RELEVANCE

  1. Regular relevance R401
  2. Low threshold
  3. Conditional Relevance R104b
  4. If relevance of evidence depends on existence of fact---
  5. Proof sufficient to support finding of fact existing must be introduced
  6. Stipulation R403
  7. Jury doesn’t have to hear details
  8. Old Chief
  9. Can’t necessarily demand to stipulate, but
  10. Balance probativeness of stipulation without full details against…
  11. Unfair prejudice of full details described
  12. Automatically Excluded R407-8
  13. Remedial measures as proof of negligence
  14. Settlement offers/discussions
  15. Insurance
  16. Offers to pay med expenses
  17. Surrounding statements might get in
  18. Exceptions
  19. Witness bias
  20. Negate claims of undue delay
  21. Obstruction of investigation

PROBATIVE V PREJUDICE R404(b)

Balance at end of every decision process

CHARACTER EVIDENCE PROCESS

  1. What is evidence being used to show?
  2. NO character propensity evidence, like truthfulness, in civil case
  3. MUST still be probative of one of these non-propensity reasons
  4. Propensity
  5. HYPO: D accused of killing dog, intro conviction for previous dog killing
  6. Goes through propensity box
  7. Habit/Routine R406
  8. One time’s not enough
  9. Motive
  10. HYPO: wanted for stickup, suspected shot cops
  11. Threat of going back to jail motivated shooting
  12. Just because he’s wanted criminal doesn’t mean he shoots cops
  13. HYPO: streetcar operator was rushing day he ran someone over
  14. Motivated to be in a rush that day
  15. Sounds like he’s overly hurried, propensity
  16. ID
  17. Test: “whether crime is idiosyncratic”
  18. Must include jury instruction against prejudice
  19. HYPO: Bombs in two cases very similar, low odds it could’ve been diff bombers (Trenkler)
  20. Had previous incident killed 500 people, might be too prejudicial
  21. HYPO: guy has same gun as in crime
  22. Likely same gun used to kill agent
  23. Propensity to use that gun violently
  24. Intent
  25. Knowledge
  26. HYPO: D knew about hidden compartment last time, so knows now
  27. Absence of Mistake
  28. Modus Operandi
  29. Doctrine of Choices
  30. “The odds that this randomly happened…”
  31. Goes around propensity box by looking at law of averages
  32. HYPO: three wives killed, gets in
  1. Crim Case? R404
  2. D > Self: circumstantial evidence that D did not commit crime (specific only if character crucial to crime)
  3. P may rebut
  4. Reputation/opinion
  5. Can bring in crimes of D to show that W lying, or doesn’t know D’s problems (Michelson)
  6. D > V
  7. Reputation/Opinion
  8. P may rebut
  9. Evidence of D same trait
  10. Rep/op and specific acts
  11. In homicide case: Victim being peaceful and therefore not first aggressor
  12. D > anyone: party character = essential element
  13. Rebuttal of entrapment: saying you have no proclivity towards this crime
  14. Proving/rebutting evidence of truth in libel/slander
  15. Resolving parental custody
  16. P > D: ONLY if D claimed V first aggressor
  17. Impeachment: About Witness? Character for (Un)truthfulness ONLY
  18. Reputation/Opinion R608a
  19. Intro for Own Witness
  20. Truthfulness ONLY if attacked first
  21. If attacked, can bring witnesses to defend
  22. Enemy Witness: other witnesses to attack
  23. Prior Convictions R609
  24. Severe Crimes
  25. Year+ in prison
  26. >10 years ago doesn’t come in
  27. Balancing test (Gordon):
  28. Nature of crime
  29. Time since conviction, subsequent history
  30. Similarity btwn past crime and charged crime
  31. Is W’s testimony crucial to outcome of case?
  32. Centrality of credibility issue
  33. CrimenFalsi
  34. Likely to lie on stand
  35. No 403 balancing here
  36. Unless >10 years ago
  37. Specific Acts: ONLY to prove untruthfulness
  38. NO extrinsic evidence of this
  39. Cross-Examination: can ASK about bad acts of:
  40. W themselves (“did you lie to a cop last year?”) (NO arrest question)
  41. Other W they’re testifying about (“did victim lie to cop last year?)
  42. Stuck with answer witnesses give here
  43. You can cross the witness who impeached yours, but that’s it

