EVIDENCE OUTLINE
Prof. Mark Bonner
Fall 2012

|1 • INTRODUCTION |

I. Trial Context A. types of evidence at trial 1. witnesses 2. real evidence – something tangible related to the case 3. demonstrative evidence – not part of the story, but lawyer wishes to show the jury something to demonstrate something about the case (e.g., experiment; picture of intersection) B. competing stories at trial – two ways stories can compete 1. factual differences 2. differences in inferences drawn from the same facts
II. Policy Overview [values that the evidence rules protect] A. accuracy 1. rationality – does evidence have a rational relationship to the case? 2. reliability – is the evidence credible? B. efficiency – see FRE 403 C. fairness – rules should be party-neutral 1. but note: some rules exclude evidence to one party’s advantage (e.g., evidence that Δ fixed the steps after the accident excluded, b/c we want to encourage Δs to make steps safer) (e.g., Confrontation Clause, guarantees rt of accused in a criminal trial to confront witnesses brought against him) D. danger of misuse of information 1. one solution: limiting instructions 2. but sometimes we’re so skeptical of jury’s willingness/ability to follow limiting instructions, and the potential harm from the evidence is so grave as to outweigh the modest benefits, so we exclude the evidence E. protecting rt to jury trial 1. part of the 6th A rt to a jury trial is the rt to an effective jury – jury must be able to do more than just what the judge says; so judge must protect jury prerogative to view evidence and draw conclusions

|2 • RELEVANCE |

I. Logical Relevance A. as defined in the Rules 1. FRE 401 – relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence a) “any tendency” – sets a very low bar b) “of consequence to the determination of the action” – incorporates the major premise, relational aspect of relevance ← elements of action lay out the grounds of relevance (“facts of consequence”) ← sometimes referred to as materiality – does it matter to the result in this case? c) “more probable or less probable than it would be without the evidence” – think of it as a scale: does putting this piece of information on the scale move it in any direction, by any degree? (just has to be a brick in the wall) 2. FRE 402 – all relevant evidence is admissible, with some exceptions; irrelevant evidence is not admissible, with no exceptions a) relevance as necessary, but not sufficient, to be heard by jury 3. FRE 403 – gives trial judge enormous power to exclude relevant evidence, based on laundry list of reasons – judge as gatekeeper a) trial judge has wide discretion to use 403 power, such that app cts will generally defer, as long as decision is reasonable b) FRE 403’s laundry list – if probative value is substantially outweighed by: ← danger of unfair prejudice, confusion of evidence, or misleading jury ← considerations of undue delay, waste of time, or needless presentation of cumulative evidence B. direct vs. circumstantial evidence 1. common assumption that direct evidence is more powerful – not true 2. direct evidence = testimony that describes a fact of consequence to the action, as perceived by the witness himself a) e.g., “I saw John shoot Jim” 3. circ evidence = a circumstance that together with other circumstances will prove the crime – need for an evidentiary chain (series of inferences) to get from the evidence to the conclusion a) e.g., “John told me he was going to get Jim”; “I saw John walking towards Jim’s house on the night of the murder” 4. remember: evidence doesn’t have to be sufficient to prove your case in order to be admitted – can be admitted as long as it’s a relevant brick in the wall C. Old Chief v. US (I) (1997) (p.54) 1. OC charged with many crimes, one of which was possession of firearm while a convicted felon a) prior conviction is an element to the charge – prosecutor has to prove that OC was convicted for assault causing serious injury b) defense atty offered to stipulate to the prior conviction; prosecutor rejected offer (wanted jury to hear about prior crime, greater chance of conviction) 2. defense arg: type of felony is irrelevant to case at hand, so shouldn’t be admissible (willing to stipulate to prior conviction that falls under type in firearms statute) 3. holding: unanimously rejected OC’s arg a) a trial is not a series of stipulations – jury expects to have some meat b) party autonomy – parties shouldn’t be denied their chosen method of proving their case just b/c other side will stipulate to things they can’t avoid; autonomy concern involved in having an adversarial system in first place c) need for narrative richness – party not confined to proving their case only in a logical way, but also an emotional way ← if you force a litigant to accept a stipulation in lieu of what jury expects from evidence, jury may wonder what’s being held back D. Problem 2A: “Was He Going Too Fast?” (p.62) 1. Gadsby and Reinhart were driving cars, collided on a straight, two-lane highway, both killed instantly; driving conditions optimal, no clues as to cause of accident a) R’s widow brought wrongful death action against G’s estate – offers testimony offers testimony by another eastbound driver (H) that 30 miles west of the point of collision, G’s car had overtaken him going “at least 80 miles per hour” b) defense objection – irrelevant, since 30 miles away is too far; arg that this evidence doesn’t even have “any tendency” because too remote 2. SG: this is relevant, b/c it goes to weight – jury can choose to believe or disbelieve that G continued on at that speed, but it’s a brick in the wall a) sufficiency of evidence vs. admissibility – if H’s testimony is all that π has, unlikely that π would win; but evidence is still relevant and admissible E. Problem 2B: “Flight and Guilt” (p.65) – flight evidence 1. Joe and Andy are mugged; next day, J and A examine mug books and independently identify Carl; later that day, police arrest C at his home a) state offers testimony of Brenda, C’s girlfriend, that at time of arrest, C saw police approaching front door and tried to run out back, but saw police at back, so hid in closet 2. defense objects – ambiguous, since C’s behavior can be explained due to his flight from outstanding warrant (something completely different from charge at issue here) a) prosecutor response: outstanding warrant is 2 years old, and no one has come after C in the intervening 2 years – diminishes likelihood that that’s the reason for C’s flight behavior 3. judge might exclude this evidence, even if relevant, based on 403 – only way to explain to jury the other possible explanation of flight is to introduce evidence of other outstanding warrant – prejudicial F. flight evidence generally (without prejudicial other potential explanation for flight) 1. generally admissible – SC has found such evidence relevant (Allen v. US) 2. but note: doesn’t cause a presumption of guilt or suffice for conviction a) there are other possible reasons to explain flight behavior b) while flight bears generally on guilt, it clearly cannot be taken as proof of some specific elements of the alleged crime (US v. Owens) 3. where evidence of flight is unclear – e.g., Δ couldn’t be located in his usual haunts immediately after the crime a) generally, evidence of Δ’s absence can be viewed as evidence of flight (but not always) b) if other inculpatory factors are present, more likely to be seen as flight 4. lapsed time – inference to be drawn from flight grows weaker as lapsed time b/t flight and alleged crime increases (US v. Jackson) 5. instruction that jury can consider flight as evidence of possible guilt a) may be reversible error if conduct can’t support an inference of guilt
II. Pragmatic Relevance A. FRE 403 – although relevant, evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence 1. “substantially outweighed” – exception has to be large enough 2. “unfair prejudice” – every bit of evidence will be prejudiced against the other party; objection only to unfair prejudice – e.g., danger that jury will respond emotionally to victim photographs, rather than rationally to the evidence put forward by the prosecutor 3. “considerations of undue delay…” – managerial issues, value of efficiency 4. note: no provision allows judge to exclude evidence simply b/c he doesn’t believe it – a judge who does this would be reversed unless the error was harmless B. State v. Chapple (Ariz. 1983) (p.71) – graphic photographs of murder victim 1. Δ on trial for a murder where the body was burned; prosecutor witnesses will testify that “Dee” murdered the victim, and that Δ is “Dee;” one witness will testify that Dee said he shot the victim in the head; prosecutor wants to introduce photographs that show the shot in the head – DCt judge allows the photographic evidence 2. issue – question of unfair prejudice, to extent that it was abuse of discretion for trial judge to allow this evidence 3. holding – danger of unfair prejudice was so great that it was an abuse of discretion a) note: this is probably an atypical view – most cts would be give more deference to trial judge’s gatekeeping decision 4. also note: photographs weren’t necessary to prove the point in question a) cases where photographs would be necessary to prove controverted fact: to prove the corpus delicti, to identify the victim, to show nature and location of fatal injury, to help determine degree of atrociousness of the crime, to corroborate state witnesses, to illustrate/explain testimony, and to corroborate state’s theory of how and why the homicide was committed C. Old Chief, again (US 1997) (p.74) 1. second part of case, dealing with prejudicial aspect of prior crime evidence 2. holding: evidence of prior felony should have been excluded, b/c danger of prejudice was substantial – bad character reasoning a) note: prior criminal acts are treated specially under FRE 404(b) 3. Δ’s offer to stipulate to the crime didn’t negate the relevance of the evidence, but made it so that trial judge abused his discretion in not excluding the prejudicial evidence a) Δ’s prior violent crime isn’t part of the narrative the prosecutor is allowed to tell in trying Δ for the current crime, so concern for narrative richness is outweighed D. Problem 2D: “The Battered Wife” (p.81) 1. manslaughter trial of Donald for murder of ex-wife Virginia; no doubt that D played a role in V’s death, since evidence shows that he called cops saying he had just stabbed his wife a) D’s story: he spent the evening with V, they quarreled, V attacked him with baseball bat; admits he picked up knife, but she just fell into the blade 2. prosecutor’s case-in-rebuttal – offers testimony by counselor at shelter for battered women that 2 yrs earlier, V had sought refuge there for 30 days, during which time she divorced D a) D’s lawyer objects, saying it was irrelevant and prejudicial b) prosecutor’s chain of reasoning: we know what type of shelter it is; V went there b/c she had a belief that D was dangerous to her; V had such a belief b/c D did something to frighten her; therefore, likeliness of instant case being an accident is now less likely, since D has at some point in the past acted (or threatened to act) violently toward V ← arg that D’s disposition to act violently toward V hasn’t abated ← it’s not 2 weeks ago, but it’s also not 20 yrs ago – fairly relevant 3. judge might not have allowed this evidence in prosecutor’s case in chief (too remote, too prejudicial) – but D opened the door to such evidence in bringing up his defense (made this prosecutor arg more relevant) a) Δ’s defense makes the evidence less prejudicial as well, since prosecution now has to prove Δ’s state of mind, character, tendencies E. Problem 2E: “The Exploding Gas Tank” (p.81) 1. R was struck from behind in car; dies of injuries from ruptured fuel tank exploding; R’s widow sues auto manufacturer, arguing that fuel tank wouldn’t have ruptured or exploded if made properly a) Δ auto manufacturer introduces testimony by state trooper that the car that hit R’s car was speeding; also introduces certified copy of a guilty plea entered by the driver of the impacting vehicle to charges of involuntary manslaughter arising from the accident – Δ arg that it was other driver’s negligence that caused the accident 2. on appeal, R’s widow argues that trial ct should have excluded evidence of the guilty plea under FRE 403; in response, Δ automaker argues that plea was properly received to show the speed of the impacting vehicle and establish cause of death a) guilty plea is relevant under FRE 401 (tips the scale, goes to weight) b) FRE 403 arg – evidence has tendency to confuse or mislead the jury as to extent of Δ manufacturer’s negligence – tough for jury to separate out issue of other driver’s negligence, vs. Δ duty to live up to auto standards ← jury might think that there can only be one cause of accident, where in reality both could be causes, and Δ can be held civilly liable 3. SG: judge’s 403 gatekeeping discretion – could look at evidence, see that it’s relevant, decide there’s a danger of confusion, and instruct jury clearly about legal causes F. Problem 2F: “My Insurance Will Cover It” (p.82) 1. two-car accident, b/t L and M; L says, while inspecting damages, “Whoever screws up, her insurance pays. I’m sure my insurance will cover it. They’ll pay for what happened to your Porsche.” a) at trial, M wants to introduce L’s statement 2. L’s objections to admissibility of statement – FRE 411, which states that evidence that a person was or wasn’t insured isn’t admissible upon issue of that person’s negligence a) but note: such evidence can be admitted for other purposes b) and here: M wants to introduce it as part of evidentiary chain – arg that it’s relevant b/c she felt she was responsible, shows some recognition on her part of negligence 3. likely holding: judge will give limiting instruction re FRE 411 and admit the evidence a) note: L’s out-of-ct statement is technically hearsay, but gets in under party admission hearsay exception G. FRE 105 – “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” 1. need to redact evidence so as to only admit that which is admissible 2. not all evidence comes in neat redactable packages – judge may therefore choose to admit the necessary evidence and give jury a limiting instruction H. FRE 106 – “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” 1. completeness doctrine – designed to prevent distortion of evidence by just bringing a piece of the larger picture 2. see, e.g., Problem 2G: “Power Rollback Caused the Crash” (p.84) – one side brought in part of a letter as evidence, other side seeks to rely on other parts of that letter to rebut

