is only looking at it from a constitutional standpoint. o Has to be one of the purpose of killing, not the only purpose.
13) Residual Exception

United States v. Laster, 6th Cir 2001, p. 235 o Defendant appealing conviction for drug offenses o At trial the govt introduced records of the Wilson Oil Company showing sales of hydroidic acid, a component to the drug to the D from the owner of the oil company o D.C allowed the records under the business records exception or the residual exception (807) o The detective, Acquisto, admitted as a qualified witness to lay foundation for the records. Problem: Detective was not familiar with the record keeping system (no evidence indicating otherwise) and thus, the evidence was not admissible. o RULE: an equally trustworthy statement not specifically covered by rule 803 or 804 admissible IF it is material, more probative on the point for which it is offered than any other evidence which the proponent can produce through reasonable efforts and its admission best serves the interests of justice. o 2 approaches: Near miss theory: plain language interpretation, allows very little in. the doctrine that a near miss under a specified exception renders evidence inadmissible under the residual exception. = INADMISSIBLE (minority view) Close enough theory: hearsay is admissible under the residual exception even when it just misses admissibility under an established exception. (majority view) Watts: hearsay may be admissible under the residual exception even if it was close under a specific exception.
14) Review
3.47 statement being offered to show notice. Statement only has bearing on case if it is in fact true. The statement being repeated has no value because no way to verify that Youngs statement is true and was actually said. Inadmissible hearsay NO exceptions! 3.48 A dog cant be a declarant. The dog would be the witness offering a statement that the briefcase had drugs in it. 801(b) a declarant is a person who makes a statement 3.49 Could be statement against interest. But these facts do not have corroborating evidence. Maybe 807. The statement relates to the cause of his death, but there is nothing to indicate that the shadow of death is looming over him. So dying declaration may not work. 3.50 could be used for impeachment evidence since the prior statement is inconsistent with latter statement. Rule 806. 3.51 See the Hillman case. Rule 803 (3) Not excluded by the hearsay rule. 3.52 Regular business record? No because they are preparing this record specifically for a lawsuit. Not the type of thing that is kept in business record. Does not go to the state of mind of the employees, but rather as past recollection of the consumers who called the hotel confused. Could use the state of mind exception for consumers to allow it in. Page 27 of 58
3.53 all the rule says is that the party has an opportunity. Does not mean they have to do it well. Former Testimony, rule 804 (1). 3.54 present sense impression; but, the declarant did not have personal knowledge. 803(1). MAYBE, under 803(8) public records. It was the duty of the 911 operator to record these statements. 3.55 Possibly 803(4), but this statement was not made for the diagnosis or treatment of his injuries.cannot come in under medical records exception. Rule 801(1) prior statement by witness. On the bar exam this would be INADMISSIBLE (not medical records exception) 3.56 falls perfectly in the exception for dying declarations (804(b)(2)) 3.57 Former testimony 804(b)(1)? Not allowed, not sure exactly why 3.58 Not offered to prove the truth of the matter asserted? Not so sure. 3.59 Obviously business records that are reliable 3.60 Present sense impression 3.61 present sense impression 3.62 not prior statements by witness because they were not made under oath; offered to prove the truth of the matter asserted, not to impeach to the witness. Not coming in unless public records exception. 803(8)(C). 3.63 not offered to prove the truth of the matter asserted, only that he told different people different things 3.64 803(5), recorded recollection, says its ok. 3.65 For sure could be offered for impeachment; not offered to prove the truth of the matter asserted, so not hearsay 3.66 Public records, unless lack of trustworthiness 3.67 statements for medical diagnosis? I think it is necessary for the doc do get these statements. 3.68 recollection, that is ok 3.69 this is a business record that you would expect a business to keep track of. Could beconsidered unreliable, the guy might lose his job if he testified that he ran the lady over, but has not other interest in the litigation. 3.70 To prove the truth of the matter asserted? No idea? 3.71 still business records that they relied on 3.72 offered to prove the truth of the matter asserted?
Hearsay and Due Process

Chambers v. Mississippi, U.S. 1973, p. 243 o Chambers was convicted of murdering a police man o Facts: the police went to a pool hall to arrest someone there and a large group of people attacked the police officers. At one point Offcer Liberty was shot. He then shot back with this shot gun twice, hitting the in the back of the head with the last shot. o Another man, McDonald, gave a sworn confession to Chambers attorneys that he shot the policeman. He was turned over the police, but released because he claimed he made up the story when he thought he would get $ from the civil and was promised not to go to jail. o s tried to put on evidence that would exculpate , but the trial court did not allow them. The evidence: Trial court will not allow to cross McDonald as a hostile witness because of MS law that said you cannot impeach your own witness Evidence from three people that McDonald confessed to that he was the one who killed the cop. These statements corroborated each other as well as corroborated by other facts. o This court reversed for three reasons: Each of McDonalds confessions were made spontaneously; Each confession was corroborated by some other evidence Each confession was self-incriminatory statements against interest Class Notes: 10/3/08 o Key timing: the confessions he made to the other guys was made before he thought he would be promised money. So his story does not make any sense. o In some jurisdictions, this voucher rule is still around o So what is the standard? Quotes: bearing persuasive assurances of trustworthiness... denying a trial in accord with traditional and fundamental standards of due process. Few rights are more fundamental than that of an accused to present witnesses in his own defense What should we look to? This is what they looked at, at least: Confession were contemporaneous Each statement was well-corroborated Statements were self-incriminatory Page 28 of 58
Watts: if it seems to be reliable, offered by the accused, and sufficiently probative
Fortini v. Murphy, 1st Cir. 2001, p. 251 o This case basically demonstrates that Chambers is very narrowly applied o wanted to put on evidence that supported his claim of self-defense for murder o The evidence was an altercation that the victim got into just before the confrontation with . o Court did not think DP was violated. This evidence did not add anymore to the trial. Class Notes: 10/3/08 o Court said that it was indirect evidence that was adding no more than existing proof o What does this not come in? could be over-persuasive to the jury o Reason they exclude it: This is relevant evidence that can be excluded based on prejudice (not that it does not deserve weight, the jury would give too much weight to it) Excluded to convict him for previous bad things that he had done (putting people in jail for being a bad person) o The court has been reluctant to apply the DP rule since Chambers
Chapter 4: Character Evidence

The basic rule and its exceptions
People v. Zackowitz, N.Y. 1930, p. 256 o Murder victim and a few men were working on a car in the street. s wife claimed the men proposed to give her money for sex. got pissed, grabbed a gun in his apartment, and took it down to the street. o Evidence showed that he went down confronted the young men and fight ensued, some evidence suggest that the victim came after with a wrench. o To determine degree of homicide it is necessary to know s state of mind. o At trial, State was allowed to put on evidence that painted the as evil. The evidence: all of the guns that owned was laid out for the jurors to see. o Court held this was error: should not have to defend himself from accusations that he had a murderous heart o The rule of character evidence in a criminal proceeding is not an issue, unless the defense makes it one Class Notes: 10/6/08 o Watts thinks this is more of an issue of relevance rather than character evidence o Remember, if its irrelevant, it doesnt come in o Usually Character evidence is highly relevant o Excessive weight = it is relevant (conceded by the ) jury will jump to conclusion he is did this because he is a bad guy. o Why is this type of evidence usually excluded? It is highly prejudicial; not given appropriate weight o There is another concern: notion that it is unfair because of the surprise element; a comes in to defend certain accusations, but then has defend a much broader accusation o Prejudicial because it would be considered for an IMPROPER purpose (finding him to be a bad guy and thus committed crime) Cleghorn v. N.Y. Central & Hudson River R.R. Co., N.Y. 1874, p. 259 o Accident was caused by the carelessness of a switchman o s claim it was error to admit evidence of excessive drinking habits o The evidence can be used to show that his employer knew of these habits and that they negligently retained him Class Notes: 10/6/08 o This is coming in because it is not coming for the purpose of proving action in conformity therewith on a particular occasion... o If youre the employer, what should you be arguing? Limiting instruction only for evidence of the fitness of the employee, not for evidence of the fact that the switch was thrown this time. (***KNOW SOMETHING ABOUT LIMITING INSTRUCTIONS FOR THE EXAM: They should ask for a limiting instruction, this is what they should say:) o You cant prove character to prove conduct in conformity. Berryhill v. Berryhill, Ala 1982, p. 260 o Action in custody proceeding; question was whether respondent had ever killed anyone o Lower court this was not relevant Page 29 of 58
Where character or reputation becomes a matter in issue in a civil suit, evidence with reference to such a partys reputation is admissible Class Notes: 10/6/08 o Looking at the rule, not used to prove conformity to a specific occasion o Character is very relevant issue in the case o Issue is is he a fit parent? the only thing that determines this is character. This is allowed to be considered. o Larson v. Klapprodt, S.D. 1975, p. 260 o had counterclaimed with slander ( saying he drink in excess and was sexually promiscuous) o Since reputation was at least part of the claim, evidence of reputation or past misdeeds was admissible for their truth and mitigating damages. Class Notes: 10/6/08 o Jury needs to know what your reputation is o Only defense to defamation is TRUTH! Problems, p. 262 o 4.1 Criminal charged with selling dope to Federal agent; claims entrapment. Federal law says you cant claim entrapment if predisposed; government wants to put on testimony that he sold some to a dude a month ago. It is admissible because it is only used for the purpose of the entrapment defense. Proving character to show conformity and that he was predisposed (the govt didnt make him/cause him to sell heroin.) o 4.2 D wants to introduce evidence that victim had explosive temper and attacked him, inadmissible because the exceptions only apply to criminal cases. Can D introduce evidence that V had reputation for brutality? Yes because showing self-defense (D must also KNOW that V was brutal guy).
Methods of Proving Character