Standards for Impeaching Witness

  1. Reputation/Opinion R405
  2. Opinion
  3. Someone who really knows D, can form legit opinion
  4. Reputation
  5. Rehabber has lived in W community for a long time
  6. Huddleston Admissibility Standard: Conditional Relevance
  7. Reasonable jury looking at all evidence could have found acts to be true
  8. Same as conditional relevance
  9. NOT preponderance of the evidence
  10. Even if acquitted, reasonable jury still might have found true
  11. Protections from low bar:
  12. No propensity
  13. R402 relevancy
  14. R404 probative v prejudice

SEXUAL CHARACTER EVIDENCE

  1. V sexual past evidence barred R412
  2. Evidence of past false accusations perfectly allowed (State v Smith)
  3. Relationship with P witnesses, PTSD evidence not allowed
  4. Criminal Case Exceptions
  5. Specific instances to prove someone else committee crime
  6. Specific instances WITH D to prove consent
  7. Constitutional violations
  8. Due Process/right to fair trial: how important is the evidence to the trial?
  9. Confrontation Clause:
  10. Bias (Olden)
  11. Can introduce evidence of V having reason to lie, like to cover up cheating
  12. Untruthfulness (by jurisdiction)
  13. Sixth A right to compel witnesses in defense
  14. Right to testify in one’s defense
  15. Can use her past actions to prove D state of mind, that he thought she’d be easy and thought there was consent (Knox)
  16. Can say that V was upset in aftermath of sex, though have to be careful describing actual incident (Stevens v Miller)
  17. Similar Acts by D Go In R413

HEARSAY DEFINED

  1. Definition:
  2. Out of court statement…
  3. Including affidavit
  4. Offered to prove truth of matter asserted
  5. Did declarant mean to assert that fact?
  6. ID’ing
  7. Assertion = conveying something other party doesn’t know
  8. Nonverbal: Conduct vAssertion
  9. Was there an audience? If not, likely conduct
  10. Deckhand testifying that ship captain inspected ship and sailed on it, testifying to seaworthiness
  11. Did actor intend to make assertion? If so, assertion
  12. Scientist > former nuke test site with family indicates safe
  13. President > former nuke test site is him ASSERTING its safe
  14. Special Kinds
  15. Verbal Act Exception: if it has legal weight, like saying ‘I do,’ in
  16. Implied v Indirect Assertions (DIAGRAM)
  17. Implied
  18. No intent to communicate assertion, no info shared
  19. Does listener already know what’s being asserted?
  20. If so, not hearsay
  21. HYPO: “Can I have a fork?”
  22. NOT meant to assert “there are no forks”
  23. The waiter ALREADY KNOWS there are no forks
  24. Could prove absence of forks in restaurant, bc implied
  25. Indirect
  26. Assertion in statement, but diff from desired one
  27. Process
  28. What is statement being offered to prove?
  29. Is what party’s trying to prove DEPENDENT on truth of statement assertion?
  30. If the direct assertion needs to be true for the indirect one to be true, hearsay
  31. HYPO: “I’m going running,” also asserts “I’m healthy enough to run”
  32. Choosing
  33. What’s actually being asserted?
  34. Courts don’t want unspoken assertion let in
  35. HYPO: Manager tells employee to de-ice stairs
  36. Looking at stairs = Implied assertion, can see stairs are icy
  37. Inside building = Indirect assertion that stairs are icy

HEARSAY EXCLUSIONS 801d

Lack of Intent to Communicate

  1. Nonassertive words like “ouch”
  2. Statement uttered to prove something other than asserted
  3. Similar to Indirect Assertion
  4. HYPO: A asks B, “what should I do with investments?”
  5. Offered to prove B’s mental competence
  6. Obviously, A thinks B is mentally competent,
  7. BUT not what he’s saying
  8. Statement = circumstantial proof of knowledge
  9. Is there some other piece of evidence that statement is being compared to?
  10. HYPO: D has document accurately describing meth cooking > D knows how to make meth > D is meth dealer

