A 1Evidence
Outline
Text: Modern Approach to Evidence, Lempert, Gross & Liebman 3rd Ed. Stephen Hunt, Jr.
1 Introduction and Problem Solving
How to answer an evidentiary question. Summarize Facts Answer the question asked AND explain the answer: 1. What rule / what rule applies 2. What does rule and Advisory Committee Note say about problem. 3. What does text say about problem (Least important). Rule 402 All relevant evidence admissible EXCEPT as excluded by rules (IBARHOP) 1. Impeachment 607- 610, 612-613 2. Best Evidence (1000s) 3. Authentication / Personal Knowledge 900, 602 4. Relevant but Inadmissible 400s 5. Hearsay 800s 6. Opinion 700s 7. Privilege 500s Procedural Rules How to admit / exclude evidence 1. Objections (103) 2. Preliminary questions, foundations (104) 3. Limited admissibility (105) 4. Completeness 5. Order of Questions 6. Excluding witnesses 7. Competency Offering evidence and objections For purposes of this outline P will = proponent and O will = opponent of evidence.
2 Witnesses / Conduct of Trial / Procedural Rules
Witnesses Competency 1. 601 Every person is competent to testify (be a witness) except as otherwise provided in Fed. Rules. 2. 602 Witness may not testify to a matter unless evidence is introduced that the witness has person al knowledge of the matter. Condensed 601, 602, 603-606 1. Every person (601) 2. With personal knowledge (602) 3. Who takes oath or affirmation (603) 4. May testify EXCEPT a. Judge (in this case) b. Juror (in this case)
Competency is afforded to everyone w/ discretion resting in the judge. 1. One way judge has discretion is by the administration of the oath and the judge can rule that one does not know the meaning of testifying truthfully. 2. Also, if the judge cites confusion as excluding testimony this is possible. Opinion Basis Experts Rule 703 experts may testify to: 1. Personal Knowledge 2. Presentations at trial a. Hypos b. After listening to testimony 3. Presentations outside of trial (may or may not be admissible evidence Lay witness rule 701 lay witnesses may testify to: 1. Rational perceptions (personal knowledge). Testimony has to be helpful For experts has to be of a type reasonably relied upon by experts in the particular field, inference may be admitted even if data is inadmissible. Questioning 611(b) Question topic (scope) 1. On direct question may relate to ANY relevant matter 2. On cross Only the subject matter of direct, AND/OR a. Credibility AND/OR b. Additional matters if asked as if on direct. 611(c) Question Form 1. On direct: NO LEADING except to develop testimony: a. Preliminary matters (non contested) effort to speed it up. b. Exhausted memory atty may lead for authentic forgetfulness by W. c. Children Witnesses Esp. Child abuse and sexual abuse d. Communication problems If W is inarticulate e. Hostile witness unwilling or biased or a witness identified w/ the adverse party. 2. On Cross-ex: Leading is permitted BUT questions are limited to prior discussed matter: a. CANNOT lead a friendly or neutral witness b. May intro new material as if on direct (no leading ?s). Objections Rule 103 No ruling admitting or excluding evidence can be assigned as error unless: 1. Substantive rights are affected 2. And either: a. Nature of error called to courts attention OR b. Ruling was plain error affecting substantial rights An objection has to be: 1. Correct 2. Timely 3. Specific
Making an OFFER OF PROOF 1. When fighting Ps objection the O must make what is called an offer of proof, demonstrating to the court the substance of the evidence in order to preserve the objection (this may be done by P or O of evidence). 2. Counsel must do certain things outside the hearing of the jury: a. Approach the bench and cite the anticipated testimony he is objecting to (or offering) OR b. Excuse the jury for a hearing on the evidence c. Do nothing and hope for plain error (not a good strategy). Limited Admissibility Rule 105 When evidence is admitted for one purpose in favor of a party the opposing party is allowed to ask for a limiting instruction for the jury to consider only the basis for which the evidence was admitted. Example is character evidence that is admitted as knowledge, plan or motive.
3 Basic Relevance
Relevancy and its limits (15 rules) 401 Defines what is and is not relevant 1. Relevant - evidence that has a tendency to make the existence of any fact of consequence more or less probable than it would be w/o the evidence. 2. Means probative of a fact. 402 Relevant evidence is admissible except as provided by: 1. Constitution 2. Statutes 3. Other Rules (FRCP) 4. Evidentiary rules (FRE) 5. All irrelevant evidence is inadmissible 403 Pragmatic exclusion 1. Balancing rule evidence may be excluded if its probative value is substantially outweighed by the danger of: a. Unfair prejudice (most often used) b. Confusion of the issues c. Misleading the jury d. Waste of time e. Cumulative evidence. 2. This is the fallback rule if all other objections fail, say that evidence is more prejudicial than probative (always w/in the discretion of judge and probably wont be overturned). 404 412 Situations that repeatedly came up in trials so drafters made rules for admissibility (ex. character evidence or settlement offers. 413 415 Added by Congress for things originally inadmissible but are now admissible (all dealing w/ sex crimes). 401 in depth Definition 1. Probative of fact (any tendency to make a fact more or less probable) AND
2. Fact is of consequence: a. Material directly related to consequences of case b. Credibility touches issues of believability c. Need not be in dispute or controversial to be relevant 1) Background info (Witness or case specific) 2) Aids to understanding of jury charts diagrams photos etc. Direct and Circumstantial evidence 1. Direct a. If believed resolves a matter in issue. b. Direct evidence states a proposition and is probative 2. Circumstantial a. Lends to an inference and may be probative b. Forces fact finder to make an inference. 1) Ex: D is found w/ a smoking gun in his hand standing over V. If trying to prove D owned a gun, then is direct evidence. If trying to prove that D killed V then is circumstantial evidence. c. W/ circumstantial evidence there are always multiple inferences. Conditional relevance offer of evidence that has to be tied up by additional testimony 1. Subject to 104(b) and judge has authority to conditionally allow line of questioning and admit or deny when real evidence comes. BE ABLE TO ARTICULATE A THEORY OF RELEVANCE and tie up conditionally relevant facts. 403 The balancing rule of last resort Example of how to use 403 1. Is offered evidence relevant? (Rarely is something totally irrelevant) 2. Is there any rule to keep out the evidence? 3. Will 403 keep it out? Test: 1. Exclude the evidence if the harm that will come from admitting it substantially outweighs probative value and need for evidence, if harm merely outweighs the evidence then is admissible a. Substantially outweigh is >51%, simply outweighing means admissible. Some special rules for using statistical evidence. 1. Has to have an empirical procedure 2. Has to have independent factors 3. Cannot argue that probability of guilt is proof beyond a reasonable doubt. (i.e. look at the odds, he is clearly guilty).