Michelson v. U.S., U.S. 1948, p. 263 o was convicted of bribing a federal revenue agent. admitted passing the money, but claimed he was entrapped because of the agents demands o called five witnesses to prove that he had a good reputation o The prosecution crossed the witnesses with a question that objected to: whether they knew he was arrested for receiving stolen goods. o The issue is whether the prosecution had the right to cross-examine his character witness o Court held that the does not have a valid complaint which allows the prosecution to meet by cross examination an issue voluntarily tendered by the defense Notes: 10/7/08 o What does the court say that is the way the can introduce character evidence? Cannot not cite certain situations (like the time he turned in a watch) o Why is reputation not a hearsay problem? Exception 803(21). o Cannot ask the witnesses own opinion. Watts does not really understand what the court is saying about this The court says defendant is to talk about on the shadow his daily life has cast in his neighborhood o There is a hint that the rules say we can do. The law is different no: your witnesses can give their own opinion. o Footnote 3 No evidence he committed the prior crime; its just a question Why the heck was the question allowed? Watts: Theres something very wrong here. It doesnt make any sense o cannot cite to specifics, but can. o Limiting instruction: Government of the Virgin Islands v. Roldan, 3rd Cir. 1979, p. 269 o was convicted of murder o asked governments witness, the wife of s nephew, whether he kept to himself: never bothered anybody o On re-direct Government asked: you are aware, are you not, that he was convicted of murder before o took issue with both admission of the question and the form o This court affirmed on both issues Notes: 10/7/08 o Why is the prior act admissible? It was used for impeachment evidence by the . o Watts: this is a good example of how the rule works well Page 30 of 58
U.S. v. Krapp, 8th Cir. 1987, p. 270 o Charged with three counts of false record keeping with intent to defraud the U.S. o was a post master in Pocahontas, Iowa. She failed to report that $2200 in stamps was missing. She claimed she didnt know how to report it; and had not finished her investigation o put on character evidence. On cross, prosecutor asked directly whether he knew her husband had made false tax returns. objected. Objection was sustained; mistrial denied; jury instructed not to consider the tax fraud statement o Court said there was plenty of other evidence to base a conviction; the granting of a mistrial was not inappropriate Class Notes: o Issue was whether the asking of the questions was so prejudicial to warrant a mistrial o What is the proper procedure when questioning prior acts? Whether it was asked in good faith; only asked once; never answered; subject matter never brought up again o Should bring this in front of the judge before it comes up U.S. v. Setien, 11th Cir. 1991, p. 272 o and his cohorts were convicted of conspiracy to import cocaine o s wanted to put on a witness who was a drug trafficker. He was to testify that he asked the to quit his job at the airline but refused. o The trial court did not let this evidence in. irrelevant under 405(b) and not admissible under 404(b). o This court affirmed. o Evidence of good conduct is not admissible to negate criminal intent
Other Uses of Specific Conduct 1) Permissible Purposes; 404(b)

United States v. Beechum, 5th Cir. 1978, p. 274 o was convicted of unlawfully possessing a 1890 silver dollar that he knew was stolen from the mail o The evidence at issue: two credit cards that the government found in s wallet. The cards had been mailed 10 months prior to two different addresses on routes he had serviced o Court held that these were admissible to establish intent. claimed that he planned on giving it to his supervisor, so intent was a big issue o Courts 2-step approach Determine that the extrinsic evidence is relevant to an issue other than the s character. Relevant for intent. The evidence must possess probative value that is not substantially outweighed by its undue prejudice o The court held that there was no unfair prejudice because keeping these credit cards were not of a heinous nature; it would hardly incite the jury to irrational decision by its force on human emotion. o The need for the evidence was great so it cannot be said to have been a needless presentation of cumulative evidence Notes: 10/9/08 o He is not on charge for the credit cards o Credits go to show that he never intended to give the silver dollar back o 404(b) prior bad acts are not used to show the character. The exceptions are listed (not an exhaustive list, by the way) o This is awfully similar to saying he stole credit cards from the mail, so he stole this silver dollar United States v. Boyd, 4th Cir. 1995, p. 276 o Boyd was charged and convicted of marijuana trafficking. o argues that the district court abused its discretion when it allowed testimony that established Boyd personally used mj and coke. o The governments theory was that Boyd participated in drug trafficking to support his own drug habit o Court agreed it should be allowed o This evidence did not unduly prejudice the : it did not involve conduct any more sensational or disturbing that the crimes with which he was charged. Notes: o Watts: looks like we are saying it is motive o Drug use is prejudicial, but not anymore than what the jury has already heard (having sex with little boys would be highly prejudicial) Page 31 of 58
United States v. DeJohn, 7th Cir. 1981, p. 277 o charged with uttering and publishing two U.S. treasury checks at the YMCA. o was got behind the mailbox counter (I guess with these checks) o The evidence at issue: In an unrelated trial, an officer had previously found a treasury check that had obtained from the mailboxes. o Court affirmed the conviction o The evidence became material once the defense set forth the theory that it was not their client who uttered the forged checks. Notes: 10/9/08 o This shows he had the opportunity because he had the checks before (specific to the very place where the previous crime took place Lewis v. United States, 10th Cir. 1985, p. 278 o was convicted of burglary of a post office o takes exception to evidence entered which established that took place in a burglary early in the evening o The evidence established plan and intent o It was further probative because the equipment needed for the post office burglary was stolen from the earlier burglary. Notes: 10/9/08 o These come under the plan exception United States c. Crocker, 5th Cir. 1986, p. 278 o convicted of one count for conspiring to commit bank theft o takes exception to evidence that detailed a previous arrest and past conspiracy conviction o This evidence was material to determine intent because claimed he was not guilty o knowing participation is an important element in conspiracy (he claimed he was just driving her around and did not know what she was doing) Notes: 10/9/08 o This goes to show knowledge United States v. Dossey, 8th Cir. 1977, p. 279 o was convicted for robbing a bank in Little Rock o Teller testified that the young woman who robbed her was blond, wearing a plaid shirt, blue jeans, and rose colored, wire framed classes. o Teller could not positively id the defendant: it looks like her o A friend of hers testified that told her she did a robbery Little Rock and that she wore her wig and glasses. o The friend further testified that she and the robbed a bank in Arizona where wore the wig and glasses o This evidence is admitted. Not really sure why this apply to character evidence Notes: 10/9/08 o Goes to show IDENTITY. The evidence was OK due to the tellers inability to identify appellant in the courtroom. United States v. Wright, 7th Cir. 1990, p. 280 o was convicted of distributing cocaine within a 1000 ft of a school\ o The issue was whether the trial court should have allowed evidence of other criminal activity by the o Two undercover cops bought some coke from the in May. Six months later the authorities wire tapped his phone. The tap interecepted a converstation he had with an unindentified woman w in which he bragged about being a drug dealer o This is the evidence at issue o There was no issue of intent in this case, see he was caught selling the drugs. o Court held that the only relevance of the tape was to depict Wright as a drug dealer Notes: 10/9/08 o Claimed it was for identity and intent o Intent: Intent was not really relevant because he did it o Identity: This is not really Identity because the evidence is not determining identity o Watts: its just too prejudicial; jury might give it too much weight o Watts says this evidence comes in all the time. Notice Requirement o Reduce surprise and promote early resolution on the issue of admissibility. Impossible to prepare evidence that is contrary to the surprise evidence. o Must provide reasonable notice. Page 32 of 58
2) Requisite Proof
Huddleston v. U.S., US 1988, p. 286 o The issue is whether the government must prove my a preponderance of the evidence the other act o was charged with one count of selling stolen goods and one count of selling stolen property o A truck that was carrying 32,000 blank VHS tape was stolen. o Within a week, had called Curry, the manager of a rent to own place, to help arrange the sale of these VHS tapes. delivered the tapes to various purchasers who all believed that the tapes were legit o It is a fact that these were the stolen tapes; the main question is whether knew that they were stolen. o The facts are a little confusing. The evidence the government wants to get in First: contacted Toney to sell a bunch of TVs, but they traveled to Magic-rent-to own to purchase them (no idea whats going on here) Second: government agent testified that he worked out a deal with to buy a lot of appliances for considerably less than value; the truck that contained the appliances turned out to be stolen. The truck was driven by one Welsby, for whom petitioner claimed to be working. o claims that the trial court should not have admitted the evidence about the TVs because the government failed to show that the televisions were in fact stolen. o Court rejected s argument Evidence that passes 401, 402, and 403 is admissible. Requiring more preponderance of the evidence is not called for under 104(a). In deciding to admit it, the court looked at the low price of the TVs, the quantity, and s inability to produce a bill. o Protection from unfair prejudice in 404 evidence 404(B) requires that it be offered for a particular purpose 402 requires that it be relevant Must pass muster under 403 105 limiting instructions Notes: 10/10/08 o What in dispute is he said he did not know they were stolen o Why does the evidence of the appliance come in? This tends to indicate that this is what you do. o But what is the evidence that the television sets are stolen? Not a whole lot. Defense things they should have to prove it by a preponderance of the evidence. o Evidence that TVs were stolen was that he got them from the same guy who gave him other stolen appliances. o All the court has to do is make a finding that a reasonable finder of fact could determine it was true. o Watts thinks the quantity is not necessarily more likely it was stolen; rather he thinks it makes it less likely (but he still thinks it is the right ruling) o The trial court simply considers all the evidence to determine if the jury could reasonably find that the conditional fact that the TVs were stolen by a preponderance of the evidence.
Character and Habit

What is a difference b/w a habit and a character triat? o A habit describes ones regular response to a repeated specific situation (drink a beer v. being a drunkard) o Examples: biting finger nails; never taking the elevator; taking steps two at time o Its not always clear Loughan v. Firestone Tire & Rubber Co., 11th Cir. 1985, p. 293 o Personal injury action; Loughan is claiming negligence and strict liability o Facts: was trying to mount a tire on a firestone rim and the rim exploded. o Special verdict returned in favor of Firstone o appealed because of the following evidence that was admitted: his tendency to drink on the job o claimed this evidence was admissible to prove habit, under rule 406 o Court distinguished this from a similar case which tried to admit specific instances of PI. o This court held that all of the recounts of s drinking established a pattern over a period of time Laughan admitted to carrying beer in a on his truck and would drink b/w 9 and 5 His supervisor said that he carried beer, drank on the job, and it was something that customers complained about His former employee further corroborated the story Notes: 10/10/08 o Character, general o Habit, specific, semi-automatic or sufficiently regular Example: Bob is a health nut character Page 33 of 58
Every time Bob goes to the third floor he takes the stairs habit. **adequacy of sampling and uniformity are key!
Burchett v. Commonwealth, Ky. 2003, p. 295 o Kentucky was looking at whether to adopt 406 in there rules of evidence; declined to do so o was convicted of reckless homicide o He ran a stop sign while on the way to the hospital to see his newly born child o Evidence that he smoked pot every day was admitted at trial. It was used to show that he was under the influence when he ran the stop sign (his BAC was zero, so the vodka theory would not work) o denied that he smoked marijuana that morning o Reasons for rejecting the rule and reversing Characterizing something as a habit attaches excessive significance in minds of the jurors Proof of the habit requires collateral inquires which leads to delay and jury confusion All the testimony about habit could have easily distracted the jury from the central issue a case Evidence weighs heavily on the minds of jurors even it played no part in the facts (this case is a great example: admitted to drink a gallon of vodka a day, but his BOC was zero) Notes: 10/10/08 o Why should the habit of vodka come in? Withdrawal of not drinking can be horrible. This guy was drinking gallon to gallon of vodka a day o Since the drug evidence came in. Maybe he should have sought to get in the evidence that he drank everyday (it was different today) o Watts: what is specific enough? Routine enough? o Remember that it is always subject to 403
Sexual Assault and Child Molestation 1) Character of the Victim; FRE 412
Graham v. State, Tex. Crim. App. 1933, p. 301 o This case was before the need to protect the victim was recognized. It was also hard to read. o want to put forth evidence of the victim habitually sleeping with other men as a prostitute o s theory was that he refused her advances, so a fight ensued. o Court allowed it on for consent o The reputation of the victim was admissible because it might be important for the jury to know Notes: 10/13/08 o Why not admit it? Jury might give too much weight to it Or convict solely on previous acts U.S. v. Saunders, 4th Cir. 1991, p. 305 o was convicted of aggravated sexual abuse and was sentenced to 360 months o Two evidentiary issues testifying about his past sexual relations with the victim. This was admitted at trial. Smiths testimony that referred to the victim as a skeezer; this was excluded. o The court affirmed o His own testimony is admissible under the rule. FRE 412 (b)(1)(B); HOWEVER, this was only marginal relevance because consent was not an issue o claims Smiths testimony is relevant because to s state of mind. relied on Doe, but the court and many others said this is an improper interpretation. o Reason: reputation and opinion evidence about a victims past sexual behavior are never admissible o Commentary: s is stupid. He claimed that he did not have sex at all, but then claims that his state of mind is important. WTF!? Notes: 10/13/08 o 412 evidence is generally inadmissible (a); but, there are exceptions (b): (1)(A) specific evidence that show the semen belonged to someone other than the excused; (1)(B) evidence of previous sexual behavior with the accused; (1)(C) evidence violates constitutional rights of the ; (2) o How do you know it is a violation of constitutional rights? Look at the olden case Olden v. Kentucky, U.S. 1988, p. 307 o Olden and Harris were charged with kidnapping, rape, and forcible sodomy o The jury acquitted Harris of all charges; Olden was acquitted of kidnapping and rape, but oddly got 10 years for forcible sodomy Page 34 of 58
This is what the accusing witness, Matthews, claimed happen She went to a bar with her friend to use the bathroom. Her friend to not want leave, but she did because they were the only two white people in the bar Matthews went to sulk by herself so that her friend would notice, ended up getting drunk in the process and lost sight of her friend She claims that told her her friend had left and had been in a car accident She left the bar with petitioner and Harris. She claimed to be raped three times by Harris and two other men that they picked up o pointed out many inconsistencies about her testimonies: including a knife, place, number o According to s, it was Matthews idea because she wanted to have sex with a black man. The two other men in the car corroborated s testimony. o s theory was that Matthews conducted her story to protect her relationship with Bill Russel (she was dropped off at his house and she immediately said she was raped) o THE EVIDENCE AT ISSUE: accused witness was living the Bill Russel at the time of the trial (she even lied about it, but the defense was not allowed to impeach her) o The court said that this evidence should have come in; reversed. Notes: 10/13/08 o Claim was she was concerned about Bill Russell being mad that she got out of Harris car. o Not being offered for the purpose of showing she had sex in the past, so she would have sex now. o It was showed as motive for lying. o claimed that the jury would hold it against her for having an interracial relationship o Watts thinks it is particularly important for the very reason the trial court excluded is: the evidence that she lived with a black man is an important factor
2) Character of the Defendant; 413 - 415