|3 • HEARSAY |

I. Underlying Theory – Hearsay Risks, Definition A. definition – an out-of-court statement offered for its truth 1. FRE 801(a) – (c) – “hearsay” defined as a statement (oral or written, or assertive conduct), other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted 2. FRE 802 – hearsay is inadmissible (regardless of relevance), except as under these Rules B. four hearsay risks – misperception, faulty memory, ambiguity/imprecision, lack of veracity 1. other concerns: no chance for jury to assess demeanor on direct or cross; no oath; loss of the “crucible” of the courtroom C. Problem 3A: “Three See a Robbery” (p.110) 1. Lissner (not an eyewitness) spoke to three people who apparently saw what happened a) Plaintalk: “Higgins is the one who did it” ← hearsay plain and simple – out-of-ct statement, being offered to prove the truth of what it asserts (that H is the bank robber) b) Sirchev: “That fellow Higgins went out of here carrying money bags” ← hearsay – prosecution is offering it as evidence that H went out of the bank carrying money bags ← that S said it is irrelevant unless it’s offered to prove what it asserts c) Oblique: “They ought to put Higgins in jail for this, and throw away the key” ← further down the evidentiary chain; but just as in first two examples, prosecutor is relying on O’s credibility – wants jury to believe O ← can’t get around hearsay rule by being indirect in the out-of-ct statement
II. What is a “Statement” A. assertive conduct 1. remember: FRE 801(a) includes assertive conduct within definition of “statement” – the nonverbal conduct of a person, if it is intended by the person as an assertion 2. question of what it means to intend to assert – explored in section on nonassertive conduct B. nonassertive conduct 1. Problem 3B: “Kenworth and Maserati” (p.112) a) Phillip is in his little Maserati, with big truck to his left; light isn’t working, and P can’t see oncoming traffic to the left b/c of the truck; truck starts pulling forward, so P shoots ahead, straight into car driven by Hillary b) hearsay objection to evidence that truck started moving forward (since truck driver isn’t there to testify as to whether and why he moved forward) – judge overrules c) conduct wasn’t assertive conduct – driver didn’t do this to make a statement or send a signal; he just did it (no intent to communicate/assert anything) 2. Wright v. Doe d. Tatham (Exchequer Chamber 1837) (p.112) a) question of whether decedent was competent, whether his will should be upheld ← Δ argued that he was competent, wanted to bring in evidence of letters written to decedent, which seem to show that the writers assumed decedent’s competence (writers of letters all dead, so unavailable) b) holding: letters aren’t admissible ← hearsay rule was developed to enable the opposing party to challenge the credibility and perceptual accuracy of the declarant of the information ← party offering letters is asking jury to rely on just that credibility/accuracy c) note: this is under the old CL rule – today, would almost certainly be admissible ← example of written statement that’s admissible b/c it’s not being offered as proof of the thing asserted – it’s not like the letter says “you’re competent” ← inferences can be drawn, and it’s not hearsay, so long as the inference isn’t what the writer meant to imply 3. Cain v. George (5th Cir 1969) (p.119) a) wrongful death case; person staying in hotel room died of CO poisoning; π claim that heater was defective ← Δ hotel owners offered to prove that in so many years, with so many ppl staying in that room, no one ever complained b) holding: not hearsay, since it wasn’t dependent upon the veracity/competency of other persons ← SG: actually, yes, we’re relying on their credibility… but it’s not in the front of their minds, not thinking “I’m going to leave w/o complaining as a way of asserting that there’s nothing wrong with the heater” ← veracity risks are low – ppl aren’t making a statement by not complaining C. indirect hearsay – US v. Check (2nd Cir 1978) (p.121) 1. Spinelli, undercover cop, is investigating whether Check is involved in selling drugs; Check effectively tells informant, Cali, that he wants to sell Spinelli drugs; if Cali got on witness stand, he could say that Check had incriminated himself; but Cali refuses to testify; so prosecutor has Spinelli testify to what he saw (Cali and Check talking) and then has Spinelli testify to what Spinelli said to Cali, but not what Cali said to Spinelli. a) question: was it hearsay to have S testify to what he told Cali, but not vice versa? 2. holding: yes, it is hearsay to circumvent the hearsay rule in this manner a) out-of-ct statements by witnesses are still literally hearsay – witness can tell what he saw, but not what he said (not for truth of what was asserted) b) jury will infer what Cali said – though S is just repeating what he told Cali w/o telling what Cali said back, jury will be able to infer what Cali said (which is definitely hearsay)
III. Nonhearsay (Hearsay Exclusions) A. 6 nonhearsay uses – statement offered for purposes other than proving what it asserts 1. proponent might say that he is offering them solely b/c they were said and either: a) makes no claim that they are true (might even claim that they were false, e.g., for a libel suit), or b) claims that they’re true, but will prove their truth in another way (i.e., truth of the statement is not the reason why it’s being offered as evidence) B. impeachment by prior statements – prior inconsistent statements 1. Problem 3C: “The Blue Car Ran a Red Light” (p.126) a) Bystander, on direct, says “The blue car ran a red light”; on cross, Δ’s lawyer wants to ask B whether he had said to someone else that the blue car had the green b) offer of prior inconsistent statement isn’t hearsay – not being offered to prove the truth of the prior assertion, but to impeach the witness c) note: if this is allowed, judge will issue limiting instruction that they can’t consider this evidence as bearing on anything other than B’s credibility as a witness on the stand – can’t consider the statement as evidence of its truth C. verbal acts – statements with independent legal significance 1. Problem 3D: “Any Way You Like” (p.127) a) prosecutor offers testimony of Wallis (undercover agent) on what Debra said; if W’s testimony is believed, Δ can be found liable for solicitation of prostitution ← W testifies that D asked him, during massage, whether he was interested in a good time, and further that she said “the cost depends on what you want, but I’m real versatile like, and you can have it any way you like, honey” b) not hearsay: statement has independent legal significance, it itself is the crime ← law attaches consequences to the uttering of these words 2. Problem 3E: “Whose Corn?” (p.127) a) L leased part of his farm to C for 40% of corn C grew; C borrowed from bank, with part of his crop as security; C defaults on the loan, bank seized the corn and sold it to P; L sues bank and P for conversion ← to establish that it’s his corn, L offers his own testimony that C had pointed out corn in double crib and said, “Mr. Lord, this double crib of corn is your share for this year, and it belongs to you, sir” b) not hearsay (though admitted to prove the truth of what it asserts): statement is the formation of an oral K, and therefore has independent legal significance ← not relying on C’s perceptual ability or credibility – bringing statement to show that the substantive law made that corn L’s corn as soon as C said that D. proving effect on hearer/reader – reasonable reliance on the statement 1. Problem 3F: “I’m from the Gas Company” (p.128) a) A suspected there might be a gas leak; before he calls gas company, F comes by, says “I’m from the gas co., can you show me where the pipeline is, so I can check it out?”; as they go near it, F lights a cigarette, everything explodes, A is injured ← Δ gas company wants to argue that A is contributorily negligent, for going so close to what he suspected was a gas leak ← A wants to offer F’s statement to prove that A’s behavior was reasonable b) not hearsay if brought to prove reasonableness of A’s behavior – to show the state of mind of the listener ← not to prove truth of statement, but to show reasonableness of A’s reliance on the statement E. verbal objects 1. Problem 3G: “Eagle’s Rest Bar & Grill” (p.129) a) allegation that Δs were selling drugs out of Eagle’s Rest Bar & Grill b) matchbook with ERB&G logo, found on Δ upon arrest – not hearsay, b/c not an assertion; it’s a statement by whoever made the matchbook, not by Δ ← relevance: tends to increase possibility that Δ was in fact at ERG&B c) mug connected to Δ’s alma mater – not hearsay, b/c the object asserts nothing; it’s an object with a word on it, but makes no affirmative assertion on this matter F. circumstantial evidence of state of mind and of memory 1. Problem 3H: “Anna Sofer’s Will” (p.130) a) Anna died after being hit by bus; her husband Ira can, under substantive law, collect damages for loss of companionship and expected income; Δ insurance co. wants to bring evidence of A’s will, which is full of invectives against I and left him just $1 b) not hearsay: shows state of mind of the speaker (not being brought to prove that Ira is in fact a bum, but that A believed he was, and therefore I wouldn’t have been likely to get the money he’s asking for as damages) ← whether I gets damages depends on A’s view of him, regardless of whether that view was factually correct or warranted 2. Problem 3I: “A Papier-Mâché Man” (p.130) a) Sharon is able to describe a very unusual room; her description being offered via police officer to show that she has this description of the room in her mind b) fact that she has knowledge of this particular room is proof of her state of mind – she may be wrong or right about it being the room in which assault took place, but she has this picture in her mind ← not offering statement as proof that this was the room that she was assaulted in, but to introduce evidence of what’s in her mind ← rely on S’s description of room not to show that description is accurate (will show that accuracy in another way, via independent witness), but to show that she has this picture of a room in her head
IV. Borderland of Hearsay and Nonhearsay A. statements with performative aspects 1. US v. Singer (8th Cir 1983) (p.139) a) issue is whether Carlos lives at a certain address; prosecutor introduces evidence that landlord sent eviction notice to Carlos at that address b) hearsay objection – that it’s being introduced for the proof of what it asserts (it says “Carlos, 600 Wilshire,” they’re trying to prove Carlos lives at 600 Wilshire) c) holding – not hearsay; landlord didn’t intend to assert that Carlos lives there ← landlord meant to start an eviction proceeding – it wasn’t in the front of his mind to assert where Carlos lives ← this is performative statement – not assertive conduct 2. e.g., bookmaking cases – police take incoming calls from what they believe is a bookmaking establishment; statements of unknown callers introduced via testimony of police officers, as proof that the number is of a bookmaking establishment a) standard rule – this isn’t hearsay; unknown callers are acting on what they believe to be true – veracity problem is much more distant b) relying on truth of statements, but w/o intent to assert, veracity risk much reduced B. statements that are not declarative sentences 1. “Look at the red barn,” or “Is the barn red?” – as opposed to “There is a red barn” a) question of how affirmative the assertion should be in order to count as hearsay b) commands and questions do express/communicate various factual points c) but some cts distinguish b/t assertions (hearsay) and commands/Qs (nonhearsay) 2. issue of whether Δ Weeks is “Gato”; testimony of warden that guards/prisoners used “Gato” in reference to Weeks a) 5th Cir held that opponent would have to prove that declarants intended to make an assertion – i.e., that such use could be nonassertive (US v. Weeks, p.142) C. lying and hearsay – Problem 3J: “My Husband is in Denver” (p.142) 1. Barbara tells cops that husband Greg is in Denver (alibi); cops find out that he wasn’t actually in Denver; arrest him; at trial, cops want to introduce B’s statement 2. defense to hearsay objection: govt isn’t asserting statement for its truth – in fact, is asserting that it isn’t at all true 3. SG: this is persuasive – we’ve proved that wife lied; she’s married to G; circ inference that the only reason she lied was to give G an alibi, knowing that he had committed the crime, and to mislead the cops so they wouldn’t find him in hiding a) truth content of statement only matters insofar as lying is circ evidence that provides another brick for the prosecutor’s wall (just like flight evidence) D. significance of disclosure – Problem 3K: “King Air YC-437-CP” (p.144) 1. plane that was used to import drugs into the country illegally landed while on its trip at Bruno’s rural property (which had an airstrip); stayed there several days while it had repairs, then went on its way; cops followed it, arrested them, implicated many others, including Bruno 2. B’s testimony – he was an innocent bystander, not at all connected to the crime; just helped out people with aircraft trouble a) B wants to introduce his out-of-ct statement to Dixon: “B told me in front of six other people that he was storing a King Air at his airstrip” – argues that the fact he said this in public proves his innocence 3. not hearsay: B isn’t offering this to prove the fact of the statement – not to prove that there was a King Air at his place for 6 days a) is actually offering it to prove the absence of consciousness of guilt – basis to infer that he had nothing to hide, no awareness of any illegal activity b) link in a chain, kind of inverse of lying and hearsay example above E. using statements to prove matters assumed – US v. Pacelli (2d Cir 1974) (p.145) 1. question is did P kill Parks; allegation is that he did, and L was there 2. prosecution wants to introduce through L that relatives and friends of P were sitting around after Parks’ body was discovered, acting in a way that is consistent w/ their belief that P killed Parks – planning on hiding L out in Florida, acting worried, etc. 3. holding: this is hearsay a) govt’s theory is that the basis of relatives’ knowledge is that P told them that he had killed Parks b) behavior is to convey to jury P’s confession to his relatives c) this is just like Check – from P, to relatives, to L, to jury (just like from Spinelli, to Cali, to Check, to jury)

