Evidence Compiled Notes
I. INTRODUCTION TO TRIAL
FRE 102, 104, 103 How the law of evidence fits in: the courtroom is like a box and the law of evidence determines how it gets filled during the trial. Two keys: role of the parties & the jury. Adversarial system parties primary responsibilities: investigate, put on facts, make args, jury instruction. Jury 12 or 6, importance to evidence purpose: insure the jury component is exercised properly, improper things not given (criticism inefficient, gamesmanship, unequal resources, skew outcome, irrational juries poor at truth finding function. RULE 102 PURPOSE AND CONSTRUCTION: THESE RULES SHALL BE CONSTRUED TO SECURE FAIRNESS IN ADMINISTRATION, ELIMINATION OF UNJUSTIFIABLE EXPENSE AND DELAY, AND PROMOTION OF GROWTH AND Truth is not direct goal, objective is to make sure the process is efficient. PROCESS TRUTH. Courtroom as a box: parties fill with data factfinder (jury) looks at and draws conclusions about the real world, what actually happened then the law is applied to conclusions, jury instructions contains elements of the charge VERDICT becomes the truth, unassailable unless legal problems with the process. Two aspects: Burden of Production and Burden of Persuasion (if parties "tie" the party with the burden of production loses). Burden of persuasion who has the burden of tipping the scale. They usually go together. Standard of proof to satisfy burden of production, prima facie case, sufficient evidence to support finding of each material element, so a rable jury could find in your favor on each element. Who decides if burden of production has been met? The judge decides if enough evidence had been put into the box to send the case to the jury, decides if the jury should be involved at all. If there is not enough, burden not met case dismissed. Burden of persuasion: Civil preponderance of the evidence, more likely then not, Criminal BARD. Intermediate standard clear and convincing. The jury applies the burden of persuasion. If the evidence is overwhelming so that no rable jury could find for the directed verdict (civil only). Burden of production: important for the law of evidence, the judge keeping an eye on admissible evidence, there must be some on every bit of claim or charge. If not, case will be dismissed. Some evidence can be used for some things, but not another limiting instruction. If ignored by the jury the judge may dismiss or direct verdict. Intersection of law of evidence and procedure evidence used for the wrong purpose. Courtroom as a sealed box: Rules of evidence are the seal that keeps things out. If any Rule of evidence applies to keep evidence out, it says out. The Rules as a series of hurdles. Rules: Points: come from common law (not always coherent), FRE not complete, lots unsaid (case law covers or everybody knows), underlying body of laws, NY doesnt have codification, scattered stats, common law. PRELIMINARY QUESTIONS How Rules work: Preliminary Questions: Question of whether the data should be allowed into case. In general, make by the judge. Then the jury decides how much weight. ADMISSIBILITY v. WEIGHT.
DEVELOPMENT OF THE LAW OF EVIDENCE TO THE END THAT THE TRUTH MAY BE ASCERTAINED AND PROCEEDINGS JUSTLY DETERMINED.
A. BURDENS OF PROOF
2 RULE 104 PRELIMINARY QUESTIONS: (A) QUESTIONS OF ADMISSIBILITY GENERALLY. PRELIMINARY QUESTIONS CONCERNING THE QUALIFICATION OF A PERSON TO BE A WITNESS, THE EXISTENCE OF A PRIVILIGE, OR THE ADMISSIBILITY OF EVIDENCE SHALL BE DETERMINED BY THE COURT . . . o Nuts & bolts evidentiary questions, applies to exclusionary rules of evidence. o The trial judge, not the jury decides whether evidence is admissible. For almost every possible objection to admission, the judge rules. There is only one type of objection that is left to the jury to rule on, "conditional relevance." o Standard preponderance of evidence (eg, dying declaration) Conditional Relevance: (B) RELEVANCY CONDITIONED ON FACT. WHERE THE RELEVANCE OF EVIDENCE DEPENDS ON THE FULFILLMENT OF A CONDITION OF FACT, THE COURT SHALL ADMIT IT UPON, OR SUBJECT TO, THE INTRODUCTION SUFFICIENT TO SUPPORT A FINDING OF THE FULFILLMENT OF THE CONDITION. o This is one type of objection to admissibility that the jury decides for itself. If the pty seeking to admit an item of evidence agrees that it is not relevant by itself but states the it will be relevant when some other fact is established that provides a context for it, the situation is defined as "relevancy conditioned upon a fact." o Eg in a criminal case trying to tie the to the scene, trying to introduce sneaker. objects. Prosecution tries to tie sneaker in with case, evidence to show that its s sneaker (maybe muddy footprints). Can introduce subject to have to show sufficient evidence to support a finding that the sneaker is s and related to the case. o Eg the relevancy of a witness testimony about the speed of As car is conditioned on a finding that As car is the car that was involved in the accident. o Standard sufficient evidence to support a finding that the other condition is satisfied to make relevant. o The jury could then decide that the evidence is not enough (that it is not s sneaker). They jury determines whether the condition has actually been satisfied. o Subject to means that the evidence can be introduced before it has been shown to be sufficient as long as it is followed up by evidence that shows sufficiency. Must be "connected up" as some point or the judge will give a curative instruction to ignore the evidence. The damage may already be done, so judges are hesitant to admit evidence subject to a later connection. o Eg , a police officer, is sued for violating s civil rights during an arrest. seeks to introduce a picture of a weapon allegedly owned by the . Would it affect your answer is there has not yet been testimony that had a gun on the night of the arrest? Standing alone not relevant, but condition might be satisfied to make relevant, potential for testimony that had a gun on the night of the arrest. Relevant helps corroborate the cops story. Burdens of Proof
Burden of production evidence sufficient to support a finding (prima facie case) Burden of persuasion preponderance of the evidence or BARD Preliminary Questions 104(a) (competency, privilege, admissibility, etc) preponderance of the evidence. 104(b) (conditional relevance) evidence sufficient to support a finding.
3 B. ORDER OF PROCEEDINGS Trial Overview: Voir Dire (jury selection) Opening statements ( ): present evidence to be put forward, NO legal arguments, just what evidence to consist of, opening statements are not evidence. s case in chief ( direct cross): must satisfy burden of production (judge enforces), present enough evidence so that jury could find in favor. s case in chief ( direct cross): attack s evidence, introduce additional evidence (neutralize), affirmative defenses. s case in rebuttal ( direct cross): limited to responding to what put in, no repeat, no new evidence (some exceptions). s case in rebuttal (rejoinder) ( direct cross) Closing Arguments ( ) Charge (jury instruction) o Closing Arguments and Charge may be flipped. Verdict: must be unanimous or hung jury. Always keep in mind where you are in the trial (re: problems) b/c the rules of evidence change. Always figure out who called the witness. C. OBJECTIONS AND OFFERS OF PROOF; MOTIONS IN LIMINE Mechanics of admissibility: How the rule of evidence are enforced: Its up to the parties. Eg In a robbery trial, Prosecution asks s wife: "What did tell you about his actions on the night of the robbery?" Two possible objections: hearsay and marital privilege. RULE 103 RULINGS ON EVIDENCE. (A) EFFECT OF ERRONEOUS RULING ERROR MAY NOT BE PREDICATED UPON A RULING WHICH ADMITS OR EXCLUDES EVIDENCE UNLESS A SUBSTANTIAL RIGHT OF THE PARTY IS AFFECTED, AND (1) OBJECTION IN CASE THE RULING IS ONE ADMITTING EVIDENCE, A TIMELY OBJECTION OR MOTION TO STRIKE APPEARS ON THE RECORD, STATING THE SPECIFIC GROUND OF OBJECTION, IF THE SPECIFIC GROUND WAS NOT APPARENT FROM THE CONTEXT, OR o Cant appeal unless do these things, cant appeal something not in the record. o Risk Rule requires a ground for objection, example is not actually hearsay, if object on that ground will be overruled. But it is privileged, but wont succeed on appeal, wont be undone if the judge correctly ruled not hearsay then privilege waived. o If just object and context clear then not a problem. But incentive to get on the record and make sure to be right. o Want to protect the jury from inadmissible evidence, give the party a chance to correct whatever is being offered immediately, and give the judge notice and the ability to exercise discretion. (2) OFFER OF PROOF IN CASE THE RULING IS ONE EXCLUDING EVIDENCE, THE SUBSTANCE OF THE EVIDENCE WAS
MADE KNOWN TO THE COURT BY OFFER OR WAS APPARENT FORM THE CONTEXT IN WHICH THE QUESTIONS WERE ASKED.
Get what the witness would have said in the record, preserve the record for appeal, if the substance of the evidence is not made known the appellate court will not be able to rule on it. o Offer of Proof how the party offering evidence that has been excluded gets on the record. o Potential problem of jury hearing move out. Lots of evidentiary appeals (especially criminal), hwr, rarely result in overturning a decision: 1. Deference on rulings of evidence, if rably correct then likely to uphold. 2. Even if found to be erroneous, doesnt mean decision overturned.
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4 103(a) unless a substantial right of the party is affected HARMLESS ERROR DOCTRINE a harmless error doesnt affect a substantial right, didnt affect the outcome of the trial. Used to be that a constitutional error was never harmless (eg, confrontation clause), but the SCt rejected but heightened standard, must be convinced BARD that error did not affect verdict. 103(D) PLAIN ERROR NOTHING IN THIS RULE PRECLUDES TAKING NOTICE OF PLAIN ERRORS AFFECTING SUBSTANTIAL RIGHTS ALTHOUGH THEY WERE NOT BROUGHT TO THE ATTENTION OF THE COURT. o Even if objection not timely and specific o Escape valve, relatively rare. A plain error has to be obvious and there would have to be no plausible tactical reason that the atty would want to let such evidence in. CURATIVE ADMISSIBILITY (open door doctrine): dont object, but is objectionable (eg, character evidence), then try to put in own to counter, which also shouldnt be admissible, but the other party opened the door. o Eg the prosecution puts in objectionable evidence knowingly, then cant object later on to similar evidence, in effect waive objection. MOTION IN LIMINE resolve evidentiary questions ahead of time, a motion that asks a judge to rule on an evidentiary matter prior to trial. o 103(A)(2) ONCE THE COURT MAKES A DEFINITIVE RULING ON THE RECORD ADMITTING OR EXCLUDING EVIDENCE, EITHER AT OR BEFORE TRIAL, A PARTY NEED NOT RENEW AN OBJECTION OR OFFER OF PROOF TO PRESERVE A CLAIM OF ERROR FOR APPEAL. o Under FRE, after a definitive ruling dont have to raise objection again to preserve for appeal o In NY, not so clear dont have to do again, if a party loses would probably have to renew objection relating to such evidence at trial in order to preserve the record for appeal.
II. RELEVANCE IN GENERAL
FRE 401, 402, 403, 104(b) Relevance: basic condition/threshold question for introduction of any piece of evidence. 401 & 402. Fundamental rule of inclusion, anything relevant assumptively admissible unless there is something that excludes it (402 all relevant evidence is admissible and evidence which is not relevant is inadmissible). Idea of relevancy: condition on a rational system of adjudication. (After convinced note written by D, identified authentication) Things that the note could help prove: Existence of note to show that D alive when written D can write, speak English
W Leave V and marry me. Love D
Does NOT prove: W is married to V W & D are having an affair D is unscrupulous D wants W to leave V and marry him D is in love with W
5 Item/data could suggest these things does data meet standard of relevancy with respect to these points? Relevant to all points RULE 401 DEFINITION OF "RELEVANT EVIDENCE":
MEANS EVIDENCE HAVING ANY TENDENCY TO MAKE THE EXISTENCE OF ANY FACT THAT IS OF CONSEQUENCE TO THE DETERMINATION OF THE ACTION MORE PROBABLE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE.
Standard any tendency to make a fact more or less probable "Any tendency" if knew nothing of fact and then knew of evidence would that change your opinion. Kind of facts to be made more or less probable facts of consequence to the determination of the action. o Usually an issue of substantive law, tied to the concept of materiality More or less probable minimal standard/burden, any evidence that tends to show something is even a tiny bit more probable then without the evidence is sufficient.
Relevancy Rule 401 Relevance: does a piece of evidence have "any tendency" to make the fact for which it is offered to prove more or less likely. Materiality: is the fact for which this piece of evidence is offered to prove "of consequence" to determination of the action (necessary to know charge).
Logical relevance usually determined by inductive reasoning, that is circumstantial evidence that doesnt directly prove the fact but provides a chain of inferences. To get from one link to the next you need to ask each time whether the preceding link adds any tendency that the next in line is more probable than it was without the previous link. Evidential Fact Inferred Fact D wants V to marry him Inferred Fact D wants V gone Inferred Fact D has motive to kill V Consequential Fact D killed V
To introduce fact of evidence have to tie it to material elements of claim/charge (what the consequential facts are) Assume murder charge. Note D killed V. How to get from: inferred facts, evidence of intent to fact of killing. Dont have to prove just that fact has any tendency. . .some reason to change to view of probability of a fact of consequence RELEVANT. DISTINCTION: direct or circumstantial evidence. o Circumstantial: through chain of inferences
6 Direct: no rely on chain of inferences. To be direct, need only to draw on an inference of credibility. Note direct evidence that D wants to marry V only have to believe that telling the truth (credibility). The note is direct evidence of that desire of his no inference required. Eg In a prosecution for homicide, the pros seeks to introduce evidence that on two occasions the said he intended to kill the V. Relevant to the consequential fact that killed V. Direct evidence of intention to kill V. PROBLEMS: o
1.1.02 In and action to quiet title, A claims title by adverse possession. A seeks to introduce testimony of two teenagers who will testify that they were told by A, "Get off this property, its mine." Consequential Fact: asserting right to title Relevant 1.1.03 At s trial, there is testimony that chrome plated gun was used in robbery. The prosecutor now seeks to introduce testimony of s neighbor, who will testify that she saw the carrying a bright, shiny gun into his apt two weeks before robbery. That had a gun more likely to have committed robbery. Relevant changes notion of probability a little bit Assume that she saw the gun two years before the robbery. Still affects probability, goes down, but still alters it a little bit. Relevant Assume that will testify that, at the time the neighbor saw him, he had just purchased a set of toy guns for his nephew. Keep in mind the difference btw admissibility and weight. can come back with all kinds of evidence and the jury considers weight, doesnt affect admissibility. Relevant 1.1.04 In a product liability action alleging defective football helmet, claims permanent brain damage severe emotional problems, including the fact that he is no longer socially active. seeks to introduce evidence of s post injury sexual and gambling activities. Relevant for to show that is socially active. Tendency to show problems are not as severe as claims they are. 1.1.05 , a police officer, is sued for violating s civil rights during an arrest. seeks to introduce evidence that was using cocaine at the time of the arrest. One defense might be that was raving at time of arrest and had to use force Relevant must also show a reason for hassling the guy more likely since was carrying drugs that furtive behavior. 1.1.07 In prosecution for knowingly receiving stolen property, the Pros seeks to intro evidence that immediately before the made his purchase five other people refuse to purchase the property in question. Each of the five people will testify that they believed the prop was stolen. If standard was objective rable people turned it down. If test were would a rable person believe stolen Relevant HWR, knowingly receiving stolen property, subjective std, have to have actual knowledge. Close call Ct held NOT relevant, what other people believed means nothing to what believed. If the five other people were co-workers of the ? May be more relevant if some other fact to tie to s knowledge. That they believed stolen, on notice, more relevant 1.1.08 In workers comp case, claimant slipped and fell in a puddle of water, seeks to into testimony that her ER was seen mopping up a puddle in the same location just two hours before she was injured. For claim just have to prove injured at work, fault not an issue reduces relevance. But some relevance to the fact that injured.
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If slip and fall case then relevant to fault. 1.1.09 is charged with knowingly and willfully making false statements on a passport application. wishes to introduce evidence that he made false statements to speed up process to visit dying mother. Trying to offer as justification reason for knowingly and willfully making false statements NOT relevant. 1.1.10 In defamation action, is alleged to have called the , a minister, a crook. seeks to introduce evidence of s reputation that he had frequent affairs with members of congregation. Does evidence of affairs effect the probability that he is a crook? Probably too tenuous to pass relevance rules. 1.1.17 The Pros seeks to into evidence that one hour after the robbery, fled when approached by a police officer. Relevant Assume the flight occurred five mos after the robbery. Less relevant, could have another reason for running cts have held too far removed, especially if doesnt know hes being sought. (see also 403, better out?) 1.1.19 The state govt began condemnation proceedings ag landowners prop, intro testimony of expert appraiser that prop worth $100K. The landowner seeks to intro testimony from a local real estate agent that in the past three years five houses in that same neighborhood have sold in excess of $110K. In situations where no clear evidence form property have to look to similar situations (another eg, need to show causation for accident that other accidents happen in the same way OR to show meaning of K term, show prior dealings, business practice). Special Formula: Substantial similarity for it to be relevant. Most common: valuation of property need to know if substantially similar. Problem with evidence comes up when trying to prove the absence of something. Eg trying to show that no one else injured. At least one ct held not admissible, just b/c right 5000 times, doesnt mean not wrong on 5001. Not good enough. Trying to prove a negative is often not allowed. Even if meets bare threshold test, substantial similarity bumps up the threshold a little bit, slightly different analysis.