3.1 Relevant but Inadmissible
407 Subsequent remedial measures No evidence is admissible if offered of: 1. Subsequent measures 2. Taken after an injury/harm
3. That (if taken previously) would have made the injury/harm less likely to occur. Inadmissible if OTP: 1. Negligence 2. Culpable conduct 3. Product defect, design or warning defect. BUT exclusion is not required if OTP (has to be controverted): 1. Ownership 2. Control 3. Feasibility of measure to be taken 4. Impeachment. Example: V dies at RR crossing, P wants to admit evidence showing that there were no crossing signs at time of accident and there are now, only admissible if D controverts his ownership, control or feasibility of putting up signs 408 Civil negotiations and compromises No evidence of: 1. Settlement offers 2. Settlement acceptances 3. Conduct / Statements in a compromise negotiations IF 4. Compromising or attempts to compromise a claim 5. Disputed as to validity or amount (means actual dispute required). Excluded if OTP 1. Liability, invalid or amount Admitted if OTP 1. Bias of testifying W 2. Undue delay 3. Obstruction of justice. Limits of inadmissibility 1. Collateral statements made during settlement are also barred from being used against the declarant a. Promotes free wheeling negotiations w/o fear of reprisal. 2. However, if person makes a statement and that information is readily discoverable, other may use the info they discovered at trial against declarant. Recall letters 1. B/c rule encourages mfrs and others to fix what hurts others, recall letters are not admissible as evidence of liability BUT 2. If govt orders recall that goes to the policy of voluntary recalls and the govt coercion means that it is admissible. Policy we want to encourage settlements b/w parties so that is why rule is here 410 Evidence of plea bargains No evidence of (in civil or criminal) If offered against the D 1. Withdrawn guilty plea 2. Nolo contendre plea 3. Statements made during plea acceptance if plea is later withdrawn. 4. Any statement during plea discussions w/ prosecutors a. Stmts to police / investigators not protected unless that police is:
1) Agent of prosecutor w/ actual authority to bargain OR 2) D honestly and reasonably believed that a bargain was taking place. Exceptions 1. Waiver of 410 rights by D 2. Perjury prosecution 3. Rule of completeness A person MAY waive their 410 rights. Similar Happenings, Rule 409 and 411 Relevance questions as to similar happenings 1. No rule exists, have to use 403 or 402. 2. Excludable b/c there may be such different circumstances this time that werent present when it happened the first time. 3. To come in the P has to show substantial similarity (to all material conditions) b/ w this time and last time Evidence of other events or happenings excluded if OTP what happened (or existed) this time governed by 401 403 (subj to subst. similarity). 1. Other claims by P (admitted if shown that prior claims were fraudulent) 2. Other accidents to show (negligence) a. Dangerousness b. Cause c. Notice or knowledge 3. Lack of other accidents P tries to show he is a safe driver or D tries to show a safe condition. 4. Misc. a. Other Ks b. Other property values. 409 Evidence of furnishing or offering to pay medical hospital or similar expenses caused by an injury is NOT admissible to prove liability for the injury 411 Evidence of ones liability insurance or lack thereof is inadmissible on issue of negligence otherwise wrongful activity 1. May be admissible to prove agency ownership, control or the bias or prejudice of a W. 2. Used most often if D puts insurance company on stand and then plaintiff can ask ?s of agency and bias.
404(a) and (b) Propensity evidence inadmissible. ***EXCEPTIONS APPLY IN CRIMINAL ACTS ONLY; IN CIVIL CASES NO EVIDENCE OF CHARACTER, REPUTATION OR OTHERWISE, IS ADMISSIBLE. Gen. Rule: Evidence of character or character trait to infer a propensity to act consistent w/ that character is inadmissible. (Applicable only in Criminal trial)
1. Note: Evidence of acts by a person are admissible for any relevant purpose except to show character and conduct consistent w/ character {propensity} 2. Exceptions: a. 404(a)(1) Character of accused by the accused, accused offers good guy evidence of himself, prosecution can rebut w/ bad stuff. b. 404(a)(2) Character of victim by accused; prosecution rebuts w/ victims good character. c. 404(a)(2) Character of victim in homicide cases by accused; prosecution can offer evidence of homicide victims peacefulness to rebut ANY evidence from accused that victim was 1st aggressor d. 404(a)(3) Character of W by any party. 3. Also does not apply when character is in issue a. Defamation b. Fitness as a guardian/ parent c. Negligent entrustment or hiring. Character evidence is introduced in an attempt to make fact finder draw an inference 1. Evidence = D stole food stamps 2. Inference = D has bad character trait thief 3. Inference = D has the propensity to steal since he is a thief 4. Inference = D acted consistent w/ his character and must have stolen this time. Evidence proving character is admissible if does not show a propensity to act but comes in to prove something else (may be subject to a 105 limiting instruction). Five main categories: 1. It proves conduct and an exception applies, 404 (a)(1)-(3) and 413-415. 2. It proves character and character is in issue. 3. It is intrinsic 404(b) does not apply: a. Other act arise out of same transaction(s) as charged offense. b. Other act necessary to tell the story completely c. Other act is inextricably intertwined with the charged offense. 4. If it is offered for a non-character purpose like those listed in 404(b). 5. If it is evidence of Habit 406. Example by Hypo: Testimony by W is that bank #2 was robbed by a D in a clown outfit, D is on trial for robbing bank #1 in a clown outfit. 1. Desirable inference is that D is the kind of guy that robs banks, that is propensity evidence and inadmissible. 2. May come in under a 404(b) exception such as M.O. this is how D does it, it is his plan. Proving character rule 405 1. Proof of charter (when admissible) is made by testimony as to community reputation or by testimony in the form of an opinion. 2. W may offer reputation or opinion any time. 3. MAY ONLY OFFER SPECIFIC ACTS ON CROSS-EX. after the opening of the door. *The prosecution can not lead the witness on cross to say something positive about a defendant in order to allow admission of rebuttal character witnesses.