Other Hearsay Exclusions

  1. Prior inconsistent statement under threat of perjury
  2. Includes depositions
  3. Prior consistent statement IF rebutting credibility attacks
  4. Prior ID
  5. Independent matching of memory to person, NOT just story bout incident
  6. HYPO: statement to nurse about who beat you up
  7. P will say prior ID R801
  8. D will say just a statement
  9. Opposing party’s or coconspirator’s statements
  10. They can testify themselves and confront, so why not?
  11. Employer/employee
  12. Even if your boss doesn’t know the facts, his statement gets in (Sophie the Wolf)
  13. Coconspirator needs (Bourjaily):
  14. Evidence of conspiracy
  15. Don’t need to charge conspiracy
  16. Do need some evidence though
  17. Statement in furtherance of conspiracy
  18. Between declarant and party

PRIOR INCONSISTENT STATEMENTS

Rationale

  1. Motive to Lie: these statements must be truthful bc parties would be honest
  2. Timing: must have been uttered before parties had any motive to lie

Types

  1. Prior Inconsistent Statement, party on stand R613
  2. Extrinsic or in court
  3. Admissible only to impeach
  4. Though impeached could permit statement in
  5. Not for truth of assertion
  6. Fatal Attraction HYPO: Michael Douglas said he had affair
  7. =motive, even if statement doesn’t prove truth of affair
  8. 801d
  9. Must have been:
  10. Prior testimony OR
  11. Prior ID
  12. Cross ONLY
  13. Needs to be able to explain or deny
  14. Can examine about probative only
  15. Admitted to prove truth of matter asserted
  16. Unavailable R804
  17. Must be unavailable + prior opportunity to be crossed (look below)

WITNESS UNAVAILABILITY R804

Reasons for Unavailability

  1. Privilege
  2. Refusal
  3. Lack of Memory/Infirmity
  4. Disappearance/Death

Exception Types

  1. Prior Testimony
  2. ONLY if party or predecessor had opportunity and motive to cross
  3. Different parties, but same goals; like suing sailor in court and Coast Guard at hearing (Lloyd)
  4. Depo doesn’t count as cross
  5. Tougher standard than R801
  6. Dying declaration
  7. Party must have subjectively expected imminent death
  8. Week before you die prob doesn’t count (Shepard and poisoning)
  9. Statement Against Interest
  10. Broad definition: wouldn’t have made it if not true
  11. How to Use
  12. Self-Inculpatory Statements
  13. Only use the parts of statements that incriminate
  14. Must ignore parts that are exculpatory
  15. Criminal context
  16. Requires corroborating circumstances
  17. Mensrea could get dicey
  18. Arsonist fingering hirer might be entirely admissible
  19. But fact that he wasn’t mastermind might be exculpatory
  20. Conspiracy Context
  21. Can’t use statement of one conspirator against another, because biased (Crawford)
  22. Wrongdoing
  23. Party prevented witness from appearing, like killing them
  24. Needs intent to prevent testimony, not just wrongdoing (Gray)

AVAILABILITY IMMATERIAL

  1. Present Sense Impressions
  2. Admissible for truth of situation
  3. Can include narrative during events (Dog-Mauling Case, 911 call)
  4. D could say party wasn’t seeing anything concrete
  5. P would at least get screaming in
  6. Excited Utterance
  7. While party is still in situation, shortly thereafter
  8. Dog-Mauling Case could also get in through here
  9. Then-Existing Mental/Emotional/Physical Condition
  10. Admissible for mental state
  11. Intentions/impressions for future can be sketchy
  12. Might be just “propensity for someone to do something” (Hillmon, death in desert)

MEDICAL STATEMENTS

  1. Hearsay Exception R803
  2. Not only to doctors
  3. Criteria
  4. Subjective: was statement made to get/enable treatment?
  5. Facts stated must be relevant to treatment
  6. Objective: reasonable Dr rely on in diagnosis/treatment?
  7. Allows in how you got injuries, NOT just symptoms
  8. HYPO: pushed down the stairs
  9. Fact that didn’t just fall could affect physical impact, treatment
  10. Cause could be irrelevant to fall itself
  11. HYPO: child tells bout caretaker abuse (Iron Shell)
  12. Dr needs to check if abuse continuous
  13. Statement to person taking you to Dr might count
  14. Statement during treatment might count, jurisdiction dependent
  15. Rationale
  16. People tell medical truth to get healthy
  17. Facts for Expert Testimony
  18. Come in under same rule as above
  19. Admissible for truth even if just basis for Dr testimony