Relevant Evidence, but Inadmissible RULE 403 EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME. ALTHOUGH RELEVANT, EVIDENCE MAY BE EXCLUDED IF ITS PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE, CONFUSION OF THE ISSUES, OR MISLEADING THE JURY, OR BY CONSIDERATIONS OF UNFAIR DELAY, WASTE OF TIME, OR NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE. The balancing test allows trial courts to exclude relevant evidence where its admission would harm the judicial process through delay, confusion or unfair prejudice. All evidence is intended to be prejudicial to the party against whom it is introduced. For the prejudicial effect to be significant under this rule, the effect must be one of unfair prejudice. Re: Note Evidential Fact Inferred Fact D is pursuing anothers wife Inferred Fact D is unscrupulous Inferred Fact D is a bad person Consequential Fact D killed V
When a factfinder reacts to evidence in a way that is not supposed to be part of the evaluative process unfair prejudice.
8 There are inferences that dont want the jury to draw Guilt or innocence should be based on the charged crime, not b/c doesnt love his mother. Jury interest in punishing the b/c dont like, regardless of belief about crime charged. Unfair prejudice exists for this type of problem, may keep out entirely. Once note introduced cant control what the jury is going to think. Standard for deciding whether to keep out: balancing test: whether the danger of unfair prejudice substantially outweighs its probative value. The prejudice has to be unfair, all evidence is prejudicial (meant to help the proponent and hurt the opponent), but unfair prejudice involves some inference that dont want the jury to be drawing. Risk is here clearly, but if kept out just for that then wouldnt be able to have it in, balance weighed in favor of admitting. Rule 105 Limiting Instruction: upon request, the court can restrict the evidence to its proper scope and instruct the jury accordingly. o There is a cost since would call attention to the inference that dont want jury to draw, can be better off leaving unsaid. Waste of time/confusion of the issues notion that dont want evidence that just muddies the waters, delays things. DANGERS: Unfair prejudice inflame the passions of the jury, not associated with facts/charge Confusion of the issues when shown evidence that doesnt ho to the issue to be decided, juries may become confused. Mislead jury b/c of the way evidence presented the jury will make an inferential error, will overvalue certain evidence, or will come to an illogical conclusion. Efficiency undue delay, waste of time, or needless presentation of cumulative evidence (judge can limit the # of witness to promote efficiency. PROBLEMS:
1.2.01 sued for running over him with his car. seeks to introduce evidence of a color photo of himself which shows him on the street with blood flowing from his head. The test is does the bad risk substantially outweigh the probative value. There is a risk, but probably doesnt substantially outweigh. The probative value is to show injury. Photographs: usually come up in criminal cases, normally will allow at least some pictures to show the nature of the crime. Frequently come up in murder charges b/c they have a high probative value in order to show the brutality of the crime, the angle of the entrance wound, or that the victim was killed by a left handed or right handed person. Judge has discretion to limit the number, size or color of photographs so as to reduce the danger of unfair prejudice. When photos exhibit changed circumstances (eg, autopsy) they will usually be excluded. 1.2.02 , (Falwell-esque), sues owner of mens mag for defamation and invasion of privacy. Comments in context of advertising parody. seeks to introduce entire mag, containing "hard core" pictures (Hustler-esque). Relevance want to show rest of magazine to understanding of how damaging in context of whole thing. Bad inference that Flynt had bad moral character, punish him for the magazine. Substantially outweighs? Ct did let in, close call, they about balance each other out, both high, but that means has to come in. 1.2.05 s son died, allegedly from inhaling a household product made by the . sons marijuana use. seeks to introduce evidence of the
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Points evidence might go to prove: used product improperly, person who uses pot more likely than another to use recreational inhalant. If use of product in question risk of unfair prejudice is that if the jury learns that smoked pot then will not give the money to family b/c think deceased a bad person. Outweighs probative value of inhalation? Evidence has a fairly high probative value if denying intentional inhalation then pot use relevant b/c makes more likely. There is a risk of unfair prejudice, but standard tips heavily in favor of admissibility. There is a presumption of admissibility the unfair prejudice must be substantial in order to tip the scales so as to exclude the relevant evidence under this rule. What if no dispute on intentional inhalation? How is evidence relevant? If claim is wrongful death need to know earning potential of deceased to assess damages maybe relevant. The question is worth, ultimate value of life. What correlation btw high school drug use and earning potential. Judge didnt allow on this point, not that significant for deciding rest of life as against risk of unfair prejudice. 1.2.06 sued manuf of a car for personal injuries, alleging a design defect. seeks to introduce the longitudinal cross section of a new car in the same model. To really drag the whole car in, makes into circus, depending on how difficult, there are other ways to prove.
HYPOS: accused of extorting $ from local shopkeepers by threat, but never pulls any weapons. Is evidence that keeps a number of guns in his home relevant under 403? Only need to know if made the treats more likely to have made the threats of violence if had guns at home some tendency to make more likely Outweighed by risk of unfair prejudice under 403? Guns at home, to lock up whether made threats or not. Risk of unfair prejudice DOES NOT substantially outweigh probative value. YES tends to show had intent to extort by showing he had means to carry out threat is accused of drug trafficking. Is evidence that keeps gun in his home relevant under 403? More likely to be drug trafficking? Yes Outweighed by risk of unfair prejudice? No YES guns are common paraphernalia of narcotics trade, more likely that someone who has guns is involved drug dealing. is accused of drug trafficking. Is evidence of a large amount of cash in his home relevant and admissible? YES most drug transactions are made with cash, more likely that someone who has cash is involved in drug trafficking. NOTE: not many situations where evidence is excluded under Rule 403 is accused of possessing an unregistered firearms in the form of a Molotov cocktail. Is evidence that had an unlicensed gun in his car relevant and admissible under 403? NO insufficient connection between guns and charged crime; also, high risk of unfair prejudice. Compare with drugs treatment: use of guns to advance drug deals tied together. One weapon to another is a more dangerous inference.
III. JUDICIAL NOTICE
FRE 201
10 RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS (A) SCOPE OF RULE. THIS RULE GOVERNS ONLY JUDICIAL NOTICE OF ADJUDICATED FACTS (B) KINDS OF FACTS. A JUDICIALLY NOTICED FACT MUST BE ONE NOT SUBJECT TO REASONABLE DISPUTE IN THAT IT IS EITHER (1) GENERALLY KNOWN WITHIN THE TERRITIORIAL JURISDICTION OF THE TRIAL COURT OR (2) CAPABLE (C) (D) (E) (F) (G)
OF ACCURATE AND READY DETERMINATION BY RESORT TO SOURCES WHOSE ACCURACTY CANNOT REASONABLY BE QUESTIONED. WHEN DISCRETIONARY. A COURT MAY TAKE JUDICIAL NOTICE, WHETHER REQUESTED OR NOT. WHEN MANDATORY. A COURT SHALL TAKE JUDICIAL NOTICE IF REQUESTED BY A PARTY AND SUPPLIED WITH THE NECESSARY INFORMATION. OPPORTUNITY TO BE HEARD. A PARTY IS ENTITLED UPON TIMELY REQUEST TO AN OPPORTUNITY TO BE HEARD AS TO THE PROPRIETY OF TAKING JUDICIAL NOTICE AND THE TENOR OF THE MATTER NOTICED. IN THE ABSENCE OF PRIOR NOTIFICATION, THE REQUEST MAY BE MADE AFTER JUDICIAL NOTICE HAS BEEN TAKEN. TIME OF TAKING NOTICE. JUDICIAL NOTICE MAY BE TAKEN AT ANY STAGE OF THE PROCEEDING. INSTRUCTING JURY. IN A CIVIL ACTION OR PROCEEDING, THE COURT SHALL INSTRUCT THE JURY TO ACCEPT AS CONCLUSIVE ANY FACT JUDICIALLY NOTICED. IN A CRIMINAL CASE, THE COURT SHALL INSTRUCT THE JURY THAT IT MAY, BUT IS NOT REQUIRED TO, ACCEPT AS CONCLUSIVE ANY FACT JUDICIALLY NOTICED.
Judicial notice is the recognition of a fact as true w/o formal presentation of evidence. Adjudicative Facts facts that are unique to the parties in the litigation, including such matters as the identity of the people or companies involved in a dispute (who), what they might have done, where they did it, when they did it, and why and how they have acted (ie whether fact that deals with this case is true). o Facts that are specific to a particular litigation, such as whether a certain street is in a business or residential district. Legislative Facts are related to background ideas about reality or law (policy facts that relate to legal reasoning and the lawmaking process), need not meet the requirements of Rule 201, judges can find any way they want (eg in Brown v Bd. of Ed, the Court considered child no getting the same education, didnt have to do with this child in this school, had to do with society in general). o Refers to more general facts about society and human nature. Different categories of adjudicative facts that might be judicially noticed: Notorious Facts Matters of common knowledge in the community: Judicial notice may be taken of the body of facts that well-informed persons generally know and accept. Though usually the facts of common knowledge are known everywhere, it is sufficient for judicial notice if they are known in the community where the court is sitting. Manifest Facts Facts capable of certain verification: Some facts, while not generally known and accepted, are easily verified by resorting to easily accessible, well-established sources that are not subject to reasonable dispute. What information may be judicially noticed: In Va, that the Richmond Times is a newspaper with a statewide distribution 201(b)(1), everybody in Va knows, common knowledge. The NY Times is a newspaper with nationwide distribution. W. 53rd is in the theater district. The city of Battle Creek, Michigan is the home of the WK Kellogg Company 201(b)(2), accurate and ready determination, establish by going to the library corporate directory, no one disputes. The Kellogg Company headquarters are located in the heart of Battle Creeks downtown something more than looking at a map, would have to get in under first part of rule if in Michigan, elsewhere not judicially noticed.
11 There were 13 original colonies, whiskey causes intoxication, electricity is dangerous. It is impossible to drive from NYC to Albany in two hours if you stay in the speed limit could establish map, mileage, speed limit, easy enough to prove. Jury instruction: In a criminal case, a fact subject to judicial notice is recognized by a judge, must have a jury instruction that the jury may accept as conclusive. The distinction can be significant. Eg a jury verdict of guilty, moves to jmt of acquittal based on failure to establish an essential element, which is granted and the government appeals. An appellate court can take notice of an adjudicative fact, but if as a consequence a conviction would be reinstated then that is a problem, app cts judicial notice would be conclusive when the jury has the power to disregard. If the s motion is denied and the appeals, the app ct could take judicial notice in his favor and acquit b/c an essential element is missing, the difference is that judicial notice is going in s favor, conclusively disproving a material element. Part of the rule is to ensure that if convicted the jury has considered every material element BARD different than acquittal. o The special provision for criminal cases reflects the constitutional right to a jury trial and a belief that requiring the jury to accepts as true a fact that the judge had accepted as true would be an unconstitutional invasion of that right.
IV. EXAMINATION OF WITNESSES
A. Direct Examination FRE 611(a), 611(c) Where the main story gets told, where actual evidence gets put in, substantive part of case, must put in enough evidence on every element burden of production after s case in chief. Have to keep the jurys attention. The goal is to establish a flow get the witness to say everything you want and nothing you dont. Some unwritten rules on how to ask questions, see Common Objections to Form (handout). Key rule: Rule 611. Mode and Order of Interrogation and Presentation 611(a) The judge controls the order and style of testimony. 611(c) Excludes leading questions on direct exam, EXCEPT as may be necessary to develop a witnesses testimony (leading questions suggest the answer desired, disallowed b/c with a compliant witness the lawyer would be the one testifying and b/c of belief that a witness is more likely to testify truthfully if the witness does not know what answer the questioner wants the witness to give). o Permitted in three situations w/i judges discretion: 1. preliminary matters 2. where witness may have a failure of recognition or is lost 3. where only way to illicit answer: child, mentally incapacitated o Also allowed when a party calls a hostile witness, need a ruling from the judge. Also when an adverse party is called, or a witness identified with an adverse party. The assumption is that an adverse party will not go along with leading questions (ruling not needed). See PROMBLEMS 3.1 3.4 Refreshing Recollection Usually will have a chance to talk to witness and prepare, usually good idea not to set up rote questions and answers b/c potential for witness to freeze up, likely to forget memorized, better to go over points to be covered, but keep the witness own words. Still might have a failure of recall. There are a variety of ways to deal with. 611(c) Easiest way to use leading questions if a simple thing, judges discretion to allow.
12 Present Recollection Refreshed (under C/L anything can be used to refresh a witness recollection, if witness uses a writing to refresh memory either while testifying or before then Rule 612 applies). 803(5) Past Recollection Recorded What difference? With present recollection refreshed provoking a current memory in a witness and with past recollection recorded the memory is gone, the witness is not going to remember, but can use a record as a substitute for current memory. Usually the best way is to refresh the witness recollection. Present recollection refreshed could be done with anything that will refresh recollection. Past recollection recorded, under Rule 803(5), the introduction of a document has potential hearsay problems. The document coming into evidence would be hearsay unless can fit under an exception. Foundation required to get read into evidence as a surrogate to witness memory. Past Recollection Recorded
Available when W has no current memory Record must "correctly" reflect Ws prior knowledge Record must have been "made or adopted" by W Record must have been made or adopted while the matter was "fresh" in Ws mind Record is read into evidence, but not admitted as exhibit unless offered by opposing pty
Present Recollection Refreshed
Triggers current memory W must testify to a lack of memory and testify that refreshing item will trigger memory Item must actually refresh memory Refreshing item need not be admissible, but must be shown to opposing counsel Opposing counsel may introduce evidence and cross examine using refreshing item
B. Cross-Examination FRE 611(b) Used to flesh out witness testimony, delve into subject matter not covered fully to bring things out that cast doubt, color the witness testimony. 611(b) Cross-examination limited to the subject matter of the direct examination and matter affecting the credibility of the witness. May only cover the topics raised in direct examination, unless the judge allows a broader scope. 611(c) Generally, leading questions are allowed on cross-examination. When an opposing party has called a witness aligned with your client or has called your client, then not a standard cross examination there is not adversity so the rationale for allowing leading questions disappears. PROBLEM 10.1 10.1.01 s witness testifies as to condition of . On cross, s counsel asks about the condition of other people that Dr. examined in s neighborhood. Court held outside scope of direct, cross limited to s symptoms, other people outside scope. Theory is that parties should be able to control their own case, present in unified way, but creates inefficiencies since could just call on own direct. 10.1.02 s witness makes statement on during direct that plant is safe and denies that gas leaked. On cross asks witness concerning other types of gas leaks that have occurred. Court held w/i scope. The witness made a general statement about the condition of the plant. The cross would tend to negative that proposition.
13 Same scope rules on re-direct and re-cross. Re-direct is limited to scope of cross, not allowed to rehash or go into new matter gradually narrowing of the subject matter of examination.
