Evidence Capra

8/18/2019 Evidence Capra

1/87

EVIDENCE – SPRING 2013

General stuff – note that evidence rules only coe into !lay "hen there#s an $%&EC'I$N tosoethin()

Pur!ose*value o+ evidence rules,- Efficiency

o E./ Rule 01 – ae sure only !ertinent evidence is aditted

- Preventing prejudicial and irrational decisionmakingo E./ Rule 03 alance – "e don#t have su++icient con+idence that +act-+inders can

really i(nore !reudicial +acts- Social policy

o Social !olicy oectives 4e./ atty-client !riv5 "ould e underined y a syste o+

unconstrained advocacy- Ferreting out potentially unreliable information

DC, even thou(h there are very +e" +ed trials6 still need to no" ev rules – they can coe u! atany sta(e o+ liti(ation 4e./ su 5

- $nly e.ce!tion, ev rules N$' at !lay in bench trials *c its ust the ud(e – no reason touse ev rules in that situation

- I!ortant in ho" you value settleents – "hat is (oin( to (et to the +act+inder i!actsho" uch you#re "illin( to !ay

7irst !rinci!les, The Federal ules of Evidence are P!P"SE#D$%E&- 'his eans that admissibility is (oin( to e heavily de!endent on the purpose for which

the evidence is being offered

o 'his eans that the sae !ieces can e inadissile +or !ur!ose 86 "hile ein(

totally adissile +or !ur!ose %) 4!'E ()*5 DC, in this situation6 the !ro!onent o+ a !iece o+ evidence "ill o++er the

evidence and e !re!ared to articulate $N9: the 8CCEP'8%9E !ur!ose *c there "ill de+ e an oection

;e do this *c i+ "e had a total ar a(ainst 8N: ad !ur!ose6 '$$

evidence "ould e e.cluded)o In these situations6 a ct "ill issue a limiting instruction – tells the ury this ev can

e used +or . !ur!ose ut not y !ur!ose/ 4IR9 it#s not (onna ae a di++erence ut:$9$5 Cardo?o, at soe !t6 the revereratin( clai o+ the ad !art o+ the

evidence overcoes the sound o+ the (ood – at this !oint6 liitin(instruction "ill not do the o and 03 "ill e.clude


2/87

$+ $ntroduction to elevance!'ES ,)(#,(* -E T.E !'ES "F E'E%-&CE

- ,)(, de+ines relevance- ,)/, relevant evidence is adissile unless you hear other"ise

- ,)0, !roative v/ !reudicial alance – !resu!tion o+ adissiility @A"hen relevantevidence is nonetheless e.cludedB

R=9E 01 – De+inition o+ ARelevant EvidenceB

“Relevant evidence” means evidence having any tendency to make the existence of any fact thatis of consequence to the determination of the action more probable or less probable than it

would be without evidence

- Test for relevant evidence – evidence is relevant if:o 4a5 it has any tendency to ae a +act ore or less !roale than it "ould e

"ithout evidence 8NDo 45 the +act is o+ conseuence in deterinin( the action

7actor 4a5 – very inial ust needs to have a tendency to !rove the !ro!osition lo(ic-

ased e.!eriential alancin( test6 decided y ud(e- %asically6 does the o++ered evidence ae it more likely that the F did the ad thin( than

it "ould e "*o the evidence- Does N$' need to e sufficient to !rove the o++ense 4Aa ric is not a "allB5 – the &=R:

"ill decide i+ F#s o"nin( a (un is S=77ICIEN' to !rove he is (uilty o+ ared roery6 ut (un o"nershi! is CER'8IN9: relevant to the uestion

7actor 45 – a materiality concern needs to !rove the !ro!osition in dis!ute6 not soethin(

else- I+ the !ro!osition itsel+ is not in dis!ute6 then the evidence is irrelevant

N$'E, the relevance std is a %E1 PE2$SS$%E34"-D "&E

- DC, !roative value is N$' in uestion in a 01 inuiry – this coes in "*03o >ere6 ust concerned "*no"in( the sustantive la" so "e can no" i+ soethin(

is relevant – lo"er std

DC, a !arty#s non-introduction o+ evidence can also e relevant- :ou can dra" a negative inference – a reason that a !iece o+ ev isn#t o++ered ay e *c it

doesn#t hel! the6 and i(ht actually ;E8HEN their case) 4e./ a !arty chooses not tointroduce surveillance ta!es5o $+ten coes u! in e-discovery – one !arty ass +or eails and F says A"e can#tB

Note, ule (),5b6 7 condition relevanceWhen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subect to, the introduction of evidence sufficient to support a finding of

the fulfillment of the condition


3/87

- 'he !ro!onent ust !rovide enou(h evidence that the conditional +act e.ists- &ud(e should adit evidence i+ !ro!onent has already !roduced the other aterials or

!roises to !roduce the later

R=9E 02 – Relevant Evidence Generally 8dissile Irrelevant Evidence Inadissile !ll relevant evidence admissible, except as otherwise provided by the "onstitution, by !ct of

"ongress, by these rules, or by other rules prescribed by the #upreme "ourt pursuant to statutory authority$ %vidence which is not relevant is not admissible/

Note, state rules 5or any other sources not mentioned in ,)/8 for that matter6 cannote9clude relevant evidence 7 "&'1 other fed rules:

- v$ 'owry 411th Cir/ 156 C% 12o 7acts, F has coitted a crie "*others6 others not testi+yin( others "ill ov (ive

relevant ev o+ crie6 ut F ar(ues that state ethics rules in 79 !revent this 4says you can#t(ive !eo!le Aene+itsB to testi+y and these !eo!le are Aene+ittin(B +ro sentence

reductions5o >eld, testiony is aditted *c only S'8'E la" source – doesn#t e.clude under 02

- DC 'owry taea"ay, not only do you have to +ind a +ederal source +or e.cludin(evidence6 ut the source itsel+ has to e EJC9=SI$N8R: 4"hy


4/87

>o" to do the alance PES!2PT$"& "F -D2$SS$4$'$T13P"4-T$%E&ESS- :ou need to consider the total aount o+ evidence "hen ain( the 03 assessent

o 'he ore ev you have6 the less i!ortant one !iece "ill e

o 'he less ev the !rosecution has6 the ore !reudicial evidence they can (et in

- >hen the evidence is in e?uipoise 4eually !roative and !reudicial56 it o" to oect on 03 (rounds,-


5/87

o R=9E - F can#t +orce a L to enter into sti!ulations o+ intent

M#s should e ale to !rove cases in the "ay they "ant – need to !rove

every eleent eyond a K dout and !roo+ is o+ten ore !roative than asti!ulation

Sti!ulations can !reudice the (ov#t

•


6/87

- +orres – order !atrol a(ent in 'J sees a (uy shoot at hi and iss returns to o++ice and (ivesva(ue details o+ sus!ect#s a!!earance %P a(ent then loos in u(shot oo and ID#s ' and "antsto adit u(shot oo into evidence

o >eld, soe !reudice is inevitale6 ut soe is avoidale and the latter should e

iti(ated/ Either cover u! the "ords Au( shot ooB or cover u! everyone else#s !riors – avoid colorin( the F as a criinal e. ante

DC, (ood illustration o+ *ld "hief rule

- uam v$ #hymanovit- 4th Cir/ 15 – rare case in "hich a dist/ ct/#s 03 decision "as rev#do 7acts, F accused o+ havin( se. "*youn( oy (ov#t "anted to intro .-rated (ay !orn a(

!ossession/o >eld, N$' !roative – i(ht lead the ury to elieve he en(a(es in other deviant se. acts

not in uestion here 'aea"ay, you can#t e convicted o+ a crie ased ust on "hat you have in your

lirary – ut de!ends on the case

- v$ "urtin 4a!!lyin( #hymanovit- 5

o 7acts, F in chat roo +or youn( (irls6 arran(es to eet u! "*one +or se.6 says he didn#tthin she "as actually 126 ust into a(e role !lay/ Co!s +ound 10 stories on PD8 o+ idsen(a(ed in se./ Prosecution aditted O stories6 all o+ "hich "ere in+laatory andincluded torture and other irrelevant stu++/

o >eld, ud(e read all 10 stories and convicted F/ F couldn#t raise a #hym de+ense *c

probative value of person@s library depends on conte9t

$n revie"6 the ct +ound error – you need to +i(ure out "hat the evidence is so "e

no" "hat to read/ &ud(e ended u! readin( everythin( so he could +i(ure out"hat "as and "asn#t adissile under 03 and 01

'y!es o+ cases in "hich 03 issues coe u!,- Civil cases in


7/87

• DC, in this conte.t6 Fs "ill ove to i+urcate the trial – liaility !hase

and daa(es !hase – and "ill as to have the +il sho"n in the daa(es !hase

o ule ()B – i+ a !arty intros !art o+ a recordin( or "ritin( and

that !art has any as!ect o+ isre!resentation6 the other side canuse the rest o+ it to ae its o"n case @can ha!!en "*these +ils

o E./ class actions re, irth de+ects - F "as (oin( to call e.!ert sayin( there "as no

statistical correlation et"een dru(s and irth de+ects6 "anted to rin( de+ored eesinto ctroo/

>eld, !reudicial and e.cluded – ury "ill e distracted6 ees cannot

eanin(+ully contriute and "ould se" !roceedin(s

- -lternative perpetrator cases – ar(uent that Asoeone else did it)Bo v$ (c/eigh – (ov#t +ound stu++ at a cult !lace dealin( "*a se!arate cons!iracy to lo"

u! the sae ld( < "anted to intro/ >eld, prejudicial 7


8/87

- Demonstrative evidence – see to introduce a !ur!orted recreation o+ an event

problem is that it is very hard to recreate an out of court event that has already occurred in any meaningful way

o E./ F arrested on oat +illed "*!ot6 clais he didn#t no" !ot "as there6 "ants to rin(

!ot into ctroo – inadissile *c N$' REPRESEN'8'IVE o+ "hat ha!!ened – !lants

a(e6 sell chan(es6 etco E./ L "alin( !ast a drive"ay and truc acs u! and hits her/ F says ee!er on truc

"asn#t "orin(6 "ants to deonstrate "hat ee!er sounded lie/ Does deonstration – +ils and co!letely recreates event ut S'I99 IN8D


9/87

- Gory pictureso Criinal cases – have hi(h !roative value and are alost al"ays !roative o+

soethin( 4tyin( F to crie6 !rovin( "asn#t an accident6 sho" intent5 %e care+ul o+ overill

o Civil cases – ost decided in limine can e aditted to sho" conte.t6 daa(es6

recovery


10/87


11/87

o $ther ad e++ects i+ you chan(e it – alt desi(ns have other disadvanta(es

o 'his or accepting or offering or promising

to accept > a valuable consideration in compromising or attempting to compromise the

claim? !3@

- 5/6 conduct or statements made in compromise negotiations regarding the claim, exceptwhen offered in a criminal case and the negotiations related to a claim by a public office

or agency in the exercise of regulatory, investigative, or enforcement authority

5b6 Permitted !ses – +his rule does not require exclusion if the evidence is offered for purposesnot prohibited by AaB$ %xamples include proving a witness2 bias of preudice? negating a

contention of undue delay? and proving an effort to obstruct a criminal investigation or

prosecution


12/87

Rule, statements made pursuant to settlement negotiations and settlements themselves areinadmissible to prove admission of fault or the value of a claim