Precase notes o Watts does not agree with these rules. o Type of activity is not something that everyone tries to engage in. we do not need a rule because the motive is already allowed for in 404B. Most people do not have a motive to molest/rape people so that is why we allow this. However, the whole point in showing earlier crimes is to show a motive. In many cases 403 will keep out any 404B issue. U.S. v. Lecompte, 8th Cir., 1997 o allegedly abused his wifes 11-year-old neice o He wants to exclude testimony from another little girl that he sexually abused. o At the first trial, the prosecution failed to meet the timeliness provision and the trial court allowed it under 404(b). o First appeal: admissible under 404(b) was improper o The second time at trial, the government gave timely notice and it was allowed; the court allowed even though it may not pass 403. o This court held that it should not come in Notes o Stigma is going to be in every case; surely Congress thought about that U.S. v. Cunningham, 7th Cir., 1996 Notes o Dont really need the rule because this evidence would come in under the motive exception anyway
Chapter 5: Other Forbidden Inferences

Subsequent Remedial Measures; FRE 407
GOEHLER v. WAL-MART STORES, supp case that Watts argued, 4th Cir. 2000 U.S. App. o Simple slip and fall case o Walmart claims that the soap dispenser was always located over the sink o This is a rule 407 issue: subsequent remedial measures need to look at why this evidence should come in o This came in for impeach purposes; it was not offered as proof of negligence or culpable conduct Notes: o Why would they want to exclude this evidence: might show that they agree they were negligent, so they moved (the very reason to exclude this evidence) o Watts: this comes up all the time Page 35 of 58
o o
Reasons for this rule: Things progress and our perceptions change as to what is reasonable Discouraging people from improving the conditions Why does he have a right to impeach walmart?
Clausen v. Storage Tank Development Corp., 1st Cir. 1994, p. 323 In Re Asbestos Litigation, 2d Cir., 1993, p. 324
Settlement Efforts 1) Civil Cases; FRE 408

Ramada Development Co. v. Rauch, 5th Cir. 1981, p. 326 o Carney v. American University, D.C. Cir. 1998, p. 328
2) Criminal Cases; FRE 410

U.S. v. Mezzanatto, U.S. 1995, p. 330
3) Medical Payments and Liability Insurance; FRE 411

Charter v. Chleborad, 8th Cir. 1977, p. 337 o Medical mal-practice action where plaintiff was struck by a truck when he was a flagman o The surgeon screwed up and had to be amputated o offered testimony from Dr. Lichtor that the amputations were the doctors fault o called an attorney to the stand to testify about the character of the doctor. The cross examination evidence: the fact that the attorney worked for the insurance company that carried o Existence of insurance cannot be used to show ones negligence, but it can be used to other purposes o It is admissible for this purpose. Class notes: 10/17/08 o Why dont they allow you to mention insurance even though it is marginally probative? Its prejudice? Jury, knowing that the insurance company may pay for it (plus add the fact that many people do not liking insurance companies). E.g. arent you more likely to take state farm than from the little old lady (sympathy for the ) nobody is really getting hurt here o The evidence in this case was offered to show bias, not negligence (big issue in many cases) Higgins v. Hicks Co., 8th Cir. 1985, p. 338 o Two separate motor cycles accidents that occurred in a stretch of construction o s claim that the state was negligent in failing to close lanes and/or put up enough warning signs o s want to introduce insurance evidence to eliminate bias because jury members are taxpayers (juror bias). o The rule does not allow juror bias. Class Notes: 10/17/08 o Theory is that a judgment in favor of affects the jurors. Watts says, maybe a little, but not that big of a deal
Chapter 7: Impeachment and Rehabilitation

Introduction
Class Notes o Five modes of impeachment Dishonesty Inconsistency Bias Incapacity Specific Contradiction
Character for Untruthfulness 1) In General; 608

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U.S. v. Lollar, 5th Cir. 1979, p. 373 o convicted of interstate transportation of stolen property. o testified at trial and the government recalled one of its own witnesses to ask him whether the could be believed o The question is whether they can ask him that. Answer is yes. o Rule: once chooses to testify, he places his credibility in issue as does any other witness (dont have to bring up character evidence) o This evidence was admissible o FRE 608 was applied U.S. v. Rosa, 3rd Cir. 1989, p. 374 o Rosa and 27 other s were charged w/ cocaine trafficking o Most of the s pleaded out. One of them, Rosa, testified against the two other s who did not plead out o Trial judge properly admitted specific acts that attacked the witnesses credibility Allowed previous fraud charges Did not allow bribery charges o Court affirmed Notes: o What rule is being applied? FRE 608 (b), specific instances of conduct o In this case are trying to bring out specific instances. o Why can they not bring out the bribery? Court says that it does not bear on truthfulness. U.S. v. Ling, 4th Cir. 1978, p. 274 o was arrested for manufacturing drugs o went on the stand and claimed he intended to sabotage the drugs o On his x-exam, the government asked if he ever fired a gun and he said no o Then the government called an officer to testify that he was charged for that very thing Notes: o You can x-exam them on their truthfulness, but you cannot use extrinsic evidence o There is an additional issue: what does it have to do with truthfulness? o Watts: youre stuck with his answer. Theyre serious about that; cant do it. o Why? Mini-trial, confuse the issues, o Its not that there is not punishment for them, they can always go to jail for perjury U.S. v. White, 5th Cir. 1992, p. 376 o White and Wilson convicted of possession w/ intent to distribute and conspiracy to commit the same crime o s wanted to attack the governments star witness; so they wanted to use testimony from a attorney that the witness had once offered to fabricate testimony to get himself a deal o s argued that it was admissible under 404(b); the lower court relying on 608(b) held that the s could elicit the evidence only on cross examination of Northcutt. Affirmed o Rule 404(b) is not admissible to show that he was lying in this case; rule 608(b) says that specific conduct cannot be proved by extrinsic evidences U.S. v. Aponte, 2nd Cir. 1994, p. 376 Notes: skipped PROBLEMS - 7.1: cannot bring in extrinsic evidence, but may ask a question. 608(b). judges discretion may say that it is too far removed and not that probative, however the rule does not preclude asking the question about the resume. - 7.2: 404(a)(1) evidence of personal trait of character, the witness is allowed to say the defendant is ethical. The government is allowed to ask about the resume [Rule 405], but they may not introduce the resume itself. - 7.3:
2) Prior Criminal Convictions Admissible and Inadmissible Convictions

U.S. v. Wong, 3rd Cir. 1983, p. 378 o The issue is whether the court uses 403 when deciding to let in FRE 609(a)(2) evidence o Wong was charged with 17 counts of violation of mail fraud statute o had been convicted twice before for mail fraud and his counsel wanted to keep it out o The trial court said that the probative value did not outweigh the prejudice, but allowed it under 609(a)(2). Page 37 of 58
Notes: 10/20/08 o 609(a)(1) Civil cases used 403 balancing Criminal cases uses simply outweighs (not substantially outweighed like 403) o No discretion to exclude prior convictions involving dishonesty or false statement U.S. v. Amaechi, 7th Cir. 1993, p. 380 o Convicted of narcotics trafficking o Evidence was that he delivered a suitcase to the prosecution witness Doreen Bennet o The court excluded the evidence that Bennet was convicted of shoplifting o FRE 609(a)(2) allows this evidence if the crime if the crime involved dishonesty o s claims shoplifting did carry this stigma; so that is the issue (basically whether this conviction indicates that a person may be more likely to commit perjury) o The court held that shoplifting does not involve dishonesty or false statement Notes: 10/20/08 o Watts is very critical of this type of decision (shoplifting is being dishonest) o Watts thinks this rule was meant to exclude shoplifting, but doesnt think it actually does Most courts would keep it out o Does someone writing a fake check make them more reliable that someone who just takes it off the counter. U.S. v. Sanders, 4th Cir. 1992, p. 381 o Sanders convicted for assault with a dangerous weapon (shank) and possession of contraband (shank). o Sanders was indicted with Alston o Sanders wanted to keep out evidence of his previous convictions (for assault and contraband). The trial court admitted this evidence. o Jury convicted Sanders of possession. On a retrial, he was convicted of a lesser degree of aggravated assault. o This falls under 609(a)(1), so you have to do the balancing test. o Has to be a clear abuse of discretion o Admitting the evidence is clearly more prejudicial. This was not harmless error. o Regarding the possession offense, it is harmless because the guy was found with a shank. And he admitted having the shank. Notes: 10/20/08 o Does stabbing make it more likely that you would lie on the stand? o Not coming in to show that you have a propensity to shank people; its coming in to show he is a liar. o Court states that this evidence is more prejudicial when: You have the exact same crime again The worse the crime the more prejudicial U.S. v. Oaxaca, 9th 1978, p. 383 o was charged with armed robbery o Prosecution wanted to bring in two previous crime: burglary and bank robbery o The court held these convictions were theft, which makes them more indicative of credibility than, say, convictions for crimes of violence Notes: 10/20/08 o Watts does agree that theft and robbery seems more like dishonesty o I would argue that this would fall under 609(a)(1) U.S. v. Hernandez, 7th Cir. 1997 Skipped
Preserving Claims of Error
Luce v. U.S., U.S. 1984, p. 385 (you need to read this) Ohler v. U.S., U.S. 2000, p. 387 o Charged with importation of marijuana with intent to distribute o Government had their motion for limine granted to admit prior felony conviction under 609(a)(1). Note: Interlocatory appeals are not granted o Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted. o The defendant admitted to the crimes on her direct ( claims this was the best trial technique) o Government says it is debatable whether the jury accepts the conviction better if the actually admits it Page 38 of 58
The court held that by taking the stand, the did not preserve a claim for error Holding: a who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence is error. Notes: 10/21/08 o You dont like the ruling: 1) avoid it; 2) put them on the stand anyway and not admit it; 3) put on stand and admit the evidence. o The thought is the admission would take the sting out of the disclosure o You could decide not to put the on the stand. Note: you would have to put him on the stand because the motion for limine would not come out o You cannot invite error. o o
Prior Inconsistent Statements; FRE 613, 801(d)(1)