V. EVIDENTIARY FOUNDATIONS
What is a foundation? Want to make sure that every piece of evidence meets threshold standard of relevance. All evidence through some vehicle, want to make sure that vehicle meets standard of relevance that it is what it purports to be. For example, the K in a breach of contract case. Foundation that the K is the actual K, eg not a forgery. The same with witnesses, eg put in foundation that witness was actually there. A. COMPETENCY Competency of a witness determines whether a witness is legally able to testify. At C/L used to be lots of people were barred from testifying (eg parties to a dispute, felons, atheist, young children). Modern view Rule 601 is a pro-competency blanket rule that every person is competent, unless otherwise provided in the Rules. Note: in civil diversity cases, the competency of a witness is determined in accordance with state law (important b/c of Dead Mans Statute). 1. Status FRE 605, 606, CPLR 4519 Rule 605. COMPETENCY of JUDGE as WITNESS A judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. Would be extremely predjudicial Rule 606. COMPETENCY of JUROR as WITNESS (a) At the trial a juror may not testify in a trial in which the juror is sitting. Juror may be questioned outside under oath, by a judge, outside the presence of other jurors regarding possible outside influences on the jury (eg if a makes a motion for a mistrial the judge hears) Assume sees a juror in the hallway and says that he feels terrible about what he did. The juror could not testify to. As a prosecutor it could be a tricky situation probably the juror cant continue, could ask for a mistrial, excuse the juror, go for jury tampering after the trial. (b) Post-Verdict Testimony upon inquiry into the validity of a verdict or indictment a juror may not testify about the course of deliberations or thought processes that went into arriving at a verdict (eg bullying juror), EXCEPT that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurys attention OR whether any outside influence was improperly brought to bear upon any juror. Policy: Want verdicts to be final and dont want jurors to be harassed. Note: Problem for lawyer if witness doesnt say what they told you previously when on the stand. If the lawyer wants to testify there is no rule of evidence barring, but ethics rules do. Either take the stand and cant continue representation or let it go so can continue to represent. The exception is if this causes substantial hardship. When interviewing a witness have another in the room or get the witness to write it down. Dead Man's Statue (CPLR 4519)
Applies only in trial on merits An interested person or predecessor to an interested person May not testify In behalf of himself or his successor Against decedents representative or successor About personal transactions or communications btw the W and the decedent Unless waived
14
HYPO: Father gives bank books to D. Father and D die. Fathers estate tells Ds Husband to return the bank books. Hs defense is that bank books are a gift: "I heard F say to D, ,,I want you to have these bank books." o Trial on the merits o H is an interested person (Note: kind of interest must be direct stake in litigation, Son could testify) o It is against decedents representative o About a personal transaction between the witness and the decedent (things heard or seen, just about anything) o H may NOT testify o Policy afraid H could be lying so prevent from testifying (prevent the living from taking advantage of the dead by making claims that cannot be disproved), HWR the risk that H will suffer an injustice is just as great (or greater) than injustice suffered by Fs estate. o General Exception if the door is opened by the other party regarding the same transaction or communication by: (a) the decedents representative testifies about the transaction, or (b) the decedents testimony about the transaction is offered through some hearsay exception. o Accident Exception in accidents involving car, truck, plane or boat in a negligence case, testimony regarding facts of the accident is allowed, HWR testimony as to conversations with decedent is not admissible. 2. Foundational FRE 601, 602, 603, 604
Narrative Capacity interpreters may be used, Rule 604 contains standards for when they can testify. Translator has to be qualified as an Expert and given an oath or affirmation to make a true translation. Sincerity Rule 603 gives standards for an oath or affirmation to testify truthfully; it shall be administered in a form calculated to awaken the witness conscience and impress the witness mind with the duty to do so. Functions to: (1) convey the seriousness of the situation and (2) set up perjury prosecution if witness lies. Precise words dont matter, if a person refuses to say "solemnly" doesnt matter If a person wont take an oath with Gods name, but will say that will tell the truth dont care whether says God or not, just make an oath that satisfies the functions. If a person refuses to use the words "swear or affirm" doesnt matter, a promise would be sufficient. But if witness refuses to take any oath at all or even state that will tell the truth in testimony then cant testify. Testimony wont be stricken b/c witness who took standard oath "so help me God" later admits on the stand that is an atheist, cant impeach a witness on belief or not in a deity.
Foundational Competency Narrative Capacity 604 Sincerity 603 Perception (First-hand knowledge) 602 Recollection 602, 612, 803(5)
15 Problem: when witness has trouble understanding oath/truth telling children, mentally incompetent. Judges may conduct voir dire with child to determine whether the child is competent to testify. The judge will try to determine that the child understands the difference between the truth and a lie (question the childs understanding the difference between fact and fantasy) NY Statute: CPL 60.20 under 9 a child doesnt have to be sworn as long as judge satisfied that child knows difference btw right and wrong. A heroin addict is not automatically excluded from testifying even if it appears that impairs perception. The same with insanity, if the ability to testify cogently on the stand is impaired. The jury just takes into account when judging credibility. Sincerity under Rule 602, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Conditional relevancy standard in the rule. Any sort of personal knowledge is satisfactory very low threshold. If someone testifies as a lay witness evidence must be introduced that could support a jury finding that the witness has direct knowledge of the subject matter of his or her testimony. That evidence may be introduced as part of the witness own testimony. Recollection if any at all can use refreshing devices. Issue: hypnotically induced testimony to recover memories. NY per se rule of inadmissibility if remember solely by hypnosis for prosecution witnesses. HWR, in Rock v Arkansas, the Supreme Court held that a criminal cant be categorically barred from testifying from hypnotically induced memory Note: Conditional Relevance NY have to do a case by case determination to Conditional relevance usually see if post hypnotic testimony from s witness is arises in 3 situations: reliable enough to come into evidence. 1. Authentication of exhibits
(Rule 901)
o
2. Foundation for witness B. AUTHENTICATION testimony (Rule 1. Real or Demonstrative Evidence 602 personal knowledge) An example of real evidence, tangible evidence that is a part of what 3. Prior bad acts (Rule happened the gun. Demonstrative evidence, typically its things created 404(b) Huddleston) for the trial to help the jury understand computer animation, chart, diagrams. A picture can be real or demonstrative. The practical difference can be found in the foundation required. o Real evidence jury is entitled to give a different kind of weight to, it can be used to satisfy the burden of proof. o Demonstrative evidence has no weight standing on its own, doesnt satisfy burden in the same way, instead it is illustrative of other evidence. Courts wont allow demonstrative evidence to be taken by the jury to deliberations. 2. Methods of Authentication FRE 901(a) & (b)(1)-(7); 902(4) & (11)-(12) Basic foundational requirement for real evidence. Authentication is a requirement that the proponent of evidence provide a basis for the fact finder to believe that the evidence is what the proponent claims it is. Authentication is an example of conditional relevance.
16 Rule 901(a) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims. Series of steps on how to authenticate, magic words: Mark exhibit for identification (can do beforehand or on the spot) Show to opposing counsel May I approach the witness? I show you what has been marked as Ex. 1 for identification, do you recognize it? What is it? Then substantive requirements to meet the B of P must show: 901(b)(1) (7) examples of a group of frequently used methods of authentication. After substantive requirements met I offer what has been marked as Ex. 1 for identification for identification into evidence as Ex. 1. Most important (b)(1) & (b)(4) most physical objects can be authenticated using these two rules. Eg the gun is claimed to be the murder weapon and want to prove found in the s apartment. Call as a witness the police officer who saw the gun in apartment. Ask how he knows it is the gun found in s apartment if officer tagged the item of evidence at the scene and then if distinctive can authenticate from what looks like 901(b)(4) Distinctive Characteristic and the like. Exhibit can be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. Non-distinctive objects: Sometimes an object will have no distinctive characteristics (eg drugs, money) chain of custody testimony in which various witnesses state that some object was the same object obtained from another person, to establish that the testimony the last witness gives is really testimony about the actual evidence taken form the . Nothing in Fed Rules on how to do, based on custom and C/L. The ultimate question is whether the testimony was sufficiently complete so as to convince the ct that it improbable that the original had been exchanged with another sufficient proof that the evidence is what it purports to be. WRITINGS 901(b)(1) Testimony of a witness with knowledge. Testify that matter is what it is claimed to be. Eg authenticate by the person who wrote it, or someone who say the person write it (with (b)(4) saw it & can tell that is the document that saw). 901(b)(2) Non-expert opinion on handwriting. Based upon familiarity not acquired for purposes of litigation. Eg a spouse identifying handwriting, know b/c have seen it before and familiar with. A lay witness may not acquire knowledge in the context of the litigation and then compare (only an expert may do or a jury can compare for itself) 901(b)(3) Comparison by trier or expert witness. An expert can compare handwriting and draw a conclusion that are the same, needs two pieces of paper: an exemplar and the evidence. The exemplar would have to be authenticated in some way other than the expert. The jury could also compare for itself. If exemplar authenticated then could give the jury both and let them make up own minds. 901(b)(4) Distinctive characteristics. A letter might be authenticated by distinctive internal linguistic patterns or characteristic that connect to a particular person or to the writing in question (psysholinguistics). Or by a showing of the unlikelihood that anyone but the purported writer or speaker
17 would be familiar with the contents of the documents or statements in question. Also circumstantial proof relating to external circums, such as custody of an item, for example, may be utilized in conjunction with appearance, contents, substance and the like, to authenticate an item. See PROBLEM 6.1 VOICE AND TELEPHONE 901(b)(5) Voice identification. Identification of voices on tape recordings can be made by nonexperts, but there is no requirement that the person have prior familiarity the identification can be made by the arresting officer even though the first time he may have heard the s voice was at the time of the arrest. 901(b)(6) Telephone conversations. For an incoming call, the voice must be authenticated like a tape recording. For an outgoing call to a particular number, it is authenticated when the person selfidentifies or if its a business it is authenticated with testimony that the conversation was about business rably transacted by phone. 901(b)(7) Public records or reports. Must show that the writing is one authorized by law to be recorded and is from the public office where items of this nature are kept. Photos and Video establish that the photo/video fairly and accurately depicts the subject matter. If represents differently that at the time for which it is being used, it must be explained so as not to mislead the jury. 901(b)(9) Process or system. Evidence describing a process or system uses to produce a result and showing that the process produces an accurate result. Eg surveillance video. Call someone who is responsible for the camera, show that the system works. Other egs x-rays, medical tests, radar guns. o Test of "substantial similarity" for experiments, always up to the judges discretion.
1. 2. 3.
4.
Real Evidence Writings 901(b)(1), (2), (3), or (4), 902 Distinctive objects 901(b)(4) Nondistinctive objects chain of custody Voice and Telephone 901(b)(5) & (6)
Demonstrative
1. Photos, videos Does it fairly and accurately depict _____? 2. X-rays, videos, radar, simulations was the machine working? Did the operation use proper procedures? 901(b)(9)
3. Illustrative exhibits Does it fairly and accurately depict ____? Will it assist you?
Self-Authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT required with respect to . . . 902(4) Certified copies of public records. Dont need witness of custodian of record b/c of the certification 902(11) & (12) Certified domestic & foreign records of regularly conducted activity. Allows for self-authentication of business records as long as a number of conditions are satisfied.
18
VI. ORIGINAL DOCUMENTS RULE
Limit on the kind of evidence that can be put it to prove contents of a writing, relatively specific, rarely has real significance, but tricky need to know when it doesnt apply. The essence of the best evidence rule is that in proving the contents of a writing, recording or photograph, the original is preferentially required; but if the original is unavailable through no fault of the proponent then secondary evidence may be admitted. Rule of preference. 1002 states the basis requirement: To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. 1001 gives the scope of the modern best evidence rule. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, . . ., or other forms of data compilation. The best evidence rule does not apply to proving the contents of physical objects or things other than writings, recordings or photographs. Inscribed chattels eg-writing on a shoe ("Converse"). Enough if reading the definition broadly. The court will often assess the purpose to be obtained from applying the rule, concerns of fraud and reliability (chance that could have been misread) to see if great enough to require the application of the rule. (Do you really need the rule? Would bring the shoe in if could, weakens the case not to, always the incentive to bring the best evidence). Court have gone both ways, the majority rule is that the best evidence rule doesnt apply, look to the circumstances and the motivation of the rule (the jury sorts out disputes with opposing evidence), UNLESS factors are present which would justify requiring the use of the original object: balance factors (i) If easily subject to ambiguity, error in recitation (likelihood of mistake) (ii) Whether the inscribed data is central to the litigation (iii) How feasible is it to bring in the real object Eg serial number of a car. What are the odds that could be wrong in reciting?, How feasible to produce the car?, Whether secondary evidence (registration, photo) would be another precise indication (equally as probative as the original)? Application of rule only when two conditions occur: (1) the evidence involves a writing, recording, or photograph, and (2) the object of proof is the contents of the writing, recording, or photograph. Classic situation: Where the content are the objects of proof, courts have clearly held that writings with the scope of the best evidence rule include written contracts. But if trying to prove oral K dont have to come up with a tape recoding if made, that would just be one means of proving oral K. The best evidence rule is not triggered simply b/c some act or transaction is subsequently memorialized in a writing. The best evidence rule does not require production of a document simply b/c the document contains facts that are also testified to by a witness, provided the proponent of the evidence is not seeking to prove the content of the document (eg party prepares a memo about oral K afterwards, the memo doesnt have to be produced b/c trying to prove the substance of the K, not the contents of the memo). Videotapes and motion pictures have generally been admitted w/o best evidence issues arising b/c usually when offered they are used to illustrate the testimony of a witness who has firsthand knowledge offered to prove an external fact the contents of the film is not at issue. HWR, rule is applicable in an obscenity trial at which the film is claimed to be obscene the object of proof is the content of the film (ie-the issue to be resolved is the content of the film). Where the object of proof is the physical condition of the person X-rayed, the best evidence rule does not operate to prefer the X-ray over the testimony of a medical expert. HWR, best evidence rule is applicable
19 where the contents of the X-rays are at issue, such as in proving malpractice claimed on the physician misreading the X-ray. When the fact to be proven is independent of the contents of a writing, even though some writing may contain evidence of the fact, the best evidence rule is inapplicable. Eg doesnt require use of a receipt which memorializes a transaction where the fact of the transaction is the object of proof. HWR, if sought to testify that the receipt had specific words written on it, then w/i scope of the rule. Not required by law to produce receipt, but if chose to testify to the contents of then the best evidence rule comes in. If testifying witness only knows about the content of a photo due to having seen the photo, then the original or duplicate is required to satisfy the rule. The original of a photo is either the negative or any print therefrom. ORIGINALS: What is an original? According to 1001(3) an original of a document or recording is the document or recording itself or any counterpart meant to be an original by the parties who created the first version of the document or recording. DUPLIACTES: according to 1001(4) a duplicate includes any counterpart that accurately reproduces the original. Under 1003 a duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate of the original. No requirement that the proponent show that cant product the original. EXCUSES FOR NON-PRODUCTION: 1004 variety of circumstances where secondary evidence (W testifies about the contents) is admissible to prove contents of a writing, recording, or photograph without the production of an original. (1) Original has been lost or destroyed provided the party offering the secondary evidence has not lost or destroyed the original in bad faith. (2) Original cannot be obtained through the judicial procedures (3) Opponent has control of original and has failed to produce it despite notice that there would be testimony about it (4) Collateral matters: when the writing, recording, or photograph is not closely related to the a controlling issue The original is the sole test regarding secondary evidence. The duplicate is not determinative when offering secondary evidence, eg-not required to show duplicate destroyed, would probably bring if could, but not required to produce instead of secondary evidence where the original is excused. BEST EVIDENCE RULE: STEPS: Does the evidence involver proof of the contents of a writing? If not, no best evidence problem. If so, is the original being offered? If so, no best evidence problem. If not, is a duplicate being offered? If so, no best evidence problem. If not and original or duplicate, is there a reason why the original is not being offered (eg lost, destroyed, beyond power of court, in possession of adversary). If so, secondary evidence may be offered. (Can use secondary evidence to prove proof of contents of a writing, if the contents are not closely related to a controlling issuer in the litigation.) BURDENS OF PROOF The standard of proof for the trial court to determine the unavailability of a document under 104(a) the judge makes decision on preliminary questions, has to be convinced by a preponderance of the evidence that the rule has been satisfied. The party offering the secondary evidence has the obligation to lay a foundation satisfactory to the court to show that the original cannot be produced.
20 As a condition precedent to the admission of secondary evidence, Rule 1004(3) requires the party in possession of the original be give appropriate notice, may be effected through pleading or other means, no obligation to subpoena the other side. Rule 1006 authorizes the use of summaries where materials covered by the best evidence rule are so voluminous that it would be inconvenient to use them in court. Originals or duplicates must be available for examination.