When is character in issue? 1. When that character (or trait) is an essential element of their case such that it determines the rights and liabilities of their parties. 2. When certain defenses are used: a. Entrapment presents that Ds character is such that he wouldnt do what they said but for the cops encouragement. 3. When calculating damages for wrongful death claims a. Delta airlines case D offers evidence of Vs character as a bad person is admitted b/c damages are based on loss of the person. 4. Defamation b/c truth is always a defense to defamation. 5. Negligent entrustment b/c person should have known that trustee had a poor character for care. When may a D introduce evidence of the character of his victim? 1. Would typically be excluded by 404 b/c is propensity 2. Is allowed under two situations: a. D is charged w/ murder or assault and claims self defense, may offer evidence to show that V was the 1st aggressor b. Showing of previous sexual history or predisposition to show consent 3. When offered in self defense context usually to show reasonableness of thought that D had to kill or be killed 4. Still subject to Rule 405 specific acts not available, only proof by reputation or opinion. 5. Prosecutor has opportunity to rebut the evidence w/ testimony of Vs peaceful character. 6. Courts are split on whether by arguing Vs violent character, D has opened the door to his own violent character. Rules follow a pro D stance. 7. Not admissible in a civil trial unless used to show reasonableness, not for first aggressor inference. 404(b) Other Purposes for introducing Ds prior bad acts. Context, larger plan or scheme (conspiracy) 1. Other events or conduct that were part of the same transaction. 2. Common plan tends to show Ds intent motive identity or other actual element of crime charged. Preparation 1. Likely to reveal Ds state of mind about crime 2. Negate possibility of accident and show purposefulness. Identity by showing signature 1. Remember clown example from above 2. Requires two things: a. Denial by accused of participation b. Proof of identity so similar b/w two crimes compared so to be substantially probative of identity. Intent 1. Used to show maliciousness, deliberately or the specific intent required for the crime. 2. Subject to substantial similarity requirement b/w crimes as well.
Knowledge, Motive or opportunity 1. Used to show crime not performed inadvertently, but w/ guilty knowledge, (b/c D knew last time it was wrong he knows this time). 2. Opportunity used to show access or special skills or abilities. Other exceptions as long as not OTP D acted in conformity therewith. Other bad acts need not have led to conviction, only be such that a jury could find them guilty or be morally reprehensible. Always subject to 403 balancing test. Simpson murder case hypo: Pros wants to intro character opinion evidence that Simpson is a violent person. 1. They have four witnesses that will testify on direct that Simpson attacked them. The pros cant call anyone of the 5 b/c is not allowed to until D opens the door. What if D calls his minister to say Simpson is a peaceful person. 1. What kind of Qs can Pros ask minister? a. Qs relating to past acts (can be specific b/c this is on cross) b. Offered to show that ministers opinion is not based in fact. 2. Pros can then call their own W to rebut the character offered by the defense. Rules 412-415 The sex offender rules These are called by some to be politically inspired rules. Rule 412 Rape shield laws 1. In any civil or criminal proceeding involving alleged sexual misconduct, no evidence if OTP any alleged victims a. Other sexual behavior b. Sexual predisposition 2. Exceptions (criminal cases) a. Specific act of alleged victim OTP source of semen or injury b. Specific acts of alleged victim w/ accused to show consent (used in date rape cases). The proceeding has to be one that alleges sexual misconduct therefore a civil case grounded in product liability for sterility contracted by birth control product (D offered sex to show other source of sterility by VD caught from sex). Semen has to actually be present b-4 proof of other source may be offered. Civil cases under R. 412 1. Rudd v. Rodman P sued D for giving her herpes a. D wants to offer that P was a nude dancer, V had several prior sex relationships and didnt allow men to use condoms and V had breast implants. What is admissible? b. Nude dancer Goes to damages and shows she wasnt injured in her employment c. No condoms relevant and admissible b/c shows other source of injury, still has to pass 403 d. Brest implant shows she wasnt hurting for money, goes to damages. Rules 413-415 Heart of these is that they are exceptions to 404 bar on character to show propensity
413-14 allows evidence of prior sexual assaults in a criminal trial for child molestation/sexual assault, evidence that D committed another act of sex assault (molestation) is admissible for any relevant purpose, including propensity. 415 allows the same evidence in civil cases. Rule 406 Habit evidence Like evidence of character but is admissible even to show conformity therewith 1. Difference is that habit is ones regular response to a repeated situation 2. I.e. D always takes the steps at school two at a time. 3. Three factors used by court to decide if character or habit. a. Specificity b. Regularity c. Unreflective behavior the more automatic the better. 406 allows very liberal use of habit evidence 1. No eye witness requirement 2. Includes the routine practices of an organization anyone who has knowledge of the custom may testify to its existence.
4 Hearsay
Definition of hearsay If W cant (or doesnt) appear in court to say what they said but someone else testifies to it. 1. Out of (this) court 2. Statement 3. OTP truth of matter asserted. a. Have to know what stmt is trying to prove b-4 coming to a conclusion as to whether or not it is hearsay. Definition of a statement 1. Oral, Written or Physical conduct that may be an assertion 2. An assertion is only hearsay if the statement is INTENDED by the declarant to actually assert something 3. What is an assertion? a. Forceful stmt of fact / opinion b. Conveying ideas, messages or descriptions c. Ask Is it true or false? (If neither likely not an assertion) d. STAGED photos or videos (contrast w/ videos taken w/o knowledge of subject who doesnt intend to assert anything). 4. What is NOT an assertion? (Rules of thumb) a. Questions b. Directives or orders c. Exclamations w/o reflection (OUCH!, vomit, screams of surprise) Hearsay is: 1. Out of (this) court 2. Intentionally assertive conduct (stmt) 3. OTP truth of INTENDED assertion. Hearsay is NOT:
1. Out of (this) court stmt OTP something other than the truth of the assertion, e.g.; a. Declarants knowledge/ awareness b. Declarants state of mind (has to be indirectly) c. Listeners knowledge / awareness d. Listeners State of mind / attitude e. Verbal act w/ independent legal significance f. Verbal parts of acts g. Impeachment 2. Conduct that is not intended as an assertion by declarant 3. Machine or animal sounds (X-rays, computer printouts not made by man, crow of the cock, dog barking). Example: When police listen in on a phone call received at a raided establishment it is not hearsay. Why 1. B/c caller has no intention to assert the place is a gambling establishment (which is what stmt will be offered to prove [matter asserted]). Example: 1. Is a video of P showing how bad he has been injured hearsay? a. Yes b/c conduct = assertion by showing one trying to touch his knees was conduct (verbal act) OTP the truth of the matter asserted (demonstration of Ps injuries). Stmt was made out of court. b. Photographs are not hearsay if they dont assert anything (not staged) c. A staged photo has hearsay concerns but still life does not is only demonstrative evidence admitted w/ proper foundation. d. If people on photo or tape are trying to convey impressions that are hearsay, all about INTENT to assert a proposition that is later asserted in court as true. Categories and identification of proper admission for hearsay 1. Is it hearsay? (Is there a non-hearsay purpose for the testimony?) 2. If it is hearsay, is there an exception that would allow it in? a. 801(d)(1) 3 exceptions for prior stmts of a testifying W. b. 801(d)(2) 5 Admission exceptions for party opponent admissions. c. 803 23 Exceptions where availability of person making stmt (declarant) is immaterial. d. 804 5 exceptions where person must be shown to be unavailable. e. 807 1 Catch-all exception 801(d)(1) Statements which are made previously by declarant and are not hearsay There are certain statements made by the declarant previously that the Fed. Rules say are not hearsay and are therefore admissible, certain conditions apply: 1. Declarant is a testifying W at this trial 2. Declarant is NOW able to be cross examined concerning prior stmts made outside of this court AND 3. Prior stmt is either: a. Inconsistent w/ trial testimony and given under oath and given at trial, deposition, hearing or other proceeding (used most often is depositions).