- =nderlyin( !olicy, !rootin( settleentso Protects the !arty ain( the o++er

o 8llo"s +or ore o!enness in ne(otiations

DC, "*o 0 "e "ould still have settleents6 ut they "ould e ore+oral*le(alistic and less e++ective

- 8!!lies to oth the o++eror and o++eree – any courts hold thato#or can#t introduce hiso"n settleent o++er

o E./ .ierce, L laid o++6 suin( +or a(e discriination F taes !osition that they never eant

to en(a(e in a(e discri6 ust reali(nin( the co!any - F "ants to adit ev o+ theo++erin( L o ac "*di++#t title6 ld(6 oli(es6 ut at sae salary ut L "ould have tosi(n soethin( "aivin( discri clai/ >eld, not admissible – i(ht lead to o(uso++ers/

DC, sli(htly di++#t than noral 0 o++er *c not concerned "*!rotectin(

settleent ne(s – concerned "*disincentivi?in( o(us o++ers still has to do


13/87

R=9E 0 – $++ers to Pay 8' I7 F says AI# sorry I ran you over6 it#s all y +ault6 let y !ay your edicale.!ensesBo AI# sorry I ran you over6 it#s all y +aultB is admissible

o A9et e !ay your edical e.!enses is inadmissible

R=9E 10 – Inadissiility o+ Pleas6 Discussions6 and Related Stateents

5a6 Prohibited !ses – in a civil *R criminal case, evidence of the following is not admissibleagainst the defendant who made the plea or participated in the plea discussion,

- 5(6 a guilty plea that was later withdrawn- 5/6 a nolo contendre plea

- 506 a statement made during a proceeding on either of those pleas under 6R". CC or acomparable state procedure

- 5,6 a statement made during plea discussions with an atty for the prosecuting authority ifthe discussions did not result in a guilty plea or they resulted in laterDwithdrawn guilty

plea

5b6 E9ceptions – the ct may admit a statement described in 9CAaBA;B or A9B:- 5(6 in any proceeding in which another statement made during the same plea or plea

discussions has been introduced, if in fairness the statements ought to be consideredtogether? *R

- 5/6 in a criminal proceeding for perury or false statement, if the 1 made the statementunder oath, on the record, and with counsel present

Rule, protects statements made in guilty plea negotiations- Policy rationale, encoura(e settleents6 discussion o+ +ull +acts

o I+ "ithdra"n !lea stateents could e used6 "ould e S=PER !reudicial)

o Note, rule says it a!!lies to F#s6 ut cases have a!!lied it to (ov#t stateents as

"ell- Note, protects "&'1 F"2-' plea negotiations


14/87

o %=' ay e adissile i+ stateents are ade to la" en+orceent o++icials "ith

the !o"er to ne(otiate

uilty plea is an admission to all elements of the crime$ "onfession ust

relates a set of facts

I!eachent, stateents ade durin( !lea ne(otiations cannot e used +or i!eachent- I+ F lies on the stand and stateents ade durin( !lea ne(s contradict testiony6 (ov#t#s

reedy is bring ne< charges for perjury

Sentencin(, this rule does N$' 8PP9: at sentencin( !hase- Ev rules never apply at sentencing8 e9cept those relating to privilege- De+ense can as (ov#t to a(ree not to adit in+o at sentencin(

;8IVER –


15/87

$$$+ Character Evidence8 Prior 4ad -cts8 and .abitR=9ES 0 and 0O – C>8R8C'ER EVIDENCE

- uestion, is it


16/87

o 8lso6 i+ F intros char ev6 it has to e probative of the charge at issue

E./ i+ on trial +or urder6 can intro ev that he is a !eace+ul (uy6 ut not that

he is honest- P$9IC: - F is losin( his lierty6 so "e allo" hi to intro character evidence also to

coat in+erence o+ ein( a Aad (uyB *c criinal F#s are already indicted

o 4asically a mercy rule, i+ a F "as char(ed "*a crie and he says he didn#t do itand that his alii "as that he "as hoe alone6 "e allo" hi to intro character ev

- Caseso (ichaelson – (ov#t is never allo


17/87

o 5-6 provide I notice of the general nature of such evidence that the prosecutor

intends to offer at trial !3@

o 546 do so before trial > or during trial if the ct, for good causes, excuses the lack

of pretrial notice

Rule re 045, i+ F attac#s a victi#s character trait6 the !rosecution can attac the saecharacter trait in the F - permitted in the self#defense conte9t

- F ust de+ine the character traits as narrowly as possible to liit the sco!e o+ the !rosecution#s !eritted reuttal

- DC, really easy +or F#s to open the door to c-e character ev adission y the !rosecution6 so they need to e VER: care+ul)

o E./ F char(ed "*se.ually assaultin( youn( (irl F calls son6 said no evidence o+ any

discord6 stru((le F counsel ass – as +ar as you no"6 he didn#t do it6 ri(ht 8nd sonsays6 not only didn2t he do it, but he W*&'@32+ @* 5+

A has thusly "PE&ED T.E D"" to gov@t use of character evidence on

cross#e9aminiation

!'E, "hen you start talin( aout A"ouldn#tB or A"ouldB do soethin( 4v/didn#t do soethin(56 you#ve ade an indirect re+erence to character and it o!ensthe door) Counts even i+ "itness (ets +lustered and lurts it out

Rule 04a5435 – Character o+ "itness see rules 0Q-0

Se. o++ense cases, di++#t stds a!!ly see rules 12-1O

S"2E ST!FF -4"!T ,),5b6- Character adissile to !rove an eleent o+ the crie – you can intro char ev to !rove

ho" a !erson acted "hen char is directly in issue under substantive la


18/87

nervous6 etc/ F "ants to sho" that L is srs 9SD user to sho" an alternative

e9planation3causation

General note, you can#t introduce evidence o+ a !erson#s character to sho" the general 8' 8%$=' '>8' %$


19/87

• E./ F char(ed "*a((ravated assault "*s!ied haer/ F claied

accident – (ov#t intros !rior dru( char(e/ N$' 8Deld, !rior ad act adissile) DC, sho"s ho" road this

doctrine can e

Sti!ulations, i+ F "ants to ee! out ad acts6 he should stipulate to his

intent

• F C8NN$' +orce the L to allo" hi to sti!ulate to intent

rationale is that the L should e ale to ae his case ho"ever he


20/87

"ants !rove every eleent eyond K dout6 and !roo+ is ore !roative than sti!ulation

o "rowder – ,),5b6 does not preclude gov@t from intro@ing

prior bad acts to prove an element of a crime8 despite A@s

offer to stipulate in this case6 F#s o++ered to sti!ulate Athe

!erson "ho sold dru(s had intent6B sti! "ould only sho" intent/%=' !rior convictions sho" intent 8ND no"led(e6 so ore !roative)

%=', trial cts can tae o++ers to sti!ulate into account

"hen doin( a 03 analysis

• E.ce!tion – *ld "hief rule, i+ F accused o+ status crie6 (ov#t


21/87

• Cries coitted in a uniue anner – signature or 2" 4e./

osessive conduct that sets F a!art +ro others5o Cries ust e uniuely idiosyncratic

• F has uniue connection to location

• F has uniue connection to victi

• F has uniue connection to crieo E./ rare techniue used to disar alars !rosecution ay ar(ue

that F#s !ast roery uses the sae uniue ethod and say thatev o+ that !rior ad act should e aditted to !rove ID

o E./ &ones "as not allo"ed to intro 9e"insy *c se.ual

interaction "*her "as consensual – did not s!ea to %ill#s


22/87

Evidence o+ serious criinal activity other than that char(ed should e

care+ully e.ained 4!otential +or !reudice under 035o %ut6 as al"ays6 i+ ev at eui!oise it should e aditted

R=9E 0O –


23/87

- >hen character is in issue 4e./ liel case5- >hen it is intro@d for a not#for#char purpose

N$'E, di++erent rules a!!ly +or se. o++ense cases

R=9E 0 – >ait Routine Practice

%vidence of a person2s habit or organi-ation2s routine practice may be admitted to prove that ona particular occasion the person or organi-ation acted in accordance with the habit or routine

practice$ +he court may admit evidence regardless of whether it is corroborated or whether there

was an eyewitness

Rule, hait evidence is virtually alait v/ character ev- >ait has GRE8'ER !roative value than character evidence) 'his is *c a

!erson is ore liely to act in accordance "ith haitual ehavior than they are "ithcharacter*!ro!ensity AehaviorB alle(ed

>o" do "e no" "hen soethin( is hait- Its in reaction to soethin( – s!eci+ic r.n to s!eci+ic sitch

o Not lie AI (o to church every SundayB – this is not a 9EG89 hait

o 9ooin( +or fre?uency8 consistency8 refle9iveness need to sho" sufficiently

specific instances – o!!onent can try to contradict y sayin( inconsistent "ith

hait :ou can counter hait y sayin( loo – you say you react violently to

co!s6 ut here#s instances o+ you hu((in( co!s

- The more volitional an act8 the less likely it is habit 7 looking for !&$F"2$T1

"F ESP"&SE -C"SS S$T!-T$"&So .errin, try to ar(ue that F#s violent r.n to !olice is a atter o+ hait – "henever he runs

across a co! he react violently/ >eld, 8Deld, N$' 8D


24/87

CRI


25/87

o Don#t "ant to discoura(e ra!e clais ra!e is already under-!rosecuted

o ;e don#t "ant uries coin( u! "*their o"n vie"s aout the victi that taint the

verdict- Sco!e

o Covers se.ual ehavior6 includin( ental activities 4e./ "atchin( !orn5 and

se.ual harassent Wollack – lady co! alle(in( hostile "or environent F#s reut y sayin( she#d

"atched !orn at an o++ice !arty and lau(hed at it/ De+ !roative under 036 utneed to consider ho" it could !reudice her case under 12

o Does N$' !rotect a(ainst disclosure o+ +alse ra!e clais

- Runs soe"hat contrary to 13-1O- Con(ress decided that 045 "asn#t !rotective enou(h o+ victis other"ise this

stu++ "ould all (o thru 0

Deals


26/87

Case that s!urred these rules – ra!e !rosecution in 79 rou(ht a(ainst a Hennedy (irl claiedra!e6 H claied consent6 "as acuitted/ &ury "as never told aout the +act that H had een in thissae situation e+ore

- &ury never (ot to hear *c trial ud(e said it "as e.cluded y 045- Re!ulicans "ere outra(ed6 so dra+ted 13-1O

o 'hese rules asically say that bad acts of se9ual assault can be admitted toprove -&1 E'E%-&T P!P"SE " -&1 E'E%-&T $&FEE&CE