U.S. v. Lebel, 2nd Cir, 1979 o was convicted of conspiring to import heroin from Thailand. o One Laws identified all the s except for appellant. He did, however, on the following day. o s counsel tried to admit the fact of this non-identification by examining Special Agent Yaniello o Note this can be considered hearsay: nonverbal conduct of the declarant o The s counsels was correct in this: the rule does not require that the witness be asked about it immediately o But the court held that this was harmless error because the had a chance to call the witness back the stand Notes: 10/21/08 U.S. v. Dennis, 8th Cir. 1980, p. 391 o was convicted of 12 counts of extortionate credit transactions act. o objects to prior inconsistent statements before the grand jury o Prosecution was allowed to read prior inconsistent statements. o This was clearly not hearsay according to the criteria in Rule 801(d)(1)(A) Notes: 10/21/08 U.S. v. Ince, 4th Cir. 1994, p. 392 o convicted for assault with a dangerous weapon with intent to do bodily harm o was arrested for suspicion of having fired a pistol at some trucks o At the scene, her boyfriend signed a statement that said he did shoot the gun but didnt know where the gun was o At the first trial, she said she did not remember the details of the conversation with the MP. Trial ended with a dead-lock jury. o The government called her again in the second trial; to impeach her prosecution called the MP to the stand. The second time around, the jury convicted Ince. o The court reversed, they knew that they would impeach her. It was not a shock to the government that she had a loss of memory. Notes: o Watts completely understands that she might be telling the truth. o The deadlock jury was critical to how the case was resolved; it would have been admitted in the first trial o The only reason the government wanted to call her was to get the evidence in for an impermissible reason. U.S. v. Webster, 7th Cir. 1984, p. 395 o Webster was convicted of aided and abetting the robbery of a federally insured bank and receiving stolen bank fund o The government called the bank robber at trial as a witness against the . He actually gave information that would exculpate the . o The government then gave prior inconsistent statements that the witness gave to the FBI agent that would inculpitate the o The issue: should the government be allowed to get inadmissible evidence against before the jury by calling a hostile witness and then using out-of-court statements, which would otherwise be inadmissible hearsay, to impeach him. o The court affirmed the conviction. o It would be faith if the government called a witness that it knew would not give it useful information just so it could introduce hearsay evidence. But there was no bad faith here. The prosecutor asked the judge to allow here to examine him outside the presence of the jury because she did not know what he would say Class Notes: 10/23/08 Page 39 of 58
o o o
raised a similar argument as the ince case Why did they allow it? No, by asking to question outside the presence of the jury, the government was demonstrating good faith Why wouldnt the want him testify? Maybe because they knew what King was going to testify to and the wanted the jury to hear it. Watts originally thought that they objected just because the government wants it.
People v. Freeman, Cal. 1971, p. 396 o , Norman Freeman, convicted of driving the getaway car in an armed robbery, in which one Foster served as a gunman. claimed that he was at the home of his fianc. o The facts are seriously confusing (I mean, come on, could you not pick a more clear case?) Mrs. Duckworth testified that she went to her daughters house on Saturday morning. Her daughter was the girlfriend of Foster. She heard her daughter greet a man with the words hi, norman. Several days later Investigator Knipp questioned her. She admitted telling that her daughter greeted norman. She denied that she told him: foster was asleep in the bed; norman twice came to the house; and had left the house with foster; and denied IDing the man as Norman Freeman. The prosectution called Knipp: he testified to all the things she denied that she said. o argues: The statement by Mrs. Duckworth was hearsay. But thats not hearsay That the state cannot put her on the stand just elicit Knipps inconsistent version o The court said Knipps statements were not offered for impeachment purposes; they were offered for their truths (sense she already denied making those statements, it was not hearsay) o The judgment was affirmed. Notes: 10/23/08 o Why is Hi, Norman not hearsay?
Bias and Incapacity

U.S. v. Abel, U.S. 1984, p. 399 (case that basically allows bias evidence even though the rules dont specifically allowed it) o was indicted for robbing a savings and loan o His cohorts pleaded guilty. So the others plead against the . o calls another witness who testifies that the cohort who testified against the said he would falsely testify against the in order to get a good deal o Government wanted to put the guy back on the stand to say that the s witness was part of a secret brotherhood that required its gang members to commit perjury, theft, and murder on each members behalf o The whole point was to show bias o Then we get into a 403 fight o Trial lets in the facts of the gang, but cant say the name of brotherhood. o put the guy back on the stand, and he of course denied. o The argued this was more prejudicial, but the court disagreed. Class Notes: 10/23/08 o Watts does not agree that keeping the name of the brotherhood out wasnt really appropriate o What rule allows it in? FRE 402. Bias is relevant evidence U.S. v. Sasso, 2d Cir 1995, p. 403 o and another convicted of trafficking illegal firearms. o Co- Armientis former girlfried testified both to incriminating statements made by Armienti and to observations she made of both s. o She testified in lemine that she was in an accident and accidentally killed a guy. So she was depressed and took Prozac. s asked to bring this evidence out to a jury. Trial court denied. o Affirmed: there was no evidence that Kramer received or ingested any mood-altering drugs during the period in which she was involved with Armienti. Class Notes: 10/23/08 o Experts are hard to impeach. So you might have to impeach them on their bias o Watts: you dont want to put somebody on the stand who can be impeached by bias. Kills your case to put on a witness that cant be believed. Henderson v. Detella, 7th Cir. 1996, p. 404 o found guilty of murder and attempted murder. The person that he attempted to murder testify o She testified. o wanted to put on a witness that would state the victim was known to use drugs on many occasions Page 40 of 58
This testimony was not allowed. Do not know whether those occasions were in reference to the murder of Leonard and the attempted murder of Chavez. Class Notes: 10/23/08 o If could put on evidence to show that she used it at them (or if you could establish habit), you might be able to get it in. Just testifying about specific instances of being on drugs is not enough o They didnt not allow this witness because it wasnt probative enough. Just too prejudicial.
Specific Contradiction; common law

Notes: 10/24/08 o Cant ask or explore with extrinsic evidence that would have not probative value other than to contradict a statement by a witness o Its when they seek to introduce extrinsic evidence we have a problem Simmons, Inc. v. Pinkertons, Inc, 7th Cir, 1985, p. 406 o Simmons owns a warehouse and they had contracted with Pinkerstons to do security, 24-7 o One night a fire broke out and did extensive damage. The Indiana Fire Marshals office concluded the fire had been set as an attention getter by a Pinkerton employee Hayne o Hayne lied to the investigator about taking a polygraph test and lied about the results. o Hayne testified and said that in fact did lie to the investigator o s counsel claims that this evidence should not be introduced because of the collateral evidence rule o The disagrees and held that the collateral evidence rule does not apply. Hayne admitted to the contradiction Had he lied about it, 608(b) would deny the use of extrinsic evidence Notes: 10/24/08 o You can impeach witnesses about specific instances of dishonesty, but not by extrinsic evidence (why? Minitrials) o If it does not matter in the case, then it is not just coming out E.g. whether a car that ran a light was a certain color (Iding that car is probative to the case, not just to impeach a witness who makes a contradiction o Did not invoke the collateral evidence law because of 608 o Theoretically, the threat of perjury keeps you from lying (watts thinks perjury is a big problem) U.S. v. Copelin, D.C. Cir. 1993, p. 409 o was convicted on one count of unlawful distribution o An undercover cop recorded serial numbers on cash and bought some crack with that cash from the o The told this crazy story about a case of mistaken identity. It was playing dice with the actual guy and money had switched hands o The government wanted to question his credibility when they asked the if he has ever seen drugs. He said no. But then admitted to testing positive for cocaine earlier. o This court affirmed the evidences admissibility because the was impeached by his own statements on crossexamination, not by the testimony of another witness or by physical evidence. Notes o The evidence cannot come in for the purpose of establishing it was more likely he was dealing cocaine
Rehabilitation 1) In General
U.S. v. Lindemann, 7th Cir. 1996, p. 414 o Show horse died; insurance company concluded it died of natural causes and paid the $250k policy o FBI uncovered a conspiracy to kill the horses for the insurance money. The guy that killed him ratted out the co-owner, Lindemann. o At trial, counsel suggested on cross that Burns would not have gotten a plea did had he not come up with a big name like Lindemann. o So the government rebutted with evidence that indicated Lindmann was just a small part of a much larger investigation (killing 15 horses). They also asked the witness how many other names he gave and whether they had plead guilty. o The court allowed it with a limiting instruction o argues they should not be allowed to bolster their witness. This court disagreed and held the evidence could come in. o Once a witnesss credibility has been attacked the non-attacking party is permitted to introduce evidence to rehabilitate the witness. Page 41 of 58
It is admissible under 402 because the fact made less probable the assertion that burns was lying in Lindemanns case out of self-interest Class Notes: 10/27/08 o What method of impeachment are they using? Dishonest? Prior, inconcsistent statement? Bias? Incompetent? o Its highly prejudicial to say that 90 percent had pleaded guilty; maybe they went too far? How is that not more prejudicial than probative o
2) Character for Truthfulness; FRE 608