|4 • HEARSAY EXCEPTIONS |

** generally speaking: hearsay exceptions in FRE 801(d), 803, 804 - note: 801(d)(1) and (2) are just “exclusions” – not full-on exceptions like in 803 and 804 o 803/804 – these statements are hearsay, but aren’t admissible o 801(d)(1) and (2) – these statements are defined as nonhearsay, rather than as exceptions

I. Exceptions – Declarant Testifying A. prior inconsistent statements – FRE 801(d)(1)(A): The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition… 1. prior inconsistent statements can always be used to impeach (see above), but can also be admitted for their truth, if (1) testifying at trial, (2) subject to cross-examination concerning the statement, and (3) statement is inconsistent with declarant’s testimony (4) given under oath (5) subject to penalty of perjury (6) at trial, hearing, or other proceeding (not in an affidavit) a) one advantage of this limited list of venues is that the statement will likely be recorded; reduces other side’s main objection, which is that the witness is just making the statement up b) however, tilts toward advantaging repeat players in the litigation system that can create the fora where such statements are made; also, those w/money can take depositions 2. State v. Smith (Wash. 1982) (p.158) – pushes “or other proceeding” language a) Smith is Conlin’s pimp; Smith beat her up badly; C signed, under oath (with a notary) an affidavit describing what happened, naming Smith as perpetrator of assault; then C changed her story at trial, named Gomez instead as perpetrator b) prosecutor wants to use C’s stationhouse affidavit to support his theory of the case c) question of whether that stationhouse affidavit is “another proceeding” within meaning of the rule in Washington courts ← note: in federal system, a stationhouse affidavit wouldn’t be viewed as a proceeding (under the language and legislative history of the rule) d) holding (here in WA): construed its evidence rule to include this event as a proceeding; analogized to a grand jury proceeding 3. Problem 4A: “I Got Amnesia” (p.163) – question of “subject to cross-examination concerning the statement” language a) Breen now claiming loss of memory of the event (influence of Valium), can’t remember any statements he made to the grand jury ← problem is that ppl feign memory loss – threatened, paid off, etc. b) cts have uniformly held that feigned memory loss (decision that the judge will make) is sufficient inconsistency with current testimony to warrant admission of prior statement c) SG: Breen is available for cross on the statement, though not for the subject of the statement – “concerning the statement” means concerning the fact of the grand jury testimony, not concerning facts of content of testimony 4. US v. Owens (US 1988) (p.165) – real memory loss a) holding: evidence is admissible – even if he has good-faith memory loss, he is still subject to cross concerning the statement; Rule doesn’t mean opponent is entitled to the kind of cross he’d like, and opponent can ask jury not to trust a witness who doesn’t remember anything b) note: state cts have rejected this ruling B. prior consistent statements – FRE 801(d)(1)(B): The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is… (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive… 1. ordinarily doesn’t come in, since witness is there, giving his story, we don’t need to hear that he said the same thing at other occasions – special circs allowing such evidence a) used to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive b) i.e., this is evidence that witness made a consistent statement even before the improper influence or motive arose 2. example in casebook (p.168) – question of if David was speeding a) pretrial events ← Day 1: Marian comments, “David was driving within speed limit” ← Day 20: D talks to M, perhaps pressuring her to support him at trial (by cajolery, threat, bribe, or appeal to sympathy), but only D and M know ← Day 30: M comments, “David was driving within speed limit” b) at trial, M concedes existence of Day 20 convo on cross – D’s lawyer can bring up prior consistent statement (on Day 1), which rehabilitates witness (occurred before allegedly improper motive arose) 3. Tome v. US (US 1995) (p.169) a) T charged with sexually abusing 4-yr-old daughter while she’s with him during joint custody arrangement; daughter testifies, makes some statements tending to implicate T; prosecutor wants to bring in good prior consistent statements (which are more coherent, since witness stand is a difficult place for a child to be) ← Δ implies that child’s trial testimony was a fabrication so that she could live w/ mother, to change joint custody arrangement – improper motive charge, prosecutor arg that this is his opening for prior consistent statements b) holding: no, since there was no showing that the improper motive wasn’t also present when the prior statements were uttered c) Breyer dissent: Rule isn’t defining exclusive ground for admitting prior consistent statements; at CL, other grounds were available ← by identifying one subset of prior consistent statements as admissible for their truth, drafters didn’t mean to exclude other uses of PCS’s to rehabilitate witnesses when testimony is challenged for other reasons ← even though a pre-motive PCS would be stronger, there are circs where a post-motive PCS is still relevant – the context it provides may give us greater confidence in its accuracy than w/o the statement d) SG: dissent must be right here; and other fed cts agree with this position C. prior statements of identification – FRE 801(d)(1)(C): The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is… (C) one of identification of a person made after perceiving the person 1. usually comes up in criminal case, where there’s a question of whether the eyewitness has ID’d the right person a) Δ will try to shake credibility of witness by suggesting that he doesn’t really remember, and that he’s sure to pick out Δ now since Δ’s sitting at the defense table b) prosecutor may have evidence that in photo array, witness picked out Δ from among 20 similar-looking individuals c) must allow prior statements of identification, as long as out-of-ct identification was made in accordance with const standards 2. State v. Motta (Hawaii 1983) (p.179) a) Wendy is a cashier on duty at a coffee shop that was robbed, Motta is eventually arrested; after the robbery, W talks to police artist and describes the robber, signs off on the artist rendering ← at trial, W identifies M as robber – but it’s a weak case (in-court ID a year or two later, when the only person on trial is the person at defense table) ← prosecutor wants to introduce previous identification testimony – closer to the time of the crime, no other influencing factors a) note: fact that it’s an artist rendering as opposed to a police station lineup doesn’t change the analysis b) holding: only precondition is that W be at trial, subject to cross re the previous ID ← W adopts the picture as correctly reflecting her memory of the robber – can testify to that effect, and the picture would be introduced as evidence 3. US v. Owens, cited in notes after Motta (p.183) a) a prison guard was allegedly assaulted by inmate named Owen; guard lost consciousness; when he came to in hospital, he was visited by investigator, identified O as attacker; when he came to trial, he remembered the hospital investigation, but didn’t remember the assault itself (assertion of memory loss) ← when it came to cross, he couldn’t be cross-examined re the assault, but he did have some memory of the identification in the hospital, and could also be cross’d about other general matters (his biases, etc.) b) question of whether fact that he could be cross’d on other actions but not on the actual assault precluded the admission of the ID testimony under 801(d)(1)(C) c) holding: NO, availability of cross is for cross re the prior statement, which is available, so this evidence is admissible
II. Admissions by Party Opponents – FRE 801(d)(2) A. individual admissions – FRE 801(d)(2)(A) 1. Problem 4B: “Fire in the Warehouse” (p.185) a) M left his truck at C’s auto repair shop; C was out of town at the time; while truck was being repaired, employee D was working w/ a torch on another car, w/in 5 feet of paint storage room; D put down flaming torch to go get a drink; fire spirals out of control, destroying premises and M’s truck; M sues C to recover for loss of truck ← as proof that D’s negligence started fire (and that C is liable via respondeat superior), M calls insurance adjuster (E) – turns out C spoke to E after fire in course of advancing his insurance claim, said “The fire started in paint shed when D put a flaming welding torch on ground too close to fumes.” b) reasons why this communication should be privileged, and inadmissible hearsay ← int in freedom in talking to insurance companies ← C didn’t actually see this, wasn’t a percipient witness ← self-int involved, since C wanted to get insurance co to pay damages c) BUT: an admission doesn’t have to be against declarant’s int in order to be admissible under the party admissions exception ← bottom line: be careful what you say – despite not being a percipient witness, and despite the arguable self-int motive, any admission by a party can be admissible, as long as relevant 2. Bruton v. US (US 1968) (p.190) a) E and B on trial for robbing a postal facility; E had made a statement, “B and I did it” – an admission which govt can use to prove E’s guilt; judge decided to admit statement with limiting instruction that it wasn’t to be considered as to B’s guilt ← B’s arg: limiting instruction isn’t enough – can’t trust jury in this situation b) holding: confrontation clause is offended by this evidence, should have been excluded c) other alternatives available to govt ← redact statement, to get rid of all reference to B’s involvement ← give up using the statement altogether ← have two separate trials, one for B and one for E ← have one trial with two juries (more efficient) – Δ-specific evidence will be heard by jury for that particular Δ 3. Problem 4D: “His Master’s Car” (p.193) a) N works as delivery man for Ace; while working, N negligently runs over O’B; a month later N loses his job for unrelated reasons; six months later, N tells O’B that “the brakes just failed,” and “I was speeding” at the time of the accident b) O’B sues both N and Ace for personal injuries ← at trial, O’B offers N’s statement in evidence as proof that the brakes were bad and that N was speeding; Ace objects that the statement was hearsay c) N’s statement is indeed inadmissible hearsay, since N wasn’t employed by Ace when the statement was made ← “I was speeding”: relevant and admissible as to N (party’s own admission) ← “brakes failed”: not relevant as to N; not admissible (tho relevant) as to Ace B. adoptive admissions – silence as an adoptive admission – FRE 801(d)(2)(B) 1. in some circs, would expect a person to speak up if the things said are untrue; jury could find that failure to deny a statement adopts it as true a) classic case: after death of testator, safe-deposit box is opened in presence of the executor of the will; in the box is a box full of bills, bank officer counts out bills in presence of executor, says there are $10,000; executor says nothing in response – issue is whether there was $10,000 ← from the executor’s silence, one can infer that executor adopted the statement of the bank officer – if it weren’t so, the executor would speak up, since he would be responsible for accounting for the contents b) judge’s role – to decide whether or not the circs offered could reasonably support a jury in finding adoptive admission ← has the proponent of the evidence shown that the statement was made, that it was made in the presence of the party who will be saddled with the admission, that it was made in lang that the party understands, etc. 2. US v. Hoosier (6th Cir 1976) (p.196) a) in Hoosier’s presence, the girlfriend says “that ain’t nothing, we had sacks of money in the hotel”; H said nothing b) holding: there’s enough evidence to encourage jury to find that H adopted the statement as his own ← surrounding circs permit inference of silence as adoption – R is H’s friend; H told R several days before that they were going to rob a bank; etc. 3. Doyle v. Ohio (US 1976) (p.198) – interplay of silence as adoption and Miranda rights a) D and W are convicted of selling marijuana to Bonnell (informant) ← defense says that D and W weren’t selling drugs, but was buying drugs; has a story about why the money ended up in their car ← prosecutor argues that W didn’t tell this story previously – if this were true, why didn’t W tell the police that in the first place, why wait until trial? b) Δ arg: prosecutor can’t use their silence against them, since they had been told that anything they said could be used against them, in the Miranda warning ← arg that