VII. EXPERT AND OPINION TESTIMONY
A. Opinion Testimony by Lay Witness Traditionally, court required lay witnesses to testify to facts rather than opinions, excluded opinion b/c didnt want witness to draw own inference b/c that was the province of the jury. Rule 701 permits lay witnesses to render opinions, but limited to those opinions or inferences which are: (a) Rationally based on the perception of the witness (b) Helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and (c) Not based on scientific, technical or other specialized knowledge w/i the scope of Rule 702. A witness may state, for example, that a person seemed drunk, so long as that statement has some support in actual perceptions of the witness. Could break down sensory perceptions into component parts (speech was slurred, stumbled, smelled of alcohol) closer to facts, but rule doesnt say opinion cant come in. Decide if opinion and then look at factors. Lay appropriate foundation for personal knowledge: rationally based on perception of witness. Helpful to a clear understanding relatively low standard. Trickiest opinion situation: where witness trying to testify what someone else thought. No personal knowledge of what is in someone elses head. But if wife witnessed husbands change in behavior and concluded despondent would be helpful to a jury, most courts would let in. Rule 704 provides that testimony in the form of an opinion or inference otherwise admissible, is not objectionable b/c it embraces an ultimate issue to be decided by the trier of fact. HWR, courts still do keep from testifying to the ultimate issue by saying not helpful, such as witness just stating the conclusion that the jury should draw (eg-"in my opinion, the doctor committed malpractice" or "he was negligent"). But ,,in my opinion, doctors treatment of patient fell below standard of acceptable medical practice would be helpful. B. Testimony by Experts Expert testimony must meet three requirements: competence, relevance, reliability COMPETENCY OF WITNESS: Any witness w/ knowledge, skill, experience, training or education can qualify as an expert witness. This is determined by the judge under 104(a) preponderance. A lay witness gives jury facts about what happened in a particular case (personal knowledge regarding events). An expert does something different gives jury knowledge that can use on the facts being heard. A lay witness competence comes from having perceived facts, foundation laid by showing personal knowledge. An experts competence comes from background knowledge, foundation laid by having knowledge, experience, education, etc. RULE 702 Expert testimony is appropriate if scientific technical or specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue if: 1. The testimony is based upon sufficient facts/data
21 2. Testimony is a product of reliable principles and methods 3. Witness has applied principles and methods reliably to the facts of the case Expert testimony is inappropriate when: 1. its an issue of common sense 2. legal conclusions (ie: D was negligent) 3. criminal D's mental state expert cannot testify w/ respect to the mental state or condition of the D that constitutes an element of the crime charged or of a defense. (ie: expert cannot say d was insane, but could say D is bipolar) 4. Credibility reject evidence of an expert on the issue of whether a witness has testified truthfully, deciding the credibility of a witness is the province of the jury. Testimony about a hospital policy that lab reports are required to be returned in 24 hours would be information that everyone who works there knows, not what "specialized knowledge" of Rule 701 means, just peculiar to their life just lay testimony. As would be a statement of fact that a lab report in question was returned to a patients record in 24 hours. But testimony that the doctor did not meet the accepted standard of care when he failed to read the report in a timely manner would be expert testimony. Could a staff nurse testify to? Qualified as an expert if satisfies basis for expertise (knowledge, skill, training, experience, relatively low) probably can testify to, but probably not a compelling witness, other side will just call a better doctor. Jury decides what weight to assign. What about a drug buyer, addicted to cocaine for 5 years, testifying that recognized the substance as cocaine? Is this expert testimony? 701 specialized knowledge, 702 experience. There are consequences of calling expert testimony, the buyer would have to be qualified as an expert and follow different rules/treatment (discovery, etc). In the past standard lay opinion, but 701 creates a problem, unclear. Procedural question on how to handle. RELEVANCE OF TESTIMONY: 702 standard will assist the trier of fact. Same idea as standard of 701 (helpful). Judges have disagreed on allowing expert testimony on the fallibility of eyewitness identifications, judges discretion to allow in, more and more willing to. Cant have an expert (law professor) testify about what the law is (can bring in an expert if foreign law), but can have an atty testify as to what reasonable atty fees are (testifying about atty practice, not the law). RELIABILITY CONCERNS: Three subcategories (a) the testimony must be sufficiently based on reliable facts or data, (b) it must be the product of reliable principles and methods, and (c) the witness must have applied the principles and methods reliably to the case. Theory: Concern is most pronounced with scientific evidence, want to keep out junk science. The SCt in Daubert set out a list of inquires that court may find helpful in determining whether to admit scientific evidence: Testibility: can the theory or technique be tested? Peer Review: has the theory or technique been published and subject to peer review? Error Rate: what is the known or potential error rate? Standards: do standards exist that can serve as controls on a techniques operation, were they employed? General acceptance: has the theory or technique been generally accepted? Judges as the gatekeepers for determining whether evidence reliable or not. In Kumho Tire, the Court held that courts may apply the Daubert factors to determine the reliability of non-expert testimony.
22 Abuse of discretion is the proper standard of appellate review regarding trial court decisions on the admission of evidence, including expert scientific testimony. NY hasnt rejected the Frye test expert testimony deduced from a scientific principle or discovery must be sufficiently established to have gained general acceptance in the particular field to which it belongs, but starting to see a Daubert type analysis incorporated. Frye in name is the standard, but courts willing to look at Daubert factors to determine admissibility. The third aspect of 702 is to make sure that the principles have been applied reliably to the facts of the case, making sure the conclusion has indicia of reliability. Rule 703 Permissible Bases of Opinion Testimony by Experts: Where does expert get facts on which opinion based? May be those perceived by the expert (firsthand knowledge) through personal observations, examinations or tests. Or made known to the expert at the hearing Or before the hearing, if of a type reasonably relied on by experts in the field, the facts or data need not be admissible as evidence (may rely on hearsay). No warrant admissibility of an "accidentologist" as to the point of impact of an car crash if based on the statements of bystanders, since this requirement not satisfied. Not good enough. Facts or data otherwise inadmissible, shall not be disclosed to the jury unless the court determines that their probative value in assisting the jury to evaluate the experts testimony, substantially outweighs their prejudicial effect (strong presumption against). Although can rely on hearsay in forming opinion, expert cant be used as a means to introduce inadmissible evidence by summarizing or repeating the information in court. NY CPLR 4515 questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data on which it is based. By caselaw, an expert can rely on hearsay evidence if that what experts in the field normally rely upon. Rule 705 expert may give his opinion and reasons w/o first testifying to the underlying facts.
VIII. SPECIAL RELEVANCE RULES
Limit the admission of otherwise relevant evidence, exclusionary rules. RULE 407 SUBSEQUENT REMEDIAL MEASURES Evidence that a condition has been fixed after it allegedly caused an injury is NOT admissible to prove Negligence Culpable conduct; or Products liability. Such evidence is admissible when offered for another purpose, such as Ownership (Kid climbs up a tree and falls. D says "that tree is not on my property." P can introduce evidence that D put a fence around the tree) 9.1.05 claims not liable for tenant slipping on rotted stairs b/c doesnt own the building. But evidence that two days after accident replaced the rotted stairs. Is there another way to keep the evidence out? s atty would cite 403 (if the risk of unfair prejudice substantially outweighs the probative value). would have to show that there are other ways to prove control, which reduces the probative value. But the risk of unfair prejudice is very high (infer that thought the stairs werent sound and was negligent for not replacing sooner). Easiest way around as is to stipulate that owns the building, then evidence has no
23 probative value. If there were a lot of other evidence that could rely on to prove ownership, it could reduce the probative value enough so wouldnt come in. Control (D says "sidewalk belongs to the city and I wouldnt be to fix it even if I wanted to" P can introduce evidence that D fixed the crack in the sidewalk after P fell) Feasibility of precautionary measures, if controverted (D says "It was impossible to post warnings" P can introduce proof that warnings were posted to show the feasibility of such precautionary measures). Could introduce evidence of a product built by another manufacturer with the precautionary measure. Big in product liability cases, the exception has the potential to swallow up the rule. Where a did change the design, have to accept that comes in or rule out the defense that it is not feasible. Impeachment a subsequent remedial measure may be offered to contradict and impeach the credibility of a witness where the witness has testified to the condition of the instrumentality. If the subsequent remedial measure is offered for another purpose, ct needs to determine whether the evidence is relevant for that other purpose and, if so, whether its probative value is substantially outweighed by the risk that the jury will use the evidence that the D was negligent. Rationale Social control, we want people to fix dangerous conditions. The Rule does not apply to remedial measures of a third party. The Rule is sufficiently broad to apply to the discharge of an employee subsequent to an accident where it appeared to the employer that the employee was responsible for the accident. The Rule does not allow evidence in to prove culpable conduct injury cases Rule doesnt apply in breach of contract cases b/c dont need to prove culpable conduct. The Rule does not apply to remedial measures taken prior to injury. What if someone else had been hurt, changed design, and then was injured? Is the Rule a deterrent effect if though change could be used against them? The would leave broken so someone else could get hurt? If buy the rationale then seems like have to apply the rule, its written broadly enough to cover "an injury."
RULE 408 COMPROMISE and OFFERS TO COMPROMISE Evidence of 1. Settlements, offers to settle, and settlement discussions 2. Of a disputed claim 3. Offered to prove liability or invalidity of the claim/amount (allowed to use evidence that there was a settlement and havent gotten money yet). 4. Are inadmissible Underlying information discovered during settlement discussion that would be normally discoverable in another manner is still admissible. Such evidence is admissible for any other purpose, such as: Proving bias/prejudice of a witness Negativing a contention of undue delay if the contention is that the undue delay was caused by the settlement negotiations, then evidence of such negotiations is admissible. Proving an effort to obstruct criminal investigation Rationale to encourage settlements Only applied in civil cases Scope provides for the exclusion of settlement offers and acceptances. Also comprehends "collateral admissions" within its exclusionary scope, and may be invoked to exclude collateral conduct and
24 statements made during compromise negotiations. Evidence of conduct or statement made during compromise negotiations shall be admissible. NY adopted the same exact rule (CPLR 4547). Hypo: Farmer purchased herbicide made by C. S sold the herbicide to Farmer and offered suggestions on its application. Midway through season Farmer tells S, the herbicide killed the weeds but his crop doesnt look good. S tells him "Dont worry, well take care of you." At this point, there is no disputed claim. Suppose then at the end of the season Farmer says "youve ruined my crops, Ive lost $100,000." S says you may have applied it incorrectly, Ill give you $50,000 b/c I may have given you the wrong pesticide. These are settlement negotiations so the offer as well as the statement are covered by 408 and inadmissible. RULE 409 PAYMENT of MEDICAL and SIMILAR EXPENSES Evidence of payments or offer to pay medical expenses is NOT admissible to prove liability for injury. Rationale dont want to discourage people from being good Samaritans. Hypo: Farmer in above hypo says "Not only are my crops ruined but I also got a rash from the herbicide." S immediately gives Farmer a check to cover the prescriptions and said "I forgot to tell you to wear gloves." Whats admissible? Mixed statement (includes admission of fault with offer to pay) The ck is barred from evidence by 409, however, the statement about the gloves is admissible b/c 409 ONLY precludes payments not statements such as these. 408 would not apply to bar the statement since there is NO disputed claim. RULE 410 INADMISSIBILITY of PLEAS The following are NOT admissible against a D who made the plea: 1. withdrawn pleas 2. no contest pleas (nolo contendere plea) not admitting guilt or innocence 3. plea statements (regarding withdrawn pleas and nolo pleas or allocution statements in which D explains exactly what he did) 4. plea discussions w/ a prosecutor that result in a nolo plea or a withdrawn plea Such pleas, plea discussions, etc ARE admissible 1. where another statement is made in the same plea and the statements, in fairness, should be considered contemporaneously 2. in a criminal proceeding for perjury, if the statement was made by D under oath, on the record, and in presence of counsel Rationale to encourage pleas While not admissible against the D who made the plea, such evidence can be used against 3rd parties, ie: accomplice, co-conspirator. Not admissible even for uses other than to show liability (more restrictive than for compromises and payments of medical expenses). Consummated guilty pleas are NOT covered by the rule. For a statement to be covered by the Rule, it must be made to a prosecutor. This is meant to prevent a who makes a statement to detectives or other investigators from later characterizing them as part of plea bargaining to have them excluded from admission. Applies in both criminal and civil proceedings.
25 Hypo: L pleads guilty to extortion and states that he threatened to break someones legs. He serves time and is later arrested for racketeering. Can the plea for extortion be admitted? Yes, it wasn't withdrawn. Hypo: D is charged w/ passing counterfeit $. An appointment to discuss a plea is set up but the DA is not ready to enter into a plea. Instead D and his atty meet w/ 2 fed agents in which he incriminates himself. Later on DA drafts a plea agreement but in the end D doesnt sign it. Are the statements made to agents admissible? Probably, since the statements were not made during plea discussions w/ a prosecutor, unless D could show that the agents were acting w/ explicit authorization from prosecutor. What if the prosecutor was present in the room but didnt say anything? Then there's almost a rebuttable presumption that it's a valid plea discussion. RULE 411 LIABILITY INSURANCE Evidence does or does not have liability insurance is NOT admissible to prove that the person acted negligently. Such evidence is admissible when offered for another purpose (still subject to 403 balancing), such as Proof of agency Ownership Control Bias/prejudice of witness (eg if a defense witness works for the s insurance company, information would be permitted to be introduced about the witness possible financial bias, despite the fact that it would inform the jury about the s insurance coverage) Rationale wand to minimize the unfair prejudice relating to the consideration of liability insurance (that since can afford to pay should be held liable). Also low probative value regarding issues of liability, while risk of unfair prejudice is extremely high (conclude was negligent b/c since had liability insurance and wouldnt have to pay for accidents then more likely to be negligent thats low on the probative value scale, ie whether one has insurance coverage reveals little about the likelihood will act carelessly). CHARACTER AND RELATED ISSUES The term "character" refers to a generalized description of a persons disposition or general trait such as honest, careless, violent, promiscuous, etc. The basic principle is that evidence of a persons character is NOT admissible for the purpose of proving that such person acted in conformity with that character on a particular occasion. Prohibition on propensity evidence to demonstrate actions conforming to the propensity. Forbidden inference: character or trait conduct in conformity with Egs: deceitful committed fraud careless was negligent violent committed assault promiscuous consented to sex lecherous committed rape Generally under Rule 404(a) a person's character, or general propensity to act in a certain way, may not be offered as a basis for the inference that, on a specific occasion, the person acted in
26 conformity with the propensity or trait. Circumstantial use of character evidence, propensity evidence, using character to show conformity what we are concerned with (all the same thing). Rule 405 deals with the permissible methods of proving character or a character trait, it does not address the issue of admissibility of character evidence. Three devices for proving a persons character: One Reputation within a particular community Two A person familiar with the character of an individual may provide opinion testimony Three Specific instances of conduct may be offered to establish the character of the individual METHODS OF PROVING CHARACTER: The use of a particular methodology depends on the way the character is used. WHEN CHARACTER IS "IN ISSUE" all methodologies of proving character are available Specific instances are available only when character is in issue (greatest capacity to arouse prejudice), reserved for situations where character plays a pivotal role in the litigation. When character or trait of character is an essential element of a crime, claim, or defense, character is "in issue." For example, where charges the with slander claiming that the said, " is dishonest," and the subsequently pleads truth as a defense, the must prove the s dishonesty in order to prevail, the dishonesty trait of the becomes an element of the defendants affirmative defense. Another example is that recklessness is an element of negligent entrustment. Also when proving damages in a wrongful death cases prospective earnings are a key part and character traits are a part of that (eg lazy individual who lost two jobs in last three years). 405(b) in cases in which the character or trait of a character of a person is an essential element of a charge, claim, or defense, proof may also be made with specific instances of that person's conduct. Character evidence is being used to prove a persons character, not to prove action in conformity with. When used circumstantially to prove conforming conduct only reputation and opinion evidence are available When used to impeach the credibility of a witness governed by Rules 608, 609. CIRCUMSTANTIAL USE OF CHARACTER as a general rule, character evidence is rarely allowed in civil cases (admissible to impeach and in certain sexual offense civil actions). In criminal cases, the prosecution will likely be unable to introduce character evidence in its case in chief. Rule 404(a)(1) Character of the Accused. An accused in a criminal case may elect to introduce evidence of his own character. Evidence of a person's character or trait of character is not admissible to prove conduct in conformity therewith on a particular occasion, EXCEPT... evidence of a pertinent trait of character offered by the accused . . . The trait must be pertinent to the crime charged The trait must have existed at the time of the alleged crime Evidence must be in the form of opinion or reputation In NY you must use only reputation, not opinion Once the has done this the prosecution, in its case in rebuttal, may offer evidence attacking the character of the accused. Evidence of a person's character or trait of character is not admissible to prove conduct in conformity therewith on a particular occasion, EXCEPT... by the prosecution to rebut the same