Beard v. Mitchell, 7th Cir. 1979, p. 417 o Beard sued an FBI agent for depriving her deceased brother of rights secured by the U.S. constitution. Jury found for . o Beard was abducted and brutally murdered by a Chicago police officer, Robinson. He was convicted of the crime. o Mitchell investigated the murder. claim that her brothers rights were violated o Asst Attorney General assigned to the case testified that Mithcell was truthful o contends this was impermissible. admits entering inconsistent statements to hit the credibility , but maintains that this evidence is not permitted o The court agreed the evidence of truthfulness should come in because the use of prior inconsistent statements may constitute an attack on truthfulness. Class Notes: 10/27/08 o U.S. v. Danhey, 11th Cir. 1982, p. 417 o charged for impeding Coast Guardsmen while they were engaged in the performance of their duties o He tried rammed a coast guard boat and then resisted arrest o claimed that his reputation was attacked, so he should have been allowed to introduce reputation for truthfulness o The cross exam just pointed discrepancies b/w the s testimony and that of other witnesses o Court said that this did not constitute an attack upon the reputation Class Notes: 10/27/08 o What was the nature of the cross examination? Pointing out discrepancies to other witnesses o Why is that not an attack on the credibility? It did not call in the reputation of the . o Problem 7.14 basically saying that the guard is a liar. So good argument that it comes in. U.S. v. Drury, 11th Cir. 2005, p. 418 o was convicted of the federal murder-for-hire statute and possessing a fire arm o Drury hired an ATF agent to kill his wife o His basic defense was that he was taking place in a role playing exercise and never intended to kill his wife o claimed that the government attacked his creditbility through a series of questions (like the manner in which they were asked) o Arguing that the accuseds testimony is not credible does not constitute an attack on the reputation for truthfullness Notes o A vigorous cross does not necarily mean that you are attacking the credibility o Is an incredulous tone enough? Not in this case. U.S. v. Murray, 3rd Cir. 1997, p. 419 o convicted of intentil killing, conspiracy to distribute, and intent to distribute o A witness against was an informant named Brown o They also called a Lt. to bolster Browns reliability o The objected that testimony should not be allowed because Browns reputation was never attacked; and The government should not be able to enter specific incidents of good character. o Attacking the truthfulness The cross exam exposed Browns drug and other illegal activities (including convictions) Court held that this was an attack on his reputation o Entering extrinsic evidence Government argued that his testimony was proper because the specific acts established foundation The problem though is they asked specific incidents (65 or 66 cases where they worked together) Notes: 10/27/08 Page 42 of 58
o o o
How is this different from Lindeman? Watts things this case is worse Problem 7.13 If on cross gets out that a the witness took money for the testimony. Can bring our reputation for truthfulness. Committee notes says you cannot bring in reputation to rebut bias; Watts thinks that you can take bias so far that it demonstrates truthfulness
3) Prior Consistent Statements; FRE 801(d)(1)

Tome v. U.S., U.S. 1995, p. 422 o Tome was charged with one-count of felony sexual abuse of a child, his own four-year-old daughter o Facts Husband-wife was given joint custody of daughter At the end of summer in 1990 mother contacted Colorado authorities with the allegations o argued that the allegations were concocted so the child would not be returned to her father o The government put on six witnesses that described statements made by the little girl that implicated her father. o ISSUE: whether 801(d)(1)(B) statements need to be made before the implication of the motive to be admissible. o The court held that they do. o The court looked at committee notes and noted that the notes never mentioned that this rule would defer from the common law rule (was that the statements have to be made pre-motive) Notes o What is the argument for allowing these statements coming in? 801(d)(1)(B). The claim is that she fabricated this claim because she wanted to stay with her mother (or improper influence or motive this is more likely) o It wasnt entirely clear when this motive had came up. o Both the majority and dissent talk about relevance Majority: if the rule does not clearly state that it has to come about before the motive, then it has very little probative weight. Dissent: has a tremendous amount of probative weight o How could statements made after the claim of motive be probative? May be clear under other circumstances (to save the childs life; made spontaneously; or when the motive to lie was much weaker than it was at trial). SO, it could be relevant o What is the difference b/w common law rule and FRE 801(d)(1) in common law, they came in to rehabilitate. In this rule, they are coming in for the truth of the matter asserted. o What does scalia say: we should look at the wording of the rule itself, and not give so much weight to the notes. They are persuasive, but the actually wording of the rule is what governs U.S. v. Simonelli, 1st Cir. 2001, p. 432 o Simonelli was convicted of filing false federal income tax returns o The prosecution used former grand jury testimony made by Baker to bolster him because on cross the defense hit the guys credibility pretty hard o When the prior statements are offered for credibility, the question is not governed by 801. Notes: 10/28/08 o They relied on 106 (rule of completeness) and 801(d)(1)(B) o The circuits are split on this thing o Problem 7.15:
Chapter 8: Competence
In General
Pre-case notes o Talking about the competence of a witness to testify o Historically, there were a lot of rules that prevented some from testifying as a witness: children, felons, atheists, mentally infirm, parties to the lawsuit... o Why have they done away these requirements? The jury should judge a witnesss credibility for itself o Tools to prevent perjury Oath: religious and social Criminal prosecutions Model rules of professional conduct Cross-examination Page 43 of 58
Rosen v. U.S., U.S. 1918, p. 437 o Rosen and Wagner were indicted for conspiring to buy and receive certain checks and letters which had been stolen from duly authorized depositories for mail matter of the U.S. o Broder plead guilty and the government wanted to put in on to testify o Rosen objected because he had committed, convicted, and sentenced to a crime, so he was not competent. This was the right rule at common law o The supreme court changed the common law and held that he was competent Class Notes o Why let these witnesses testify? It should be up to the jury to consider the weight of the testimony o Rather than deem someone not competent, we should let the jury make the determination of weight U.S. v. Lightly, 4th Cir. 1982, p. 439; FRE 601 o inmate was charged for the stabbing of another inmate. o Another fellow inmate took part in the stabbing, but he was ruled incompetent to stand trial o s theory was that the other inmate started the fight and was trying to stop it. So he wanted to call the other inmate to the stand o The trial court ruled that he was incompetent to testify. This court ruled this was error and reversed o *Every witness is presumed competent to testify, FRE 601, unless it can be shown that the witness does not have personal knowledge. o McDuffies treating physician indicated that he had a sufficient memory, that he he understood the oath, and that he could communicate what he saw. Class Notes o Watts has a hard time thinking of a scenario where the court would not allow a witness to testify about what he believed took place. Maybe if you were so heavily toxicated, but even then this can be tested on cross.
Personal Knowledge
U.S. v. Hickey, 6th Cir. 1990, p. 441 o was convicted of several drug related charges o His first trial ended in mistrial. Then in his second trial the government put on a witness to testify against o objected claiming that the witness was incompetent because on cross it came out that he had a cocaine addiction, suffered from memory problems, and told inconsistencies. o This court affirmed the court, holding that it is up to a jury to consider the weight of the testimony Class Notes
Oath and Affirmation

U.S. v. Ward, 9th Cir. 1993, p. 443 o convicted of tax evasion o He wanted to use his own oath instead of the traditional one: replacing truth with dully integrated Honesy. Apparently this guy thought that honesty was superior to truth. He also wanted his witnesses to follow this oath. o The court denied o This court reversed. o It would have taken nothing away from the commitment to tell the truth under penalties of perjury and, indeed, in the defendants mind imposed upon him a higher duty Class Notes o Watts: I dont see the different b/w super-duper promise with a cherry on top o Watts is confused about what this case means U.S. v. Allen J., 10th Cir. 1997, p. 446 o The was convicted of aggravate sexual abuse and knowing using force to engage in sex with a juvenile. o The issue is whether the trial court erred in allowing the victim to testify o The problem is this little girl, who was 13, has mental problems. These were raised on cross. One of them being that she did not know her own age. o On direct it was established that She knew the difference b/w the truth and a lie She knew she was to tell the truth in court Knew she would be punished if she told a lie o Court affirmed that she should be allowed to testify Page 44 of 58
o The problems with her testimony raise questions of credibility, no competence Class Notes o There is a presumption that all people are competent to testify o Watts: just because you can do something, does not mean you should (geez, you are dragging this little kid into the case. You are going to have him and tell the court that mom lied? Watts: no way would I do that Problems o 8.1 Should Judge strike the testimony of a guy that did opium on the stand? Of course he can testify if he has personal knowledge. It is up to the jury to gauge the weight of his testimony
Dead Man Statutes

o o o Class Notes: 10/31/08 Rare examples in the FRE where the defer to state rules The gist: you cant testify about conversations you had with the party opponent when you are suing the state. The reason is basically because it is thought to harbor fraud.
Competence and the Constitution

Rock v. Arkansas, U.S. 1987, p. 452 o So wife shot her husband when the two were in a fight o She was convicted and sentenced to ten years o The evidence issue: The court did not allow her to testify about anything she remembered after she went hypnosis. She claimed after the hypnosis that she did not have her finger on the trigger, rather she had it on the hammer So the gun was examined and an expert learned that the gun had a propensity to fire without the trigger being pulled o Arkansas had per se rule about hypnotically enhanced testimony, so the trial court disallowed it. o This court ruled that is should have been allowed. Reasons This rule prevented her from describing any events that occurred on the day of the shooting This information was corroborated by the fact that the gun was found to be defective o There are three arguments against hypnosis Subject becomes suggestible Subject is likely to fill in details with imagination Subject experiences memory hardening, which gives them great confidence in both truths and falsities. o This was a narrow holding: court not endorsing without qualifications the use of hypnosis as an investigative tool. Class Notes: 10/31/08 o Violates 5th, 6th, and 14th amendments o Not allowing your witness to testify could potentially be a 6th amendment violation. The supreme court has not said, yet. o Watts: you remember stuff now that you had a chance to relax and think about it, but you cant testify about it?
Judges, Jurors, and Lawyers; FRE 605, 606

Tanner v. U.S., U.S. 1987, p. 461 o So Tanner was convicted of conspiracy and mail fraud o The issue is whether the jurors could be questioned about their alcohol consumption at lunch and so forth. o There was evidence that the jurors might have been drinking at lunch, plus a suggestion that one of the jurors was sleeping o Court held they could not be granted a new trial by questioning the jurors about their deliberations Class Notes: 10/31/08 o Jurors are not allowed to take an average of what they think should be awarded (quotient verdict) o Why dont we allowed to have the jurors testify after the verdict? Serves the interest of protecting the jury system and the citizens who make it work. The rule should not permit an inquiry into the internal deliberations of the jurors Finality Avoid outside persuasion o Two broad categories of influence, based on the maker of the allegation. See FRE 606(b) Page 45 of 58
Internal juror competence; cannot testify to this Extraneous prejudicial influence TV news; newspaper; can testify to this to impeach the verdict
People v. Fleiss, Cal. 1996, p. 469 (Heidi Fleiss case; State evidence rules can vary) o charged for pandering and providing cocaine o Court learned of Jury misconduct through affidavits Jurors bartered and traded guilty votes One juror refused to deliberate o The trial court denied motion for new trial. This court reversed. o Such malfeasance strikes at the heart of the justice system. Based on California rules, this mode of deliberation is not allowed. Notes o Why does this come out different from Tanner? U.S. v. Ewing, 7th Cir. 1992, p. 473 (advocate-witness rule) o Ewing was arrested. Two notebooks that detailed drug trafficking was confiscated from his home. o Defendants claim that his name was not written on the notebooks when they were recovered (but it was at trial). So they want to prove police tampering. o Attorney wanted to testify that he saw the notebook at the police station w/o his name on it. The court refused him to do so. His paralegal did testify. o maintains the court should have allowed his attorney to testify. o Trial court decision was affirmed. o Counsels testimony would have been cumulative Notes o Why have this rule? The potential is problematic: if you are a witness and your credibility is at stake, it seems improper. Jurors are actually instructed not to consider anything an attorney says as evidence. Also, the fear of corruption of the system. o Rule is: permitted in extraordinary circumstances and for compelling reasons, usually where the evidence is not otherwise available. o Note: the prohibition against inquiry is only for inquiry into validity of a verdict; it does not apply whether the judge can question the jurors during the trial. You have to tell the judge that a juror talked to you.
Chapter 9: Opinions, Experts, and Scientific Evidence