this is a violation of 5th A and DPC rights – effectively lulled into believing silence was their best protection ← note: this is post-arrest, post-Miranda c) holding: post-arrest, post-Miranda failure to offer an exculpatory explanation in response to official questioning may not be used to impeach when Δ offers an exculpatory explanation at trial d) Stevens dissent: impeachment use should be allowed, but not substantive use ← 5th A protection waived by Δ’s decision to testify – having taken the witness stand, he gives up protection implicit in Miranda warning 4. later cases pushing at the Doyle rule a) Jenkins (note 2) – silence was pre-arrest ← pre-arrest silence may be used to impeach (no Miranda warning, not coercive) b) Fletcher (note 3) – silence was post-arrest, pre-Miranda ← holding: post-arrest, pre-Miranda silence may be used to impeach ← take Miranda out of picture, and Doyle rationale collapses C. admissions by speaking agents (person authorized by the party to speak on the matter) – 801(d)(2)(C) 1. basically three types of people who are authorized to speak for another party a) public relations person – that’s their job, to speak for another party b) high officials of a corporation – have authority to speak for the corp c) lawyers and other agents (e.g., brokers) – agency relationship d) and others specifically designated D. admissions by employees and agents, w/in scope of employment – FRE 801(d)(2)(D) 1. criteria for admission under this exception a) made by the servant or agent b) concerning a matter within the scope of the employment or agency c) made while the employment or agency is still in existence – allegiance to a principal is more likely to be present during the term of the employment/agency relationship 2. Mahlandt v. Wild Canid Survival & Research Center (8th Cir 1978) (p.207) a) alleged attack of a wolf on a child; no one saw the incident; pretty strong evidence that the wolf didn’t assault the boy, and that the boy’s injuries happened when the boy crawled under the fence; jury finds for Δ center b) on appeal, π argues that three statements should have been admitted ← two were made by Mr. Poos, in whose yard the wolf was – employee of center, was keeping the wolf in his yard, to show her off at schools a) after he heard about incident, he sent note to president of the center: “Call me at home, Sophie bit a child that came into our backyard” b) later meets president at the center, tells him “Sophie bit a child today” ← third statement: minutes of board of center – says “there was a great deal of discussion about the legal consequences of Sophie biting a child” c) holding: first two statements should have been admitted (abuse of discretion not to) ← lack of personal knowledge by the party-opponent isn’t valid basis for exclusion of statement – jury may reject the conclusion, but opponent has right to introduce it to jury ← third statement isn’t admissible against Poos (party-Δ), since principal’s statements aren’t admissible against the agent (no reverse agency principle) a) and it’s substantively the same as against Δ center, so it wasn’t necessary – not abuse of discretion for trial judge to exclude it 3. Problem 4G: “I Was on an Errand for My Boss” (p.213) – bootstrapping problem a) R is driving a truck bearing legend “Farmright Produce Corp.,” and has accident with car driven by S; no personal injury, but S’s car is significantly damaged; 30 minutes after accident, R says to S, “I was making a delivery for Farmright, and got distracted for a moment trying to read the purchase order on my clipboard.” ← power evidence against R – party admission of own negligence ← but as against Farmright – π has to prove that R made statement w/in scope of employment b) can’t use statement itself to prove elements of the statement – need external proof that R was acting within scope of employment ← “The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D)…” ← judge can’t rely solely on statement for foundation, but can be part of analysis ← without other evidence, jury will NOT hear contents of statement – judge’s role as gatekeeper, preventing jury from hearing the admission E. co-conspirator statements – FRE 801(d)(2)(E) 1. three elements for admission under this exception: a) statement must be made by a co-conspirator b) during the course of the conspiracy c) in furtherance of the conspiracy 2. Bourjaily v. US (US 1987) (p.216) a) drug conspiracy case; informant G arranges a sale of a large amt of cocaine through L; question is whether, in proving charge against B, L’s statement to G is admissible ← question of bootstrapping again – can ct only look to independent evidence in verifying existence of conspiracy, or may it also look to statement itself? b) holding: ct may look to the statement itself as part of the foundation of its admissibility, as long as that statement isn’t the whole of it ← “The contents of the statement shall be considered but are not alone sufficient to establish … the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered …” c) note: some jurisdictions might shift the “segregated” statements from the judge to the jury (i.e., jury has to make factual determination as to admissibility, and only then can they consider statements w/r/t guilt) 3. Problem 4H: “Drugs Across the Border” (p.225) a) Bud and Carol made statement to Connie implicating Arlen in conspiracy, as Connie drives them to airport to catch plane to Colombia ← might not be “in furtherance of the conspiracy” – though govt could make the arg that it was, on grounds that Bud was trying to reassure Carol (motive to allay cold feet), even though he was technically making statement to Connie ← generally, though, cts would likely find that nothing about this convo furthers the aim of the conspiracy, and exclude this as “idle chatter” b) Arlen, meanwhile, makes statement to Don implicating Bud, while arranging to make sale of cocaine to Don ← admissible: during course of conspiracy and in furtherance of it; evidence (in statement itself and external) to show that Arlen and Bud were coconspirators c) Carol is later arrested, makes a post-Miranda statement to DEA agent implicating Bud ← not admissible – a co-conspirator’s participation in a conspiracy is at an end when she is arrested, so temporal element isn’t met ← after arrest, she might be trying to curry favor with authorities, so veracity risk
III. Unrestricted Exceptions ((apply regardless of whether declarant is available as a witness)) A. present sense impression – FRE 803(1) 1. “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” a) b/c of short timeframe, danger of memory loss is virtually nil, and danger of veracity is much reduced; danger of misperception still exists, though 2. Nuttall v. Reading Co. (3d Cir 1956) (p.227) a) want to establish that N felt forced to come into work on the day he died; testimony of N’s wife re N’s end of phone convo with boss b) holding: admissible, b/c it describes an event while it is going on or immediately thereafter – N’s present sense re the pressure emanating from his boss ← there’s a present sense impression buried among the inferences B. excited utterances – FRE 803(2) 1. theory is that a statement made relating to a startling event/condition, while under the stress of excitement caused by the event/condition, has indicia of trustworthiness – b/c the excitement reduces the likelihood of prevarication a) wouldn’t have had time to calm down and think of a story – veracity risk is reduced b) criticism that it’s when you’re most excited that you might perceive things wrongly – this may be true, but argue it to the jury 2. note: 801(2) exception doesn’t have the same temporal req’ts as 801(1) a) usually won’t be days later, since stress subsides; adults will generally be in stress for a shorter period of time than children – but cts make no ironclad limits 3. US v. Iron Shell (8th Cir 1980) (p.232) a) critical issue was whether the assault on 9-year-old Lucy was with intent to commit rape (not whether or not Δ committed assault, but what his state of mind was) b) one statement, where L told a neighbor, immediately after event (pulling up her pants and crying), “That guy tried to take my pants off” ← admissible: happened nearly contemporaneously, L is clearly excited at time, and not responding to any question but voluntarily offering statement c) second category of statements happened later on ← more difficult to admit, since L could have calmed down in interim – prosecutor has to satisfy judge that later statements were caused by excitement ← holding: admissible; judge decided that L could have been (and was) still excited over the event at that point in time, and coaxing (questions asked) wasn’t excessive – veracity risks still much reduced 4. Problem 4I: “I Felt This Sudden Pain” (p.238) a) S allegedly suffered fatal heart attack while on the job; under substantive law, must show that the heart attack was a result of the job ← at 10am, came back home and told wife, “I felt this sudden pain just a few minutes ago when I had to lift one of those 30-gallon cans out on the Chase” b) can’t use present sense impression, since too much time has elapsed c) defense arg against excited utterance exception – there’s no proof that he was excited other than the statement itself (bootstrapping) ← but nothing in the rule excludes such bootstrapping – can use statement to prove declarant was excited, so the statement is admissible C. state of mind – then-existing physical, mental, or emotional condition – FRE 803(3) 1. “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will” a) danger of misperception is virtually nil; danger of lack of memory is virtually nil (saying what is true at the moment); danger of ambiguity is arguably reduced; danger of lack of veracity is still present, but we don’t have to cross out all dangers to justify a hearsay exception b) see examples, class notes pp.33-34 2. Problem 4J: “He Says He’ll Kill Me” (p.243) a) prosecutor wants to introduce Q’s statement that N threatened to kill him b) admissible if the charge is extortion – Q’s statement is an expression of his fear (element of extortion); limiting instruction that it can’t be seen as evidence of murder c) not admissible if charge is murder – Q’s state of mind irrelevant to murder charge ← might be admissible in some cases as rebuttal evidence a) e.g., if N argues self-defense: prosecutor could bring this statement to show that Q wouldn’t have taken the first swing b) e.g., if N argues that they were hunting and the blast was an accident; could bring statement to show that Q wouldn’t have gone hunting w/N 3. in-class example: Tony says he loves Maria a) admissible to prove that he loves Maria at the time (then-existing condition) b) “I was in love with Maria last year” – inadmissible, b/c it’s backward-looking, can’t be brought to prove fact remembered ← note: would be admissible to draw inference that T loved M a week earlier or a week later than the statement declared – hearsay rule isn’t implicated, since it’s just a straight-up inference from a statement (circ evidence) c) “I don’t love you anymore” – not admissible to prove that he previously loved her, since that would be backward-looking ← in order to admit it, divide it into two parts – first part (inadmissible) is that he loved her once; second part (admissible) is that he currently doesn’t love her D. state of mind – subsequent conduct 1. Mutual Life Ins. Co. v. Hillmon (US 1892) (p.245) a) battle over life ins policy; ins co thinks the body isn’t H’s, but is in fact W’s (that W died and his body is being presented as H); co wants to introduce several letters that W had written to his fiancée, declaring his intent to leave Wichita for Colorado b) holding: letters are admissible for their truth – it was certainly W’s intent to go to CO ← ins co can then circumstantially infer that W did in fact do what he intended – inference step, no hearsay rule involved here 2. the Hillmon problem – sometimes, the intent of two ppl are relevant a) People v. Alcalde (CA 1944) – victim is murdered, boyfriend Frank is suspect; prosecutor wants to introduce evidence that she intended to have dinner with F that night in order to prove that she was with him that night – but there’s no evidence that F intended to have dinner with her ← if she intended to have dinner with him, there was probably a prior arrangement b/t the two which she is remembering in making her statement ← but if that’s what we’re doing, then it’s a backward-looking statement – but isn’t this necessary in order to draw inference that F was in fact there? ← this problem was addressed in Pheaster 3. US v. Pheaster (9th Cir 1979) (p.248) a) Larry tells girlfriend and another friend that he intends to go to parking lot to get a free pound of marijuana from Angelo; L doesn’t comes back, is never found; A is charged in fed ct, and prosecutor wants to introduce L’s statement ← hearsay if offered to prove that A told L to meet him; admissible to show L’s intent (state of mind) – but can L’s intent place A in the parking lot? b) holding: evidence is admissible – policy reasons in favor of allowing it ← sometimes it’s really necessary – e.g., here, where victim is dead ← L is acting on his memory – declarant actually did something in reliance on the fact remembered (that A told him to meet him); could argue that there’s greater reliability here, since the memory was acted upon c) note: division in the cts, and within Cong ← everyone agrees that declarant’s statement that he intended to go to Philly can be admitted as proof that he went to Philly; but split over whether the statement that X wants to do something with Y meant that Y wanted to do that something with X as well 4. US v. Annunziato (2d Cir 1961) (notes case, p.255) a) A is charged with taking bribes; he tells Harry the contractor that if he wants the job done, he has to give him some money; H died before trial; H’s son testified that his dad had said that A called and requested some money ← issue: can H’s son’s statement be used to prove that A made that call? it’s backward-looking (used to prove something that happened in the past) b) holding: statement admitted ← it’s in the immediate past ← future action closely related to the retrospective component – H was doing something right then based on the immediate past event; the future is so closely related by design to the past that we’re going to let it all in, won’t draw a line b/t the two c) note: Annunziato is a stronger case than Pheaster, b/c time compression is much closer E. statements to physicians – FRE 803(4) 1. “Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment” a) subjective – must be made for purpose of medical diagnosis or treatment b) objective – must be reasonably pertinent to diagnosis or treatment 2. Blake v. State (Wyo. 1997) (p.258) a) question: whether identity of perpetrator of sexual abuse is reasonably pertinent to medical diagnosis and treatment ← ascription of perpetrator is usually not w/in contemplation of the exception; but question w/sexual abuse is whether physician should know identity of abuser for purposes of treatment (counseling, separation from home, etc.) b) holding: such evidence was properly admitted as relevant to diagnosis/treatment ← note: other cts have held this as well c) criticisms of Blake – troubling, even though Δ could call its witness to counter this evidence – b/c it’s not Δ’s job to prove his innocence, but burden of state to prove his guilt beyond a reasonable doubt d) note: age of victim – caselaw hasn’t gone so far as to allow such evidence in cases where the victim of sexual abuse is an adult 3. rationale for FRE 803(4) a) ppl are careful in describing physical symptoms and other conditions to physicians b/c they want to be diagnosed and treated properly – not likely to have veracity problems, and also unlikely to have ambiguity problems b/c if declarant is unclear, physician will probe to clarify b) this exception becomes impt when talking about past injuries, especially since 803(3) and 803(1) won’t let us describe how we felt in the past ← note: some states are concerned about the memory problem, so they allow statements of current symptoms, but not past symptoms F. past recollection recorded – FRE 803(5) 1. “A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party” a) elements of the exception ← memorandum or record – can include, e.g., an audio tape ← insufficient recollection to enable witness to testify fully and accurately ← record was made when matter was fresh in declarant’s memory – note: doesn’t necessarily have to be contemporaneous ← reflects the knowledge accurately b) most famous case example of this exception: Δ posed as a mover, took a family’s antiques, and never appeared with them again; lots of antiques, and owners couldn’t remember them all; but one of the owners had made an inventory list as they were being removed from the house; at trial, owner couldn’t remember all the items, looked at the list and still couldn’t remember all of the items, so prosecutor wanted to offer the list for the truth of what it asserted ← admissible – trustworthy list; we have greater confidence in the list than in the witness’ 3-year-old memory of the items and the event c) fewer memory and perception problems ← when veracity concern is high, ct might not allow it; however, you don’t see many cts in the caselaw calibrating veracity concerns 2. Ohio v. Scott (OH 1972) (p.266) a) Carol had originally given a statement to the police implicating her boyfriend; is now creating an alibi for him; prosecutor attempts to use 803(5) to get old statement in b) holding: statement was properly admitted under this exception ← logical basis of this rule: distinction from “present memory refreshed” (use of memorandum to refresh witness’s memory, witness then testifies naturally) – here, witness’ present recollection is still absent after seeing the memorandum ← application of rule to facts – all elements are met c) criticisms of this holding ← memory should be fully empty – at CL, if witness could testify partly, though not fully, about the event, then that was enough (exception didn’t apply) ← must try to revive memory first – you have to make proponent establish need first, which wasn’t done here G. business records – FRE 803(6), (7) 1. elements of the business records exception (FRE 803(6)) a) record is made in the ordinary course of business b) it is the regular course of the business to make such records c) based on the maker’s own knowledge, or knowledge of someone else in the business d) it is made at or near the time of the events it records e) it is trustworthy 2. rationale behind this exception: ppl who are testifying in ct re business have motivation to be correct, b/c if wrong, would have deleterious consequences for business 3. note on interplay with FRE 805 (hearsay within hearsay) – hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules a) if business record, made by Bob, states “George said…” – can be admitted to prove that George said X, under business records exception b) need another hearsay exception for record to be admissible for truth of what G said 4. Petrocelli v. Gallison (1st Cir 1982) (p.272) a) Petrocelli’s lawyers discover two documents in which it is written that his nerve was severed, want to admit this under FRE 803(6) to prove that the nerve was severed; one of the reports was written by Dr. Swartz, who was not called; probably would have testified, if called, that he was just repeating what was told to him – which makes the value of the business record virtually nil ← trial judge excluded evidence because he had no confidence in the statement b) holding: no abuse of discretion in excluding statement – failed the personal knowledge of the source req’t of FRE 803(6) ← info in the report could have come from Petrocelli or his wife c) note: even if internal statement isn’t Dr. Swartz’s opinion and can’t come in under 803(6), it’s still a medical diagnosis – why didn’t Petrocelli try FRE 803(4)? ← strategic decision – if jury was told that the source of the information was one of the Petrocellis, it would have no probative value (as compared to the great value it would have had had jury been asked to conclude that it was Dr. Swartz’s opinion, had it been deemed a true business record) 5. Norcon, Inc. v. Kotowski (Alaska 1999) (p.278) a) business record is a memo by Ford, who works for Purcell, which was working with Norcon on the cleanup; Kotowski is employed by Norcon; after allegations of misconduct against Posehn, Ford does an investigation and writes a memo, which is a business record. In the memo are statements by two employees who say that Posehn had a lot of females in his room and that he would do favors for his female crew in exchange for sexual activity; she wants to get the statements in for their truth b) holding: not error to admit the Ford memo, b/c Coyle and Stampley (the two employees who made statements) were agents speaking at a time when they were employed by Norcon; as supervisors and safety employees, alcohol use and sexual harassment are matters which their jobs required them to report, especially in response to an employer-initiated investigation c) two potential methods for admission ← 801(d)(2) vicarious admission – use 803(6) to allow proof that employees said what the business record said they said, and 801(d)(2) to admit inner level of hearsay (sexual harassment) ← 803(6) business record – use statements of Norcon employees as part of the Ford business record; even though C and S aren’t in the Purcell business, they are in the Norcon business, which is affiliated a) unusual use of 803(6), when there is more than one business involved b) advantage of treating it all as an 803(6) exception is that either side could offer the evidence – under 801(d)(2), only opponent can admit it 6. Palmer v. Hoffman (US 1943) (notes case, p.283) a) Δ railroad tried to introduce a report it made exculpating it from responsibility for an accident b) holding: ordinary business of a RR is running trains, not investigating accidents ← too many credibility problems in the report, given incentives of the RR, so 803(6) doesn’t apply c) problems with this holding – it is in the business of businesses to investigate accidents involving their equipment/etc. – this opinion had blanket effect of saying that all accident reports by companies are inadmissible ← many felt that this was going too far – that this should be a discretionary exception to the 803(6) exception d) response to Palmer – FRE and cases following it don’t exclude all such accident reports; instead, make admission of such reports contingent on trustworthiness factor ← exclusion should turn on fact that this particular report was untrustworthy, not that all accident reports by companies are untrustworthy H. public records – FRE 803(8) 1. elements – Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: a) the activities of the office or agency; or b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases, matters observed by police officers and other law enforcement personnel; or c) in civil actions and proceedings against the govt in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circs indicate lack of trustworthiness ← note: “lack of trustworthiness” likely applies to whole rule, not just (C) 2. Baker v. Elcona Homes Corp. (6th Cir 1979) (p.285) a) intersection collision b/t car and truck; no witnesses; Slabach (driver of Elcona Homes truck) survives; all passengers in the Valiant die; question of who had right of way ← cop Henderson, arriving at scene, interviews S while he’s conscious, writes report concluding that Valiant had a red light ← after H got off the stand (w/o being asked about his opinion re fault), Elcona introduced the report b) holding: this report can be included under FRE 803(8) ← ct quickly disposes of 803(8)(B) issue – it was H’s job to investigate accidents ← question is whether this is “factual findings” under (C) a) narrow reading: H’s opinion isn’t a factual finding, but an inference drawn from factual findings b) ct rejects this narrow finding, as does SC in a later case c) rationale of the rule, as applied to these facts ← skill of the official ← timeliness of the report after the event – deals with memory concern ← motivational problems – does report author have axe to grind? trustworthiness d) note: report itself can be admitted under 803(8); can’t be admitted as proof of the truth of S’s statement unless there’s another hearsay exception invoked to cover that bit 3. US v. Oates (2d Cir 1977) (p.292) a) govt called another chemist from the same office as Weinberg, who couldn’t make it; she testified that the substance was heroin, using W’s lab report and notes; Δ objects that she can’t be vehicle for W’s notes b/c he is here to cross-examine W b) holding: report and notes don’t satisfy 803(8) exception ← 803(8)(B) excludes matters observed by other law enforcement personnel ← 803(8)(C) allows such evidence in proceedings against the Government in criminal cases, but not against the accused. a) embraces the view that Cong intended to prevent use of the rule to allow the govt to present trial by affidavit c) rationale – when we move from private businesses to public officers, and if we imagine a criminal prosecution, we hold out specter of serious confrontation clause problems 4. text of the rule – (B) “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.” – if you read that literally, can’t be offered into evidence by anyone, accused or govt; however, confrontation clause only protects accused, not govt; paradoxically, that’s just what (C) does a) H’s report can be offered by the accused against the govt, but not the other way around 5. another discrepancy – (B) talks about “other law enforcement personnel” and (C) talks about “pursuant to authority granted by law”; ct in Oates proposes to interpret them more or less equally; but latter phrase can anticipate a report done by someone who is not a police officer or other law enforcement personnel a) the cts have glossed these rules to make sense of them I. learned treatises – FRE 803(18) 1. at CL, a learned treatise could generally only be used to undermine credibility of the other side’s expert witness – can establish treatise as authoritative and use it to rebut other side a) but couldn’t admit learned treatise for its truth 2. under Rules – can be admitted for its truth a) must have expert on the stand, in either direct or cross b) authoritativeness of treatise can be established by any expert witness or by the ct ← oftentimes, opponent will refuse to recognize treatise as authoritative, so you may have to rely on the ct c) can use the treatise in your direct case (not just in cross or rebuttal) – can bolster your expert’s opinion with a favorable authoritative treatise d) note: treatise is read to jury, not entered into evidence as an exhibit