Rule, F#s !rior acts o+ se.ual assault are adissile to !rove that F had a !ro!ensity to coitsuch cries/

- Rationale, i+ you coitted !rior se. o++enses6 ore liely you did it a(ain- Policy, ore lieral adissiility o+ F#s !rior se. o++enses in ra!e*se. ause than in

other cases *c se. cases are di++erento 'hese rules asically contradict ,),5b6

o Evidence may be intro@d solely to sho< that has a deviant personality

o Doesn@t have to be a conviction to be intro@d

o Std, could a ' !uror belie$e that the prior conduct occurred

'his allo"s +or roader adissiility than ost other rules – "hat sa+e(uards- 'e(ay, ,)0 is the safeguard that ensures constitutionality here

o Preserves F#s due !rocess *c other"ise adission "ould e autoatic and F

"ould ust e convicted on !rior acts

Critiues o+ 13-1O- Eual !rotection – dis!ro!ortionately a++ects Indians

o 'his is du *c it#s a .#l ha!!enstance – only Indians live on +ederal land6 so

they#re the aority o+ !eo!le to "ho this (ets a!!lied

- Eual !rotection – ra!e F#s not treated eually to siilarly situated violent o++enders4urders6 etc5o Con(ress +ound that !ro!ensity in+erences are ore valuale in ra!e *c o+ the

hi(h rate o+ recidivis aon( these ty!es o+ Fs – hi(her +or ra!e than any othercrie

- 8cadeics say these rules should e liited to cases in "hich consent is used as a F

$%+ "pinion Testimony


27/87

- 8 "itness can e %$'> a lay and an e.!ert "itness – your status is determined byyour relationship to the specific testimony you are giving8 not by the person as a


28/87

o &ud(e can e.clude irrational !ersonal no"led(e

o Can#t e ased on science*technical*s!ecial no"led(e unless it eets Q02 stds

- $t helps the jury to determine relevant facts

o I+ an o!inion hel!s6 it should e aditted6

o %=' i+ the o!inion is su!er+luous – i/e/ there is already other*+actual evidence

aditted that serves the sae !ur!ose*!roves the sae !oint – the lay testiony"ill e e.cluded

Rea – lay testiony ruled inadissile under Q01 /c it "as not helpful to the

ury/ &ury already had enou(h evidence to reach the sae conclusion6 didn#t need"itness# o!inion

La--ie - F raises istae o+ a(e a++irative de+ense to statutory ra!e – others

"ant to testi+y that they thou(ht she "as also o+ a(e/ >eld, adissile *c this ishel!+ul – urors are seein( this (irl N$; 42 years later56 and they had N$ ;8:o+ no"in( "hat she looed lie then/ 'his is an acceptable opinion – ov shedidn#t loo 1 is not a +act

Issue, soeties "itnesses "ill use "ords in a collouial anner that have le(al si(ni+icance –

in these cases6 the ud(e "ill issue a clari+yin( instruction- E./ Athat search seeed unreasonaleB v/ Athat search "as unreasonale under the aB

o DC, you "ant to counsel "itness to avoid this *c o!inion "itnesses are not

allo"ed to testi+y to ultiate issues

;hat other stu++ is adissile*not adissile- 8D


29/87

Rule, a


30/87

o Std o+ revie" on a!!eal, abuse of discretion

Generally a harless error E.ce!tion – 0anna, F "rote letters threatenin( !re?#s li+e6 std is "ould K !erson

thin it "as a serious threat6 (ov#t calls secret service as e.!ert/ Rev#d on a!!eal *c secret service isn#t K !lus e.!ert "as overual#d and asically told ury "hat

to thin o E.!ert cannot ae lanet le(al conclusions or s!eculate

o 'estiony aout unreliaility o+ ID evidence is alost al"ays IN8D


31/87

- Generally not admitted under 6rye, !oly(ra!hs6 voice IDs6 scientists "*!ersonalinterest in the atter

%=' 6RL% D$ES N$' C$N'R$9 IN 7EDER89 C$=R') ;hen usin( the 7RE6 loo to, )aubert test, an e.!ert ust e testi+yin( to kno i+ "e reveal theethod6 !edos are (onna +ind a "oraround

o E./ VER: s!eci+ic +indin(s – not everything (ets*is e.!ected to (et !ulished

3/ $s there a discoverable rate of error and are there standards and controlsI- I+ there is a rate o+ error6 it eans that the ethod is testale and you can oectively

deterine i+ an outcoe is ri(hto 7ocus on >$; test is conducted

- 2 reuireents,o


32/87

• Poly(ra!hs can +ail @aubert *c o+ this ut i+ the !arties sti!ulate to

the adissiility o+ a !oly(ra!h e. ante6 then it "ill e allo"ed in/ $s there general acceptance for the method in the scientific communityI

- $ne @aubert +actor – this constitutes the ;>$9E 6rye test) Sho"s you ho" uchore !erissive @aubert is) 6rye is still relevant ut N$' dis!ositive

- %=' still a stringent gatekeeper fct – !ro!onent has to convince a &=DGE 4ratherthan a ury5 o+ K y !re!onderance – see elo" @(),5a6

!'E (),5a6 – trial ud(e deterinin( adissiility has to deterine "hether the ethod inuestion is ore liely than not reliale

- "ontra 1045 0uddleston std6 "hich is uch ore !erissile- Rule 104a5 assessents are ade at )aubert hearings – these are discretionary

o Done e+ore trial adversary hearin( e+ore ud(e in "hich e.!erts testi+y6

descrie ethods6 (et cross-e.ained6 and the ud(e decides "hether thetestiony "ill e aditted

DC, i+ testiony is N$' aditted6 a otion +or su +ro the

o!!onent "ill usually +ollo"o tests

%=' constantly chan(in( science6 ust still deterine test in uestion is

!ro!erly conducted also consider "ei(ht to "hich DN8 ev is entitledo

DC, 6erry case is eleatic o+ the issues "*oth tests 6rye – ay e ore liely to root out +raud in soe cases6 ut there#s

+raud in 899 sorts o+ research6 and 6rye "on#t root out collectivei(norance

@aubert – cuttin( ed(e stu++ i(ht e unreliale ut ud(es (et e.cited

and let it in

• Problem in criminal cases8 maybe not as big a deal in civil


33/87

- ule )B 7 should judges appoint an impartial e9pertI

o %reyer is !ro-this in Joiner and 7umho

o %=' this is e.!ensive 4!arties !ay +or it56 and no one no"s "hat he#ll say/ 8lso6

this asically !asses the uc to the e.!ert – he decides on crediility instead o+the ud(e

DC, *c o+ this stu++6 Q0 has een used a it ore +reuent since @aubert 6 ut not a ton

8!!lyin( @aubert – ED F'-GS- !nalytical ap – e.tra!olates +ro an acce!ted !reise to reach an unesta#d

conclusiono Prole is that this i(ht restrict !!l +ro havin( ne" ideas also "ho are cts to

ud(e su++icient connection ule, anial studies can e used i+ relialy conducted6 can e re!licated6

and there are no e!ideiolo(ical studies availale – e!ideiolo(y89;8:S tru!s anial studies

• Joiner , do PC%s cause cancer 8nial tests +ind yes in ay ice utnot adult ice/ E!ideiolo(ist coes u! "ith "idely di++erent results/8s, have there een enou(h tests*inuiries

o Rule, you can use anial studies6 ut they have to (et at the

!oint you#re tryin( to !rove E./ oil s!ill (ets oysters sic6 e.!ert says other sea critters (et sic +ro oil6 don#t

need study aout oil and oyster sicness to !rove it/ 8ditted des!ite Aanalytical(a!B *c this (a! is o

- +estimony must sufficiently fit facts of the case – F$T ER!$E2E&To Related to analytical (a! your conclusion has to +it the +acts o+ the case

E./ L leaves dinner6 "als y local air!ort "here there has een et +uel s!ill she

is dia(nosed "*res!iratory disease6 calls e.!ert "ho lins this "*et +uele.!osure/ >eld, +it !role *c L only reathed it in once and studies re+erencedae a lin et"een disease and REPE8'ED e.!osure only

4obosian, L !ars 7ord6 rolls do"n a hill and runs her over rin(s in e.!ert

desi(n en(ineer "ho#s lie yo there is this thin( "*these cars called A+alse !aratte!tB "here you thin its in !ar and its not and O !eo!le have een run over y their cars *c o+ this/ >eld, not adissile *c this L 8C'=899: !ut her carin !ar)

Westberry – L clais sinus in+ection +ro talc e.!osure F#s clai that no +it6

ho" do "e no" studies !ro++ered y L#s e.!ert discuss the sae at o+e.!osure >eld, 8D


34/87

o Differential diagnoses – ethod o+ deterinin( causation – *estberry is leading

case

E.!erts tae all !ossile no"n causes6 rule out all other causes6 and no"

y !rocess o+ eliination that one is it Ne(ative !roo+ ut still reliale Westberry rulin( "as !ro!er *c there

are a lot o+ studies linin( talc e.!osure to sinus in+ections• %=' in soe cases – lie "*+iroial(ia – there are a '$N o+

!ossile causes – too any6 can#t !in!oint one thru di++ dia(- +emporal proximity

o E./ totally healthy (uy hit in head6 develo!s any sy!tos – !ro.iity o+ head hit is

relevant ut not dis!ositiveo E./ everyone on a !lane "ho eats +ish (ets +ood !oisonin( te!oral !ro. on a lar(e

scale can e ore reliale

- !lternative design

o E.!ert ust test the alternative desi(n i+ he is testi+yin( that the !roduct should

have een desi(ned di++erently and that it "ould "or that "ay

o I+ too e.!ensive6 can use an alternative6 e./ e.erot sa+ety anual- (ust bring same intellectual rigor to in ct testimony as to out of ct analysis

o


35/87

- "hin, 8sian !ort authority e!loyees alle(e discri !rootions6 ut there are S$ any ore"hites than 8sians – esses "ith the stats

- #mith v$ Rapid +ransit , cannot8 on the basis of statistics alone8 determine liabilityo M esta#s conclusively that Q0T chance she "as hit y a R' us oth sides ove +or

directed verdict ct doesn#t rule +or L – echoes o+ aret share liaility6 ut no !roo+ it"asn#t the 30T

'his evidence is 8D


36/87

- >y!othetical uestions- $ther"ise inadissile evidence i+ in line "*liitin( instruction

o Can consider hearsay

o Not ound y rules o+ evidence in considerin( in+o in uestion *c e.!erts in the

+ield "ould rely on said in+o

o E.!ert ust rely on this in+o in the noral course o+ his "or DC, this is "hy other"ise inadissile stu++ is o here

DC, asically6 under Q03 the e.!ert need N$' have !ersonal no"led(e – e.!erts o+ten testi+yto thin(s lie cause o+ death6 sy!tos6 etc6 "ithout no"in(*havin( ever treated the !erson inuestion