Lay Opinions; FRE 701
U.S. v. Meling, 9th Cir. 1995, p. 479 o Meling was convicted of six counts of product tampering. o He wanted to kill his wife so he laced some cold medicine with cyanide. The help cover it up, he put some of the laced pills back on the shelves at the drug store, killing two more people. o The evidence in question: the 911 operator and the paramedic testified that the was feigning his grief shortly after the incident o The appellate court affirmed the introduction of the testimony. o The 911 operator can compare s reaction to other callers; so it is based on her perception Notes o What do they mean by helpful...fact in issue o If the jury heard the recording, how is the 911 operators testimony helpful? o Why should he be able to testify his belief rather than just a description of the scene? Its hard to describe something like that. It was based on his perception. o These are things that you cant really describe o Common opinion testimony: she was drunk Thats my wifes signature He didnt seem to know that I was there The car was going 50 mph He was feigning his grief He didnt seem to pull the trigger on purpose He was in total control of the vehicle o What bothers Watts a little bit: along the fine line of expert testimony. This case was decided before the 2000 amendment that added expertise testimony. Page 46 of 58
Government of the Virgin Islands v. Knight, 3rd Cir. 1993, p. 479 o was beating a guy with a gun. He was guilty of voluntary manslaughter, possession of a firearm in a crime of violence, and possession of a firearm by a felon o s theory was that he did not mean to shoot the victim o wanted a witness on the stand stay give that opinion: that it was an accident. o The trial court did not allow the witness to give this opinion. The witness was, however, allowed to testify never threatened, never pointed the gun at him. o This court held that it was error to exclude the testimony, but it was harmless error because the jury could infer from the facts it was an accident (the witness testimony plus the s own claim) Notes o It hard to describe in words why he knew it was an accident o The reduced charge of manslaughter is probably the reason it was harmless error (had he been convicted of murder, that might have been different) Robinson v. Bump, 5th Cir. 1990, p. 481 o Robinson is suing Bump and his company. Bump hit Willie Robinson, killing him. o Defense put on a witness that claimed Bump maintained perfect control of his truck until it was hit by one Harris. o Appellants argued that the testimony called for legal conclusion or an opinion on ultimate issue. o This court affirmed. o The witness had every opportunity to observe the trucks movement, the movement of a truck is rationally connected to the control if its driver, and testimony was helpful in allowing the jury to assess Bumps negligence. Notes o Under rule 704, testimony in the form of an inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact U.S. v. Peoples o Peoples and Lightfoot were convicted of aiding and abetting the murder of a federal government witness o The evidence at issue: Agent Neal gave her opinion regarding the meaning of words and phrases used by the s during recorded conversations. o She testified that it was her opinion the s killed the witness o Her opinion was based on her investigation on slang words o The trial court allowed her opinion in o This court reversed. o Her opinions were based on her investigation after the fact, not on her perception of the facts o Reversed. o What is essentially expert testimony may not be admitted under the guise of law opinions. Notes o She was not involved in it as an undercover. This is her conclusion based on her investigation, plus she has not actual knowledge. o This is just her conjecture. U.S. v. Ayala-Pizarro, 1st Cir. 2005, p. 484 o was convicted of having 153 decks of heroin with intent to distribute o s issue with evidence: testimony from police officer that crossed the line from being a fact witness to being an expert witness. o The government asked the cop about being arrested at a known drug point and that the packages recovered on the was packaged for distribution (as he as seen many times before) o The trial court allowed the testimony about the drug point and required more foundation to allow the testimony of packaging Cop talked about normal distribution Then he was asked about the packaging he seized from o The court affirmed the conviction. o The witness was allowed to testify about his perception about the drug point; it required no specialized knowledge. o Regarding the packaging, the cop did not give his opinion about, he simply testified to his experience and then let the jury decide for the own. Page 47 of 58
Expert Testimony
Class Notes; FRE 702 o Requirements: Testimony based upon sufficient facts or data Testimony is the product of reliable principles and methods The witness has applied the principles and methods reliability to the facts of the case o They dont have to give their opinion. Many times they will not give their opinion, but will let the jury decide based on the expert knowledge that is given to them o 703 does not have to be personally perceived. Has to be of the type that is reasonably relied upon Typically you just ask the expert whether this is reasonably relied upon Evidence that is inadmissible under another rule is not kept from the jury unless it is more prejudicial than probative
1. Permissible Subjects and Scope; FRE 702, 703, 705, 706

Hatch v. State Farm Fire & Casualty Co., Wyo. 1997, p. 488 o State farm refused to pay for fire damage when Hatch was charged with arson o Hatches sued state farm for breaching its duty of good faith and fair dealing in resolving the claim o To support their claim, s offer discover deposition of an expert witness (he died). According to their theory, state farm had engaged in an advertising campaign that features the slogan like a good neighbor... Their expert was testifying to whether they acted like a good neighbor o The trial court excluded it. Affirmed. o His testimony as to whether they acted like a good neighbor required no specialized knowledge or training Notes o Another example: an expert testifying to what pain is worth is excluded. Everyone is perfectly able to determine how much pain is worth o Not everything is subject to expert testimony State v. Lewis, Tenn. 2007, p. 490 o Lewis was convicted of criminally negligent homicide and facilitation of attempted robbery o The basic thing is that DNA evidence connected the defendant o The issue is whether the technician that performed the test should be the expert testifying rather than her supervisor o Court disagreed, holding there was not confrontation clause issue Notes o The issue is whether the should be able to confront the person doing the test o Not tested on this directly o Watts thinks this could eventually lead to a confrontation clause problem
2. Reliability a. Court-appointed Experts; FRE 706

Leblanc v. PNS Stores, Inc., La. 1996, p. 493 o The wanted a court appointed physical of its choice to conduct an examination of the o The did not demonstrate the necessity of appointing an independent examination of o 706 is appropriate only in rare circumstances and cannot be utilized as an alternative to communication and adversary process Notes o Why would you want the court to appoint the expert? Gives the expert more authority
b. Judicial Screening of Party-Approved Experts

Daubert v. Merrel Dow Pharmaceuticals, Inc., U.S. 1993, p. 496\ o Two minor children with birth defects are suing the drug maker that produced the drug their mothers took during pregnancy o Merrel Dow produced expert testimony that said there was not indication that the drug caused birth defects in humans o The issue is whether the has a qualified expert to prove that it does cause birth defects. The trial court did not allow the experts because the scientific technique was not generally accepted (this was the old common law rule). Page 48 of 58
Affirmed by the circuit court. The Court reversed the lower decisions and overruling the common law rule The FRE supersede the Frye test. Nothing in the rules mention general acceptance It is the reasonability of the judge to determine that it is reliable The new rule (not dispositive): Whether it can be tested (scientific methodology) Whether the technique has been subjected to peer review Consider the known or potential error general acceptance Notes o has to have an expert because that would be the only way to prove it o This is an important point: the judge is not an expert in this field. They know nothing about it. o Expert testimony has to: Relate to the issue, or Be tied to facts o Many state courts still use Frye (generally accepted) o Basically it laxed the rule: let it in and let the jury consider the weight of the testimony o One of the reasons they want to do away with it: science is always evolving. Could be a new theory. o The court has been put in this gatekeeper role. Judge has to evaluate whether the science is junk or cutting edge. So what does he rest on? See the four things above. G.E. v. Joiner, U.S. 1997, p. 503 (I wasnt here, these next two are Jacobs notes) o P sues GE on the basis of causing cancer. There was not a causal link established by the expert as to the cancer causing material because the expert's testimony was excluded. If cases don't go to trial they are often settled or decided upon summary judgment. SC said that trial court still has discretion to decide whether the expert should be excluded or not. P argued that there should be a more stringent standard but there is not a different standard. The standard is abuse of discretion. Also must rely on the conclusion being a reasonable result from good methodology. If your conclusions are not backed by your evidence then you have to exclude it. o Is there evidence that a reasonable finder of fact could find for the non-moving party? If there is not then summary judgment should be granted. Trial court has to decide whether a reasonable fact finder could find more likely than not in your favor.
o o o o o
Kumho Tire Co. v. Carmichael o Expert testifies that tire was defective. Daubert talked about scientific evidence and the scientific method etc
What about technical experts? Their methodology of process of elimination is that ok under Daubert? What criteria do we apply? The test that is used here is not used by other experts and not validated. The gate keeping function applies to all types of experts beyond just scientific evidence. Court excluded this guy because he didn't like his methodology. All the court really needs is some reliability along with a result that follows logically
Current Landscape
Book Notes o Criticisim The abuse of discretion standard makes the admissibility of expert testimony nearly immune from appellate review Appellate courts have to uphold inconsistencies o Support Daubert requires experts to offer evidence in support of their assertion so that their testimony will provide dependable testimony to the factfinder This makes sense it insures that expert testimony is more informative than misleading Also note: cutting edge technology gets in easier under Frye. Support technology gets in easier under Daubert o Admissibility of expert testimony vs. weight of s evidence In the trilogy of cases, they had an aspect in common: the s argument was weak as a matter of law Rather than ruling the admissibility of unsupported expert testimony (which a jury could weigh anyway), the court should rule that the does not have enough evidence to support a judgment Marsh v. Valyou, Fla. 2007, p. 514 Page 49 of 58
Rule 703: if you have information that will not be admissible, but would like to jury then make sure expert knows about it. It then becomes dangerous for the other side to cross-examine the expert because it may open the door fo you to slip in additional information that you would otherwise not be able to get in. o facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or the inference UNLESS the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect.
Current Controversies (not tested)