IV. Exceptions – Declarant Unavailable A. the unavailability requirement – FRE 804(a), five categories of “unavailability” 1. declarant claims privilege and thus can’t be questioned on the subject matter of the statement a) if a privilege against self-incrimination, govt can make that witness available by granting immunity; but note: govt can choose to not grant immunity if they want witness to be unavailable; cts are hands-off, allow govt to take approach it wishes 2. declarant persists in refusing to testify concerning subject matter despite ct order to do so 3. declarant testifies to a lack of memory of the subject matter of the statement a) paradox created b/t FRE 801(d)(1)(A) and 804(a)(3) – witness’s testimony may be admissible under 801(d)(1)(A), requiring that declarant be “subject to cross,” while simultaneously being unavailable under 804(a)(3) – may remember making the statement well enough to be cross-examined about it, even though he has forgotten the underlying events – but is “unavailable” precisely because he has forgotten the events 4. declarant is unable to be present or testify b/c of death or physical/mental illness/infirmity 5. absent from hearing, and proponent of statement has been unable to procure declarant’s attendance (or testimony, in cases of hearsay exception under subdivision (b)(2), (3), or (4)) by process or other means a) eg., you’re outside of subpoena power of ct, and they can’t get you to come voluntarily b) proponent must work to get declarant into ct c) duty to get testimony in the form of a deposition doesn’t exist for (b)(1), which provides for introduction of prior testimony – you already have prior testimony; for (b)(3) or (4) you don’t have prior testimony d) a judge will be sensitive to costs involved 6. the cold feet exception to unavailability a) declarant is not unavailable as a witness if exemption, refusal, claim of lack or memory, inability, or absence is due to the procurement or wrongdoing of proponent of a statement for the purpose of preventing the witness from attending or testifying B. former testimony exception: FRE 804(b)(1) – prior cross-examination requirement 1. “Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” a) note: in civil actions, allow predecessors in int – if a person other than you had oppty and motive at prior proceeding, and is predecessor in int, it’s admissible against you 2. Barber v. Page (US 1968) (p.___) a) B is on trial in OK state ct; at preliminary hearing, B and W are defended by P; W drops rt against self-incrimination and P stops defending him, did not cross W after W incriminated B; P didn’t cross W because as a former client, P couldn’t properly cross him; govt offers former testimony by W for use against B b) holding: former testimony not allowed, b/c state didn’t try to procure W as a witness; thus he can’t be said to be unavailable ← OK had obligation, under confrontation clause, to try to bring W in as a witness, before it can use this unavailability exception 3. Problem 4L: “The Government Let Her Go” (p.304) a) Masters tried for importing cocaine when he and a 17-year-old Australian woman named Jane Shell are arrested as they arrive in Puerto Rico on a plan flight from Peru; JS was searched, contraband found, and arrested ← JS arrested and detained, gave statement that led to RM’s indictment; prosecutor takes her deposition, then gave her her passport and ticket home b) at trial, JS refused to arrive to testify – govt argued that she was unavailable ← defense argues that she shouldn’t be considered unavailable, since the govt let her go (procured her unavailability) ← prosecutor arg: such a read on ‘preventing witness from attending or testifying’ would encourage govt misbehavior (keeping her locked up that long, etc.) c) in real case, defense won – ct found that govt hadn’t made a reasonable effort to get her to come back to testify (offer plane tickets, nice hotel, etc.) ← also, govt didn’t have to keep her locked up – could have put her up in hotel 4. Lloyd v. American Export Lines, Inc. (US 1978) (p.311) – predecessor in int a) at issue: who was the aggressor as b/t A and L; AEL wants to introduce evidence from previous hearing in which L testified and A didn’t have oppty to cross; at that hearing, L said that A started the fight; A argues that he didn’t have oppty to cross b) holding: evidence admitted – A didn’t cross L, but US govt did ← lawyer from Coast Guard was seeking to prove that A started the fight, so ct here views him as a predecessor in int c) Stern concurrence ← disagreement with majority – points out that they’re wrong, in regard to the legislative history; CG isn’t a predecessor in int, since he’s trying to get at the truth, not advocating for A, didn’t have the same motives ← why Stern concurred – “catchall” exception, FRE 807 (if a statement that doesn’t fit w/in a category has indicia of trustworthiness, can be admitted) d) impact of this holding – judges can read “predecessor in int” to have very few teeth ← judges want to allow valuable testimony; collapse “predecessor in int” into motive and oppty as though they were synonymous ← though note: most cts probably wouldn’t hold as Lloyd did C. dying declarations – FRE 804(b)(2) – interesting, but rarely arises 1. dying declaration is admissible in a homicide case where the declarant is the victim a) theory: ppl who know they are dying won’t go to their maker with a lie on their lips b) additional limitation: statement can only be concerning the cause or circs of what the declarant believed to be his impending death 2. note: today, declarant doesn’t have to actually die for this exception to apply D. declarations against interest – FRE 804(b)(3) 1. introductory notes a) if it’s a party statement being used against the party, then it’s a party admission, and doesn’t have to be against interest in order to be admissible b) theory: ppl generally don’t make statements that hurt themselves, but when they do, we can have significant confidence that the statement is true ← weakness of confidence in this is shown by req’t that unavailability be proved 2. “A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” a) must look at statement in context, to determine if this is against declarant’s interest b) penal, pecuniary ints – kinds of ints where declarant really wouldn’t make such a statement unless he knew it to be true (veracity risk of hearsay) c) against int when made – note: statements to authorities are suspect, can be seen as attempts to curry favor, not truly against interest d) reasonable person std (i.e., not what this person understood) 3. Williamson v. US (US 1994) (p.325) a) H makes both self-inculpatory and self-exculpatory statements; says that he wasn’t going to sell the cocaine, but that W was going to sell it; lower ct admitted evidence, W was convicted, and here appeals b) O’Connor for the ct: only those statements that are self-inculpatory, not neutral or exculpatory, should be admitted ← interp doesn’t eliminate statements that mention a 3rd person ← if declarant says, “Sam and I went to Joe’s house,” that is against int if a reas person would believe that this would implicate him in S and J’s conspiracy; even in O’Connor’s view, reference to the other two would be against penal interest c) Kennedy concur: doesn’t agree with O’C that neutral statements should be excluded ← adding somebody doesn’t complicate the problem; it’s gratuitous ← Kennedy’s gauntlet: what about collateral parts of exculpatory statements? e.g., J is on trial for robbing bank, L makes statement “I robbed the bank alone” – is the “alone” part collateral? d) Ginsberg dissent: none of this is a declaration against int ← all of H’s statements were made after arrest; he knew he had to cooperate and cut a deal to avoid significant jail time 4. Problem 4N: “He Had Nothing to Do With It” (p.336) a) two cross-country truck drivers are stopped by police for some traffic infraction; police are suspicious that truck is carrying marijuana; find it; T says “marijuana belongs to me, not to G; he has nothing to do with it” b) after Williamson, can G use T’s statement exculpating G? it’s collateral, and made to authorities… ← after Williamson, the collateral issue becomes more difficult… but note that there isn’t a “currying favor” concern here, since T is falling on his sword c) the point: exculpatory statements aren’t as worrisome as inculpatory statements d) judges go both ways on this
V. The Catchall Exception A. FRE 807 – statement not specifically covered by Rules 803/804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the ct determines that 1. (A) the statement is offered as evidence of a material fact; 2. (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and a) i.e., be most on the lookout for catchall when declarant is unavailable 3. (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence B. notice req’t – proponent must make known to the adverse party 1. its intention to offer statement and particulars of it, including name/address of declarant 2. sufficiently in advance of trial to provide adverse party w/fair oppty to prepare to meet it C. note: difficult to admit things via catchall exception 1. otherwise, other exceptions would become moot
VI. The Constitution as a Bar Against Hearsay A. Confrontation Clause history 1. text: “In all criminal proceedings, the accused shall enjoy the right … to be confronted with the witnesses against him.” 2. policies – accused should be able to question witness and investigate his story (hearsay risks concerns); easier to do this if the witness is on the stand a) accused should be able to directly challenge the statement by questioning the witness, not someone who relates what the witness said b) declarant should be under oath, in courtroom, where finders of fact can see their body language, etc., so as to up the veracity of the testimony 3. modern era – confrontation clause became really impt 40 years ago when SC applied it to the states through DPC in Pointer v. TX (1965) – state hearsay exceptions now must be tested against some std for compliance with the confrontation clause B. overview: CC as applied to hearsay exceptions – whenever case involves a criminal prosecution, and evidence is being introduced against the Δ, check for possibility of CC problem a) check to see if the declaration is “testimonial” (e.g., made at preliminary hearings, grand jury hearings, prior trials, and police interrogations) b) if testimonial, CC blocks it from being used against Δ unless declarant is made available for cross by Δ, either at time statement was made, or at Δ’s trial (Crawford) c) if not testimonial, under Crawford, don’t know if there’s any CC analysis necessary at all; if some CC analysis must be done, the most that can be required is this: ← firmly rooted exception – if hearsay falls w/in a firmly rooted exception, there’s no CC problem ← if not a firmly rooted exception (e.g., some non-standard state-specific hearsay exception, or fed catch-all, or “against int”), then check whether the particular declaration seems factually reliable, based on surrounding circs a) if not reliable, then there are serious CC problems C. modern doctrine: Roberts, Crawford, and the ascendance of two theories 1. Roberts (1980) – two-pronged approach a) took position that all hearsay exceptions are subject to CC analysis (i.e., that declarant is a “witness” for purposes of the clause) ← but then vitiated much of this position in trying to formulate a rule b) two prongs for CC analysis ← state must establish unavailability before hearsay exception can be used ← even then, must be a firmly rooted hearsay exception; unclear what this means c) as for out-of-ct statements not w/in a firmly rooted exception, proponent of the statement (state) has to show “particularized guarantees of trustworthiness” 2. White v. Illinois (1992) – really knocked the wind out of Roberts a) these two preconditions aren’t preconditions at all – don’t have to show unavailability ← “Roberts stands for the proposition that unavailability analysis is a necessary part of the CC inquiry only when the challenged out-of-ct statements were made in the course of a prior judicial proceeding” b) no unavailability needed for excited utterance, medical treatment exceptions 3. Crawford – “testimonial” approach a) CC isn’t limited to the right to question those who actually testify at trial; rather, the history shows: ← “First, the principal evil at which the CC was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examination as evidence against the accused” a) “Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” b) standard: once you define something as testimonial, accused has the right to have the declarant produced at trial ← if declarant is unavailable, can’t introduce the out-of-ct testimonial statement, unless accused had oppty to cross the declarant at some prior time c) note: in Roberts, it’s presumptively unadmissible unless it falls under a firmly rooted hearsay exception or there are particularized guarantees of trustworthiness ← but in Crawford – if it’s testimonial, it stops right there – no tolerance for the open-ended exceptions of Roberts D. hearsay exceptions and the confrontation clause after Crawford 1. these statements are non-testimonial, or are admissible b/c they include oppty to question: a) 801(d)(1) prior statements of testifying witnesses b) 801(d)(2)(A-D) admissions, including vicarious admissions ← none of this is likely to be a problem; ordinarily, admissions won’t be problem c) 801(d)(2)(E) co-conspirator statements d) 803(6) business records 2. do these exceptions survive Crawford absent oppty to question, or are they non-testimonial a) present sense impression (803(1)) b) excited utterance (803(2)) c) statements of memory or belief (803(3)) d) statements for medical diagnosis, etc. (803(4)) E. Davis v. Washington (US 2006) (print-out) 1. victim’s statements in response to 911 operator’s interrogation weren’t testimonial, and therefore weren’t subject to CC a) statements taken by police officers in the course of an investigation are nontestimonial when made under circs objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency b) here, victim speaking about events as they were actually happening, not past events c) note: a conversation that begins as an interrogation to determine need for emergency assistance (not subject to CC) may evolve into testimonial statements once that purpose has been achieved ← trial cts should recognize this shift; redact portions of statement that have become testimonial 2. domestic battery victim’s written statements in affidavit given to police were testimonial, and therefore subject to CC a) statements taken by police officers in the course of an investigation are testimonial when circs objectively indicate that there is no ongoing emergency and that the primary purpose of interrogation is to establish or prove past events potentially related to later criminal prosecution 3. CC applies only to testimonial hearsay F. any limits on nontestimonial hearsay after Davis? 1. DPC – doesn’t allow use of evidence that is unreliable, or if cross would likely be able to diminish its probative force 2. questions left open, by the “nontestimonial” rule of Davis a) “primary purpose” – whose purpose do we mean? b) what about statements to private persons?