Cases e.a!les +or Q03,- 'eeson, is the F insane or !retendin( to e insane E.!ert is !sycholo(ist6 (ets in+o +ro

intervie" "*F and discussions "*!sychs at the ail "ho say F "as +ain(o 8ditted *c e.!erts "ould norally rely on intervie"s "*other drs6 ut adit "*caution

- E./ 7ord case, "indo" needs to e re!laced6 nothin( in anual says ho"6 echanic does it ina "ay that causes "indo" to e.!lode calls "arnin( e.!ert6 "ho says "arnin( anual is unK- this e.!ert looed at other "arnin( anuals and the one reissued os !ost accidento 8ditted *c noral stu++ to rely on6 even tho the anual itsel+ "ould e a su re eas

and not adiss- 0olyland , case re aterial su!!ort to >aas (ov#t alle(in( that or(s are stra"en K to rely

on re!orts o+ !!l "*in the or( F#s alle(e that (ov#t (o re!orts y torturin( these !eo!le)o Rule, (ov#t cannot rely on in+o that has een (leaned +ro torture6 ut ct re+uses to rule

on this *c says there#s no +actual asis +or torture here- .eoli, dr !re!#d to testi+y to !!l#s sy!tos 4!!l lived near train yard5 – oection that dr

never sa" any o+ these !!l as !atients – D$ESN#'


37/87

- $s the e9pert E-''1 helping the jury coe to a conclusion it couldn#t "*o thee.!ert testionyo DC, scienti+ic testiony is alost al"ays hel!+ul – this uestion coes u! ostly

in re nonDscientific experts E./ as a rule8 translating code3slang in a certain field is properly the subject

of e9pert testimony/ Code e.!ert testi+ies to eanin( o+ Aa"nB in a recordedconvo – this is o testi+yin( to eanin( o+ Atoni(ht is the ni(htB is N$' o – notcode ury can tell this is re+errin( to the dru( deal

E./ cannial co! case - F "ants to call e.!ert on se.ual +etishist culture on

inter"e? ud(e held this "ould e hel!+ul

E./ "ron(+ul death case – L#s "i+e "as hoeaer6 L calls econoist to testi+y

as to value o+ house"i+e services held, this is adissile monetiQing issomething the jury needs help on

R=9E Q0 – $!inion on an =ltiate Issue

5a6 $n General 7 &ot -utomatically "bjectionable, an opinion is not obectionable ust bKcit embraces an ultimate issue5b6 E9ception, in a criminal case, an expert witness must not state an opinion about whether

the 1 did or did not have a mental state or condition that constitutes an element of thecrime charged or of a defense$ +hose matters are for the trier of fact alone

),5a6 –- E9pert testiony isn#t autoatically inadissile ust *c its in re an ult issue6 even

tho lay testiony "ould e- uestion reains – does the testiony hel! the ury

o #cop, +raudulent and ani!ulative security !ractices/ E.!ert testi+ies aout trades6 (ives

o!inion that they "ere ani! and +radu#t/ >eld, not hel!+ul – ust !arrotin( the statutorylan(ua(e

o 4uchanan, F char(ed "*o!eratin( +irear +or shootin( hoeade !otato (un – this is

helpful Aca!stoneB to co!licated ury analysis 4ore than Athis is "hat I thinB ut

"hether it +alls "*in the le(al de+ o+ A+irearB

),5b6 – enacted in res!onse to &ohn >inley trial- ;e autoatically e.clude evidence i+ it has to do "ith the F#s ental state i+ it is a

reuired eleent o+ the coission o+ the crieo Prole is the ury "ill choose the e.!ert they lie etter

E./ !rosec – I thin he#s insane F - I thin he#s sane

- DC, this rule is either ne+arious or su!er+luous – unhel!+ul testiony is already

e.cluded6 so is this desi(ned to e.clude hel!+ul testionyo v$ 4rown - F called u! !rosecution e.!ert and he is not allo"ed to testi+y – ud(e says

this is du and allo"s it/ 8!!eals ct reverses – this is an inustice6 ut it#s "hat the rulesays

DC, you (et around this y +rain( uestions in the hy!othetical or in

(eneral ters – "hether soeone "ith F#s ental state*condition couldcoit the crie don#t !oint to !artic F


38/87

%+ .earsayO Step ( 7 determining earsay >earsay E.clusions

5a6 Statement – means a person2s oral assertion, written assertion, or nonverbal conduct ifthe person intended it as an assertion

5b6 Declarant – a person who makes the statement 5c6 .earsay – a statement that: -. the declarant does not make while testifying at the

current trial or hearing? and /. a party offers in evidence to prove the truth of the matter

asserted in the statement

8!!roachin( a hearsay uestion,1/ 9oo to )(5a6 7 5c62/ Does the stateent fit into one of the hearsay e9ceptionsI

a+ )(5d68 )08 ),8 )

3/ @CRIearsay issues +reuently coe u! in criinal cases/ ememberO all other e9clusionary rules 5,)08 etc6 still apply8 even if the out#of#court

statement does not present a hearsay problem

R=9E, a statement8 other than one made


39/87

a/ ;hen you say soethin( lie AI sa" the F run +ro the anB – is it *c he liesto run or *c he ust roed it

/


40/87

- $++ered +or e++ect on the listener – conte.t o+ stateent is i!ortant6 can (o toreasonableness of belief3state of mind 7 not#for#truth purposeo E./ (c"lure – dude heard that his "i+e "as slee!in( around6 ills his "i+e – "ants to

intro out o+ ct stateent to sho" his state o+ ind/ DC, this is o *c the issue is >$;the declarant said "hat he said6 not ;>8' he said issue is that he#s (onna lie to ae

the conte.t see ore dire S#o tho) >e (ets cross-e.ained and this iti(ates our concerns "ith

untrust"orthiness

DC, ust *c testiony is sel+-servin(6 doesn#t ean its e.cluded6 you ust ar(ue

to the ury that it#s sel+-servin( – they deterine its crediility (oes to

;EIG>' o+ testiony6 not adissiility/o E./ Duress case - F ar(ues that he "as actin( in res!onse to a threat @Aill hi or I#ll ill

youB – i+ o++ered +or e++ect on F6 then ay e adissile de+ not a hearsay !roleo E./ ty!ical criinal case, F on trial +or dru( dealin(6 (ov#t calls arrestin( o++icer6 tells ct

that CI told hi "ho the i((est dru( dealer is and its F (ot "arrant6 "ent to F#s houseand +ound a unch o+ dru(s (ov#t intro#s CI#s stateent +or Ae++ect on listenerB –e.!lainin( ;>: o++icer "ent to F#s house

Inadissile – co!#s conduct not in dis!ute6 too !reudicial under 03 &ot a hearsay problem tho

;ould e !roative i+ there "as a (a! in co!#s lo(ic and he all the sudden

decides to (o to F#s house – "hy did he do that $h this stateent/ H cool/o E./ 6reeman – o++icer testi+ies6 heard +ro CI that Carlson is a counter+eiter6 "ent to

address6 sat outside6 see F and C sit do"n on stoo! and e.chan(e soethin( – I arrestthe oth and +ind cash in ro"n sae and +ae UU in rie+case/

8dissile – !roative *c gap in cop@s logic "hat#s the ac(round +or y

actions*elie+ that F is involved in this $h this stateent

Proative under 03 *c the stateent "as not a(ainst F6 it "as a(ainst C) 9ess

!reudicial than !rior e. *c ury aes in+erential lea! – o C is i( ad (uy6

and F is dealin( "*hi – !ro ad (uy6 ut not relyin( on out o+ ct stateent toreach that conclusion)

- $++ered to sho" that F "as on noticeo E./ /inyard , !eo!le told F drive"ay "as sli!!ery this !ut hi on inuiry notice/

8dissile – truth o+ stateent is not the !oint tryin( to sho" that F "as on notice6 thus(ivin( rise to a duty

Prole – ,)0 prejudice issue – +ear that ury i(ht use it +or its truth 4$


41/87


42/87

2/ 8+ter oil s!ill in Gul+6 %P e.ec (oes to eat +ish in 98 restaurant6 rin(in( edia alon(- >earsay under 7RE – clearly tryna counicate that eatin( +ish is o

3/ 'rayvon ERE 8RE 7IVE E8RS8: EJCEP'I$NS,)(5d65(6 – Prior Statements of Testifying >itnesses

- DC, these stateents are not considered reliale "hen they are ade – "e aditthe N$; ecause the !erson "ho ade the is testi+yin( in court6 and is thussuect to cross-e.aination and other sa+e(uards +or reliaility

)(5d65/6 7 Statements of Party "pponents

- DC, these are aditted asically *c the F o!ened the door – its stu++ your side hassaid in the !ast6 no" you can#t co!lain that it#s ein( aditted

)0 7 E9ceptions to .earsay ule egardless of >hether the Declarant is -vailable as a

>itness

- DC, these stateents are so reliale that you don#t need to !roduce the declarant

), 7 E9ceptions to the .earsay ule >hen the Declarant is !navailable as a >itness

- DC, the circustances under "hich these stateents are ae the reliale6 ut in cttestiony "ould e etter

) 7 esidual .earsay E9ception

- Catch-all e.ce!tions


43/87

R=9E 014d5415 – Prior Stateent o+ 'esti+yin( ;itnesses @reuires "itness availaility

Soethin( the "itness hisel+ said could e hearsay *c aye he said it in a convo "*thedeclarant

- Classic e./ declarant says to "itness, AI sa" F coit the crie)B ;itness says Alah

lah stateent at issue)B

5a6 Prior $nconsistent Statements – a statement is not hearsay if declarant testifies at trial orhearing and is subect to cross examination and the statement isPinconsistent with the

declarant2s testimony and was given under oathPat a trial, hearing, or other proceeding ordeposition

- !'E, ;itness is on the stand testi+yin( and contradicts a stateent that he !reviously ade under oath at a +oral !roceedin( !revious inconsistent stateent isadissile +or its trutho E./ 'ivingston, stateents ade under oath at +orer !ostal ins!ector !roceedin( held

i!ro!erly aditted under 4d5415 *c even tho the stateents "ere ade under oath6 they

"ere not ade at a +oral !roceedin( DC, (ettin( at "hether this "as a RE9I8%9E account

- Prior inconstant stateents are adissile as sustantive evidence i+ they eet thereuireents

- $mpeachment, !rior inconsistent stateents ay e used to i!each a "itness eveni+ it does not eet the 4d54154a5 reuireents @ule B(0

5b6 Prior Consistent Statements – a statement is not hearsay if declarant testifies at trial orhearing and is subect to crossDexamination, and the statement isPconsistent with the

declarant2s testimony and is offered to rebut an express or implied charge against the declarant

of recent fabrication or improper motive

- !'E, Stateent ade out o+ ct y the "itness that su!!orts or rein+orces the"itness# in-court testiony is adissile +or its trutho Norally6 these inds o+ stateents "ould e inadissile 4lie yay you re!eat

yoursel+6 that doesn#t ae you ore credile – Ai!erissile olsterB56 ut inthis s!eci+ic situation "e allo" it dealin( "ith E4!TT$&G - 2"T$%E T"