State v. Porter, Conn. 1997, p. 518 o Connecticut decided to throw out Frye and keep a per se rule prohibiting evidence of lie detector tests o The opinion went into detail the ins and outs of lie detector tests o This court concluded that 403 excludes this evidence Class Notes o Under Daubert and Kuhmo Tire, should it come in? Is it reliable enough to assist? o Three different types of questions Neutral non-contro question. Baseline data, where you would not worry about lying Relevant accusatory and directed specifically at the subject under investigation Control an act of wrongdoing of the same general nature as the main incident under investigation o Watts problem with control: you worry about the right way to answer, or you might lie so you dont look bad o So why are they more prejudicial? This is my opinion: based on the notion that is better to let a guilty man go, than to convict an innocent one. U.S. v. Scheffer, U.S. 1998, p. 529 Class Notes
-Social Science Evidence

U.S. v. Smithers, 6th Cir. 2000, p. 535 o was convicted primarily on eye witness testimony. o He wanted to admit expert testimony about eyewitness identification Detail salience (tendency to focus on unusual characteristics) Relationship b/w time passed and accuracy of recollection Effect of post-identification events on memory Conformity effect Confidence o District court did not allow the evidence o This court reversed and held that it should have been admitted. Reversed. Class Notes o Watts disputes that it is a fact that witnesses focus on unusual characteristics o Considering Daubert what should they consider Whether the reasoning or mothedology underlying the experts testimony is scientifically valid; Whether that reasoning or methodology properly could be applied to the facts at issue to aid the trier of fact o Could this witness give the jury additional information that would help the jury? This court thinks so, but not the next. State v. Coley, Tenn. 2000, p. 540 o wants to offer testimony about identification o This court ruled this testimony is per se inadmissible Class Notes o There are many cases where this type of evidence is excluded. Why? May lead to confusion of the issue; and lead the jury to abandon its responsibility as fact finder and adopt the judgment of the expert o The main point is that the testimony is a generalization; nothing tells us about the specificity have the current witness o Some things are veriable and certain these things are generalities that may or may not apply to the witness. Too many variables. State v. Kinney, Vt. 2000, p. 543 o convicted of rape o Lower court admitted expert testimony about PTSD, specifically rape trauma syndrome Page 50 of 58
This court affirmed. The jury may be at a loss to understand the behavior of a rape victim failed to preserve error over the admissibility statements about the likely of false reporting. Not reversible error. Notes o Why is this evidence admissible? Peculiar facts s parents were nearby; she fell asleep in his bed; she failed to immediately tell her boyfriend o Why is it a syndrome? Includes phenomenon that frequently reoccurs.
o o o
Chapter 10: Privileges (NOT TESTED)

In General
Notes o FRE left these rules to the common law and state law
Attorney Client Privilege 1. Introduction

Swidler & Berlin v. U.S., U.S. 1998, p. 604 o made notes in an initial interview with a client shortly before clients death. The government seeks these notes for the purpose of criminal investigation. o Court held these notes are protected by the attorney-client privilege o The privilege is intended to encourage full and frank communication o argued that his death creates a situation where they are not privileged. The Court disagreed o Knowing that the communication will remain confident even after death encourages the client to communicate fully and frankly. Clients may be concerned about reputation, civil liability, possible harm to friends or family o emphasizes that this exception to the privilege will have minimum impact if confined to criminal cases Notes o Reasons for the privilege To encourage the client to be full and frank Want people to do the right thing. Attorney can steer the client in the right direction if the truth if fully disclosed. o Arguments against Impedes fact finding o Rule 501 FRE does not discuss privileges because the common law rules are implied. o Distinction between the systems goals and goals as an attorney Goal of attorney is (if possible and w/i ethical and procedural rules) to win the case. Sometimes this is because the truth is hidden, confused, or slanted. But, Watts says this is ok because it is our job.
2. Elements of the Privilege a. Communication

U.S. v. Kendrick, 4th Cir. 1964, p. 611 (substance of testimony) o The claims that his attorney should not have been allowed to testify at the punishing phase of the trial when determining the s sanity o Court held that his testimony was properly admitted. o It is the substance of the communications that is prohibited, not the fact that there have been communications o Everything that the attorney testified are objectively observable Notes o Did this go beyond observations? They were talking about the nature of the conversation (names and facts involved). Watts thinks this is going to far. o Tornay v. U.S., 9th Cir. 1988, p. 612 (purpose of the privilege) (SKIPPED) o The Tornays were the subject of an investigation by the IRS. The IRS requested and received fee information from three attorneys. Their current attorney refuses to comply. o The purpose of the privilege is to encourage full disclosure, and it is only applied when it achieves it purpose o The court ruled that the purpose of the rule will not be furthered by requiring the attorney to disclose fee information Page 51 of 58
b. In Confidence
U.S. v. Gann, 9th Cir. 1984, p. 613 o was convicted of illegally possessing sawed-off shotgun o Agents were searching his house while he was on the phone with his attorney. o said: it looks like I am going to have to go downtown...ex-con in possession, I guess. Government wanted to enter these statements to prove that he had knowledge of the gun o Because Gaan knew of the presence of a third party, the attorney-client privilege does not apply. U.S. v. Evans, 7th Cir. 1997, p. 614 o was charged with racketeering o Issue is the admissibility of testimony by s attorney. o A friend of his took him to his attorneys office and stayed there during the conversation o His friends presence was not necessary and thus the attorney client privilege does not shield the . U.S. v. Lawless, 7th Cir. 1983, p. 615 o is an attorney that was hired to prepare federal estate tax returns by the executors. o The IRS sought summons to seek all documents realted to the preparation of the return o The district court sided with the attorney. This court reversed. o When information is given to an attorney with the expectation that that information will be given to a third party, that information is not confidential Smithkline Beeckum Corp. V. Apotex Corp., N.D. Ill. 2000, p. 616 o Suit for infringing s patent to an antidepresent drug o The issue is does the document about the patent reveal the substance of a confidential attorney-client communication o Courts are split on whether this is attorney/client privilege (since submitting to a 3rd party makes the doc nonprivileged.
(c ) between a lawyer and client (d) in the course of provision of professional legal services
Chapter 11: Physical Evidence

Pre-case notes o Subject to many of the same rules as testimonial evidence with the addition considerations of Authentication have to provide sufficient evidence to allow the fact finder to conclude that the evidence is genuine The best evidence rule narrow scope: requires that a part seeking to prove the content of a document introduce the original
Authentication; FRE 901-903

U.S. v. Long, 8th Cir. 1988, p. 677 o To authenticate a document, the proponent need only prove a rational basis for the claim that the doc is what the proponent asserts it to be This can be done with circumstantial evidence Bruther v. G.E., Ind. 1993, p. 678 o The determination that the evidence is what the purports it to be must be determined by the jury (depending on whether the party has met the threshold of providing enough evidence) U.S. v. Casto, 5th Cir. 1989, p. 680 o A break in the chain of custody only affects the weight, not the authenticity. Watts says this is admissible because a reasonable finder of fact could reach a conclusion that it was the Ds cocaine. U.S. v. Grant, 2d Cir. 1992, p. 680 o Live testimony is not subject to authentication Page 52 of 58
o o o o o o
However, what the witness testifies to must be relevant (FRE 401) If the evidence that the witness is testifying to is not what it was purported to be, then that testimony may be considered to be irrelevant. Summary The standard is sufficiency There are no fixed rules about how Depends on what the item is claimed to b Relevancy is a separate question Problems on p. 681 11.1 yes you do need to authenticate it. Have person in picture on stand or anyone who saw her ask if the picture accurately depicts how Julia looked after the accident. 11.2 authenticate the tape by asking people who were in the class at the time if they recall the conversation and if they recognize the voices, recall statements, etc. also authenticate the tape by asking person who made tape if it is the same tape he used to record the statements.
The Best Evidence Rule; FRE 1001 1008

Pre-case notes o Prevailing law has made the best evidence rule a shadow if its former self: The rule only applies to a narrow category of cases There are exceptions o Read the rule carefully Specific to documents, better to have the original document rather than copies. This has been done away with under FRE Numerous exceptions to the BER
1. Scope and Purpose

Meyers v. U.S., D.C. Cir. 1949, p. 683 o was found guilty of perjury o Testimony about his statements was given by the lead counsel of his prior hearing rather than the transcript o The issue was whether the stenographic transcripts was the best evidence and allowing the spoken testimony was a violation of the rule o The lower court allowed the testimony. This court affirmed. o There was no attempt to prove the contents of the writings o The witness was not asked what the transcript contained bu what the s testimony had been Notes o It is not the best proof, or the best evidence available. Not required today o As long as you meet the FRE it comes in. o If you are trying to prove the content of the physical evidence, then FRE 1002 applies; but note, there are exceptions (see below) U.S. v. Gonzales-Benitez o These two s were convicted for importing and distributing heroin o s claim that the trial court erred in allowing testimony that related to their conversations with the informers because the conversations were tape recorded o This court affirmed the trial courts ruling o The FRE does not setup an order of preferred admissibility. It is applicable only when one seeks to prove the contents of documents recorded (FRE 1002) Notes
2. Exceptions
Pre-case notes o Exeptions 1003 duplicate are admissible unless there is a genuine question as to the authenticity; or 2) in the circumstances it would be unfair to admit the duplicate in lieu of the original 1004 original is not required if the original as been lost or stolen, unless the proponent lost or destroyed them in bad faith U.S. v. Stockton, 8th Cir. 1992, p. 689 Page 53 of 58
o o o
Government used photographs of misc papers as duplicates The trial court held this to be ok This court affirmed
U.S. v. Standing Soldier, 8th Cir. 1976, p. 690 o A note that the wrote to the captain was lost, so a typewritten copy was provided in court o The trial court held that to be ok; this court affirmed Notes o This case shows there is no preference of duplicates Seiler v. Lucafilm, Ltd, 9th Cir. 1987, p. 691 o claims that Lucasfilms used his art of Garthian Striders as the imperial walkers o He obtained a copyright for this artwork a year after Empire Strikes Back came out. o He claims he made these originals before the movie came out, but he could not produce the originals. The only thing that he could produce was a reconstruction of the originals. o The court determine that he lost these in bad faith, so 1004 does not apply o The appellate court affirmed
Demonstrative Evidence
Class Notes o These help demonstrate a point o Demonstrative evidence has become extremely sophisticated. Maybe we need more rules? E.g. computer animation o Its problematic because its expensive, so not everyone will be able to do it. s attorneys do it the most They can animate whatever they want; often it is highly disputed what happened. So if jurors see it on the screen, does that make it more plausible o Todays jurors are accustomed to watching video U.S. v. Weeks, 5th Cir. 1990, p. 699 o was convicted of two counts of interstate transportation of a stolen vehicle, and possession of firearm o The government used a firearm as demonstrative evidence. It was not the actual revolver. o claims that the way the prosecutor used the gun was prejudicial o This court affirmed the conviction Class Notes o Why have the gun physically present when its not the actual gun? Its intimidating o What about a civil case? Demonstration makes it real. Jury not required to imagine it. The demonstrative says something that words cant. U.S. v. Humphrey, 6th Cir., p. 699 o convicted of embezzling bank funds o The government brought in 107 coin bags to demonstrate what it would look like in the vault o I think the issue was whether all of these bags could fit in the vault o claimed that the bags filled with Styrofoam were bigger and not an accurate representation o Conviction affirmed o The trial court recognized the government wanted the jury to see what 107 bags would look like; not necessarily doing a probative analysis Notes o could still cross examine o Not going to be reversible error either way Roland v. Langlois, 7th Cir. 1991, p. 700 o was hit in the head by a carnival ride o claims that a full scale exhibit of the fence was inadmissible o The district court has wide descrition in these matters o claims that the demonstrative was not completely accurate o Judgement for affirmed. o There is no requirement that demonstrative evidence be completely accurate. Notes o How accurate does it have to be? Its fact sensitive a case-by-case basis Page 54 of 58
U.S. v. Wood, 9th Cir. 1991, p. 701 o Appeal from tax evasion o Prosecution was allowed to submit into evidence a summary chart that they displayed o The tried to submit their own chart, but this was objected to and sustained by the court Notes o Why did the court not allow the s evidence? did not object when put it in (you have to object) s summary chart was not an accurate depiction of the facts o The evidence has to accurate reflect the testimony that was heard. If it does not, then it is not allowed in. Bannister v. Town of Noble, OK, 10th Cir. 1987, p. 702 o During the trial the showed three videos day in the life video portrayed how the dealt with his injuries on a daily basis. Affirmed. Shows his adaption to his injury No an abuse of discretion to allow Video of a similar car approaching a ramp, becoming airborne, and landing. Affirmed. A filmed incident to demonstrate the mechanics and not necessarily a recreation is ok The court admitted the evidence on this limited purpose Closing argument video edited to contain all videos shown. Affirmed All the video used was properly admitted during trial Notes o Whats the problem with day in the life videos? In civil cases, the issue is not so much on the extent of damages, but rather the liability. To see a video of it, makes it much more real. o Courts generally will not allow a recreation, but they will allow video that mimics what took place Commentary on p. 704
Chapter 12: Burdens, Presumptions, and Judicial Notice