WRITTEN RECOLLECTIONS

  1. Hearsay Exception R803
  2. ID’ing
  3. Substitute for testimony
  4. Must be written by W
  5. Criteria
  6. Firsthand knowledge at time BUT unable to recall
  7. Statement made near actual event
  8. Witness vouches for accuracy
  9. Needs to guarantee accuracy in court (Lil Arnold case)
  10. Testimony Aid R612
  11. Lets W refresh memory
  12. Actual recording not admitted

OFFICIAL RECORDS R803

  1. Public records/reports R803
  2. Adversariality
  3. Police records/investigations can’t come in because could be biased towards getting criminal
  4. If adversarial, creator of record must testify as to method of creation
  5. Chemist in crime lab must testify as to how generated results, in order for results to be admissible (Ontes)
  6. IRS tax assessment can get in because assessor on stand, and because supposedly less adversarial (Hayes)
  7. Things like fingerprints/photos get in just fine
  8. Use
  9. Crim: Only against gov, NOT against D
  10. Civil: everyone
  11. Business Records
  12. Qualification
  13. Can’t have been made in prep for litigation
  14. Police chemical records get in, because business of lab is litigation
  15. Use
  16. Employee must testify about own records, or about records made by another employee
  17. Business can’t speak to part of record created by customer (Vigneau, Western Union signing not admissible)
  18. Can’t be used to get around Public Records exception parameters
  19. Judgement of Previous Conviction
  20. Absence of Regular Records

RESIDUAL EXCEPTION R807

Criteria

  1. Necessity
  2. Crucial to case
  3. Really impractical to get proof of substance otherwise
  4. Trustworthiness
  5. More reliable than actual witness

Use

  1. Like 403/404: always throw in
  2. HYPO: newspaper article bout fire 80 years ago (Dallas v Commercial Union)

CONFRONTATION CLAUSE

CRIM ONLY

*Do after hearsay (RULE INTERACTIONS NEXT PAGE)

Criteria

  1. Definition
  2. W/O opportunity to cross-examine accuser, testimonial evidence can’t get in (Crawford, stabbing and self-defense/not)
  3. Wife claimed spousal priv, so couldn’t be crossed
  4. Testimonial?
  5. = Designed to create record for trial
  6. Primary Purpose Test (Bryant) requires OBJECTIVE analysis of:
  7. Circumstances: objective
  8. Intention of speaker
  9. What would RPPUSC have intended by statement?
  10. Might want to ID threat…
  11. Or to get cops to arrest your enemy
  12. Intention of questioner
  13. Police: might want to control emergency
  14. Or might want to establish case
  15. Determination Examples
  16. Testimonial: establish facts of past crime
  17. Affidavit on domestic battery (Hammon v IN)
  18. Not Testimonial:
  19. Ongoing emergency
  20. 911 call, “he’s jumping on me” (Davis v Washington)
  21. Victim just shot, perp could be running around with gun (Bryant)
  22. Informal
  23. Events as they happened
  24. Examples
  25. Police interviews may or may not be testimonial
  26. Criminal lab results must be accompanied by technician (Melendez-Diaz)
  27. Calculations for victim ID, not actually introduced into evidence (Williams v IL) (got in but questionable)
  28. Prob made for facts of crime
  29. Need to hear procedure
  30. Machines aren’t making assertions
  31. No incentive to lie, no D in sight
  32. Not evidence itself, but basis for expert testimony
  33. Dying declarations to cop fine