b. Consistent w/ trial testimony and offered to rebut charge of recent fabrication or undue influence c. One of identification. This is not necessarily an exception but a rule saying that a particular stmt is NOT hearsay. Prior inconsistent statements. 1. Rules allow prior inconsistent statements to come in for substantive purposes (not only for impeachment) b/c dangers of hearsay are absent. a. W is able to be cross-exed b/c he is present. b. Jury is able to observe demeanor of W. 2. Rules allow to come in substantively only where there is some extra guarantee of reliability (i.e. prior stmt must be made under oath). 3. Only requirement is to be clearly inconsistent w/ the present testimony. Prior consistent statements. 1. Allowed to rebut a charge of recent fabrication or improper influence. 2. Allowed substantively to show the truth of the prior consistent statement. 3. Example: W tells a police officer at scene that light was green when D went through it. Issue at trial is whether light was green. If P offers that D has bribed W into testifying in Ds behalf, D may present evidence of Ws prior statement, thereby corroborating Ws testimony and under Fed Rules may be used this way (substantively) where at C/L had to be used only for credibility A statement of Identification 1. A stmt of ID made by W on a previous occasion is theoretically hearsay b/c Ws stmt is OTP the truth of what he is asserting (who D is and D did the robbery). 2. rules allow the ID in at trial as long as W had perceived D b-4 identifying him. 3. Easier to get in than other two. a. Does not have to be a stmt under oath (cf. inconsistent stmt) b. Does not have to be contested w/ undue influence (cf. consistent stmt). 4. Still subject to the ability to cross-examine to test the accuracy of the identification before the trier of fact. 801(d)(2) Admissions by party-opponent that are admissible as non-hearsay The General Rule is: A partys words or acts may always be offered as evidence against him; rule says: (have to lay foundation) 1. Statement is offered against party and is: a. Partys own stmt. b. Anothers stmt party adopted or acquiesced to. c. Stmt by person authorized to speak/ write by the party to 1) 3rd persons (ex. atty or spokesperson) 2) Back to party (CPA / Auditor d. Stmt by person employed by party concerning matter w/in scope of employment. 1) Declarant was employee 2) Statement has to be related to subj. matter and w/in scope 3) Statement has to be made during the employment (broad statement - can be made while drunk at a party) e. Co-conspirators stmt. 1) Conspiracy has to have existed
2) Declarant and party were members of conspiracy 3) Statement has to be made during the conspiracy (detailed infra). 4) Stmt furthers conspiracy. CAN ONLY BE OFFERED AGAINST A PARTY TO THE LITIGATION. 1. The first two exceptions are personal but last three can be vicarious 2. Dont worry about personal knowledge or opinion rules. 3. Does not have to be against interest of party making stmt to be admissible. Admission by silence and adopted admissions 801(d)(2)(B) - Sometimes a person may admit by silence 1. Mere silence does not = adoption of stmt and admission 2. Subject to certain foundation requirements a. Stmt is heard and understood b. A RPP would have denied that sort of accusation c. Accused has to have personal knowledge of the subject matter of accusation. d. Had an opportunity to respond (no impediments to response). 3. Admission by silence in a criminal context a. Police on scene asking ?s. b. Police ?s are accusatorial and D says nothing, can silence be use against him? c. Yes Pre-arrest silence in the face of police accusations are clearly available to impeach and act as an admission (substantive of fact at issue). d. BUT once arrested and Mirandized any silence is not counted against accused. Vicarious admissions - 801(d)(2)(C) & (D) 1. Admission is made by a person other that the party against whom it is sough to be introduced, but is usable against him b/c he authorized it. 2. 801(d)(2)(C) Party has expressly agreed to let another make stmts for him, admissible whether to a third person or to the party himself. 3. 801(d)(2)(D) For cases where party HAS NOT directly authorized another to speak for him (stmts made by a partys servant or agent). a. Rules admit stmt if: made w/in the scope of the agency or employment, made during the existence of the relationship. b. Question is over what is scope of employment; are salary employees always under scope, lunch breaks, after work, stmts made to strangers or family having nothing to do w/ employment. Hearsay w/in the conspiracy 801 (d)(2)(E) 1. Any stmt by any co-conspirator can be offered against another co-conspirator (whether or not the W heard stmt or not), May include orders or plans that would not normally be intended to assert. 2. Stmts are admissible if made during time b/w plan and completion of objective. Not admissible for stmts made during concealment phase (Conspiracy effectively over). 3. Certain foundational questions are necessary a. Conspiracy has to exist b. Declarant and party were both members of the same conspiracy.
c. Stmt has to be made during the conspiracy times included: planning, acting, escape and sometimes dividing gains. d. The stmt has to further the conspiracy 1) Courts are very liberal w/ stmts that further conspiracy, can be most anything that will help. 2) Creative prosecution tactics. 4. Conspiracy DOES NOT have to be charged for these rules to work, may just be a joint venture. 5. Stmts can be to another besides testifying W (ex. orders from a mob boss whom W has never seen but received orders from).