Pre-case notes o Burden of production (burden of going forward) Burden of producing evidence Burden of going forward o Burden of Persuasion (burden of proof) Burden of proof Beyond a reasonable doubt Preponderance of the evidence Clear and Convincing o Confusing Terminology Conclusive Presumptions cannot rebut a presumptions (e.g. a child under seven cant be negligent in some states) Rebuttable presumptions a presumption that can be rebutted (children 7 14 usually not negligent) (or not receiving mail) Mandatory presumption Permissive Inferences o Presumptions Basic fact Presumed Fact Thayers view: Bursting Bubble. Presumptions shifts burden of production, BUT NOT burden of persuasion o Thayers view (Bursting Bubble) Presumption shifts burden of production, but NOT burden of persuasion. Presumption vanishes entirely once rebutted, and it becomes a question of fact o Morgans view Presumption shifts BOTH burden of production and Burden of persuasion Presumption shifts the burden of proving the nonexistence of the presumed fact to the opposing party. o If the jury cannot decide, the party who does not have the burden of proof wins.
Burdens and Presumptions in Civil Cases

In Re Yoder Co., 6th Cir. 1985, p. 708 Page 55 of 58
Bratton had filed a products liability claim against Yoder for loss of fingers Yoder filed for Chapter 11. At the time he filed, this case was pending and disputed. The bankruptcy court issued an order as July 13, 1981 as the last date for creditors to file proofs of claim against yoder. o Brattons attorney filed a proof of claim a year later. o Bratton says he did not get notice. The basic issue we are concerned about is: there is a presumption that mail is received if it is properly mailed, so is it enough to rebut to just say that I did not get it? o The court held that testimony of non-receipt, standing alone, would be sufficient to rebut the presumption. Notes o A permissive presumptions allows the fact finder to choose whether they accept the presumptions, picking out a particular element o Once he says, I didnt get it, that does not mean you cant have an inference (THIS IS CRITICAL)
o o o
Burdens and Presumptions in Criminal Cases

Notes o Who has the burden of proof is more significant in criminal cases because the burden is the highest standard. Patterson v. N.Y., U.S. 1977, p. 715 o So Patterson was separated from his wife o She got back with her pervious fianc. Patterson saw them together unclothed, so he barrowed a rifle from a friend; then, killed the guy. o He claimed the defense of emotional disturbance. N.Y. law places the burden of proof on the . o The issue is whether this statute is constitutional. o The Court affirmed his conviction, holding the statute is not a violation of DP. o The court held this way because emotional disturbance is not negating an element of the crime. It is a completely different issue. Notes o Precedent: Maine requird the to prove lack of malice. This was unconstitutional. Mullaney v. Wilbur. Distinguish: emotional disturbance is not an element of the crime. New York called this an affirmative defense. County Court of Ulster County v. Allen, U.S. p. 721 o Statute that says a firearm found in a vehicle is prumptive evidence that all occupants possessed the gun o s claims that it violates DP; Trial court overruled. o Reversed by district court and affirmed in circuit court. o The Supreme Court reversed o Court held the presumption is rational. This was a rebuttable presumption. The judge made it clear that it was a permissible inference, not a mandatory presumption. Notes o So what does the court think of this permissive presumptions? Depends on whether the jury is appropriate instructed Situations where it could be irrational? An example from this case: a hitch hicker. o Rule: as long as its rational in the case and the court is giving the appropriate instructions Sandstrom v. Montana, U.S. 1979, p. 726 o Montana law says that a person intends the consequences of voluntary acts o objected claiming that this shifted the burden o Court held that these instructions were a mandatory presumption (jury has to find the element to be true unless the comes forward with some evidence to rebut it. Notes o How would this be ok? Add: if you think this conclusion is warranted o Important point: what did the constitution mean at the time these statutes were made?
Judicial Notice; FRE 201

Precase notes o Types of notice Jury notice Stipulation Judicial notice Page 56 of 58
Adjudicated facts non-constant question of fact of particular cases; FRE 201 only governs adjudicated facts. Legislative facts constant reasoning; facts that have relevance of legal reasoning and the law making process
U.S. v. Gould, 8th Cir. 1976, p. 734 o s convicted of conspiring to import and actually importing cocaine from Columbia o The issue is whether the court could stipulate that cocaine hydrochloride is a schedule II controlled substance and whether the court erred in instructing the jury that it must accept this fact as conclusive o The court affirmed the judicial notice Notes o Adjudicated fact a fact considering the immediate parties in the case at hand o Legislative facts facts relied upon by the court to decide the law; not related to the case. U.S. v. Lewis, 9th Cir. 1987, p. 736 o Lewis was on trial for bank robbery. An order suppressing her confession was granted on the basis that she was a heroin addict suffering from the effects of drug withdrawal and coming out from anesthesia. o The trial judge granted based on his own personal experiences of coming out of surgery. o This court reversed. o A trial judge is prohibited from relying on his personal experience to support the taking of judicial notice. o FRE 605: Judge cannot testify. Carley v. Wheeled Coach, 3d Cir. 1993, p. 738 o Personal injury claim against Wheeled coach for a defect in their Ambulance that causes rolloever o Wheeled Coach claimed they were not liable because they are under k with government and its the governments job to have knowledge of the defects o The lower court concluded that the wheeled court could not have been more aware than the government of the ambulances tendency to rollover. REVERSED. o These are no matters of common knowledge U.S. v. Bowers, 5ht Cir. 1981, p. 739 o Defendant convicted of child abuse o complaing because the court took judicial notice in fact that Fort benning was property of the US and under the jurisdiction of the U.S; mainly they are upset that the jury was not given instruction to disregard. o Court affirmed because it is not an adjudicated fact; therefore, FRE 201 does not apply (therefore the court is not required to give those instructions) Notes o The judge says you dont have to believe it. Why are we including these instructions? Basically saying that the jury is the ultimate trier of fat. Its there because Congress thought I was important. o Is jury instruction constitutionally required? Not sure. U.S. v. Bello, 1st Cir. 1999, p. 739 o convicted of assaulting another prisoner o He claims that the court erred in giving judicial notice on the jurisdiction issue o This court found that it was an adjudicated fact because it was an element of the crime; so 201 applies. o Court affirmed the notice because 201 was properly followed. Notes o Proper instruction was given in this case even though it was found to be an adjudicated fact.
The Exam
o o o o He drafted his exam off of Seigals Evidence Do not have to write out exact jury instruction, but give a reason for the instruction What will NOT be on the exam FRE 411, 412, 413, 414, 415 Subsequent remedial measures What will almost certainly be on the exam Relevance (no one piece of evidence has to be the wall, just brick) 403 fallback rule to exclude anything (except 609) Page 57 of 58
o o
The Old-Chief Case Crawford Only applies to criminal prosecutions Satisfied with confrontation Custodial interrogation Hearsay only the ones we covered Look for forbidden inferences: d said it d believed it it was true (the trip through the declarants mind) Might be admissible for some other purose o Effect on the listener o State of mind o Non-verbal conduct Assertive conduct Non-assertive conduct Residual exception; FRE 807 Impeachment; FRE 609 Scientific evidence (gatekeeper function of the court) Daubert: the focus must be soley on the priniciples and methodology not on the conclusion Joiner Physical evidence Two kinds o Real o demonstrative Procedure marking; introduction Special rules o Authentication; FRE 901 o Best evidence rule; FRE 1002; Narrowly applied Exceptions (nearly destroyed the rule) Copies ok If lost it, dont even need copis Presumptions not directly on the exam; but, they are always there Not direct judicial notice issues, but he may be overlooking some
Page 58 of 58

Evidence Outline 1

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Evidence Watts Fall 2008 Chapter 1: Introduction to Evidence Law

The Role of the trial judge

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Hearsay and Confrontation

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Review Notes: 9/4/08

Exceptions to the Hearsay Rule 1) Prior Statements by Witnesses

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2) Admission by Party-Opponents -Direct Admissions, generally

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-Direct Admissions, Multiple Hearsay

-Direct Admissions, Completeness

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-Adoptive Admissions, FRE 801(d)(2)(B)

-Authorized Admissions, FRE 801(d)(2)(C)

-Agent and Employee Admissions, FRE 801(d)(2)(D)

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-Co-Conspirator Admissions, FRE 801(d)(2)(E)

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-Admissions and the Bruton rule

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3) Spontaneous and Contemporaneous Statements; FRE 803 (1) & (2)

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4) State of Mind; FRE 803(3)

-The Hillmon Doctrine

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5) Injury Reports; FRE 803(4)

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6) Recorded Recollection; FRE 803(5)

7) Business Records; FRE 803 (6), (7)

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-Absence of Record; (7)

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10) Dying Declarations can show up on exam

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11) Declarations Against Interest

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12) Forfeiture by Wrongdoing

13) Residual Exception

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Hearsay and Due Process

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Watts: if it seems to be reliable, offered by the accused, and sufficiently probative

Chapter 4: Character Evidence

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Methods of Proving Character

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Other Uses of Specific Conduct 1) Permissible Purposes; 404(b)

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Character and Habit