27 The prosecution may offer evidence of s bad character to rebut evidence of s character. must "open the door" by calling someone to testify to his good character. The prosecution may not offer character evidence in its case in chief (but see FRE 413-414) Prosecutions evidence must be pertinent to the same trait offered by the . As a tactical matter, the can narrow the prosecutions rebuttal by offering a narrow trait. o Evidence must be in the form of opinion or reputation (NY only reputation). 404(a)(2) Character of the Alleged Victim. Criminal may offer evidence of pertinent character trait of the victim. Evidence of a person's character or trait of character is not admissible to prove conduct in conformity therewith on a particular occasion, EXCEPT... evidence of a pertinent trait of character of the alleged victim of the crime offered by the accused Trait must be pertinent to s defense (but see FRE 412) Evidence must be in the form of opinion or reputation Evidence of a victims character is not admissible in NY. Evidence of the victims reputation or prior specific acts is admissible only on the issue of the s state of mind; accordingly, the must have had knowledge of the reputation of prior acts before the incident in question. If evidence is offered to prove something about the accused state of mind, not the conduct of the alleged victim, then not a 405(a)(2) issue (doesnt open the door to rebuttal evidence by the prosecution concerning character of the ). The prosecution may offer evidence of victims good character to rebut evidence of victims bad character. Evidence of a person's character or trait of character is not admissible to prove conduct in conformity therewith on a particular occasion, EXCEPT...by the prosecution to rebut the same o Prosecution may not offer evidence of victims character in its case in chief. o Trait brought up must be pertinent to trait brought up by o must open the door by offering evidence of victims character (unless self-defense in a homicide case) o Evidence must be in the form of opinion or reputation o Evidence of victims character is not admissible in NY. The prosecution may offer evidence of victims good character to rebut evidence that the alleged victim was the first aggressor in homicide cases. Evidence of a person's character or trait of character is not admissible to prove conduct in conformity therewith on a particular occasion, EXCEPT...evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor o must open the door by raising the defense of self-defense and offering evidence that the victim was the first aggressor o Evidence must be in the form of opinion or reputation o Evidence must show victims character for peacefulness o Not allowed in NY The prosecution may offer evidence of s bad character to rebut evidence of victims bad character. 404(a)(1) Evidence of a person's character or trait of character is not admissible to prove conduct in conformity therewith on a particular occasion, EXCEPT...if the evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under 404(a)(2), evidence of the same character trait of the accused offered by the prosecution o must open the door by offering evidence of victims character o o o o
28 o o o Evidence must be for the same character trait (eg violence) Evidence must be in the form of opinion or reputation is Evidence not admissible in NY
How do you get character evidence in? Call a character witness; lay a foundation for the witness knowledge (how long have known, in what circumstances); ask if witness has an opinion about trait. Not allowed to ask about specific instances. If reputation, lay foundation about the same community, period of time, W knows other people who know the persons character. What about cross-examination? Cross must be limited to the character that witness testified to. Eg is prosecuted for assault; in his case in defense, he calls Walter, a prominent citizen in s community. On direct, " has a reputation as a peaceful person." On cross, "Have you heard that was arrested for disorderly conduct?" Rule 405(a) On cross-examination, inquiry is allowed into relevant specific instances of conduct of the person characterized. Prosecution knows that arrested for disorderly conduct 2 years earlier. Pertinent to character trait of truthfulness offered by . It doesnt matter what answer you get. Clear risk of abuse b/c question itself is so powerful, so we want limitations: Cross-examiner must have good-faith basis for question Prior acts must be pertinent to trait offered by Extrinsic evidence is not allowed In NY, if criminal calls character witness, prosecution may offer extrinsic evidence of convictions to character trait put in issue (CPL 60.40) CHARACTER AND RELATED ISSUES: PRIOR ACTS 404(b) Evidence of other crimes, wrongs, or acts is NOT admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as MOTIVE OPPORTUNITY INTENT PREPARATION PLAN KNOWLEDGE IDENTITY ABSENCE OF MISTAKE OR ACCIDENT Upon request by , the prosecution must give reasonable notice before trial of any non-propensity character evidence it intends to introduce (so can have an opportunity to construct a defense to avoid the introduction of the evidence). Egs
is charged with mugging an old lady at 65th and Park. offers alibi defense, claiming he was at home with his mother at the time. May the prosecution introduce evidence that one hour after the alleged crime mugged a different old lady at 68th and Park? Probably Opportunity
29
is charged with unlawful possession of a firearm. denies possessing the weapon. May the prosecution introduce evidence that the possessed a number of stereos and TVs without serial numbers? Makes more likely that possess firearm, would have been doing so b/c fencing stolen goods and needs protection. Courts generally allow this kind of evidence, the prosecution doesnt get an appeal gets a little more leeway (unspoken). Probably not outweighed by 403. Probably Motive is charged with armed robbery. denies committing the robbery. May prosecution introduce evidence that is addicted to heroin? ? Motive some courts have said dont need to introduce evidence of when someone is accused of robbery, everybody wants money. Maybe if an upstanding person committed the crime, use to prove a special reason. But if a likely candidate anyway then heroin addiction doesnt add much, may be unfairly prejudicial. is charged with armed robbery. The robber used a red Mazda Miata as the getaway car. denies committing the robbery. May the prosecution introduce evidence that stole a red Mazda Miata a few days prior to the robbery? Probably Identity. Can use to show he was involved by distinguishing marker. (Might also be preparation/plan, common to be allowed on a couple of points). is charged with bank robbery. The bank robber wore a Richard Nixon mask, used a sawed-off shotgun, and gave the teller a typed note saying, "Give me all the money. No marked bills." May prosecution introduce evidence that the was identified as the perpetrator of a robbery using the same m.o. two months after the charged robbery? Probably Identity. Like a signature, a distinguishing characteristic, distinctive enough propensity, courts scrutinize this kind of evidence using past conduct, need a really distinctive character (just mugging old ladies not enough). "prior" bad acts, doesnt have to be before the charged conduct, the act can happen after the charged crime. The probative value may be reduced a little, but still relevant. Arlo defends on the basis that he was under hypnotic suggestion to rob the bank. The prosecution seeks to introduce a prior felony conviction of Arlo for armed robbery of a bank. It helps to refute the defense that he had the intent on another occasion makes the defense less likely to be real. Question a propensity use of evidence? Looks a lot like character evidence, should be admissible? How high is the probative value? High Unfair prejudice risk that jury could convict b/c a bad guy. Common problem with prior evidence used to show intent. It is being used to show a tendency, a mindset to do again. This kind of case would be admissible for intent purposes b/c probative value pretty high when says didnt have the mental state to commit a crime prior act to probably had intent on this occasion. Dont need the same degree of similarity as with identity purpose, dont need a distinctive signature trait.
30 Does it have to be the same crime? Has to be some similarity between the crimes. Question of relevance. Mental state intent to commit a particular crime.
is charged with stealing a valuable coin from the mail. He claims that the coin fell out of a package and he intended to return it to the authorities. May the prosecution introduce evidence that when he was arrested was carrying two credit cards that were not issued to him and unsigned? Admitted Intent. Helps to disprove defense b/c cards were probably stolen from the mail. Another aspect absence of mistake or plan-appears to be systematically robbing the mail. is charged with assaulting an IRS official. denies that he intended to injure the official. May the prosecution introduce evidence that was previously convicted of threatening to assault a police officer? Admitted Intent. Problem with authority, propensity evidence, hard to prove anyones mental state, prove intent by correlating mindset to behavior on other occasions almost have to allow evidence in as a practical matter. Very often let in, but this is the most appealed sub-part of the most appealed rule in the FRE. In a civil case, alleges that discriminated against her in not promoting her b/c of her race. May introduce evidence of racist remarks that made in e-mails to other company officials? Admitted Intent. The discriminatory animus/mental state is the whole case, only way to do, need similarity. 1 and 2 are prosecuted for conspiracy to sell cocaine. The prosecution contends that the conspiracy began in 1995. May the prosecution introduce evidence that 1 and 2 engaged in the sale of stolen cars in 1993? Probably for other purposes language. This completes the story. Why allow? Looks like propensity evidence. Common evidence in a conspiracy case, need beginning and ending to a conspiracy earlier acts leading up to are often admissible. Res gestae doctrine extrinsic acts may be part of the immediate background of the act which is the fundament of the crime charged. Extrinsic acts may be admissible on a theory which utilizes the distinct acts of the accused as elements of a sequence of events logically or inevitably leading up to the crime charged.
MIMIC non-exhaustive list of non-propensity purposes for which prior acts are admissible. M Motive does the evidence surrounding the prior bad act have any relation to the motive which was the moving force of the underlying crime. I Intent the purpose to us a particular means to effect a result. Intent is always an essential element of the crime and sometimes a prior bad act of a similar character may show intent. M Mistake or Accident if is claiming mistake, the prior act can be introduced to show that it was not a mistake. Not an issue if doesnt use this as a defense. I Identity may be for a proper purpose if the bad act (i) is a marker for the current crime or (ii) is sufficiently distinctive and specific wherein identifying as the perp of a prior crime identifies as the perp in the current crime. C Common plan/scheme there must be a close connection between the prior bad act and the current crime.
31
404(b) Procedure In a criminal case, on request, prosecution must give notice of 404(b) evidence it plans to introduce Standard for admissibility if 104(b) conditional relevance sufficient evidence for a jury to conclude that prior act was committed. Fact that was acquitted of other act does not preclude admission in Federal Court, but does in NY (b/c of the difference in the burdens of proof (BARD > sufficient evidence to support a finding) the fact of an acquittal doesnt disprove the existence of the earlier crime). Always a factor in 403 balancing. Makes more prejudicial and reduces the probative value b/c there is more doubt whether committed. In NY, proponent must show by a preponderance of the evidence that prior act was committed (clear and convincing for identity evidence added level of protection b/c closest to propensity evidence). STEPS IN A 404(b) ISSUE: 1. Is the evidence being used for a proper purpose (non-propensity, MIMIC) ? 2. Is the evidence relevant to the purpose (104(b) conditional relevance) ? 3. Is the evidence unfairly prejudicial (403 balancing) ? If requested, a limiting instruction may be given so the evidence is admitted only for its proper purpose (105).
4.
CHARACTER AND RELATED ISSUES: HABIT "Habit" is a persons regular practice of meeting a particular kind of situation with a specific type of responsive conduct. It refers to the tendency of a person to exhibit a regular response to a specific stimulus. Habit is unquestionably a form of propensity, and consequently, it is difficult to distinguish from character. HWR, the distinction is important b/c the admissibility of character evidence is highly restricted by Rule 404, whereas the admissibility of habit evidence is authorized under Rule 406. Key difference between character and habit: specificity of conduct & regularity of response Rule 406 Evidence of the habit of a person or the routing practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Rule 403 may operate to exclude habit where its probative value is substantially outweighed by such counterweights as unfair prejudice and confusion of the issues. In order to establish the existence of a habit it is must be shown that a person reacts to a certain situation with the frequency of a response that approaches invariably. ID stimulus and response. Organizational routine practice: generally helpful factors: (o) regular practice or an org, (o) in a common situation, (o) practice followed consistently, (o) policy or handbook not required, but helps, (o) same situation. CHARACTER AND RELATED ISSUES: SEXUAL CONDUCT EVIDENCE Rape Shield Law response to rule of evidence that were harsh to victims, designed to keep Vs reputation out. It applies in civil and criminal trials anytime there is alleged sexual misconduct. Certain kinds of evidence are excluded: Rule 412
32 (a)(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior is not admissible. Not limited to direct evidence of sexual conduct, includes anything that would suggest sexual conduct (eg contraceptives, journal entries) (a)(2) Evidence offered to prove any alleged victim's sexual predisposition. Predisposition includes suggestive language, behavior, clothing, etc. (b) EXCEPTIONS (1) In a criminal cases, the following evidence is admissible (if otherwise admissible under the rules) (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of physical evidence (semen, injury, etc.) (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution (C) evidence the exclusion of which would violate the constitutional rights of the . (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party (reverse 403 balancing presumption of inadmissibility) (c) NOTICE RQ: written notice to prosecution and victim at least 14 days prior to trial. NY CPL 60.42 (very similar to FRE) Evidence of victims sexual conduct is NOT admissible UNLESS: 1. Proves specific acts b/w V and D 2. V has been found guilty of prostitution in last 3 yrs 3. Rebuts evidence offered by pros that V didnt engage in sexual conduct during a period of time 4. Proves source of physical evidence didnt come from D 5. In the interests of justice Opinion testimony and reputation evidence that the victim is unchaste is clearly not admissible, what the statute was designed to preclude. Regarding the consent defense, the farther away the sexual conduct between the V and the , the less probative it becomes on consent. V reports to police that, at a late nite frat party, fondled her and attempted to force her to have sex with him. is charged with sexual assault. s counsel gives notice that will testify that three of his friends told him both that V had sex with them and that she had a reputation for sleeping with anybody. Should the court allow this testimony? Rule 412 does not bar the from testifying to his knowledge of V's reputation for promiscuity. Clearly "other sexual behavior" under (a)(1), consent defense applies to past sexual behavior between the V and the . BUT offering it to show that believed that V consented, linking to his mental state the fact that he was told that she had sex with other people. This potentially allows in a lot of evidence not offering it to prove that V engaged in other sexual behavior. Really evidence of what someone else saying about , not evidence of Vs sexual conduct (NY). Constitutional problems if dont allow in how else can prove his mental state. The reasonableness of his belief is a question of weight for the jury, not an admissibility problem.
33 403 balancing concerns unfair prejudice to a party, which doesnt include V, unlikely to be unfair to the prosecutor. What about a Vs prior false allegation of rape? Courts go both ways, probably would want strong evidence that the earlier charges were in fact false (since there are legitimate reasons for not prosecuting), seems like should come in. NY courts generally allow, not evidence of past sexual conduct, distinguish as evidence of bringing and dropping charges. Rules 413 415: allow propensity evidence against a charged with sexual assault and child molestation. Rationale high recidivism rates evidence of past conduct of sexual assault/child molestation is good evidence that will engage in again. Blanket rule.
IX. HEARSAY
What statements made out of court are hearsay? Steps in applying the hearsay system: One Does the evidence fit the DEFINITION of hearsay in Rule 801(c)? Two Does there exist an EXEMPTION, contained in Rule 801(d), to the basic definition of hearsay which will allow admission? Technically, these exemptions id out-of-court statements as "not hearsay" or "non-hearsay." Three Whether the statement, which fits in the definition and is not identified as an exemption, will nevertheless be admissible pursuant to an EXCEPTION contained w/i Rules 803, 804, 807? Four Are there any CONSTITUTIONAL CONCERNS? Competency factors implicated by hearsay: Oath requirement Risk of testimonial defects, which are normally exposed through cross-examination Perception Memory Sincerity Narration The jury is not able to observe the demeanor of the declarant while testifying Hearsay problem: the jury is being asked to trust the competency of someones statement made outside of the trial. Evidential Fact Inferred Fact Inferred Fact Consequential Fact "Declarant said, ,,The light Declarant actually said, Light was red for was negligent was red for ." "The light was red for ." Jury trusts witness perception Jury trusts declarants perception memory, sincerity and narration memory, sincerity, and narration
DEFINITION
Rule 801(c) HEARSAY IS...
34 STATEMENT an oral or written assertion OR a non-verbal conduct of a person intended as an assertion The question of whether conduct may be a statement is resolved on the determination of whether the actor subjectively intended to make an communicative assertion Made OUT OF COURT By a DECLARANT a person who makes a statement OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED Analysis What is the out of court statement? What did the declarant intend to assert? Implied assertions conduct and oral communications intended to be assertive, but offered to prove something distinct from the fact intended to be communicated are not hearsay. US v Zenni calls made in which callers requested the placing of bets are NOT hearsay b/c the callers didnt intend to assert that the place was a betting establishment. The statements were not inadmissible hearsay b/c the callers did not intend to make an assertion concerning the fact sought to be proven, that the was a bookmaker. What is it being offered to prove? Variety of statements not offered to prove the truth of what they assert NON HEARSAY
PURPOSE Statements Offered for Effect on a Particular Listener or Reader where
a statement is relevant under the facts and circumstances of a case to show its impact or effect on a particular listener, the statement may be relevant w/o regard to its truth. Statements communicating warning and notices and threats to the accused to show reasonable apprehension of danger may be NOT hearsay. Eg is charged with mail fraud and asserts a defense of lack of intent. The prosecution seeks to introduce evidence of complaints of mail fraud to the Better Business Bureau made by customers of the over the course of several years hearsay if used to prove committed fraud, but can be offered for a non-hearsay purpose to prove s state of mind, if he had received all these complaints over the years then on notice that might have been doing something wrong. Verbal Acts or Operative Facts in cases in which words have independent legal consequences, the words are relevant w/o regard to their truth, and such statements are NOT hearsay. Relevancy attaches to the making of the statement rather than the truth of the statement. The law imposes certain consequences in regard to such statements regardless of truth such out of court statements are NOT hearsay Eg on the issue of whether the parties entered into a contract, the seeks to introduce testimony that he told the , "That sounds great, Ill take all the widgets youve got at your price of $ 25 each." Acceptance carries independent legal significance. Verbal parts of acts where the legal significance of an act, considered in isolation, is ambiguous, contemporaneous statements may be admissible as verbal parts of the act to clarify the nature of the transaction. Prior Inconsistent Statement Used for Impeachment Purposes prior inconsistent statements offered only for impeachment are operatively NOT hearsay when such statements are admissible for the limited purpose of affecting the credibility of the witness sought to be impeached.