4.1 Exceptions Where Availabiltiy Immaterial
All major exceptions to hearsay rule may be divided into four broad categories. 1. Spontaneous Statements 803(1)-(4) 2. Written Documents and Records (public and private) 803(5)-(16), (22)-(23) 3. Publications 803(17)-(18) 4. Gossip 803(19)-(21)
Rule 803(1) Present Sense Impressions Exception recognized for a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 1. Declarant perceives event 2. Declarant makes stmt while perceiving or immediately after 3. Declarants stmt describes or explains the event perceived Immediacy 1. Applies stringently here, usually means literally only a few seconds. 2. No material time may pass Personal Knowledge / actual perception 1. Declarant must have personally witnessed event that elicited comment. 2. Must not have merely heard about it from another. Significance of describing v. relating to (as seen in excited utterance infra). 1. PSI must describe or explain the event. 2. This is higher standard than that of EU of relating to the event perceived. ***DECLARANT DOES NOT HAVE TO BE EXCITED. Rule 803(2) Excited utterances An exception for certain stmts made under the influence of a startling event. 1. Startling event occurred and declarant was excited by it (sufficiently startling). 2. Stmt made while declarant was excited (still under the influence). 3. Stmt relates to the startling event. Rationale is that declarants reflective capacity is eliminated and thus are stmts more reliable as not motivated by self-interest. Sufficiently startling 1. Physical violence not required
2. Objective standard. whether a normal person would have spoken b-4 thinking. Time factor most litigated contention 1. What is the amount of time necessary to still be under the effect of the event? 2. As long a declarant is still under the influence. 3. Suspended excitement - if event delays the time for reflection this may be taken into account, such as when declarant is in a coma or has memory loss or sees her assailant suddenly six months later. (prob VI-54 page 596). 4. If it is shown that declarant did have time to reflect b-4 making stmt, court may not apply exception as would defeat rule. a. Also relates to questions asked of declarant simple yes or no is OK and admissible, but responses to detailed questions are not. Reference to exciting event 1. Declaration does not have to explain or describe the event, merely refer to it. 2. Termed in Fed Rules as relating to a startling event or condition. 803(3) Stmts offered for a then existing mental, emotional, or physical condition. Statements offered of a declarants then existing : 1. Physical condition OR 2. State of mind / emotion May be used to show: 1. Declarant felt that way at the time he spoke and by inference at other times. AND/OR 2. To infer future conduct of declarant from present condition. 3. NOT to prove or infer prior conduct / attitude from present memory or belief. If stmt is backwards of memory or belief (I went to), inadmissible, if is forward of declaration is admissible (Im going to). 1. Applies to future only b/c of then existing mental state requirement (state has to be existing at the time of the statement). 2. May be on past mental state IF declarant still feels that way (then existing). Physical conditions 1. Stmts made about physical conditions are admissible if made to anyone if relating to a PRESENT bodily condition. 2. Stmts usually made about pain and must be spontaneous 3. Stmts made to doctors (seeking treatment) come under next exception. 803(4) Stmts made for purposes of medical diagnosis or treatment Stmts made to a doctor are found to be reliable b/c are usually being relied upon for the interest of the declarants well being and fabrication is less likely. Declarations made for medical treatment OR diagnosis of: 1. Past OR present a. Symptoms, pain sensations OR/ AND b. Cause or source of ailment / injury (as long as does not relate to fault) 2. Are admissible if made to diagnose or treat any person. Stmts to third persons 1. Stmts may be made to anyone as long as declarant is seeking treatment 2. Includes ambulance, police or family members
3. Also, stmts made by third persons on behalf of injured are admissible esp. if declarant is unconscious. Physician who is hired only to treat and testify 1. Rules allow that physician can testify to declarants statements. 2. Rationale is that it is opinion evidence that will come b-4 jury anyway. 803(5) Past recollection recorded A witness makes a written record of an event and come trial time cannot remember, if atty tries to bring in the previous recorded statement that is hearsay b/c it is a stmt made out of court that atty is offering to prove the truth of what witness is there to testify to. But, there is an exception for the record. 1. Doesnt always have to be a writing as long as all elements are met. FRE 803(5) provides that exception with certain things to be met 1. W is unable to testify fully and accurately 2. W made (or adopted) record or memorandum while contents are fresh on his mind. 3. Record or memorandum accurately reflects personal 1st hand knowledge of W at time made or adopted. 4. Read only by the proponent of the evidence. Has to be read by the person that had the recolection A partial memory is OK under the rule, W doesnt have to have a complete memory loss. 1. Fresh on mind accords to the circumstance. Cannot come in as evidence to be shown to jury, may only come in for the purpose of the testifying W for the benefit of the jury to get the whole story. 1. Reason for this is that when read out loud equates to testimony of a witness which can only be taken in the jurors memory. 2. Rules do allow introduction into evidence if an adverse party offers the evidence. Necessary to distinguish present recollection refreshed of rule 612. 1. 612 provides for the W memory to be refreshed by a writing or any other object to aid his recollection. 803(6) - Record of regularly recorded activity (Business records) A business that keeps regular records of its activity and offers those records to prove that one owes them money (or some other material point) that record, as an out of court stmt to prove the truth of the matter asserted, is hearsay unless there is an exception. Exception comes in FRE 803(6) w/ certain requirements 1. Record has to be made at or near the time of the event recorded 2. By (or from information transmitted by) a person w/ personal knowledge of the event. a. If you get your info from someone who knows what is going on (i.e. truck driver who tells you what is on his truck and you make a record of it) as long as speaker and recorder are actin w/in a regular course of business. b. All foundation must be shown by the custodian of the record or another qualified W. 3. Must be a regularly kept and made record: Informant and recorder both acting in regular course of business activity at time the record was made.
4. Unless circumstances show untrustworthiness. 803 (7) allows introduction of evidence of an absence in the business record for matters which would normally have been recorded but werent and OTP that the event which was not recorded did not occur. Only portions of a record which relate to a hospitals regular course of business are admissible, i.e. only those having to do w/ treatment or diagnosis. 803(8) Public records and reports Documents made and recorded by a govt agency and are available to the public are excepted under the hearsay rule, probably b/c of their inherent trustworthiness. No foundation is necessary, govt records are authenticated as genuine by their nature, all you have to show is that it came from a govt agency. What is admissible. 1. Activities of an office (What they do) 2. Observations of the officer (What they say) a. Not in a criminal case. 3. Factual findings of the office (What they found) a. These can be opinions. b. Cannot be used in a criminal case. 1) Why? B/c fear is that the pros will rely solely on the report and the officer has to testify in order to get his conclusions admitted. 2) Would offer too much incontrovertible support to pros case. Certain special circumstances in criminal cases. 1. Who are the law enforcement personnel? a. Is debatable and subject of controversy. Some say agents of the dept. 2. Are routine non-adversarial records/ observations admissible? a. Yes, by the majority. b. Non adversarial means strictly a police officers daily observations not a particular observance of an event that he records which have no confrontational connotations. 3. Can 803(6) be used if 803(8)(B) cant? a. Yes, if the record is non-adversarial (see above). 4. Can D offer police reports? a. Yes. Remaining exceptions 803(9) (23) Learned treatises and commercial publications 803(18) and (17) 1. Use of a learned treatise may come in for its truth (but not as an exhibit) provided that: a. It is called to the attention of or relied upon by, an expert witness and b. Established as reliable authority by the testimony of hat witness, other expert testimony, or judicial notice. 2. Commercial publications admissible if generally used and relied upon by the public or by persons in particular occupations. a. Proponent has the burden of showing the reliability. Records of vital statistics
Admissible if the report was made to a public officer pursuant to requirements of law. a. Not a public records exception b/c the informer had no official duty to report the incident. 2. Includes marriage certificates, records kept by religious organizations (as long as regularly kept), and family records. Ancient documents and documents affecting property interests 1. Ancient documents more than 20 years old, if authenticated are admissible. 2. Stmts in a document affecting an interest in property recitals in deeds, wills etc. Reputation 1. Reputation evidence concerning the following is admissible as a hearsay exception. a. Persons character 1) Still subject to character evidence rules of 404(a) and (b) b. Persons personal or family history 1) Regarding birth, marriage, blood relationship etc. c. Land boundaries, or d. a communitys general history Prior Judgments 1. Has to be a certified judgment and proof that it has been entered. 2. Prior criminal conviction felony conviction admissible a. Admissible to prove any fact essential to the judgment against a defendant in a criminal case; may only be used for impeachment against others. b. Cannot use misdemeanor at all. 3. Prior criminal acquittal excluded. 4. Judgment in former civil case inadmissible in both subsequent civil and criminal cases.