F-'S$F1

o Reuireents,

>itness@s testimony must have been attacked -&D

• Can e an I


44/87

alle(ations5 – ended u! ein( ale to adit PCS#s *c L "as sayin( thisstu++ e+ore otive to +alsi+y !resented itsel+

o 'his rule is used "hen there are !rior stateents that can reut a char(e y the

other side that the "itness had a reason to +aricate the story E.!lains inconsistency and reuts attacs o+ "itnesses havin( a ad

eoryo PCS#s need not have een ade under oath

o 8SH

;hat is the other side sayin(

;hen did the otive coe aout

;hen did the declarant ae the ori(inal stateent

5c6 Statements of Prior $dentification – a statement is not hearsay if declarant testifies at trialor hearing and is subect to crossDexamination, and the state isPone of identification of a person

made after perceiving a person

- !'E, !rior ID is o++ered +or its truth that F is res!onsile +or the crie char(ed

o DC, this is adissile *c the !erson is suect to c-e aout the ID and theadvisory co/ thou(ht that c-e "ould e v e++ective in this sitch can as

aout ID !rocedure6 conditions under "hich the "itness +irst sa" the !er!etrator6etc

- =sed "hen a "itness has !reviously ID#d soeone outside o+ ct at6 e./6 a crime sceneor lineup o Reuired that "itness a5 ade !rior ID 5 has een !roduced at trial and c5 is

no" "illin( to testi+y- 'he "itness D"ES &"T have to $D the A in ct

o ;e lie these !rior ID stateents *c they "ere closer in tie to the actual event

- 2 issues "*this rule,o 1/ $+ten6 "itnesses ae incorrect IDs in ct – 4!T doesn#t atter +or the

!ur!oses o+ this rule) ust must be no< on the stand subject to cross#e9amabout the P$" $D – ID#in( ct not i!ortant*necessary E./ 1st ;'C case – accidentally ID#d 3 alt urors instead o+ the terrorist F#s

o 2/ ASuect to cross e.ainationB is a very loose reuireent – just having the

opportunity to c#e the


45/87

R=9E 014d5425 – 8dissions $++ered %y Party $!!onent

8n adission is anythin( a !arty or his a(ent states out o+ court that their adversary "ants to usea(ainst the at trial

- %asically6 the Ayou rea it6 you uy itB rule – you ae the stateents6 you have to

deal "ith the ein( used a(ainst you


46/87

o Covers e9press r9ns to another@s statements 8ND implied adoptions

E./ 0oosier , G7 says stu++ aout crie %7 "as silent6 held to have adopted the

statement via silence

• R=9E, S$'E&CE C-& 4E -& -D"PT$"& >.E& - M PES"&

$& T.E C$C!2ST-&CES >"!'D .-%E DE&$ED $T $F T.E1

D$D&@T >-&T T" 4E -SS"C$-TEDo Silence is deeed to e assent "here,

Present and heard and understood stateent

4+oundation5 Physically and entally ca!ale o+ denyin( it

K !erson "ould not let stateent (o unchallen(ed

E./ 6lecha, F and ud? "ere on oat6 !ulled over y coast (uard6 raided and

+ound ales o+ dru(s 7 and uds chained to(ether on dec o+ oat one ud saysA"e#re in troule no"6B 7 doesn#t res!onse/ Gov#t says this is ado!tive stateent/>eld, N$' ado!tive *c a K !erson "ould e silent in !olice !resence)

- Personal no"led(e not reuired

- &ud(e ust a!!ly !re!onderance std

5c6 Statements 4y -gent -uthoriQed to Speak on Parties@ 4ehalf @!arty is availale ! statement by a person authori-edKhired by the party to make a statement concerning the

subect > speaking agent rule- Rationale, i+ you authori?e soeone to s!ea on your ehal+6 you ado!t "hat they say- Does N$' cover, a(ents not hired6 a(ents tan(ential to the F need to e >IRED

'$ SPE8H 8%$=' '>E P8R'IC=98R S=%&EC'o %=' a(ent need not have !ersonal no"led(e o+ the stateent ade +or it to e

adissileo 'here ust e evidence o+ a(ency relationshi! other than the hearsay itsel+ – can

e circustantial- E.a!les,

o PR +irso E./ @a#ilva, order !atrol +inds dru(s on a dude "ho reuests a translator6 translator

arrives6 F ass in S!anish Aare you here +or e6B trans says yes6 F says A'>8NH G$DBand then s!eas in S!anish/ Custos a(ent called to testi+y - F oects *c its "hattranslator told hi/ >eld, translator is custos# a(ent in this settin( – not hearsay

%=' i+ trans has o"n otive to +alsi+y and act on his o"n6 no a(ency

o E./ (c7eon, la"yer is (enerally an a(ent6 so stateent adiss v/ client

R=9E, as lon( as la"yer is auth#d to ae the stateent6 the stateent y the F

or the !rosecution "ill e aditted as an a(ency adission

•

ISS=E – atty "ill !otentially ecoe an uns"orn "itness and edisuali+ied i+ F "ants to attac his stateent

5d6 Statements 4y an -gent -bout a 2atter >ithin the Scope of .is -uthority @!arty isavailale ! statement by the party2s agent or employee concerning a matter wKin the scope of the agencyor employment, made during the existence of the relationship is admissible for its truth

- Rationale, authority to do an act (ives a(ent authority to s!ea aout it


47/87


48/87

• DC, in T o+ cases6 cons!iracy is usually char(ed6 ut its not a

reuireent +or usin( this rule

• DC, 7RE re, cons!iracy trac the sustantive la" on cons!iracy

3 reuireents +or adittin( CC stateents,

1/ Stateent ust have een ade in furtherance of the conspiracya+ Idle chatter D$ES N$' +urther the cons!iracy 4o, ho"#s the cons!iracy Guy,

oh its (ood52/ Stateent ust have een ade during the course of the conspiracy

a+ Pre-cons!iracy stateents are N$' adissile3/ Person "ho s!oe and F are members of the same conspiracy 5CCs6

E.a!les- E./ %ill is F6 %arry and &ac have convo – I "as ust talin( to %ill6 he#s the ne" cons!iracy

oss "e (otta ill a (uy & says o i+ %ill says so *c %ill is cons!iracy aster/ % and sstateents are aditted v/ %o These statements fulfill all three above factors

- E./ 0olyland , aterial su!!ort to >aas case lots o+ stateents y !!l in the or( aout theneed to +und >aas6 ut any o+ the "ere ade e+ore >aas "as desi(nated a terroristor(/ >eld, doesn#t need to e an ille(al oint venture +or CC stateents to e aditted under4e5 so adittedo DC, this is a stretch on the rule

- E./ .ersico, N:S crie +aily head P incarcerated6 "hile in ail CC#s say P said to do stu++P says I "ithdre" +ro the cons! I# in ail) >eld, incarceration does N$' esta "ithdra"al+or !ur!oses o+ this rule

- E./ 6rigale, 9 says 7 "ill handle dru( deal deal (oes do"n and 7 is +ound around ut not intransaction/ Gov#t says 7 "as near transaction and 9 says he "as CC 7 oects/ >eld, notadiss *c gov@t did not estab that a consp e9isted bet


49/87

o I+ otive is to ee! "itness o++ stand6 the testiony can still e i!eached under

06 so really doesn#t acco!lish anythin( ule )B – you can i!each the declarant even i+ he#s not on the stand

- Grounds +or unavailaility,

o 5(6 Declarant has a privilege and refuses to testify I+ they invoe !riv6 they are unavailale

&ud(e ust also rule that "itness is e.e!t +ro testi+yin(

'here needs to e a +oundation +or the !rivile(e

• $+ten a hearin( outside ury to ae sure !erson "ill invoe !riv

o 5/6 Declarant has moral objection3refuses to testify

o 506 Declarant lacks memory of underlying event

E./ hit "*lead !i!e – I don#t +ucin# no" "hat ha!!ened

o 5,6 Declarant is dead8 ill8 or infirm

Illness – alance i!ortance o+ "itness# testiony v/ disru!tion that "ill

occur "*delay or restructurin( the trial due to the illness

• I+ i( !art o+ case6 "ill "ait other"ise "ill !ro e declared

unavailaleo 5*6 -bsence

9ast resort – not used i+ there#s another (round +or unavailaility

2 innds o+ hearsay can e aditted under 04a54O5,

• Prior testimony 40454155 –

o =nale to !roduce $R

'ried to +ind hi and couldn#t

Std – ust use D=E DI9IGENCE to +ind declarant

o %eyond su!oena !o"er even thou(h you no" "here they

are Civil – outside state in "hich ct sits

Criinal – outside =S

• Declarations against interest 40454355

o Provides echanis +or (ettin( de!ositions

o Reuires that you cannot !roduce declarant +or trial 8ND

could not (et their testiony I+ !rior testiony is on !oint6 declarant is not

unavailale +or !ur!oses o+ decs v/ interst andhearsay "ill e inadissile

o E./ "oleman, ids urned y (as heater outside house6 L#s

claied desi(n de+ect6 F#s thin aysitter "as drun and thre"heater out the "indo"/ %aysitter is de!osed and adheres tostory a+ter he adits truth to artender6 o++ered as dec v/ int/ L"ants to sho" asence *c aysitter le+t to"n/ Prole, !hys !resence isn#t necessary *c testiony is availale

;hat to do "*dec v/ int "hich a !erson has ut can#t

(et aditted under 0


50/87

• I!each "*inconsistent stateent as lon( as

other !arty o++ers de!o into ev 4neverha!!ens5

• I+ !erson is dead can#t use 0

• 8cce!tale (rounds +or asence de!ends on e.ce!tion invoed

o Stds are di++ +or !rior test and decs *c o+ !re+ +or livetestiony

ule ),5b6 7 admissibility re?uirements of e9ceptions

045415 – PRI$R 'ES'I


51/87

e!loyees >eld, doesn#t atter) Crane de!o is adissile *c the nature of themotive to develop the testimony eld, not adissile *cdi++erent otives at '16 ust (ettin( are +acts6 at '2 the oectives are the details toodissiilar

Grand &ury 'estiony, aor use o+ !rior testiony is "*G& testiony later o++ered v/ the (ov#t- =nder 454156 can@t use G& a(ainst the F in trial *c A has no opp to c#e- F i(ht "ant to intro exculpatory ev +ro G& !roceedin(

o

8SH, "hen the (ov#t uestions a "itness at a G& !roceedin( "ho e.cul!ates theF6 is the otive +or #in( the "itness at the tie the sae as it is "hen #in( the"itness at trial

R=9E, e.cul! G& testiony rarely adissile a(ainst !rosecution

EJCEP'I$N, siilarity o+ otive liely to e +ound only "here issuance

o+ an indictent is in dout6 so !rosecution (oes all out to c-e "itness

045425 – Dyin( Declarations 5n a prosecution for homicide or a civil actionKproceeding, statement made by a declarant while

believing that death is imminent, concerning the cause or circumstances of what declarant

believes to be impending death is not excluded under the hearsay rules- R=9E, statement must be made 41 D1$&G PES"&