35 Not offered to establish the truth of its substance, but rather only to show that the witness is the type of person who makes conflicting statements regarding the same set of facts. Limiting instruction necessary to direct the jury to consider the statement not for its truth, but rather only for the purpose of assessing the credibility of the witness (if the prior statement of a witness satisfied an exemption it could be admitted substantively for its truth (see 801(d)(1)(A)) and then no limiting instruction would be required or appropriate). How to spot hearsay What propositions is the statement being offered to prove? Is the jury being asked to rely on the declarant's testimonial capacity (perception, memory, sincerity, narration)? If offered for effect on listener, NO; If independent legal significance, NO; If prior inconsistent statement to impeach, NO; If YES, did declarant intend to assert the proposition the statement is being offered to prove. Examples of hearsay On the issue of whether the light was green for , the witness will testify that the declarant told him that the light was green for . On the issue of how many people were in the bank at the time of the robbery, police officer will testify that teller told him that there were five customers in the bank. On the issue of whether Charlie did not like Charlotte, Harold will testify that Charlie told him that he hated Charlotte. Hearsay within hearsay problem hearsay within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms to an exception to the hearsay rule (or an exception to the definition (Rule 805). Evidential Fact Inferred Fact Inferred Fact W testifies: "Debra said, Debra actually said, " actually said, " is ,, said, " is unchaste"." said, ,, is unchaste." unchaste." Jury trusts witness Jury trusts declarants perception, memory perception, memory, narration and sincerity sincerity and narration
Not a hearsay issue, relying on the witness testimonial capacity This link is the hearsay problem, unless can find an exemption/exceptio n it doesnt come in and statement w/i doesnt come in either.
Consequential Fact made a defamatory statement about . Jury doesnt have to trust declarants perception, memory, sincerity and narration
Verbal acts Non-hearsay b/c offered to show statement made, not whether true. (Indep. legal sig.)
More common was is a document with a quote:
36
Evidential Fact DAILY NEWS " is unchaste" says
Inferred Fact Inferred Fact Daily News actually actually said, " is reported that " said, ,, unchaste." is unchaste." Jury believes Jury trusts declarants document is perception, memory, authentic sincerity, and narration
Newspaper is selfauthenticating
Consequential Fact made a defamatory statement about . Jury doesnt have to trust declarants perception, memory, sincerity, and narration
Independent legal significance verbal act, consequences regardless of truth.
Newspaper could fit in exception under 803(16) or 803(17)
Assume that the
is suing both the
and the newspaper:
Evidential Fact DAILY NEWS " is unchaste" says .
Inferred Fact Consequential Fact Daily News actually reported that Daily News made a defamatory " said, ,, is unchaste." statement about Jury believes document Jury does not have to trust declarants is authentic perception, memory, sincerity, narration
Rule 802 Hearsay is not admissible EXCEPT as provided by these rules ...
Exemptions: Out-of-court statements offered for their truth, but legislatively ,,defined as "NOT hearsay" Declarant Testifying: 801(d)(1) 3 Party Statements (admission): 801(d)(2) 5 Exceptions: Out-of-court statements offered for their truth, but admissible as reliable or important Unrestricted: 803 23 Declarant Unavailable 5 Residual (catch-all): 807 1 37
37
EXEMPTIONS
Out of court statements offered for their truth, but legislatively ,,defined as "NOT HEARSAY" Statements exempted from the definition of hearsay
FORMER STATEMENTS BY TESTIFYING WITNESS
Three classes NOT considered hearsay: A. PRIOR INCONSISTENT STATEMENTS B. PRIOR CONSISTENT STATEMENTS C. STATEMENTS OF IDENTIFICATION Rule 801(d)(1) Prior Statement by Witness: A statement is NOT HEARSAY if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement AND the statement is ... 801(d)(1)(A) PRIOR INCONSISTENT STATEMENTS Declarant is testifying Subject to cross-examination Prior statement is inconsistent Prior inconsistent statement under oath Prior inconsistent statement made in a proceeding A police station interview is not considered a trial or proceeding, even if the statement is written, signed, and notarized any such statement would only be available to impeach (nonhearsay purpose) and not as substantive evidence Grand jury testimony is considered to be a trial or proceeding New York Rule Criminal Cases Admissible to impeach (non-hearsay purpose) NEVER admitted substantively CPL 60.35(2) Civil Cases Admissible to impeach
38 Admissible substantively, at least where indicia of reliability exists (easier than in federal court) (Hartford v Letendre declarant testifying under oath subject to cross and prior inconsistent statement was against his interest). sued insurance company to recover on a policy to cover employee theft. Only evidence of theft was employees prior inconsistent statement. Employee to insurance investigator: "I stole it" Employee at trial: "I didnt steal it" Investigator at trial: "He told me he stole it"
PRIOR CONSISTENT STATEMENTS Admissible only where:
Inconsistent statement could be used to impeach (not
substantively not make under other or in a proceeding)
Declarant testifies and is subject to cross-examination To rebut charge of recent fabrication or improper motive NB not necessary for prior inconsistent statement to be introduced first In federal court, admissible substantively under FRE 801(d)(1)(B) Dont need under oath or in a proceeding In NY, admissible only for non-hearsay purpose of rehabilitating a witness credibility To police at the scene: " was not speeding" Consistent statement requires motive to fabricate or improper influence. To investigator 4 weeks before trial: " was speeding" At trial " was speeding" On cross "Isnt it true you began dating two weeks ago?
I
Tome v United States the party offering the prior consistent statement must show that it was made before
a motive to fabricate existed or improper influence was exercised over the declarant
PRIOR IDENTIFICATIONS FEDERAL
Declarant must testify and be subject to cross-examination Rationale identifications of people made prior to trials are likely to be more accurate that identifications made during testimony and for that reason should not be excluded from substantive use. Applies to an out-of-court statement identifying an individual in a line-up, a street identification, or even a photographic array identification. NEW YORK
39 Declarant must have previously make ID, but be unable to at trial b/c of failure of recollection; OR Declarant must make ID at trial, in which case declarant may also testify to earlier ID Prior identification must have been in person photo IDs not allowed.
ADMISSIONS & COCONSPIRATORS' STATEMENTS
Five categories of "admissions" that are NOT hearsay: A. INDIVIDUAL B. ADOPTIVE C. SPEAKING AUTHORITY D. AGENCY E. CO-CONSPIRATOR Rule 801(d)(2) Admission by party-opponent: the statement in NOT hearsay if offered against a party is... (A) INDIVIDUAL the party's own statement in either an individual or representative capacity Former friends dispute the ownership of an antique gun. Ben claims the gun was a gift from Al. AL Walter: "BEN said, ,,Als letting me use this antique gun. Is it hearsay? Is it admissible? Yes. Ben intended to assert that he was borrowing the gun; offered to prove that. Yes. Under FRE 801(d)(2)(A), statement of a party offered against that party is exempted from the definition of hearsay. If Ben tried to testify: "I told Will, ,,Al gave me this great gun." It would be hearsay b/c offered to prove the truth of what it asserts. It would NOT be admissible b/c cant bring in your own assertions. If Ben wanted to testify: "Al came to his house and, handing the gun to me, said ,,Youve been a good friend to me. Here I want you to have this." It would be non-hearsay, as a verbal part of an act (re: infra). Ambiguous act of handing over the gun, the statement explains the character of his conduct and not barred by the hearsay rule not offered for the truth of the matter asserted, the concern is with the objective conduct. (B) ADOPTIVE a statement of which the party has manifested an adoption or belief in its truth Statement must be offered against the adopting party The declarant must have made and out-of-court statement of which the party was appraised or had knowledge The party must comprehend the statement Expressly acknowledge OR V BEN
40 Remain silent when a reasonable person would have denied. This is a fact intensive inquiry, relatively high standard b/c of uncertainty and ambiguity. Context sensitive and a court will scrutinize. Explicit adoptions are the easiest, someone writes out a statement and one of the parties signs it. Trickier to know when a partys silence will be treated as an admission Silence as an admission might be applied if after an accident someone said to a driver, "Everyone saw the light was against you," and the driver says noting in reply. An example of a situation in with most people would have spoken to contradict such a statement. Paula claims a back injury resulting from an accident. says pre-existing condition and seek to introduce a health form attached to Paulas college application. The form, signed by a doctor, indicates that Paula has a bad back. Paula objects. o Hearsay? Yes o Admissible? Yes, adopted by attaching to college application. If instead it was form filled out by a doctor for a summer job, then since just submitted to it is harder to claim that it was adopted by Paula.
(C) SPEAKING AUTHORITY a statement by a person authorized by the party to make a statement concerning the subject The law of agency governs whether or not the declarant has speaking authority. Typical "speaking agents": lawyers, real estate agents, high corporate officers (and those in the company expressly with the job PR/Communications), partners. BIG limitation to the rule. In NY, an out-of-court statement of an agent is admissible against his employer ONLY if the employee/agent is authorized to speak on the subject. In essence, NY has only this rule and not an employee admission rule like (D). (D) AGENCY a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship Much broader than speaking authority, applies to all employees. Statements made after the employment or agency has concluded do not qualify as vicarious admissions. Statement need only concern a matter within the scope of the agency or employment, no express or implied speaking authority need be established. (E) C0-CONSPIRATOR a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy Status of co-conspirator's statement once a party terminates the relationship with the conspiracy, or the conspiracy ends, subsequent statements of co-conspirators are not admissible against the party. Co-conspirator statements made before a party joins a conspiracy are admissible against him. In furtherance requirement must show that the statement was made in furtherance of the objectives of the conspiracy, eg not met by statements of a co-conspirator that are merely narrative. A co-conspirators statements made to a known undercover agent (co-conspirator acting as an informant) are NOT in furtherance of the conspiracy.
41 Statements made after a co-conspirator is arrested would not longer be made during the course of and in furtherance of the conspiracy. Conspiracy ends when all parts of the objective are reached. Efforts to conceal arent usually part of the conspiracy. As long as the requirements of 801(d)(2) are satisfied, no requirement that the declarant have personal knowledge (co-conspirator just assumed that would be in the park selling drugs, didnt actually tell him he would be there) once the existence of a conspiracy is shown then as partners in crime, things they say can be held against one another. Proving AGENCY/CONSPIRACY
FEDERAL Offering party must show by a preponderance of the evidence the existence of the agency relationship or conspiracy Statement being offered may be used but is not sufficient to establish agency/conspiracy NEW YORK Offering party must show prima facie evidence of speaking authority or conspiracy (somewhat lower that the preponderance standard) Statement being offered may not be used to establish speaking authority/conspiracy
EXCEPTIONS
Statements Defined as Hearsay but Admissible Without Regard to the Declarant's Availability: Rule 803 Present Sense Impression & Excited Utterance
Rule 803(1) Present Sense Impression A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Statement must describe an event or condition Statement must be made contemporaneously with the event As it happens or immediately thereafter Time requirement strictly construed b/c contemporaneity serves as the basis for trustworthiness The time elapsed must be sufficiently short to indicate a lack of reflection on the event perceived. Foundation required: Declarants personal knowledge Corroboration that event occurred
42 Testimonial concerns alleviated: memory since describing the event as it happens, and sincerity since no time to think/reflect and decide to fabricate Eg 911 tapes
803(2) Excited Utterances A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition Statement must relate to an event or condition Event must be startling Declarant must be under stress of excitement caused by event No abuse of discretion to admit statement made to police officer by 9 year old victim of sexual assault with intent to rape 45 minutes after the event. Factors considered: lapse of time between event and statement, whether the statements were in response to an inquiry, the age of the victim, physical and mental condition of the declarant, characteristics of the event (how startling for this declarant), subject matter of the statement (how descriptive). Foundation required: Declarants personal knowledge
Physical Condition & Medical Treatment
Rule 803(3) Then Existing (Mental, Emotional, or) Physical Condition Statement of the declarant's then existing state of mind (see below), emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of a declarant's will. Statement may be made to anyone for any reason Statement must describe then-existing physical condition Eg statements concerning present internal condition: I am ill, I am tired, I have a pain in my chest, I feel dizzy May not describe past medical history 803(4) Statements for Purposes of Medical Diagnosis or Treatment Statements made for purposes of medical diagnosis or treatment and describing medical history, past or present symptoms, pain, sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Statement must be made for purposes of medical treatment Statements made in anticipation of diagnosis which are in preparation of expert trial testimony are admissible Includes statements made by persons who bring the patient to the doctor or hospital as long as in contemplation of treatment or diagnosis (eg parent brings child to the doctors) Can be made to persons other than the treating or diagnosing physician (could be used to admit declarations where information is passed from one individual to another). May describe medical history, present or past condition, or cause of condition if necessary for treatment May not ascribe fault
43
NY Rule Statements of Physical Condition Statement must be for purposes of medical diagnosis or treatment Statement must be made to treating physician Statement must describe then-existing physical condition Exception may be liberalized (People v Caccese, allowing statement of cause of injuries made to nurse in child abuse prosecution)
State of Mind: 803(3)
Rule 803(3) Then Existing Mental, Emotional, (or Physical Condition) Statement of the declarant's then existing STATE OF MIND, EMOTION, sensation, or physical condition (see above) (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of a declarant's will. is charged with murdering V while the two of them were fishing in the Adirondacks. raises an alibi defense, claiming he was in the Poconos with Bud the weekend V was killed. calls Wade, who offers to testify to the following statements made by the week before Vs death: 1. "I really like V" o Hearsay? YES. o Admissible under 803(3)? YES. The rule is designed to be broad enough to cover what declarant thinking, mental feelings, only way to know existing mental state. 2. "V has been a good friend to me over the years." o Hearsay? NO. Offered to prove that liked V, the matter asserted is that V has been a good friend. Indirect assertion of mental state not hearsay. 3. "Im planning to go to the Poconos with Bud this weekend." o Hearsay? YES. Offered to prove that he intends to go and asserts that he plans to go. And under Hillmon, can use statement of plan or intent to show that the planned or intended act was undertaken. o Admissible under 803(3)? YES. Statement of declarants plan. The prosecution calls Wendy, Vs wife. She will testify to the following statements made by V in the week before his death: 4. "Im planning on going fishing with in the Adirondacks this weekend." o Hearsay if offered to prove YES. V was in the Adirondacks? o Admissible under 803(3)? YES. o Hearsay if offered to prove YES. was in the Adirondacks? o Admissible under 803(3)? YES. Although the rule says declarants state of mind and here using to prove the s state of mind, under Hillmon case allowed to offer to prove both inferences, to prove together. Assume is rule for our purposes, and NY case said admissible to prove that
44 V went and that went (state of mind + subsequent conduct). 5. "I think tried to push me overboard last time we went fishing." o Hearsay? YES. o Admissible under 803(3)? NO. Statement of memory or belief to prove the fact remembered or believed not allowed. Assume that and V are cousins. After Vs death, there is a will contest in which (having been acquitted) claims a share of the estate. The estate calls Wendy to testify to the following statement made by V before his death: 6. "The only reason I put in my will is b/c he said hed hurt me if I didnt" o Hearsay? YES. o Admissible under 803(3)? YES. Goes to terms of will, exception w/i the exception of past belief, very broad hearsay exception virtually anything the declarant said about making will.
Past Recollection Recorded
803(5) Recorded Recollection W must have once had knowledge but have no current memory Record must have been made or adopted by W While the matter was fresh in Ws mind Record must correctly reflect Ws prior knowledge Record is read into evidence, but not admitted as exhibit unless offered by opposing party Police officer on the stand reporting the tellers statement of what the robber said to her. o Hearsay within hearsay: The tellers statement could come in as an excited utterance, if could introduce evidence to show speaking under the stress of the event. The robbers statement is a party admission or arguably not hearsay b/c a verbal act.
Business Records
803(6) Records of Regularly Conducted Activity Apples to "memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses" Record must be Kept in the courts of regularly conducted activity; AND Must have been regular practice to keep such records Record must have been made at or near the time (of transaction, event, etc.) By person with knowledge or from information transmitted by a person with knowledge Not excluded by the hearsay rule, UNLESS the source of the information or the method or circumstances of preparation indicate lack of trustworthiness NY rule operates effectively the same. Can often contain hearsay within hearsay Patient want to introduce the nurses notes, part of the hospital record:
"My leg hurts."