1.
4.2 Exceptions Where Unavailability is Required and Residual Exception 807
Application These exceptions apply ONLY to situations in which the declarant is unavailable to testify at the current proceeding. Embodied in FRE 804 and has four main exceptions 1. Former testimony: Testimony given in a prior proceeding 2. Dying declaration: Declarant believed he was really about to die. 3. Stmts against interest: against declarants interest when made 4. Pedigree: Stmts concerning either the declarants or his relatives personal or family history. Unavailability defined 804(a) first defines unavailability as to include situations: 1. There is a privilege or ruling by the court excusing the W. 2. The W refuses despite a court order to do so. 3. W testifies cant remember 4. Dead / sick / mentally ill 5. Absent and cant get attendance by
a. Process b. Other reasonable means c. And cannot depose W. In 1-3 W can be in court yet still be unavailable 1. Privilege can be 5th amend privilege or atty-client etc. 2. For #3 W must be on stand and judge makes decision of whether or not W cant remember. 3. For #5 there has to be some effort to obtain the W and W has to be alive, yet beyond the reach of court. 804(b)(1) Former testimony Testimony given in an earlier proceeding and W is unavailable at time of present proceeding. Not excused by hearsay if the declarant is unavailable and: 1. Given in prior hearing or deposition of any case IF a. Does not include affidavits or stmts to police or investigators. 2. Party offered against now was party at the prior hearing AND 3. Party offered against had opportunity AND motive to develop testimony by direct, cross-ex or re-direct. a. Actual cross-ex not required, only the opportunity to do so. b. Motive means that the same issue was presented and party offered against now would have had some reason to want to cross-ex the W at previous proceeding. c. Three issues related to same motive 1) Similarity of issues at least some relation 2) Similarity of stakes no great disparity in stakes, a prior hearing w/ smaller stakes = a smaller motive to cross-ex w/ vigor. 3) Similarity of parties Usually applies only to opponent Applies not only to transcripts 1. May be first hand testimony of one who observed previous hearing Application 1. Smith v. RR Expert for Smith testifies at trial and Smith wins. Now Jones wants to sue RR and is unable to get expert (say he died). Can Jones use the experts testimony from Smiths trial against RR? a. Jones was not a part of the previous trial b. RR was the defendant in the previous trial and is now the party being offered against. 2. Yes, the evidence is admissible against RR. a. Was given at a prior trial (hearing or proceeding in which the declarant was under oath). b. Party offered against was a party to the previous hearing. c. Party (RR) had ample opportunity to cross-ex the expert and should have had ample motive to do so as well. 804(b)(2) Dying declarations (most are exited utterances) Declarations made by those under an immanent fear of death may be admissible even though hearsay. 1. In a homicide prosecution or civil action 2. Statement made by declarant a. While actually believing death is imminent AND
b. Concerns cause or circumstance of death of declarant. Nuances 1. Declarant DOES NOT have to die for evidence to be admissible, only unavailable (i.e. coma) and really, actually was aware that he was about to die. 2. Foundation has to be in record for court to find a dying declaration. 3. Stmts are unusable in non-homicide criminal cases. 4. Declarant has to have 1st hand knowledge of situation. 5. Must relate to the circumstances of the killing a. If Declarant (X) says in anticipation of his death that he and another (Xs attacker) had been enemies for years that is not a dying declaration b/c it does not relate to the circumstances of Xs death (or injury which induced belief of dying). Sample Exam Question: Bank is robbed robber shoots pedestrian who falls over and is dying (or thinks he is); police get there and pedestrian says I know that I am dying Defendant shot me BUT pedestrian lives and doesnt die from the shooting but later (before trial) from a heart attack. Can Pros submit the testimony in Billys attempted murder and armed robbery trial? He is unavailable. He honestly thought he was going to die. NO, it is inadmissible b/c in the armed robbery trial it is not a homicide or civil case as is required by the rules. Say that relatives of pedestrian (who in this example did die from wound) sues for wrongful death, then it is admissible b/c is a civil trial. 804(b)(3) Statements against interest Distinguish first of all b/w stmts against interest and admissions 1. 801(d)(2)Admission partys actual stmt no requirement of 1st hand knowledge a. Doesnt have to be against interest when made b. Availability immaterial c. WILL be a party 2. 804(b)(3)Stmt against interest Requirement of 1st hand knowledge a. Doesnt have to be a party, can be offered against anybody b. W has to be unavailable c. Stmt has to be against interest. Statement against the interest of the declarant is not excluded by hearsay rule if: 1. At the time of making the stmt it is so contrary to the declarants: a. Pecuniary interest (money) b. Proprietary interest (property) c. Tends to subject declarant to civil or criminal liability d. Render a claim of declarant invalid 2. So that reasonable persons wouldnt make the stmt unless true (objective test) 3. Criminal liability that excludes an accused must be corroborated Bundy example 1. While talking about past murders Bundy admits to others in Colorado but is executed. In a later case of Colo. v. Defendant, D offers the Bundy stmt.