52/87


53/87

• DC, !ost-Williamson6 cts are se!tical o+ stateents ade to la"

en+orceent

>y!os 4%o is F5$nculpatory decs v+ int, I roed a an "*%o

- 'o the e.tent that you ID other indivs in your crie6 it can incriinate you *c itindicates inside no"led(e s!eas to reliaility

%ri(ht line rule, AI ou(ht dru(s +ro ; last ni(htB- I+ stateent ade to la" en+orceent – C8NN$' e used v/ F ID#d- I+ stateent ade N$' to la" en+orceent – C8N e used v/ F ID#d

o DC, conte.t is critical "*r*t incul!atory stateents lie this E./ 7atsugrakis, declarant arsonist urns do"n diner sittin( in urn "ard6 he

says to +riend AI torched the diner6 H (ave e UU to do it ut I a ad at arson soI essed it u!/B 8ditted a(ainst H *c otive is N$' curryin( +avor 4*c adeto 7RIEND – di++ than W 56 also 'ENDS '$ DISSERVE – you never no" "hoyour +riends are6 i+ they#re (onna tattle6 etc

• DC, (uidin( !rinci!le "*this rule is eld,not adissile – not disservin( other (uy is servin( Q li+e ters6 "ants street cred6 status

in !rison (an(o .agaio, stateent ade y dad, AI did "hole +raud6 son not involvedB – adissile y

son F >eld, :ES – dad incul!atin( sel+ to hel! son/ Hee! in ind, dad hel!in( son6 cutsa(ainst

Estalishin( liaility,- Pecuniary liability – ore easily aditted any reliale !!l ae !ecuniary

stateents- Penal interest – stateents a(ainst !enal interest are those that suect the declarant

to liaility/ %ut that#s not enou(h ust sho" C""4"-T$&G

C$C!2ST-&CES that clearly indicate T!ST>"T.$&ESS of the

statemento (ills, leader o+ !rison (an( "ants to intro stateent +ro > tain( credit +or illin( the

(uard that < is on trial +or illin( > is in +or 3-O years6 so it sees disservin(6 ut <does not !rovide su++icient corrooratin( circs – > ust sayin( AI did it and not


54/87

DC, corroborating circumstances are &"T merely self#professed claims of

innocence by A # cts also look to see the conte9t and personality of declarant8

askO reliableI

• Policy, don#t "ant !!l con+essin( ust to (et others o++ the hoo

• =nclear "hat std o+ !roo+ is

o o" to !rove esta corro circs

Proo+ o+ F#s otive*o!!ortunity to coit crie

Physical evidence

;ho it "as said to – i+ trusted con+idante6 liely ore reliale

S!ontaneity o+ stateent 4sho"s it "asn#t a !lant5

Consistent trac record o+ crediility

Inside in+o sho"s that F did it

R=9E 04545, 7or+eiture E.ce!tion !ny party forfeits the right to hearsay inadmissibility obections of a declarant2s prior statement

when the party2s deliberate wrongdoing or acquiescence therein procured the unavailability of

the 1 as a witness

ule, hearsay stateents are adissile a(ainst the o!!onent i+ the o!!onent has donesoethin( to ae the declarant in uestion unavailale- 7or 4545 to a!!ly6 the o!!onent ust have done this intentionally to ee! declarant

a"ay +ro trial- Policy, discoura(in( "itness ta!erin(*intidatin(- 8!!lies to gov@t as "ell)- Std o+ !roo+, preponderance of evidenc

R=9E 03 – >earsay E.ce!tions Not Reuirin( Declarant =navailaility

- -vailability of declarant is $E'E%-&T – the stateents aditted under 03 are

so reliable that it doesn#t atter - Considered etter*ore reliale than in court testiony *c there#s less tie to lie

stu++ ore +resh in declarant#s ind

ule )05(6 7 Present Sense $mpressions

! statement describing or explaining an event or condition, made while or immediately after the

declarant perceived it


55/87

- ule, a stateent ade iediately u!on an event occurrin( can e aditted +or itstrutho Stateents are usually ade to soeone else "ho is there to chec +or accuracy

- e?uirements,o


56/87

E PIC6 not the assault

- Declarant must be under the influence of the startling event for the entire timebet


57/87

'y!es o+ stateents adissile under this rule,- Stateents aout then#e9isting mental or physical condition

o :ou "ould no" i+ you#re hurt

o Stateents conte!oraneous "ith the sy!tos are ore reliale than ones

ade ased on recollection- Stateents aout state of mind at issue in the case under substantive la< 5offered

for truth6

o Rule, "hen sustantive la" reuires !roo+ o+ ental state6 dec stateents as to

state o+ ind are adissile +or !arties 8ND non-!arties E./ e.tortion case – (ov#t ust !rove that dec !ut victi in +ear

E./ severe eotional distress – usually used "hen soeone "ants to adit his

o"n state o+ ind

- Stateents aout state of mind used to !rove ho< dec subse?uently acted – N$'$77ERED 7$R 'R='>o Can dra" an in+erence aout ho" dec acted *r*t S$<

o

-1S &EED T" C"&D!CT ,)0 -&-'1S$S .EE

0illmon 55 , "hen stateent is used to !redict soeone else#s activity –

•


58/87

o E./ I hate you *c se. "*% is etter than se. "*you/B AI hate youB +alls under So<

e.ce!tion/ Rest is +actual assertion/ Pro!onent ar(ues that adittin( only !ortion o+stateent chan(es conte.t and ar(ues +or "hole thin( to e intro#d – intro#d "*liitin(instruction

ule )05,6 7 Statements 2ade for Purpose of Treatment or Diagnosis

! statement that 1. is made for > and is reasonably pertinent to > medical diagnosis or

treatment? !3@ #. describes medical history? past or present symptoms or sensations? their

inception? or their general cause

ule, a stateent to edical !ersonnel that a edical condition really e.isted is adissile +orits truth

- Rationale, reliale *c !atient has otive to tell dr the truth

Reuireents,- Declarant@s motive must be consistent


59/87

R=9E,


60/87

- Don#t need to have C$


61/87

:ES – !rison +i(hts lo( oo6 edical records6 !ersonal activity "hen

!rovin( truth o+ event N$ – lotter*re(ular sel+-servin( in+o6 record o+ unusual event*non-routine

in+oo Sel+-servin( re!orts created in antici!ation o+ liti(ation are IN8D


62/87

$!inions in i? records- =nder trust"orthiness clause opinions have to satisfy the same stds set out in )(#

)0

- 'est, is the !erson "ho ade the record uali+ied to testi+y on the suect- ;hat i+ the records are doctor#s records or uali+y as e.!ert recrods

o

Need to satis+y )aubert std: Is "itness uali+ied*reliale

;ill o!inion >E9P the ury

Is in+o reliale

- Coon e.#s o+ o!inions, doctor records 4ust satis+y @aubert 5, !olice records 4i+soethin( is ovious need not satis+y @aubert 5

ule )056 7 -bsence of 4usiness ecords

%vidence that a matter is not included in a record described in AFB is admissible if 1. theevidence is admitted to prove that the matter did not occur or exist? #. a record was regularly

kept for a matter of that kind? !3@ C. neither the possible source of the info nor other circsindicate a lack of trustworthiness

- %asically6 in+erence that the event didn#t actually occur *c there should e a recordand there isn#to Siilar stu++ as in 0345

o E./ a rental car isn#t on a list – !rintout o+ list adissile to sho" car "asn#t

rented

ule )056 7 Public ecords E9ception

! record or statement of a public office is admissible if: 1. it sets out i. the office2s activities?

ii. a matter observed while under a legal duty ot report, but not including, in a criminal case, amatter observed by lawDenforcement personnel? or iii. in a civil case or against the gov2t in a

criminal case, factual findings from a legally auth2d investigation? !3@ #. neither the source of

info nor other circs indicate a lack of turstworthiness

ule, !ulic records are adissile *c they are !re!#d y (ov#t o++icials and are !resuedtrust"orthy *c their o is to ee! records reliale @e./ seisolo(ical survey

- Rationale, (ov#t records o+ routine atters are !resu!tively reliale/ Gov#t has aotivation to ee! accurate data recordin( a(ency EJIS'S '$ ENS=RE

8CC=R8C:/ Plus accts ade usin( oective6 scienti+ic easures/o 8lso6 too onerous to adit everythin( under 0345 – (ov#t o++icial "ould have to

testi+y every tie soeone "anted to adit soethin(o P9=S6 this includes unusual*non-re(ular recorded activity6 and 45 ust covers

re(ular stu++

Reuireents,- Need to !rove docuent is a (ov#t record

o Seal authenticatin( docuent under rule J)/

- 'rust"orthiness


63/87

o >eavy !resu!tion in +avor o+ trust"orthiness

o Civil cases, urden on o!!onent to !rove records untrust"orthy

4ias of prepper , "hen ias occurs 4racial6 +inancial6 etc56 ust ar(ue +or

e.clusion

• Stron( sho"in( o+ ias reuired

;hat aout opinions in o++icial re!orts 4e./ !ilot error "as cause o+ crash5- DC, you can only e.clude a re!ort that it C$


64/87

o Periodicals

o Video ta!es

- Not an e.hiit6 ust testiony – so ury can#t rin( it into delierations

R=9E 0Q – Residual >earsay E.ce!tion5a6 $n General – under the following circumstances a hearsay statement is not excluded by therule against hearsay even if the statement is not specifically covered by a hearsay exception in

Rule G; or G9,- 5(6 the statement has equivalent circumstantial guarantees of trustworthiness- 5/6 it is offered as evidence of a material fact - 506 it is more probative on the point for which it is offered than any other evidence

that the proponent can obtain through I efforts? !3@- 5,6 admitting it will best serve the purposes of these rules and the interest of ustice

5b6 &otice – the statement is admissible only if, before the trial or hearing, the proponent givesan adverse party I notice of the intent to offer the statement and its particulars, including the

declarant2s name and address, is that the party has a fair opportunity to meet it

DC, the coittee "as "orried that reliale*trust"orthy stateents "ould not e included *cthe hearsay rule is +airly strin(ent6 so they created this e.ce!tion6 based on trusto" do you deterine that a stateent is trust"orthyo Circustances – (uarantee reliaility

"ase by case basis

o Near isses – analo(i?e to another e.ce!tion

3early missing multiple exceptions makes it look more reliable, can weigh

in favor of admissibility

o Corrooration

Criminal cases, no corroboration allowed=

• Stateent ust e adissile on o"n ters to satis+y

con+rontation clause Civil cases, cts look to corroborating evidence

- DC, this is a rule of necessity – only use 0Q "hen you can#t use anythin( elseo Con(ressional intent "as that this "ould e used as a last resort6 not to dilute the

other e.ce!tions

3 8dissiility reuireents o+ 0Q,- Statements must be reliable3trust


65/87

Recanted or re!udiated stateent a+ter ain( it ade other stateents

consistent or inconsistent "ith stateent at issue >as !ersonal no"led(e o+ event*condition descried