45
Patient says: Nurse writes: N: "Patient said my leg hurts. I told doctor and doctor said call back in the am" The record itself, as an out-of-court statement is hearsay b/c it is offered to prove its that the conversation happened. BUSINESS RECORD fits all the RQs What about the doctors statement? Not offered for the truth of what it asserts, the law would be concerned with his conduct of failing to come in (significance is that made ??) What about the nurses statement to the doctor? No hearsay problem if offered for the effect on the listener, to show that the doctor was aware of the potential problem. What if offered to prove the patients condition? Hearsay if offered to prove the truth of his condition (the matter asserted). Would be a statement for purposes of medical diagnosis 803(4). (Couldnt get in in NY b/c didnt tell to treating physician). "Duty to Report" While the source of the information must have personal knowledge, others participating in the chain of transmission of the record, need not have that knowledge. Where the actual name of the source is unknown, the record is not barred by the Rule as long as it is the regular practice of the business activity to procure the information from such employee or agent. Where the initial source of the business data has personal knowledge and each person in the chain of transmission is performing is routine function for the business concern, the record is admissible. Each person in the chain must be an employee or agent of the business which retains the records in the regular course of its activity each person in the chain must have a business duty to report accurately to the business keeping the record. A duty to some other entity or a civic duty will not qualify need to get in in some other way Example, a business record qualifying under 803(6) might contain a statement of a someone who did not have a duty to report embraced by Rule 803(2) which authorizes the admission of excited utterances. FRE 805 Hearsay within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. For business records, every statement repeated in the record must: 1. Be "not hearsay"; or 2. Fit within and exemption or an exception to the hearsay rule; or 3. Be the statement of a person with a business duty to BUSINESS RECORDS: the recorded matter. report FOUNDATION
46
qualified person with knowledge of record keeping practices Testimony or certification must show that record was: Made at or near time by person with knowledge Kept in regular course of regularly conducted activity Made as a part of regular practice or activity Record may be excluded if untrustworthy Courts are especially careful to scrutinize business records as accident reports by there records have proven particularly subject to distortion or self interest. Eg an employee preparing an accident report to be kept by his employer. Under 803(7) the absence of an entry in a business record is admissible evidence, if relevant, of somethings nonoccurrence or nonexistence if its occurrence existence would normally have been recorded.
Either 1) call as a witness or 2) obtain written certification from custodian of records or ,,other
Public Records
Rule 803(8) Public Records and Reports Records, reports, statements, or data compilations, in any form of public offices or agencies are not excluded by the hearsay rule, setting forth ... (A) the activities of the office or agency Covers ministerial and clerical records of government entity, such as: Payroll and personnel records for the entity Receipts and dispursements for the entity Routing public records such as licenses, birth, death, marriage, and property records (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, HWR, in criminal cases matters observed by police officers and other law enforcement personnel Covers records of external events, such as: Statistics and other sociological, demographic, geological, meteorological, or other data compiled by government agencies Court reporters transcripts LIMIT not able to offer matters observed by police officers against a criminal . The concern is that investigation will be slanted to target those they think are the perps. Doesnt come in as a business record either, even if fits the technical definition b/c of the same concern. Note: if the officer takes the stand and cant remember then should come in a past recollection recorded. Since there is an opportunity to cross-examine the officer it is more fair to the criminal . Under a broad reading, reports such as ballistic analysis and analyses of illegal substances could be excluded report by a chemist who worked for customs not admitted with analysis of a substance alleged to be heroin. Other courts have concluded that the restrictive language is not an absolute bar to all public records offered by the government against the accused in criminal cases (not construe so broadly as to include reports only remotely concerned with police and law enforcement operations).
47 Some courts think reports found to be of a routine and non-adversarial nature should only be excluded where the circumstances surrounding the officials observations were of such a nature to indicate unreliability (simple recording of license numbers of vehicles, even if official w/i the meaning of (B)). (??) (C) in civil actions and proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law Covers results of government agencies, such as: Accident investigations (NTSB, FTA, OSHA, etc.) Administrative findings in employment discrimination proceedings (eg EEOC or state equivalents) Investigations by law enforcement agencies. Prohibits the use of evaluative reports against the accused under any circumstances. Beech Aircraft Corporation v Rainey JAG Report made after an official investigation into a fatal plane crash, wants to introduce against manufacturer. The SCt found admissible even though certain portions contained evaluative conclusions or opinions, and likely based on some hearsay. Language of rule does not contain a distinction between fact and opinion (probably would have to establish that the person who made the report is qualified as an expert so opinions can be accepted). Trustwortiness clause: unless the sources of information or other circumstances indicate lack of trustworthiness Under 803(10) to prove the absence of a public record or the non-existence of a matter of which a record was regularly made have to have evidence in the form of a certification that a diligent search failed to disclose the record. No all encompassing rule for NY, little rules for various agencies. Assume rules are the same.
Learned Treatises
Rule 803(18): FOUNDATION establish that treatise is authoritative by: Testimony of your expert witness Testimony of opposing expert witness on cross Judicial notice USE Your expert or opponents expert must be on stand when introduced Treatise may be read to jury but not given to them Admissible substantively NY liberalized a little from the common law, but not as much as the FRE: need other sides expert to admit authoritative on cross, then can read from, but only for impeachment, not admissible substantively (non-hearsay use not a hearsay exception). More limited.
Statements Defined as Hearsay but Admissible IF the Declarant is "Unavailable"
48
Rule 804(a) Five grounds for unavailability: 1. PRIVILEGE o Must have judicial ruling upholding the privilege 2. REFUSAL o Must be in contravention of judicial order o Not recognized in NY 3. LACK OF MEMORY o Not recognized in NY 4. DEATH OR DISABILITY o If disability transient, court may stay proceedings 5. ABSENCE o Proponent must show unsuccessful attempt to procure declarant "by process or other reasonable means" o In addition, if offering statement as dying declaration, statement against interest, or statement of family history, must show unsuccessful attempt to procure declarants deposition "by process or other reasonable means" Unavailability NOT satisfied if deponent intentionally caused declarant to be unavailable. Due to reduction in confidence in reliability only want to allow if the declarant is unavailable only depend on out of necessity
Former Testimony
Rule 804(b)(1) testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. UNAVAILABLE PROCEEDING OPPORTUNITY TO DEVELOP TESTIMONY SIMILAR MOTIVE NEW YORK Civil cases Former testimony may be from: Prior trial (CPLR 4517) Deposition (CPLR 3117) Other proceeding involving cross-examination (common law) Earlier proceeding must have involved: Same subject matter Same parties or their representatives Criminal cases (CPL 670.10) Former testimony must be from: Related prior criminal trial (involving the same charge) Preliminary hearing in the same case
49 Hearing under CPL 660 in same case Former testimony may NOT be from suppression hearing, grand jury, admin proceeding, or trial of co- . Must have been a similar motive to cross examine At his preliminary hearing on criminal charges of fraud and racketeering, s lawyer, following common practice among defense attys, chooses not to cross-examine the arresting officer. After the preliminary hearing, but before the trial, the officer dies. May the prosecution introduce evidence of the transcript of the officers testimony from the preliminary hearing? Actual cross is not a condition precedent to admissibility, just opportunity. The SCt upheld the use against the accused of preliminary hearing testimony by a prosecution witness who was unavailable at trial. Also, motive doesnt mean incentive, it means an interest or desire to have the same result (ie exoneration at both). Its the opportunity that counts and the interest being the same enough to satisfy the rule. A may offer grand jury testimony against the prosecution (b/c formal proceeding under oath, prosecution had opportunity to develop testimony and a similar motive to inculpate the ). HWR, grand jury testimony would be unavailable for the prosecution to offer against the , since the defense counsel has no opportunity to examine. PROCEDURE: could call someone from the earlier trial with personal knowledge who could testify what the declarant said (one layer of hearsay), or the more common way is to bring in a transcript from the former proceeding, which adds a second level of hearsay b/c the transcript itself is hearsay. How to get transcript in as a business record/public record (might also be present sense impression).
Dying Declarations
FEDERAL Homicide prosecution or civil action only Declarant has to believe death was imminent Declarants statements and actions Statements to declaratnt Declarants apparent condition judge decides admission under 104(a) preponderance of the evidence Statement must concern cause of death NEW YORK Declarant must have been victim of homicide and offered only in prosecution for declarants homicide Declarant had to have certainty of impending death
Statement must concern cause of declarants death
Statements Against Interest
50 ADMISSIONS Any statement STATEMENTS AGAINST INTEREST Statement against pecuniary, civil, or criminal interest when made First identify interest and then look to the circumstances surrounding the statement to determine whether it was really contrary to declarants interest. A reasonable person in declarants situation wouldnt have said it if it werent true. By any person Declarant must be unavailable Offered against any party Declarant must have personal knowledge
By party opponent Availability irrelevant Offered against declarant Personal knowledge not required
CORROBORATION REQUIREMENT in criminal cases where the statement is being used to exculpate the accused need to come up with corroborating evidence. There is a reduced level of reliability since the declarant is unavailable potential for abuse. Where a statement includes both statements against declarants interest and collateral statements made as a part of the same declaration, the court must parse the statements and admit only the parts that are self-inculpatory (Williamson such statements are suspect insofar as they inculpate other people: that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts). NY corroboration requirement when prosecution offers against (amendment to federal rules considered, lots of fed cts do anyway).
Forfeiture by Wrongdoing
Rule 804(b)(6) If a party wrongly prevents a person from testifying, for example by being involved in bribing, intimidating, or killing that person, any statement that person ever made can be introduced against the party (Mafia exception).
Residual Exception
Rule 807 "catch-all" to get the near misses that dont qualify for the other exceptions Must be equivalent circumstantial guarantees of trustworthiness Reduction in testimonial infirmities Lack of motive to fabricate Corroboration Must be offered on a material fact Must be more probative that other available evidence Admission must serve general purposes of rules Must give opposing party notice before offering Controversial example the use of grand jury testimony admitted against the accused (re: doesnt get in under 804(b)(1) b/c no opportunity for defendant to develop testimony).
CONSTITUTIONAL CONCERNS
51
Confrontation Clause the 6th Amendment provides that the accused has the right to confront the witnesses against him Is the declarant subject to cross-examination re: hearsay? If so, confrontation clause is satisfied If the declarant is not subject to cross, does hearsay fit into "firmly rooted" exception or exemption? If so, confrontation clause is satisfied prior inconsistent, co-conspirator statements, present sense impression, excited utterances, statements for medical purposes, past recollection recorded, business records, public records, former testimony, dying declarations. If no cross and not firmly rooted, does hearsay have "particularized guarantees of trustworthiness"? If so, confrontation clause satisfied Corroboration may NOT be use to establish trustworthiness Look to the totality of the circumstances that surround the making of the statement must render the declarant particularly worthy of belief (re: hearsay made by child in Idaho v Wright, factors that relate to reliability spontaneity, consistent repetition, lack of motive to fabricate, use of terminology unexpected of child of a similar age). Virtually all the exemptions and exceptions are firmly rooted. Clearly the residual exception is not firmly rooted. Also, perhaps the statement against penal interest (confession of an accomplice that incriminates a criminal are NOT firmly rooted and held to not have particularized guarantees of trustworthiness as used in Vas rule, Lilly v Va. More fit under Vas exception b/c Williamson not adopted by state courts and blame-shifting statements allowed in, where as only the self-incriminating parts would have been allowed in under the federal rules). Unclear where FRE 804(b)(3) stands after Lilly, at a minimum maybe just held constitutional dimension of Williamson (re: parse statements) effectively require courts to go with Williamson or even if following Williamson is the whole exception not firmly rooted? (??).
X. PRIVILEGE
Privileges give special treatment to a variety of confidential communications such as those made between lawyer and client, husband and wife, or priest and penitent. Privilege represents a social choice that particular goals should overcome the general premise that relevant evidence is admissible; it allows certain types of information to be withheld throughout the litigation process (doesnt serve the truthfinding function, keeps the tribunal from hearing useful information). Instead another social objective is advanced an interest in protecting confidentiality and recognition that the state should not intrude upon certain personal relationships. Always discretionary, must identify the holder and it the holder doesnt invoke then it doesnt exist. Information conveyed in a privileged communication cannot be brought into trial and cannot be subject to discovery even though the statement is relevant to a disputed issue. Rule 501 no specific privileges provisions have been adopted as part of the federal rules, although detailed provisions had been adopted by the drafters. Privilege law under the federal rules is open to traditional common law development. In civil cases, state law governs where an issue is governed by state law. A. ATTORNEY-CLIENT
52 The oldest, rationale is that it is socially desirable in that it enables the public to get the best possible representation. A client holds a privilege to prevent testimonial disclosure of communications made in confidence between himself and his lawyer during the course of a professional lawyer-client relationship. ELEMENTS OF THE PRIVILEGE Confidential Communication Between client and attorney Just need a reasonable belief that talking to an attorney, doesnt matter if not really one For purpose of obtaining legal advice ATTORNEY-CLIENT RELATIONSHIP: Key factor is the clients belief that she is consulting lawyer in the lawyers legal capacity for purposes of obtaining legal advice: Key factor is that advice involves use of legal judgment Facts relating to representation are not covered A clients identity is not usually privileged, unless revealing the identity would effectively reveal confidential communications Primary purpose must be obtaining legal advice Protection covers conversations concerning possible representation implicit question in seeking advice is whether there is a case ~ enough to establish the A C privilege. Just b/c family friend is not dispositive (although privilege doesnt apply when attorney is consulted as a friend/advisor), it may be that seeking a recommendation for an attorney, trying to match capabilities with the C of A may be legal advice. Borderline, but may be sufficiently close to be considered seeking out attorney for the purpose of obtaining legal advice. The mere fact that an attorney is present wont make confidential, need the primary purpose to be obtaining legal advice. COMMUNICATIONS Privilege protects disclosure of communications, not disclosure of facts communicated The client cant immunize a fact from discovery or compelled testimony by communicating it to his attorney. The privilege protects against revealing the statements that a person makes privately to the lawyer, but it does not protected against revealing the information that a client knows whether or not the client may have communicated that information in a private communication. Only the communication is privileged; the client's knowledge is not Documents that existed prior to A C relationship are not privileged Attorneys internal work product is not a communication with a client, not subject to A C privilege work product is different from privilege and can be overcome by a showing of substantial need. A majority of the courts have supported requiring disclosure of aspects of a clients appearance that were visible to the lawyer and would have been visible to others who saw the client. In NY communication between the attorney and the client goes both ways and protects things said by the lawyer to the client (some jurisdictions may be more limited and protect only if would directly or indirectly disclose what the client said to the attorney). CONFIDENTIALITY Communication must have been confidential when made and intended to remain confidential
53 The presence of others when a client communications no privilege attaches to the communications. Presence of spouse would not destroy the A C privilege Sometimes a communication is not intended to remain confidential (eg tax returns intended to be turned over to the IRS, also securities offerings not intended to remain confidential) Disclosure to agents or employees does not destroy confidentiality Eg meeting with a paralegal present Be wary of use of testifying expert, in theory not on side of person who called, supposed to be giving factual testimony, what is said to a testifying expert is not privileged. Dont give privileged information/work product to (different result if consulting expert) Common representation/joint defense Common representation when two persons consult an attorney about a common matter, each person retains the right to assert the A C privilege against a third party. Communications privileged between. Joint defense where several clients, each with separate counsel, meet for a joint defense then can get the privilege for the stuff passed around (get written agreement to ensure). If later in a fight with, however, all bets are off and nothing that is said is privileged. Question of new technologies CPLR 45.48, no privileged communication shall lose privilege just b/c communicated by electronic means. Designed to get at the presence of IT/service provider just b/c they have access doesnt destroy the privilege b/c they are necessary for delivery, facilitation. There is a different result if you know there are people monitoring for content, then cant assume that the privilege applies. APPLICATION TO CORPORATIONS Who is the corporate "client" ? Subject Matter Test (Upjohn) Were communications intended to be and in fact confidential? Was employee aware communications were for purposes of obtaining legal advice for the corporation? Did communications concern matter w/i scope of employees corporate duties? Rejected the control group test in which only covered corporate management since need more than information from management to obtain good legal advice. It appears that NY follows Upjohn. No distinction for inside and outside counsel both covered if all factors satisfied. CRIME-FRAUD EXCEPTION Applies only if communication advances an ongoing crime or fraud If client just came seeking legal advise asking ,,can I do this? ~ proposed future course of action then the exception doesnt apply (privilege remains) Under 104(a) in making determination on questions of admissibility the court is not bound by the rules of evidence except those with respect to privileges (cant look at privileged docs) two step analysis: Judge may look at allegedly privileged document in camera, if sufficient other evidence exists to support good-faith belief that in camera review may reveal improper use of communication Judge then determines whether privileged communication used to further crime or fraud based on preponderance of the evidence standard WAIVER
54 Reliance on privileged communication in litigation Eg defense that tax attorney said could make deduction Deliberate disclosure Inadvertent disclosure Lenient approach only knowing and intentional disclosure waives Middle approach no waiver if reasonable precautions taken to prevent disclosure Strict approach any disclosure waives privilege (DC) Refreshing recollection If disclose privileged docs to a witness, in preparation for trial or deposition, that can waive the privilege even if the witness is the client. Dont use privileged documents to prepare a witness pre-trial ~ can waive privilege. B. MARITAL & OTHER
SPOUSAL PRIVILEGES
Marital Confidential Communications Privilege Elements o Confidential o Communications o Between spouses (if child or lawyer present then not "between spouses") o Made during legally valid marriage Disclosure not permitted unless both spouses waive Crime-fraud exception (like A C must be in furtherance of/advances an ongoing crime) Applies in all cases Marital Adverse Testimony Privilege o Allows one spouse to refuse to testify against the other spouse on any topic (not limited to confidences or communications) o Must be valid marriage at the time of testimony Testifying spouse may waive the privilege Applies only in criminal cases
Privilege for confidential marital communications want to encourage marital confidences, protect marital relationships. Divorce would not alter and survives death Privilege against adverse spousal testimony spouse cant be compelled to testify against the other in criminal testimony. If statements are protected as a confidential communication then even if one spouse agrees to testify, it would be necessary to have both waive under the confidential communications privilege. Divorce would alter adverse testimony privilege ~ only applies during marriage NY CPLR 4502 (a) abolished marital adverse testimony privilege for all practical purposes. (b) marital confidential communications privilege had the same basic elements as the federal rule.