Admissible under 804(b)(3)? Not an excited utterance or a dying declaration b/c not related statement. 2. NO, b/c is not against Bundys interest under the circumstances to admit to more murders and also subsection 3 above requires further corroboration when one makes stmts implicating himself that would exonerate others. Crawford v. Washington* - Recent decision involving confrontation clause and 804(b)(3). Man stabs man who rapes his wife. Video tape of wife confessing to husbands guilt. She refused to testify. Prosecutor wanted to get tape in. Not prior testimony. Ct of let it in for 803(b)(3). Sp Ct. reversed said you cannot offer testimonial evidence in a criminal case unless 1. Witness is unavail. And 2) there is opportunity to cross at some time. Said prior testimony includes prior trial, preliminary hearing, police reports. Fits in to 804(b)(1). May end 804(b)(3) police testimony. Ends police statements forced and witness is unavail. Right to face accuser. Does not include offhand or overheard remarks (per Sup. Ct.) 804(b)(4) Statements of pedigree A. Decline own pedigree. B. Anothers pedigree if declarant was related or intimately associated w/ family. (b)(6) Forfeiture by wrongdoing Hearsay objection unavailable to a party if: A. The party engaged in or acquiesced in wrongdoing. B. To make declarant unavailable. Residual exception 807 Catch-all Not in Alabama A hearsay stmt not specifically covered in 803 or 804 is not excluded by hearsay rule if court determines: 1. Trustworthiness circumstantial guarantees of trustworthiness similar to those inherent in the other exceptions(803-804). 2. Material Stmt must be offered as evidence of a material fact. 3. Needed must be more probative than anything else on the issue offered to prove. 4. Interest of justice justice must require that the stmt be admitted for a fair trial. Notice requirement if proponent meets all the above there is a pre-trial notice requirement w/ in 807 1. Attempt to make the admission known to the opposing party along w/ 2. The contents of the stmt and 3. Name and address of the declarant
5 Impeachment
Character attacks - You may not bolster a witness until they have been attacked On impeachment uses character attacks are ad hominem, on the person not the testimony 1. A counselor may impeach his own witness, particularly in cases of surprise or undue influence. Different types of charter attacks
1. 608(a) reputation or opinion regarding truthfulness or untruthfulness (extrinsic testimonial evidence only). 2. 608(b) Bad acts w/ no conviction must be probative of truthfulness court discretion to exclude or permit, cross-ex only no extrinsic evidence allowed. Usually not allowed if it is more than 10 years. 3. 609 Bad acts w/ a conviction a. Felony NOT involving dishonesty or false stmt: Judge balances prejudicial effect w/ probative value. 1) Witnesses / civil case = 403 balancing test (evidence is excluded even if prejudice only slightly exceeds probativeness). 2) Criminal accused = More probative than prejudicial (does not have to substantially outweigh prejudice as in 403). b. Felony or misdemeanor including dishonesty or false stmt ALWAYS admitted. c. Misdemeanors not involving dishonesty or false stmt NEVER admitted. d. Juvenile adjudication Criminal accused = Never; Others = generally never. 609 Balancing for when trying to used to impeach a criminal accused 1. Probativeness on credibility (Does crime involve dishonesty?) 2. Time of conviction (10 year rule). Usually not allowed if it is more than 10 years. 3. Similarity b/w old conviction and present charge (if too similar could be too prejudicial). 4. Importance of accuseds testimony 5. Centrality of credibility to case. 608(b) Specific instance of conduct of a W 1. May be used for attacking or supporting credibility BUT 2. May not prove by extrinsic evidence and only through cross-ex. a. Questioner has to take the Ws answer and cannot try to prove it by extrinsic evidence. 3. Can refresh recollection w/ extrinsic documents but cannot introduce into evidence. 609 convictions to impeach 1. Past criminal conduct may only be available for credibility purposes b/c of 404 propensity problems. 2. 10-year rule After 10 years crime has to have massive probative value to get in (judge may use discretion). 3. Examiner may use extrinsic evidence from convictions or other facts to confirm the testimony. Crimes involving falsehood or dishonesty 1. For a crime to be admissible under 609 it has to involve a crime which involved dishonesty or a false stmt or be a felony. 2. Has to be more than just crooked (as all crimes are). 3. Some good examples: a. Perjury b. Fraud c. Embezzlement
d. False pretenses 4. Most courts agree that theft crimes are not as they are violent as opposed to deceitful. *if allowed, you can ask date, elements, conviction, and sentence - but not details. Impeachment with Bias p. 402 Bias is an area of character evidence to impeach by which we suggest that the W particular testimony isnt right or may be slanted b/c of their bias. 1. Bias is not mentioned in rules so hinges more on relevance rules of 402 and 403 as a credibility issue. 2. Types of Bias a. Any relationship w/ a person: Friendly, hostile, romantic, membership in a group. b. Payment for testimony 3. Bias does not suggest LIAR but that testimony is colored (even unintentionally). NO foundation necessary for bias 1. Extrinsic evidence admissible by judge. 2. Bias is NEVER collateral and if denied, the cross-examiner may use extrinsic evidence to disprove. Prior inconsistent stmts. Rule 613 Very important technique that can be used to show that if W makes inconsistent stmts he cannot be believed. 1. Gen rule is that when a W testifies at trial, evidence of his prior inconsistent stmt is admissible to impeach his credibility. 2. All the rule requires is inconsistency not necessarily contradictory stmts. 3. Prior inconsistent stmt offered for impeachment is not hearsay b/c is not OTP the truth of the matter asserted. 4. Courts sometimes use the setting and the implications of allowing the stmt to figure if it is a prior inconsistent stmt. 5. Cross examiner DOES NOT have to confront the W with the stmt. Prior inconsistent conduct 1. May be used to impeach as long as conduct is inconsistent w/ testimony of W W must be allowed an opportunity to explain or deny the stmt. 1. Opposing counsel must be allowed an opportunity to interrogate the W about the stmt. Impeachment by Sensory Defects Impeach by showing that Ws capacity to observe remember or narrate events correctly has been impaired. 1. Sensory defects ability to observe (sight, hearing etc) 2. Mental defect Must impair ability to remember or narrate correctly. 3. Drugs and alcohol ONLY available if W was drunk or high at the time he observed the events to which he is testifying to (also in cases of being drunk or high at time of testimony and relates to ability to narrate). 4. Psychiatric testimony use is frowned upon and used to prove that W cannot accurately remember or relate b/c of psychiatric problems. Is always Material and never collateral, thus allowing extrinsic evidence.