Interaction with other Rules

  1. Declarant Unavailable R804: need of prior cross covers
  2. Declarant Availability Immaterial R803: D prob available
  3. Present Sense Impression
  4. Can be a prob: HYPO calling cops on neighbor selling drugs
  5. Ongoing emergency needs to stop, not testimonial
  6. Telling cops why to arrest someone, testimonial
  7. Excited Utterance: could be problem if said in anger, testimonial
  8. Medical History Statement: not part of police rep. so prob not testimonial
  9. Business/Public Records
  10. Records like lab testing reflect determinations, need actual creator on stand (Bullcoming)
  11. Other business records just fine without witness

LAY V EXPERT TESTIMONY R701-6

Criteria

  1. Lay
  2. Firsthand knowledge/perception
  3. Particular knowledge:
  4. Drug use
  5. Business area expertise
  6. Sometimes only for your specific firm
  7. Personal experience > general principles
  8. Nongratuitous, actually useful
  9. Would jury have wanted to be in witness’ shoes when forming opinion?
  10. Nonfactual inferences: “he’s tall”
  11. Kind of opinion, can’t be reduced to fundamental facts
  12. No scientific testimony
  13. Can’t BS pieces of expert testimony under lay guise (Ganier, tried to sneak form for incriminating computer searches)
  14. Expert

Criteria (DOWN THROUGH F)

  1. Proper qualifications
  2. Not necessarily formal training
  3. Experience must be significant (Jinro v Secure Investments, Korean culture and girl)
  4. Proper topic: if average judge/juror could figure out, doesn’t work
  5. “Consistent with account” works (Zimmerman trial)
  6. CANNOT reach ultimate legal conclusions
  7. Testifying to matter of law, that cop didn’t follow normal procedure (Hugh v Jacobs)
  8. Can’t say handwriting exactly matches, just qualities in common
  9. “Macho” and “Match” sounding alike (Chesebrogh-Pond)
  10. Can’t testify as to specific individual credibility (Batangan)
  11. Sufficient basis
  12. Facts they’ve been informed of, even if not observed
  13. Attorneys can ask hypos based on R104b conditional relevance to flesh out expert opinion
  14. Can’t be totally based on hearsay material (Williams v IL, lab test was hearsay exception but still hearsay)
  15. Psychiatrists can reasonably rely on
  16. Relevant/reliable methods…
  17. Normally relied on by experts in these cases
  18. Reasonably relied on here
  19. Reliably applied to facts (Daubert, Kumho) (LOOK DOWN)

Court doesn’t have to go through every point (Kinney)

  1. Can technique be tested?
  2. Peer reviewed?
  3. Might not work for experience-based expertise
  4. Known rate of error/quantifiable reliability?
  5. Existence of standards for industry?
  6. General acceptance?
  1. R403 challenge
  2. Facts must be more probative than prejudicial

AUTHENTICATION OF EVIDENCE R901-2

  1. Authenticity R901A
  2. Easy standard of proof, but can be argued
  3. Chain of Custody
  4. Helpful for docs that may have ben tampered with
  5. Nonexpert unqualified on handwriting
  6. But personal knowledge for lay testimony could work
  7. Self-Authenticity R902: gov seals speak for themselves
  8. Exhaustive list if needed
  9. Ancient Documents
  10. Needs to be at least 20 yrs old with established authenticity
  11. Condition/finding place must make sense (Stelmokas, Holocaust docs)
  12. Phone Call
  13. Usually based on phone ownership/voice recognition
  14. Can piece together using distinct characteristics R901b4 (State v Small, accent)
  15. Photos/Video
  16. Someone present must testify to authenticity; for CGI, creators (Simms)
  17. Silent Witness Theory: video authenticates itself court considers (Wagner v State):
  18. Time/date
  19. Editing/tampering
  20. Equipment used
  21. Procedure/security around equipment
  22. Testimony ID’ing video subjects
  23. HYPO: cop sleeping while video rolls
  24. Prob wouldn’t work under normal theory
  25. Prob would work under silent witness
  26. Best Evidence Rule
  27. Original doc required, unless excused R 1002
  28. Drawings made after litigation began don’t count (Lucasfilm)
  29. Mechanically-made duplicates that preclude human error admissible R1003
  30. IM convo copied and pasted into Word couldn’t work (US v Jackson)
  31. Destruction, bad faith, loss of original can excuse R1004

PRIVILEGES R501