PHYSICIAL-PATIENT PRIVILEGE
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Applies to licensed physicians, registered professional nurses, licensed practicing nurses, dentists, podiatrists, and chiropractors Information must be received in professional capacity Information must be necessary for treatment Eg privilege doesnt apply when doctor seen for the purpose of allowing the doctor to testify at trial The privilege is not available where a in the course of a personal injury litigation is examined by doctors hired by either the 's or the 's attorney to determine the extent of the injury. Patient must have intended that information be and remain confidential Not lost if other people in the room are family members or necessary for treatment. Applies to communications and to observations and results of tests if professional expertise involved Patient waives privilege by putting condition "in issue" Eg personal injury makes physical condition an issue in the case waives privilege with respect to condition To put condition "in issue" have to affirmatively assert condition [counterclaim or affirmatively seek to recover from or affirmative defense (eg criminal insanity)]
NY CPLR 4504 The patient holds the privilege can refuse to disclose and prevent the doctor from disclosing & the doctor is required to assert the privilege on the patients behalf. NOTE: "Information" not ,,communications Applies to communications and to observations and results of tests IF professional expertise is involved (eg applies to dislocated shoulder diagnosis, BAC level reading, but not to the fact that patient unconscious or smelled of alcohol). Privilege doesnt apply to any observable thing, just those that require professional expertise Communications on behalf of the patient would be privileged, doesnt have to come from the patient. Psychiatrists are physicians. If condition "in issue" then privilege waived and psychiatrist could be called Psychologists have different rule CPLR 4507 Same as A C (re: to waive A C have to rely on communications in litigation), to waive psychologist-patient would have to rely on what told psychologist as a part of claim or defense anomalous result; better of talking to psychologist rather than psychiatrist/doctor. Would not waive as a criminal by raising insanity defense. Social workers have a lesser privilege CPLR 4508 (a)(2) not required to treat as confidential a communication by a client which reveals the contemplation of a crime or harmful act can be forced to disclose or voluntarily disclose. Federal law has no general physician-patient privilege. The feeling is that not needed b/c no one would compromise health for fear of disclosure incentive to tell the truth. Jaffe v Redmond recognized psychotherapist privilege that extends not only to psychiatrists and psychologists, but also to social workers performing psychotherapy confidential communications for the purpose of treatment are protected. The waiver rule of state privileges would also apply here (eg in an insanity defense the waives.
CLERGYMAN-PENITENT PRIVILEGE
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Applies to clergymen of all denominations Communications must be confidential Clergymen must have been acting in spiritual advisory capacity Subsequent disclosure of the same information constitutes a waiver NY CPLR 4505 Cox v Miller Cox murdered two people in a drunken blackout (mistaken identity), in an AA program confesses that he thinks he did it. The AA member tells the police and hes arrested. argues that illegal b/c AA member shouldnt have been allowed to reveal b/c subject to clergyman-penitent privilege. Held: right privilege applies to discussion with AA b/c of religious principles (if violates the establishment clause to force to go to AA).
XI. IMPEACHMENT
The evidence is already in, around all of the other rules how to knock it down? IMPEACHMENT, has its own standard of relevance, aimed at the credibility of evidence should the jury trust a particular witness? Credibility is always an issue, evidence that affects credibility relevant. Rules govern the ways to test a witness credibility. Different types of impeachment: 1. Intrinsic Impeachment impeaching a witness through cross-examination 2. Extrinsic Impeachment impeaching a witness by calling another witness (or offering other documents into evidence) When can extrinsic evidence be used? Distinguish between matters that are collateral and those that are not collateral Collateral has some potential for impeachment, just contradicts one point (red wine, not white wine), doesnt tell anything more on the heart of the issue. Not collateral goes to perception (three tequilas and seven beers, not one white wine) and central to case ~ more probative value. At common law courts only allowed extrinsic evidence when not collateral. The distinction doesnt come up for every type of impeachment. Comes up with contradiction and prior acts used to impeach A. WHO MAY IMPEACH Voucher Rule common law tradition that prevented a party from impeaching its own witness. In Federal Court, the voucher rule abolished by FRE 607 (any party may attack the credibility of a witness, including the party who called the witness to testify) In NY Civil cases CPLR 4515 Party may impeach its witness only with prior inconsistent statement (in writing or oral under oath) Criminal cases CPL 60.35 Party may impeach its witness only with prior inconsistent statement (in writing or under oath), BUT only if witness, on direct, makes a statement tending to disprove that partys case.
57 B. MODES OF IMPEACHMENT CHARACTER witness disposition is untruthful, can be shown through: Prior bad acts Convictions Reputation or opinion for untruthfulness CONTRADICTION witness has made a statement at a previous time that is inconsistent with his current testimony or witness is wrong on one or more points in his testimony Prior Inconsistent statements Factual contradiction TESTIMONIAL CAPACITY witness has a defect in his sensory capacity or memory Oath Perception Recollection Communication BIAS showing the witness had another motivation for testifying or has been corrupted in some was that might lead him to fabricate or shade his testimony Bias Interest Prejudice Corruption
Prior Bad Acts
Rule 405(a) allows for the impeachment of a character witness by asking about relevant specific instances of conduct of the person characterized (tests the qualification of the character witness as to the basis for the reputation or opinion testimony). EG is on trial for embezzlement. On direct examination by s counsel, character witness testifies that has a reputation for being honest. On cross-examination by the prosecution, "Are you aware that was fired from his previous job for lying?" Specific instances of conduct may be inquired into on cross only if two criteria are satisfied: The instance of conduct must be relevant to the pertinent character trait in question The opponent of the character witness must satisfy the judge that s/he is proceeding in good faith in inquiring into the specific event. May not introduce into evidence independent proof that the events occurred (if establish a pattern could make not collateral and maybe could show that evidence fits in under 404(b)). Rule 608 governs the use of character and conduct evidence for the purpose of impeaching the general character of a witness for honesty. The specific instance of conduct by a witness may be inquired into on cross if probative of truthfulness or untruthfulness EG is on trial for embezzlement. On direct examination by s counsel, witness testifies that he reviewed s accounts and found everything to be in order. On cross-examination by the prosecution, "Isnt it true that you were fired from your last job for lying?" (cross examining the primary witness).
58 Under (b)(1) the prior acts must be concerning the witness' character for truthfulness or untruthfulness: (arrest examples fact of arrest wouldnt be probative of truthfulness, phrase question in terms of the act) Income tax evasion would be probative of truthfulness/untruthfulness Burglary most courts dont allow, does not go to truthfulness, but note in NY the requirement is only moral turpitude (any crime) Drunk & disorderly not in in federal court and probably not in NY Petty larceny different kinds of, some involve tricking people, if deception involved then probative of truthfulness (different if shoplifiting). In NY would be probative of moral turpitude in any case. Nothing in 608(b) mentions the time of the prior acts, but may consider how long ago act was in 403 balancing, the probative value is reduced as time goes by. Limited to intrinsic evidence. Must have a good faith basis for asking the question The rule is basically the same in NY except not just limited to truthfulness/untruthfulness, may inquire on cross-examination any prior act that has a tendency to show moral turpitude. 608(b) governs specific acts of the principle witness what are not subject to, or have not resulted in, conviction (impeachment through exposing the conviction of a witness is in 609). Sandoval Hearing if the witness is the criminal , then have a hearing pre-trial to see what of s prior acts are going to be allowed to be inquired into by the prosecution, so can decide whether to testify (comes up again with convictions). The giving of testimony, whether by the accused or by any other witness, does not operate as a waiver of the accuseds or the witness privilege against self incrimination when examined with respect to matters which relate only to credibility (608(b)) (note: if admissible for a showing a common plan or scheme under 404(b) then privilege might be waived b/c defendant would be questioned on matters beyond credibility (problem 10.25)) .
Convictions
FRE 609 IMPEACHMENT BY CONVICTION Is conviction juvenile or adult? If juvenile, not admissible unless constitutionally required Does conviction involve crime of falsity? If so, and less than 10 years old, always admissible If not a crime of falsity, is it a felony or misdemeanor? If misdemeanor, not admissible If felony, admissible subject to balancing Balancing for felony convictions (not crimes of falsity) If witness is NOT a criminal , and crime is less than 10 years old, admissible subject to 403 balancing (admissible unless the probative value is substantially outweighed by the risk of unfair prejudice presumption of admissibility) If witness IS a criminal , and crime is less than 10 years old, admissible if probative value outweighs prejudicial effect
59 If ANY crime is more than 10 years old, for any witness, admissible only if probative value substantially outweighs prejudicial effect (reverse 403 heavy presumption of inadmissibility) If pardon, annulment, or cert of rehab, NOT admissible. If the conviction is on appeal, that doesnt mean that it doesnt come in. Convictions can come in even if the plea was of nolo contendere; the conviction stands separate and alone. NY RULES If witness is NOT a criminal , ANY prior adult conviction is admissible subject to 403 balancing If witness IS a criminal , any prior adult conviction is admissible, unless probative value is outweighed by prejudicial effect No time limit in NY, but is a factor in assessing probative value. PROCEDURE In federal court, if judge rules pre-trial that convictions are admissible, must testify to preserve appeal In NY, pre-trial ruling appealable even if does not testify EXTRINSIC EVIDENCE under 609, some extrinsic evidence is admissible if the witness denies. For most courts the record of conviction only, not normally allowed to bring in a narrative of the crime b/c the only relevant thing is the fact of the conviction. TIME LIMIT period of 10 years since the date of conviction or of the release from conviction, whichever is the later date.
In criminal prosecution for filing false income tax returns, witness subject to cross, may witness be impeached by criminal conviction? o 8 year old conviction for income tax evasion and W is a friend of the s. This is a crime of falsity and it is less than 10 years old no balancing, always admissible. o 5 year only conviction for burglary and W is a friend of the . This is a felony conviction, less than 10 years old and the W is not the criminal subject to 403 balancing (admissible unless the probative value is substantially outweighed by the danger of unfair prejudice) ~ presumption of admissibility and relatively low prejudice. o 3 year old conviction for drunk and disorderly. Misdemeanors are not admissible (unless crime of falsity then admissible) o 1 year old conviction for petty larceny. If crime of falsity then admitted regardless of the punishment, if didn't involve dishonesty then not admissible. If the witness is the criminal , would any change? Felony conviction, not a crime of falsity, changes: o For the burglary charge felony conviction, less than 10 years old and the W is the criminal admissible if the probative value outweighs the prejudicial effect (slight presumption against inadmissibility).
Character for Veracity
60 Under 404(a) generally, evidence of a persons character is not admissible for proving action in conformity therewith on a particular occasion, EXCEPT (a)(3) evidence of the character of a witness as provided in rules 607, 608, and 609. FRE 608(a)(1) the credibility of a witness may be attacked by evidence in the form of opinion or reputation, but the evidence may only refer to character for truthfulness or untruthfulness (evidence of truthful character admissible only after the character of the witness for truthfulness has been attacked).
In criminal prosecution for tax evasion, the calls W, a co-worker for the past three years, who will testify to the s lawfulness. o May the prosecution bring in reputation or opinion evidence of Ws untruthfulness? Yes, under 608(a)(1) o May the prosecution bring in reputation or opinion evidence of Ws unlawfulness? No, has to be truthfulness or untruthfulness. o May the prosecution bring in reputation or opinion evidence of the s unlawfulness? Yes, under 404(a)(2) to rebut. o May the prosecution bring in reputation or opinion evidence of the s untruthfulness? Only if character is in issue (isnt in tax evasion case), if took the stand then character for truthfulness would be relevant to credibility. Assume that lied on a job application and has been convicted of assault. On cross, what may ask W about? (404(a)(1)) o Lie on job application prior traits that ask about have to be pertinent to what W testified to, a lie on a job application is not pertinent to lawfulness. Under normal circumstances not a crime not pertinent to the character trait put on. o Assault controls what evidence that comes in by controlling the character trait that is put on. Lawfulness opens the door to cross examination on prior crimes. Allowed to make inquiry into relevant specific instances of conduct on cross, but not offer extrinsic evidence to prove (in NY can offer extrinsic evidence to prove s conviction). Now assume that W lied on job application and has a conviction for assault. o Can ask about lie on job application b/c under 608(b) it is probative of truthfulness or untruthfulness and is the specific conduct of the witness. Cant prove with extrinsic evidence (collateral not relevant to the merits of the case. o Assault conviction? Not a crime of falsity, would have to know how much time and if felony to know if it can be offered, then balance with normal 403 balancing (kept out only if the probative value is substantially outweighed by the risk of unfair prejudice to the ). And if the W denies the conviction can prove it by extrinsic evidence of the record of conviction.
Prior Inconsistent Statements
FRE 613
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Is the prior statement inconsistent with the current testimony? Degree of inconsistency can be very small and still be allowed to ask W about it, raise suggestion that W is getting less specific, v little prejudice in doing, evaluate the probative value against the risk that the jury will misuse the prior statement Suggestion can be made if omission of possibility of lack of recall, not remembering as well now some relevance, also applies if something new added. What foundation must be laid before questioning W about prior inconsistent statement? The federal rules have liberalized the common law (613(a) content of prior inconsistent statement need not be disclosed before and eliminates the requirement that the witness be shown a written prior inconsistent statement before being questioned, but on request show to opposing counsel. Although some federal courts require adherence to Queen Caroline's case anyway and normally going to do what NY tells you to do anyway). In NY still have to follow Queen Caroline's case, before asking about prior inconsistent statement must lay foundation, bring out evidence of the circumstances and if written prior inconsistent statement have to show it to the W before asking about it ... When may extrinsic evidence of the prior statement be offered? Can only prove extrinsically if not collateral 613(b) extrinsic evidence not admissible unless the opposing party has a chance to explain
Avenue for getting in what otherwise might be inadmissible non hearsay purpose of impeachment If can get in under a hearsay exception will also be admissible substantively
Contradiction
Use other evidence to contradict facts that W testified to. On cross, can usually try intrinsically. The basic rule is can only bring in extrinsic evidence only when the matter is not collateral. Collateral/non-collateral distinction is not in the Federal Rules, it is a holdover from the common law. Rule 403 balancing still applies, really saying that the probative value not high enough to justify time expended proving, waste of time, confusing vs probative value (not really prejudice question).
Testimonial Capacity
Oath FRE 610 May not ask about religious belief to attack credibility Perception and memory Lack of opportunity to perceive; time lapse; physical or mental infirmity; drug or alcohol use Extrinsic evidence is permitted, subject to 403 balancing.
Bias
62 Examples Affiliation between witness and party Animosity between witness and party Financial or other incentives to testify Otherwise inadmissible evidence might be admissible see FRE 408, 411 Extrinsic evidence is permitted, subject to 403 balancing C. REHABILITATION FRE 608(a)(2) Character for truthfulness (reputation or opinion) Permitted only after character for truthfulness has been attacked by reputation, opinion, or otherwise Prior acts of truthfulness Permitted only on cross of W who has testified to other Ws characteristics for untruthfulness; or On redirect of W whose character for truthfulness has been attacked on cross, to explain or mitigate Prior consistent statement Permitted only to rebut charge of recent fabrication D. IMPEACHING A HEARSAY DECLARANT FRE 806