1. Extrinsic evidence allowed after a denial, so lawyer doesnt have to take the answer he is given. 2. Unable to remember is a denial for purposes of using extrinsic evidence. Addiction The fact that someone is an addict of drugs or is insane is irrelevant b/c we only worry about the stretch of time that W saw what they were testifying to. 1. Evidence that W is a heroin addict not admissible, but can submit that W was high the day he observed or the day he is testifying. 2. May have to have experts to testify to lasting effects in order to show cause and effect on testimony. Contradiction If W is mistaken as to one fact is generally mistaken as to others. 1. Contradiction on the merits is always admissible and has 2 purposes, relevancy and impeachment. 2. Contradiction HAS be material, cannot be collateral to the issue at hand. a. Example: A witness testimony that she bought Junior Mints at the theatre when she really bought a Snickers bar is in all likelihood going to be a collateral issue that the court finds is not material, even if W is wrong. Impeachment by Religious Beliefs $ Rule 610 provides that Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the Ws credibility is impaired or enhanced. $ Can not be used to attack or support credibility, but can be introduced for a different purpose, subject to prejudicial v. probative balancing. Can be introduced to show interest or bias. Rehabilitation of Impeached Witnesses. Evidence with no other purpose than to support / enhance credibility. When a W is attacked, atty should attempt to rehab on redirect (or cross if propend impeached her own W. 1. Cannot rehab until attacked if this is tried, it is bolstering a. Cannot impeach own W and then try to rehab. b. If W lies then impeach is available b/c we cant choose our own Ws. c. In cases of expert testimony the atty is able to pull the sting out of his Ws testimony when expert has been compensated (this type of rehab before attack is available). 2. Rehab must respond to the method of attack: If method of attack is for: a. Bad Character for truthfulness under 608 or 609 claiming corruption or otherwise 1) the response is: Good character for truth, under 608(a) and Cross ex of Bad character W w/ 608(b) truthful conduct. b. Prior inconsistent stmts OR Recent lie / motive to fabricate 1) Prior consistent stmt made b-4 influence developed is only available where it has been offered that W has been influenced or is lying.
2) Is only use for prior consistent stmts allowed. 3) To rebut prior inconsistent stmts some courts allow character for truthfulness.
Method 1. Character using: 608(a) Untruthfulness 608(b)- Bad acts w/o conviction 609 Criminal conviction 2. Bias 3. Contradiction (3rd Party Contradiction) 4. Prior inconsistent stmts
Ability to use on Cross-ex N/A Yes (only on cross-ex) Yes Yes N/A 1. Yes, even collateral stmts 2. 613(a): Need not show stmt or disclose contents to W prior to cross-ex but must show to opposing counsel on request Yes
Ability to use extrinsic evidence Yes, w/ Character W Never (take your answer) Yes (using W or convict record) Yes (Bias is never collateral, still subject to 403 though) Yes If not: completely collateral and not probative on credibility. Yes, subj to 403 1. Need not have shown stmt to W on cross x prior to offering extrinsic BUT 2. W MUST be given an opport. to explain. Yes, probably need to ask and get a denial before proceeding.
5. Sensory Defects (involving perception, memory or ability to narrate)
6 Using Evidence: Authentication and the Best Evidence Rule(also atty-client privelege)
Evidence Two main types 1. Live testimony connected to litigation by rule 602 (personal knowledge) 2. All other evidence a. Real evidence tangible and historically connected to case. b. Demonstrative evidence tangible evidence that merely illustrates a matter of importance in the litigation, includes maps diagrams models summaries and other materials created especially for litigation. c. Photos, tapes and voices etc. d. All other evidence is connected to litigation by rule 901 and 902 and authentication requirement. Telephone calls (voices) 1. Personal calls a. Must be shown to be outgoing to the # assigned by the phone company and b. Self-ID of person who received the call.
1) Caller can ID answerer by if when person answered they said This is X or if Caller knows Xs voice and testifies that it was X. 2. Business calls a. Outgoing to the assigned # and b. Discussed business Authentication R. 901 Basically, all proponent has to show that the object he puts forth is what he claims it to be. 1. Real evidence show that the object was involved in the underlying event. 2. Demonstrative show that the object fairly represents or illustrates what it is claimed to represent Jury 1. All evidence has to show is that jury believes that evidence is authentic. 2. There is no ruling that it actually is authentic. Ways to authenticate 1. Stipulation to authenticity is usually the best a. Parties can also use depositions to authenticate evidence. 2. FRE 902 allows for certain article to be self authenticating a. Has 12 different categories for self authentication. 3. Unique, one of a kind characteristic a. Ex. A gun that has the police officers initials and date scratched on the handle. 4. FRE 901(b) gives 10 illustrations to what may be valid for authentication. a. Important is 901(b)(9) which says that a process or system makes an accurate result. b. 901(b)(7) are trade inscriptions and the like and include copyrights and labels on cans and products. 5. Reply letter doctrine a letter or telegram can sometimes be authenticated by the circumstantial fact that it appears to be a reply to a prior communication and the prior communication is proved. a. If original letter has been lost or destroyed, oral testimony will probably suffice concerning the original communication. Self Authentication - FRE 902 Certain things are said to be authentic just by looking at them 1. Public documents and records 2. Official publications 3. Newspapers and periodicals 4. Acknowledged documents 5. Commercial paper 6. Others Chain of Custody For each link (human who had custody over evidence) in chain show: 1. Identity of link 2. Receipt (of evidence by link) 3. Safe Handling 4. Disposition (what happened to it after receipt). Missing link = No evidence at all of one of the four items above. 1. Causes evidence to be inadmissible as untrustworthy and suspect.
Weak link = Circumstantial evidence of one or more of 4 items above 1. The sealed evidence scenario 2. Makes evidence less trustworthy and subject to closer scrutiny Real Evidence 1. Chain of custody is required to be proved where the item is not uniquely identifiable 2. Tangible and fungible blood, drugs, hair etc, use above formula. Judge determines the chain of custody and satisfaction thereof not the jury. Rule 1002 Original document (recording / photo) Rule to prove contents of writings or recordings of parties. 1. Original is always required 2. EXCEPT a. Duplicates are admissible b. Other evidence of contents are admissible if 1) Original has been lost 2) Original is not obtainable 3) Original is w/ a 3rd party 4) Original concerns collateral matters. c. Official records d. Opposing partys admissions Applies to the contents of document only, not things which can be perceived by humans 1. Ex. Confession testimony by police officers w/ 1st hand knowledge is different from testimony by police on what he saw. Duplicates are presumptively admissible subject to evidence showing otherwise. Official records as long as certified. Atty Client Privilege Idea is to protect W confidential stmts to his lawyer FRE has only one rule 501 which is rather vague. Most law is common law 1. Violation of atty client privilege for P to be asked about a stmt relating to his case. 2. Whoever holds the privilege is important b/c he is the one who can waive the privilege. 3. Crux of atty client is seeking of legal representation a. Lawyer provides legal services b. Need not involve litigation c. Atty need not accept case for stmts to be covered.