66/87

Notes,- 8t trial6 you need to ae a s!eci+ic a oection/ I+ you only challen(e on hearsay

(rounds and raise a on a!!eal6 then you only (et !lain error revie" on a (rounds- Ct has never said that there is an asolute ri(ht to con+rontation also never said that

testiony in o!en ct al"ays satis+ies con+rontationo 8' '$ D$ / potential solutions

• 1/ Produce the declarant +or c-e6 $R

• 2/ 7ind an alternative "ay to (uarantee reliaility

o Sever the trial

Not !re+erred – "astes tie6 oney6 tie

o Redaction

Not e++ective – ury can in+er ho" to +ill in the

lan $nly really "ors "*cons!iracies *c there#s a lot o+

!eo!le

"ors "hen not all CC#s are on trial*havecon+essed

Richardson rule, tae out all re+s to all non-

con+essin( CCs @no 4ruton issue *c not S$ +aciallyincriinatin(

o E!anel 2 uries

Not norally entertained only +or hi(h !ro+ile trials

o Cross-con+essions

"ru- , oth F#s con+ess and i!licate each other –

this is ust doule the 4ruton !role) Need to consider the de+ense ein( ar(ued y each

Fo Scope of #ruton – no ri(ht to con+rontation i+ stateent not o++ered +or truth

N$ PR$%9E< I7,

• F o!ens the door

• %ench trial 4ud(e can +ollo" on liitin( instruction5

• ;hen stateent is in closin( ar(uent


67/87

earsayDC, the (D@ rule is INS8NE S$ onerous6 reuired so any !eo!le to e called to ct

- 8lso the !rocedure "as total %S – cts "ere ust allo"in( e.!erts to evaluate re!orts

and then e c-e#d aout the evaluation so that the re!ort "as not ein( intro#d +or itstruth as hearsay6 ut under Q02 and Q03)

So6 in *illiams $6 +6 the ct tried the sae thin( 4called an e.!ert to o++er an Ao!inionB aout thedata in the re!ort5 and the F ade a a oection

- Di++ers +ro (D@ *co Re!ort not intro#d into evidence

o De+ense (ets o!!ortunity to c-e soeone


68/87

- Ct ust needs to !olice conduit !role – Q03 analysis to !revent e.!ert +rosneain( his o"n analysis into his o!inion testiony

IN C$NC9=SI$N – / 2-" !'ES

- $f a statement is not hearsay under the FE then it is not a confrontation clause

issue- $f a statement is not offered for its truth then no hearsay or confrontation clause

issue

8!!lyin( the Con+rontation Clause to >earsay E.ce!tions- )(5d65(6 – !rior ID

o N$' 'ES'I


69/87

o I+ a rady re!ort6 then its o

o 9a" en+#t re!orts i(ht e a !role

- ),5b65(6 – Prior testionyo 'ES'IERE – (oin( to ar a lot o+ thin(s +or coin( in under residual

e.ce!tion

Ri(ht to 7ace-to-7ace Con+rontationIssue here is not aout hearsay or reliaility aout limitations on presentation of in#courttestimony

- "oy v$ 5!, lac screen around id "ho#s een se.ually aused ct holds this violatesa reuires +ace-to-+ace visiilityo 9ater $VER'=RNED in "raig v$ (@ – +ace-to-+ace isn#t necessary so long as

state interest indiv right to face#to#face6 its o 'his is a uali+ied ri(ht that has een e.!anded to a!!ly to terroris

!rosecutions too- ;hat aout pro se litigantsI

o &ud(e a!!ts stand-y counsel +or s!eci+ic "itnesses and allo"s the to as #s

o Ct says oth ri(hts 4to sel+-re! and +-2-+ con+5 are =89I7IED

%$$$+ ules Governing the Treatment of >itness%asically6 these rules deal "ith competence and impeachment o+ "itnesses

- DC, these rules sho" you ho" the advisory coittee thou(ht aout the rules !re

codi+ication6 there "ere a lot o+ idiosyncratic rules that ade no senseo E./ ADead an#s ruleB – can#t testi+y to (et UU +ro an estate ased on a convo

you had "*the dead !ersono E./ uror can#t testi+y in a case in "hich he hisel+ is a uror/ Duh/

C"2PETE&C1 !'ES

R=9E 01 – Co!etency to 'esti+y in General


70/87

%very person is competent to be a witness unless these rules provide otherwise$ 4ut in a civil

case, state law governs the witness2 competency regarding a claim or defense for which state law

supplies the rule of decision

ule, !resu!tion o+ co!etence/ E.clusion is VER: rare/

R=9E 045 – Co!etency o+ &uror as a ;itness Durin( an Inuiry into the Validity o+ aVerdict or Indictent

5(6 Prohibited Testimony or "ther Evidence – during an inquiry into the validity of a verdictor indictment, a uror may not testify about any statement made or incident that occurred duringthe ury2s deliberations? the effect of anything on that uror2s or another uror2s vote? or any

uror2s mental processes concerning the verdict or indictment$ +he court may not receive a

uror2s affidavit or evidence of a uror2s statement on these matters

5/6 E9ceptions – a uror may testify about whether ,o 5a6 extraneous preudicial info was improperly brought to the ury2s attention?

o 5b6 an outside influence was improperly brought to bear on any uror? *Ro 5c6 a mistake was made in entering the verdict on the verdict form

ule, urors are deeed Ainco!etentB to testi+y aout anythin( relatin( to the delierations thatled to the verdict

- R8'I$N89E, !rotect the sanctity o+ ury delierations6 !revent a sli!!ery slo!e"here everythin( "ould e uestioned and there "ould never e any +inality

- Even i+ soeone loses6 intervie"s urors6 thins there "as a iscarria(e o+ ustice *cthe urors "ere all hi(h – you can@t prove


71/87

o 'his does N$' cover urors not listenin( or isunderstandin( instructions – i+

they are du6 too ad u

R=9E 03 – $ath or 8++iration to 'esti+y 'ruth+ully

4efore testifying, a witness must give an oath or affirmation to testify truthfully$ 5t must be in a form designed to impress that duty on the witness2 conscience

ule, a "itness has to a++ir in soe eanin(+ul anner that he understands the "ei(ht o+ histestiony and assure the ct that he is tellin( the truth

- 'here is no !rescried 4or !roscried5 +or o+ the oath- Needs to "aen the "itness# a"areness that i+ he !erures hisel+ he "ill (o to ail

o I+ they cannot do this then they are not !eritted to testi+y

o %=' i+ soeone has a religious objection8 etc to s"earin(6 the ud(e needs to

!erit the to do it in their o"n "ay

R=9E 1O – E.cludin( ;itnesses @Seuestration

!t a party2s request, the ct must order witnesses excluded so that they cannot hear other

witnesses2 testimony$ *r the court may do so on its own$ 4ut this rule does not authori-e

excluding:

5a6 a party who is a natural person?

5b6 an officer or employee of a party that is not a natural person, after being designated as

the party2s representative by its attorney?

5c6 a person whose presence a party shows to be essential to presenting the party2s claim or

defense? *R

5d6 a person authori-ed by statute to be present

ule, u!on a otion o+ a !arty6 a trial ud(e 2!ST e.clude "itnesses +ro trial e+ore theytesti+y so they can#t hear other testiony trial ud(e can also do this o+ his o"n accord

- Rationale, CC#s can +uc "*each other6 lie to(ether6 chan(e*tailor stories- E.ce!tions,

o Parties to the !roceedin(

o Cor!orate !arties "ho desi(nate a re! "ho can#t e seuestered

o 8 "itness "hose !resence is necessary +or the !resentation o+ the case

E./ e.!erts

o Crie victis

E./


72/87

- Soe circuits have held that ule B(* a!!lies to su!!ression hearin(so Re+lects the notion that trial ud(es have inherent authority to ensure the inte(rity

o+ the !roceedin(so Deals "*+undaental +airness o+ !roceedin(s 4not lie other rules5

o &ud(e needs +le.iility to control hearin(s

R=9E 11 –


73/87

o :ou need to have a good faith reason for calling the $PING they#ll tell the truth i+ you#re on notice that they aren#t !lannin( to

loos lie revival o+ coon la" sur!rise doctrine Soe cts "ill adit the !rior stateent i+ they elieve the (ood +aith

ar(uent

In order +or counsel to !rotect a(ainst sur!rises6 they should,-


74/87

Rule, a !arty ay uestion a "itness aout !rior ad acts on c-e "hen the uestions are !roative o+ character +or t+ulness the !arty %E9IE7 '>8' P%8 $CC=RRED e+ore asin( aout it

o Prevents a +ishin( e.!edition does not reuire enou(h !roo+ that the P%8 itsel+

"ould e adissile

Factors for a ,)0 analysis in this situation,- Dishonest nature o+ the act- Reoteness o+ the act- I!eachent on other (rounds- I!ortance o+ "itness# crediility to case as a "hole- In+laatory nature o+ the act 4(oes to !reudice5- Siilarity o+ ad act to issues in the case 4(oes to !reudice – i+ too siilar6 "on#t e

aditted5- Relationshi! o+ o++erin( !arty to "itness

Typical 4ad -cts

- 7ain( an insanity de+ense- =sin( aliases- 7alse credit card a!!s- 7ailure to re!ort !olitical contris- 7alse e.cuse +or asence +ro "or - 9yin( aout arital status on arria(e license- 7or(ery6 riery6 su!!ression o+ ev6 cheatin(6 and ee??leent- Cries o+ dishonesty*+alse stateents

R=9E 0 – I!eachent %y Evidence o+ 8 Criinal Conviction

5a6 $n General – the following rules apply to attacking a witness2 character for tflness by ev of acrim conviction

- 5(6 for a crime that, in the convicting x was punishable by death or imprisonment for S C year, the ev 1. must be admitted subect to 9; in a civil case or in a crim casein which the witness 5# 3*+ a 1? !3@ #. must be admitted in a crim case in which

the witness 5# a 1 if the probative value of the ev outweighs the preudicial effect tothat 1? !3@


75/87

- 5/6 for any crime regardless of the punishment, the ev must be admitted if the ct canreadily determine that establishing the elements of the crime required proving > or

the witness2 admitting > a dishonest act or false statement

5b6 'imit on !sing Evidence -fter () 1ears > AbB applies if more than C yrs have passed sincethe witness2 conviction or release from confinement for it, whichever is later$ %v of the conviction

is admissible *3'L 56 - 5(6 its probative value, supported by specific facts and circs, #&4#+!3+5!''Loutweighs its preudicial effect? !3@

- 5/6 the proponent gives an adverse party I written notice of the intent to use it sothat the party has a fair opportunity to contest its use

5c6 Effect of Pardon8 -nnulment8 or Certificate of ehabilitation

- %asically ust says that ev o+ a convic is N$' 8DER DE'8I9S/

- #andoval co!roise, (ives a ud(e discretion in alancin( to 8DS !reudice

- $f under 5b66 conduct alancin( test 4super reverse ,)05o $nly aditted +or i!eachent unless !roative S=%S'8N'I899:

$=';EIG>S !reudice Presu!tion a(ainst inclusion *c o+ reoteness only aditted "hen

old crie is soethin( lie !erury or +raud 4convics "*lyin(*+alsestateents5 and "itness has not ee n other"ise i!eached

Rationale, the older the act6 the less it says aout your character

o DC, Soeties !rosecutors "ill (et a continuance ri(ht e+ore trial so they can

(et soeone#s conviction aditted


76/87

o Note, !!l lie Charles EN theyconstitue a PIS

o %='6 i+ F has een


77/87

• I+ contradiction is collateral6 no e.trin ev adissile

• I+ contradiction aout i!ortant as!ect o+ case 4non#collateral5

e.trin ev ay e aditted

4$-S

%ias e.ists in situations "here the "itness has a !redis!osition in +avor o+ soeone6 sho"s !reudice6 has a +inancial or lierty interest in the outcoe o+ the case6 or "here there iscorru!tion

- ;hen considerin( "hether to adit6 as, ho" i!ortant is "itness >o" !roative isevidence

- Coon ias situations,o 7inancial interest at stae

E./ Rodney Hin( has +inancial otive to testi+y v/ co!s in cri case *c

civil case is !endin(o Parents !rotectin( ids

o ;itnesses "ho have entered into !lea "*(ov#t

R=9E 0 – 8ttacin( and Su!!ortin( a Declarant#s Crediility @I!eachin( >earsayDeclarants

When a hearsay statement > or a statement described in Rule GCAdBAEBA"B, A@B, or A%B > has

been admitted in evidence, the declarant2s credibility may be attacked, and then supported, by

any ev that would be admissible for those purposes if the declarant had testified as a witness$+he ct (!L admit ev of the declarant2s inconsistent statement or conduct, regardless of when it

occurred or whether the declarant had an opportunity to explain or deny it$ 5f the party against

whom the statement was admitted calls the declarant as a witness, the party may examine thedeclarant on the statement as if on crossDexamination

ule, allo"s all attacs on "itnesses to also e used on hearsay declarants- Rationale, they are asically testi+yin( so they should al e i!eachale

ehabilitation 7 Devices !sed to Support a >itness@ Credibility

R=9E 01 – =se o+ a ;itness# Prior Consistent Stateents

)(5d65(6546 – these stateents are not ordinarily adissile to ear on crediility 4seen as ani!erissile olster5 ut you can introduce the a+ter 4$N9: 87'ER5 the "itness# character+or t+ulness has een attaced)

- DC, these stateents are 8D6 not +or crediility @DC, noreal di++erence

- !'E, !rior consistent stateents have to oth ;8I' 7$R and DIREC'9:RESP$ND '$ the attac)

o E./ adversary calls your "itness "ho is i!eached y !rior !erury "ant to intro !rior

consistent stateent – N$' 899$;ED *c !erury does not s!ea to the truth o+stateent at issue at trial s!eas to "itness# character GENER899:)


78/87

o E./ drive y shootin(6 "itness on stand says F did shootin(/ $n c-e6 "itness i!eached

y F counsel6 sayin( that on the day a+ter the event6 the "itness said AI sa" nothin(/B;itness says he +elt unsa+e ID#in( the !erson *c dan(erous nei(horhood6 so that "asiediate r.n6 ut a+ter thinin( aout it +or a "hile6 he told close +riend AI need to anu! – I sa" soethin( and need to say it/B

'his stateent to close +riend is the PCS you "ant to intro

>itness attacked for 4-D 2"T$%EI

- :ou should try to sho" that the stateent "as ade e+ore the ad otive could e+ored introduce a !rior stateent +ro this tie

o E./ "itness testi+ies to soethin( that occurred in store v/ storeo"ner6 i!eached y

Aisn#t it true you have (rud(e v/ store *c they +ired youB – attac on otive

Get a PCS +ro e+ore he "as +ired)

$+ PrivilegesPrivile(e rules need to e certain *c o+ !rivate orderin( concerns – "e "ant to encoura(e thesocially ene+icial relationshi!s – need to no" "hat !riv a!!lies and its sco!e e+ore you s!ea

R=9E O01- Privile(es in General

+he common law > as interp2d by cts in the light of reason and experience > governs a claimof privilege &3'%## any of the following provides otherwise > the constitution, a federal

statute? or rules prescribed by #"*+$ 4&+ in a civil case , state law governs priv regarding a

claim or defense for which state law supplies the rule of decision

ule, e.clude relevant and reliale evidence in cases in "hich countervailin( social !olicy

reuires non-disclosure- Party seein( to e.clude on the (rounds o+ !rivile(e has the urden o+ sho"in( that

the !riv in uestion a!!lies- O01 itsel+ does not delineate !rivile(e – 8dvisory Coittee did not "ant to codi+y

o R=9ES

In diversity cases8 state rules of priv apply

In federal ?uestion8 federal common la< applies

R=9E O02 – 8ttorney-Client Privile(e and ;or Product 9iitations on ;aiver

ule, client holds a !rivile(e to re+use to disclose and to !revent anyone else 4includin( the atty5+ro disclosin( a con+idential counication et"een an atty and a client durin( le(al services

- E.cludes in+o that it relevant and reliale *c it is !rotected y this relationshi!


79/87

o Rationale, !rootin( clients ein( truth+ul to attys6 e!o"ers atty value6 !revents

la"yers +ro servin( as "itnesses a(ainst clients

3 reuireents +or invoin( atty-client !rivile(e1/ Client must be seeking legal advice 5as opposed to non#legal advice6

- Creates distinctionso 9e(al v/ ille(al advice 4ho" do a I ill soeone5

o 9e(al v/ nonle(al advice E./ la"yer and dru( dealer !layin( suash6 dealer said +ed searched y house

and +ound soe o+ y +inances I thin they#re (onna search +or dru(s – ct says !riv doesn#t a!!ly dealer ust looin( +or shoulder to cry on

- Its le(al advice i+ usin( le(al sillso Privile(ed – client ass atty to sort thru docs to deterine !riv

o Not !riv#d – atty o!eratin( as +ileoy6 doin( +actual investi(ation a PI could do

- ;hat i+ the la"yer is sou(ht +or ulti!le !ur!oseso &eed to establish that they hat they


80/87

- ule, so lon( as the e!loyee is s!eain( to the cor! la"yer aout a atter in thesco!e o+ his e!loyent6 that counication is !rotected y !rivile(e he

ecoes a client for the purpose of that communication6 ut he is not hisel+ a clientas a "hole

o Reectin( narro" Acontrol (rou!B test6 "hich only !rotected cos et"een attys

and (to Note, !riv does N$' !rotect the in+o itsel+ protects communications -4"!T

the info

Not a !ersonal !riv – the !riv runs bet


81/87

- >o"ever6 PR !eo!le do N$' +all "*in the !riv – all eails on "hich PR !!l are cc#d9$SE '>EIR PRIV

3/ Client must have reasonably anticipated and intended for the communication to be

confidentialRE=IRE


82/87

- %urden is on C9IEN' to sho" soethin( is !riv#d in +irst !lace- %urden to reut this or !rove it +alls into an e.ce!tion is on the G$V#'

>o" does the !riv (et asserted- %elon(s to client6 ut atty has ri(ht to assert it "henever he needs i+ client is

unavailale or relationshi! has ended- Survives client#s deatho Post-death consids could !revent +ree +lo" o+ in+o6 client could still have interest

in estateo Issue is this i!edes search +or truth

>-$%$&G P$%$'EGE

Rule, the !erson "ho holds the !rivile(e ay "aive it-


83/87

Subject 2atter >aiver ule, once you "aive !riv on a !art o+ a counication6counications on the sae suect also (et !riv "aived i+ the disclosure is intentional

- 4ill-erian, % char(ed "*"ill+ully violatin( sec la"s6 said he consulted a la"yer "ho told histhis stu++ "as o so not "ill+ul !rosecutor reuests 899 cos et"een % and la"yer/ >eld,all comms on this matter are admissible under S2> rule "*o S: SE9EC'IVE ;8IVERS 8RE N$' 899$;ED

- Soe courts say that i+ you release in+o to the (ov#t6 EVER:$NE (ets it *c

!ulic record- SE IN7$ to !rove that c-+ e.ce!tion a!!lies *c

there is a !resu!tion o+ !riv

o &ud(e "ill hold an in caera hearin( and deterine y a ore liely than not std that c*+occurred – in these hearin(s6 the !arty seein( in+o can =SE '>E C$


84/87

o PR$%9E< – is the client RE899: seein( advice I+ la"yer says Adon#t do itB and he

does it any"ay >ard to tease out client#s intent

- Seein( advice aout P8S' CRI


85/87

Confidential Communications Privilege, !rivile(e a(ainst s!ouse havin( to disclose 8N:counications et"een his*her s!ouse and hi*hersel+ durin( the course o+ their arria(e

- 7ocused on !reservin( the arital relationshi! at the tie o+ the counication inuestion aout RE9I8NCE

o DC, only "orry aout i+ this !rivile(e a!!lies "ith ad test does not- %oth F and testi+yin( s!ouse hold this !rivile(e – the communictor of the info in

?uestion holds the priv

- $ther s!ouse C8N testi+y6 ust not to con+id in+oo E./ 3eal , N char(ed "*an roery6 eld, she can testi+y to his 8C'I$NS6 ut not to hi sayin( AIroed a anB

F "ill say those acts "ere counicative ut this is y!o, F ills nei(hor "*cro"ar hy!o aove6 ut this tie "i+e is inside and doesn#t

see it ha!!en he tells her/ ;i+e calls o and tells her/ >eld, not admissible b3c doublehearsay

;i+e "ill say its an e.cited utterance6 "hich "ill !ro still hold true here6 ut the

"i+e has N$ PERS$N89 HN$;9EDGE o+ the underlyin( +acts6 so e.ce!tiondoesn#t a!!ly

• 'hat is the hearsay oection6 ut the !rivile(e oection "ill e

that spousal hearsay is not admissible here

Rule, if the communications at issue are those reasonably e9pected to remain confidential atthe time that the communication


86/87

o I+ the only thin( you can introduce is !rotected as a state secret6 '$$ %8D – you

lose)- E.ecutive !rivile(e, allo"s !re? to con+er "*!!l in e.ec ranch6 encoura(es +lo" o+

in+o e.ists at +ederal coon la"o =89I7IED – i+ substantial sho


87/87

Secret Service3Protective Fct – N$' 8 RE89 '>ING- President has statutory ri(ht to secret service !rotection6 "ould asically !revent

anyone +ro ever hearin( anythin( the !re? said

Self#-nalysis – Not reco(#d at +ed co/ la" *c cor!s have duty to investi(ate6 !revent +uture

liti(ation ;ould have a!!lied to in"ard looin( re!orts in "hich cor! o++icials "ould analy?etheir o"n !er+orance

Documents

Evidence Capra