|5 • RELEVANCE REVISITED |

I. Character Evidence A. FRE 404(a) – “Evidence of a person’s character or a trait of character is not admissible for the purpose proving action in conformity therewith on a particular occasion, except…” 1. theory: accusation may be so inconsistent with who the accused is that he wants to tell jury about some specific trait that has bearing on the crime with which he is charged 2. character of criminal defendant – FRE 404(a)(1) a) “Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution.” ← accused can go first, bringing pertinent character evidence in case in chief ← if Δ opens the door to evidence of her “pertinent trait,” π can then offer contrary evidence on that trait in the accused in rebuttal, but not otherwise ← if Δ opens the door to a trait of the victim’s character (under Rule 404(a)(2)), π can offer evidence of the same trait with regard to the accused 3. character of crime victim – FRE 404(a)(2) a) “Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.” ← again, accused can go first, in bringing pertinent character evidence of victim ← if Δ offers evidence of a “pertinent trait” of the victim, Δ opens door to π rebutting with contrary evidence of that trait in the victim ← we give prosecutor to open the door on character evidence (the only time in this rule), to bring character evidence of peacefulness – but it has to be a homicide case, and prosecutor isn’t free to do this until Δ alleges self-defense 4. “look-alikes” – look like character evidence, but really isn’t a) Don wants to prove that he had reason to believe that Vince was a violent person by testifying to comments he had hear about Vince’s violent tendencies ← not testifying about character trait of his, but about state of mind b) Don wants to prove that Vince had made threats to “get” Don, though Don had not heard these threats ← D may never have heard that: this is why it’s not in same category as the first ← still admissible – has tendency to prove that Vince was initial aggressor a) when ppl say what they intend to do (cf. Hillman), that’s some evidence that they actually did do it b) if he did say it, and it’s not too remote, it tends to prove that he actually did do it – doesn’t depend on state of mind, but as an inference from the statement made B. methods of proving character – FRE 405 1. FRE 405(a): reputation or opinion – “In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instance of conduct.” a) reputation – general reputation w/in particular community, as surrogate for specific evidence of character trait ← does raise hearsay problem, but there’s a hearsay exception for this under FRE 803(21) b) opinion – witness can provide his own opinion of the person in question ← strategy: get someone whose credibility is beyond approach, a community or religious leader, who will impress the jury 2. FRE 405(b): specific instances of conduct – “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.” a) note: not limited to using specific instances only on cross b) this is very rarely used – rare that character is an element of a criminal charge ← “element” means that in order to win, proponent of the information has to persuade trier of fact by some burden of proof of the existence or nonexistence of a particular character trait c) may be admissible to prove another evidentiary point (other than proof of character) ← e.g., propensity to attack: if used to prove, for example, Vince’s propensity to attack Don due to threats, defense lawyer in summation is not allowed to argue from those instances that V has a violent character; instead, jury can draw conclusion that V threw first punch. ← e.g., reasonableness: suppose Don makes the somewhat different claim that his behavior was reasonable under law of justification because he knew that V had committed violent acts in similar situations; wants to show his state of mind, which includes knowledge of V’s previous violent character toward others; D may have been wrong, but the question is whether his conduct was reasonable. a) reasonableness evidence as opening door for State: if D argues that he acted reasonably, state can bring evidence that he did not act reasonably (what D believed he knew was so modest and his reaction so disproportionate that conduct was not reasonable); state can’t show, however, D’s own propensity to violence C. prior acts as proof of motive, intent or plan – FRE 404(b) 1. “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” a) rejection of “bad apple” theory: in robbery case against John, can’t bring evidence that he robbed several banks last month – not b/c it isn’t relevant, but b/c we’re afraid juries won’t spend time/energy needed to carefully measure guilt/innocence if they know they’re dealing with a “bad apple” b) exception that eats up most of the rule: “It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident…” ← this is predisposition plus – we’re not introducing this prior act simply to show predisposition, but we’ve got an additional reason ← once you’re allowed to coast in on the additional reason, it’s impossible to separate out the predisposition from the other reason a) for legit policy reasons, we live with this ← jury might get instructed not to use predisposition, but that means little 2. proving intent – Problem 5F: “Drug Sale or Scam” (p.410) a) charge: sale of hashish and conspiracy to sell cocaine; Δ claimed it was a scam (didn’t have cocaine, was just going to take the money and run) b) prosecutor wants to prove that the sale was Δ’s intention – wants to introduce evidence that Δ had sold hashish and cocaine on numerous occasions during prior 18 months ← pretty close to unanimous that judge will admit the evidence – need is evident; the only thing needed to prove is intent, and this bears on showing intent 3. identity, modus operandi – Problem 5G: “…All Hunched Over” (p.413) a) signature crimes to prove identity through inferences based on unusual similarity ← idea that some crimes are so unusual, so unique – such that if it’s committed again, we could draw inferences that the person with this signature did it ← inference that this is how Δ operates – provides some evidence (maybe not enough to convict) to conclude that Δ is the culprit this time as well ← risk of copycat crimes attributed to Δ 4. plan, design – SG example a) Faulkner owns an old rent-controlled apartment building in Chelsea; property would be worth a lot more if the building can be torn down and condos built on the site; one day Kafka, one of the tenants, is assaulted in the building and his apartment is trashed; F is charged with hiring the men to do the job in order to force K to move ← prosecutor has evidence tending to show that Faulkner hired other guys in the last two months to beat up other tenants – was never charged or convicted, but evidence tends to show that he was behind the other incidents b) prosecutor will usually be allowed to bring such evidence, on theory that if jury finds that F was behind the other incidents, coupled with the economic testimony re value of the land if vacant, it will support logical inference that F had a scheme or plan 5. other purposes – Problem 5I: “It Was an Accident” (p.416) a) if something unusual happens often enough, we may infer that our initial assumption about the most likely explanation (accident) is wrong as statistically improbable ← as incidents increase, the probability of the “accident” explanation decreases ← circumstances must be similar b/c that supports the unlikelihood of fortuity a) purely a matter of common sense/logic, which jury is allowed to use b) difference from scheme or plan – here, there’s no actual scheme or plan; not alleging that caretaker took part in an antecedent plan, with each incident furthering that plan ← each are separate incidents, but multiplicity of the incidents negates fortuity 6. proving the prior act – Problem 5J: “I Didn’t Know They Were Stolen” (p.417) a) H was arrested with 500 blank videotapes, was charged with fencing stolen property; H claims he didn’t know they were stolen ← prosecution offers proof of prior incident where H offered to sell stolen televisions; wanted to admit this evidence under 404(b), in order to prove knowledge in an ambiguous situation b) case arose over the procedure – trial judge’s gatekeeper role ← H argued that trial judge should first determine, by some burden of proof (H wanted clear and convincing evidence) that it is in fact true that he was in possession of stolen televisions, before jury hears about it – since H hadn’t been convicted in prior act ← prosecutor said no, this should be up to the jury c) SC was unanimous – FRE 104(b), relevancy conditioned on fact ← note: strong sentiment among evidence aficionados that SC got this wrong ← ct admits it – only gatekeeper role is if evidence could support a jury finding that the fact is true; judge isn’t to determine for himself if the fact is true – just asks if a reasonable jury could find that the fact is true d) application of 104(b) to Huddleston ← judge decides: can the jury reasonably find by a preponderance of the evidence that H possessed televisions he knew were stolen ← jury decides: was H in possession of televisions he knew were stolen a) if so, it can use that fact to determine H’s knowledge about the tapes ← this is “conditional relevance” b/c if jury decides that it wasn’t H who stole the TVs, then it’s not at all relevant to question of H knew about the stolen tapes e) consensus among evidence scholars – b/c of the power of this info to affect jury’s view, we need greater confidence in the reliability of the evidence to establish H’s possession of the televisions ← and this greater confidence means that judge should make a finding of fact, at least by preponderance of the evidence ← but SC decided unanimously otherwise D. character in sex offense cases – FRE 412(a) 1. FRE 412(a) – The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): a) Evidence offered to prove that any alleged victim engaged in other sexual behavior. b) Evidence offered to prove any alleged victim's sexual predisposition. 2. FRE 412(b)(1) – In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: a) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than Δ was the source of semen, injury, or other physical evidence; b) evidence of specific instances of sexual behavior by the alleged victim w/r/t the Δ offered by Δ to prove consent or by the prosecution; and c) evidence the exclusion of which would violate the const’l rights of the defendant 3. FRE 412(b)(2) – In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. a) a less dramatic exclusionary rule b) balance has been flipped – must be really useful and outweigh danger of harm, unfair prejudice c) also note: “any victim,” and “any party” – harm to a victim, prejudice to a party ← “harm” encompasses reputational harm, etc. 4. Olden v. Kentucky (to show improper motive) a) Sally accuses John of rape; S is living w/Mark; M sees S get out of J’s car ← John’s claim: S made up the rape story, to maintain her good relationship with M – fear that if M knew the sex was consensual, it would end their relationship ← so John wanted to show that Sally’s living arrangement with Mark (sexual behavior) supported his theory of her falsely accusing him of rape b) ct permitted him to bring this evidence 5. sexual history of victim (rape shield Σs) – Problem 5K: “Ordeal of Leslie and Fred” (p.421) a) question of whether Leslie consented to sex with Fred, or whether Fred raped her b) Thomas’ testimony: he and Leslie had sex the very same night – clearly excluded ← no rational basis for drawing any kind of inference of what happened b/t Fred and Leslie from what happened b/t Leslie and Thomas c) Greg: Leslie is sexually active (opinion) and known as “easy” – clearly excluded ← predisposition testimony that’s excluded under 412(a) d) Fred: he and Leslie had consensual sex in the summer ← could fit under 412(b), but could be excluded nonetheless under judge’s discretion under 403, danger of unfair prejudice ← arg that it’s not even relevant, under 402 – since the sex in the summer happened so long ago, doesn’t have any bearing on the alleged rape e) drafters of rule were motivated to allow evidence of consensual sex with the same person, where consent is at issue – gives jury fuller picture of the relationship, gives Δ some traction for theory of reasonable belief that it was consensual this time as well 6. FRE 413(a) – In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. a) Δ’s prior criminal sexual conduct is admissible; note: doesn’t have to be a conviction b) SG: this rule isn’t very carefully drafted ← aggressive interp: judge doesn’t have 403 discretion to exclude such evidence ← general consensus, legislative history don’t support that aggressive interp c) most traumatic about this rule – takes position that prior sexual assault offenses by the accused are valid character evidence ← that is, what we wouldn’t allow under 404 to prove that someone robbed the bank (prior offenses) – when it comes to prior sexual offenses, the predisposition exclusionary rule is out the window 7. Problem 5L: “I Told Him to Stop” (p.424) a) cross-examination of Karin (victim) signals consent b) prosecutor offers evidence that a year earlier, Δ had attempted to rape Laura, a woman he had been dating, in a similar factual context ← judge’s 401 relevancy gatekeeper function – prosecutor arg: this evidence is sufficient to change balance of relevance, given the recency of the incident ← judge’s 403 gatekeeping – would almost definitely defer to Cong’l decision that predisposition or recidivism evidence is admissible in a sexual assault case c) prosecutor offers evidence that three years earlier Craig had been convicted of a sexual assault on a 13-year old, the daughter of a woman with whom Craig was then living ← judge might exclude this evidence – on grounds that this incident is enough unlike the charge at hand (in factual context) to be excluded under 403 ← judge could, however, conclude that it’s not different enough, that it shows predisposition to sexual assault on women, and allow it d) either one of these offers of proof would be devastating in its effect on the jury
II. Habit and Routine Practice A. FRE 406 – Evidence of the habit of a person or of the routine practice of an org, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 1. impt aspects of habit: a) automatic or semi-volitional b) same or similar circumstances c) not a “general tendency” (character trait), but more focused ← e.g., never taking the elevator; taking same route to work every day; always checking side and rear mirrors before driving B. Problem 5N: “The Exploding Can” (p.429) 1. Δ arg that π habitually used an immersion heater to raise the temperature of the water in the coffee can, against the warning printed on the can, and this caused the explosion a) problem is that they don’t have any proof that he did this on that particular occasion b) Δ calls a witness who works with π; witness testifies that on repeated occasions, he saw π put cans of Freon in immersion bath 2. ct allows this – there were enough occasions to establish the foundation of habit a) question of how much repetition is up to the trial judge – enough repetitions to support a rational inference of habit that was repeated on this particular occasion 3. from this habit evidence, jury will be asked to infer that π did the same thing this time C. Problem 5M: “Death on the Highway” (p.429) 1. no eyewitnesses, question of who was negligent in the car accident 2. accident reconstruction experts testified in ways that were helpful to Teel’s estate; Teel’s estate wants to establish his habit of driving carefully a) Finney estate objects to this as character evidence 3. problem with this offer of proof (“good, careful driver”) – this isn’t focused enough, this is closer to character evidence a) to focus this, proponent of evidence would have to find witness who says that he had driven with Teel on this particular stretch of the road multiple times, and Teel always slowed down when he approached this intersection b) that would establish a particular habit 4. this would be a judgment call for the particular ct, to decide if this is too close to character trait, or admissible as habit evidence D. Problem 5O: “Was He Served?” (p.431) – organization’s routine practice 1. note: here, we’re not proving an out-of-ct statement, but trying to prove that s.t. was done a) classic example: was the letter put in the mailbox? organizations have routine practices for sending out mail b) business who wants to establish the routine practice calls a witness who explains that routine practice; jury would then be able to infer that it worked this way in this instance c) proponent can’t remember every single piece of mail that was sent out – relies on routinization to establish the inference 2. in this problem – question of service of deportation on the Δ a) problem here is that the person testifying as to the way it was done had never done it himself, never saw it done, but was just told that this was how it was done b) this might be too weak a foundation for judge to allow jury to draw inference E. remember: habit evidence has to be automatic or semi-volitional 1. e.g., evidence that someone is a faithful Sabbath observer – this is too volitional to qualify as habit evidence 2. the closer it is to requiring thought (the more volitional it is), the greater the oppty for manipulation a) if Δ himself is relying on the habit evidence – concern for manipulation or opportunistic behavior; cts are more skeptical when there’s self-interest involved in a more volitional kind of “habit”
III. Subsequent Remedial Measures A. FRE 407 – When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 1. excludes, subject to exceptions (which are themselves subject to 403), subsequent remedial measures a) e.g., someone trips on sidewalk in front of your house, you’re responsible for maintaining sidewalk, and after the accident, you repaved the sidewalk; π sues, wants to admit evidence of what you did afterwards to prove that it was dangerous before 2. reasons for exclusion a) the fact that something is made safer doesn’t mean that it was unsafe before ← SG: but doesn’t this go to weight? why not let jury decide? b) to encourage the improvement without thereby creating evidence against oneself ← SG: this might be true in slip-and-fall on sidewalk hypo, but is it true in mass market consumer product cases? c) unfair prejudice as a categorical matter – Cong’l decision that any time subsequent remedial measures are allowed, it categorically creates unfair prejudice (403 grounds) d) confusion of the jury 3. “a defect in a product, a defect in a product's design, or a need for a warning or instruction” a) this language was added about a dozen years ago to show that this applies not only to negligence cases, but also to strict liability cases B. exception to this exclusionary rule: “This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” 1. to show ownership or control a) e.g., where Δ argues “I had no power to make the change” b) if, after the accident, Δ did actually make the change or effect the change, then this shows that Δ does in fact have ownership or control – another door-opener situation 2. to show feasibility if “controverted” a) e.g., “It couldn’t be done”; or “It could have been done but it was unsafe” ← another door-opener: if Δ says it wasn’t feasible, Δ is creating oppty for π to invoke exception to show that technology was available, prove it by showing that Δ did in fact make the change b) e.g., “It could be done but we made judgment that it would not have worked as well” ← in Tuer, Δ made decision not to do this b/c of risks involved – informed medical judgment that the risks involved were greater ← ct holding: this isn’t controverting feasibility 3. impeachment a) e.g., at trial Δ company’s witness says it was safe to use this product in this way (the way that π used it when he was injured); π wants to introduce a notice that Δs put on product after incident saying that it’s unsafe to use the product this way ← directly contradicting what was said on witness stand b) note: it doesn’t have to be a direct contradiction – just has to detract from credibility of what was said on witness stand

|6 • IMPEACHMENT OF WITNESSES |

I. Nonspecific Impeachment: Bias and Motivation A. US v. Abel (US 1984) (p.503) 1. Abel is on trial for robbery. Ehle will testify for the government that Abel did it. Abel will call Mills, who will testify that Ehle told Mills he would falsely implicate Abel to get a deal with the government. This indicates bias. On cross-examination, the government will ask Mills whether he, Ehle and Abel are part of a prison gang called the Aryan Brotherhood whose tenets are to lie, steal, and kill to protect each other. If Mills denies that, the Government wants to call Ehle back to testify that they are members of such a gang, and those are its tenets. a) question: can the govt impeach Mills, first by cross-examining him, and if he denies it, by calling Ehle to establish the existence of this group? 2. extrinsic evidence – when we decide that Δ can pursue Ehle’s bias by calling Mills, we are saying that extrinsic evidence will be allowed on this question of bias a) “extrinsic” = outside the examination of witness whose credibility we are challenging b) w/r/t this method of impeachment, proof of bias is never collateral – to prove bias, you’re entitled to introduce extrinsic evidence c) note: you don’t have absolute right – judge still has 403 gatekeeping function 3. note: foreclosure of extrinsic evidence under FRE 608 (character for truth/veracity) doesn’t preclude admission under another rule a) that is – even if witness could be impeached under 608, which doesn’t allow extrinsic evidence, that doesn’t mean that extrinsic evidence is precluded if impeachment can also be pursued via bias B. Problem 8A: “The Hired Gun” (p.510) 1. proponent of witness on direct examination brings out the fact that the expert witness is being paid; on cross, π’s counsel wants to ask how much witness made from GM last year, how much he expects to make this year, and what proportion of his income comes from such appearances 2. questions are admissible – all of them bear on credibility a) the more of expert’s income comes from testimony for GM, the less independent he is; he won’t want to disappoint GM, because if he does, Ford will hear about it; nothing controversial about those questions
II. Nonspecific Impeachment: Sensory and Mental Capacity A. attacking party may seek to show that witness had only a brief chance to see/hear what he described in his testimony, or that he labors under defects in sensory capacity that may affect his observation, or that human perceptive processes work in ways suggesting that his testimony is no so persuasive as it seems 1. attack may proceed by cross-examination 2. may also be proved by extrinsic evidence when the attacking party presents his case B. attacking party may show that witness was under influence of drugs/alcohol at time of events, or even during trial C. cross on mental afflictions or illness is also proper, including questioning about treatment or stays in mental institutions D. proof – sometimes, cts order production of medical records to assist in cross; sometimes admit psychiatric testimony when it bears on capacity to observe or report
III. Nonspecific Impeachment: Character for “Truth and Veracity” A. cross-examination on nonconviction misconduct – FRE 608 1. 608(a): The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: a) (1) the evidence may refer only to character for truthfulness or untruthfulness, and b) (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise 2. 608(b): Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the ct, if probative of truthfulness or untruthfulness, be inquired into on cross of the witness a) (1) concerning the witness’ character for truthfulness or untruthfulness, or b) (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being crossed has testified 3. notes on FRE 608(b) a) have to do it on cross – any further inquiry is collateral b) must be relevant to credibility – can only say to witness something like, “Isn’t it true that you worked for Fed Ex and were fired for stealing parcels, then lying about it?” ← can’t ask, “Isn’t it true that you once worked for Fed Ex and got into a fight with another motorist?” c) good faith req’t – lawyer must have a good faith basis for believing that it’s true, and may be asked to reveal it to the judge in a side bar ← sanctions for asking without good faith basis: might be a reason for a mistrial (if it is the prosecutor asking, then jeopardy might attach), or the judge might admonish the lawyer and undermine the lawyer’s credibility ← if the lawyer is unsure, it is wise to call a side bar, present the good faith basis, and ask if it’s enough 4. US v. Manske (7th Cir 1999) (p.517) a) three views of breadth of 608(b) – scope of nonconviction misconduct questioning ← broad view: allows questioning on almost any misconduct ← narrow view: confines questions to acts that are themselves false or misleading ← middle view: reaches conduct “seeking personal advantage by taking from others in violation of their rights” b) cts applying FRE 608(b) have rejected broad view; generally allow questions that satisfy the narrow view by asking directly about deceptive statements or behavior ← it’s cases like Manske, where conduct has a wrongful/exploitative aspect but isn’t false or deceptive in itself that cts come out either way B. proving prior convictions – FRE 609(a) 1. 609(a): For the purpose of attacking the credibility of a witness, [i.e., not for proclivity] a) (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such crime shall be admitted if the ct determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused b) (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment 2. notes on 609(a) factors a) must be for impeachment, not for proclivity on part of witness b) must be a felony c) probativeness vs. prejudice balancing ← if witness is not the accused, rule favors admission under 403: for exclusion, probative value must be substantially outweighed by risk of prejudice ← if witness is the accused, it shall be admitted if ct determines that the probative value of admitting this evidence outweighs its prejudicial effect (prejudicial effect need not substantially outweigh) ← there are different ranges of probativeness in terms of how various crimes reflect on dishonesty; e.g., robbery does reflect dishonesty but is not within (a)(2) because it is not a crimen falsi a) ct has no balancing authority for an (a)(2) offense, which Cong decided is absolutely admissible 3. Problem 8B: “Hit the Deck” (p.535) – applying FRE 609(a)(1) a) bank robbery; question is identity of robber; prosecutor has a star witness named Elmo who says that Dennet confessed; D has an alibi corroborated by George; all three have prior convictions for bank robbery, all within applicable time period b) std for Dennet – higher std for admission ← judge might exclude evidence of crime against D by deciding it is too prejudicial; the more credibility is at issue, however, the more likely he is to admit the conviction ← another impt factor of having Δ’s testimony – Δ may know things that nobody else does ← these two factors pull in opposite directions – if testimony is impt, judge favors admission; but the more impt it is, the more impt credibility is, and thus the more the court wants to admit the prior to help the jury evaluate credibility c) for Elmo and George – you’d think std would be the same, but there’s an arg that Δ’s witness (George) should deserve more protection than prosecutor’s (Elmo) ← theory: since George was D’s friend, his prior conviction will spill over onto D – the idea is that bad guys hang around together, whereas the prosecutor takes witnesses where he can find them ← a lawyer might arg this; whether it would persuade judge is another matter 4. Problem 8C: “The Plaintiff is an Ex-Con” (p.538) – applying FRE 609(a)(2) a) Pratt sues Denko for damages sustained when P, crossing street, was hit by D’s car; D proposes to impeach P by asking about two prior felony convictions: one for manslaughter seven years earlier, one for forgery nine years earlier b) manslaughter is an (a)(1) crime; forgery is admitted automatically as a crimen falsi ← since forgery conviction will be admitted, judge will likely exclude manslaughter conviction, which is prejudicial and not very probative of witness’ propensity to lie on the stand 5. coordinating FRE 608 and 609 a) 608 provides for evidence of prior nonconviction misconduct, and is a broader rule; 609, on prior convictions, is limited to bringing out fact of conviction, the date and place, and the sentence exposed ← prosecutor could try to argue (see Problem 8E, p.540) that he has no intention of mentioning conviction, but wants instead to proceed under 608(b), which authorizes ct to permit cross about specific instances of witness conduct b) but see Mueller & Kirkpatrick – “Questioning about criminal acts without mentioning a conviction would generate a distorted and incomplete picture, inviting factfinder to believe, for instance, that the witness not only misbehaved but ‘got away with it.’ And arguably the purpose of the various specific restrictions in FRE 609, including the ten-year rule and the provision on juvenile adjudications, is not only to bar questions on convictions but to limit all reference to the whole subject and to put certain aspects of it out of bounds. Hence allowing resort to FRE 608 would essentially evade the restrictions.” C. character witnesses – allowed under FRE 608(a) 1. see also circumstantial proof of a relevant character trait under FRE 404 and 405 a) we prove that through opinion or reputation evidence, but not on direct through specific instances; specific instances, however, can be used on cross 2. 608(a): “The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” a) “or otherwise” – sometimes a side’s innuendo may be that the person is a liar; this is another way to open the door
IV. Specific Impeachment: Prior Inconsistent Statements A. admissible only as a basis to discredit what the witness says now, not substantively unless they fall w/in 801(d)(1), which deals with the substantive use of prior statements as outside the definition of hearsay 1. FRE 613(a): “In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.” a) chance to explain and put inconsistent statement in context 2. FRE 613(b): “Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an oppty to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).” a) note: this rule doesn’t govern whether or not extrinsic evidence of a prior inconsistent statement will be allowed; no rule expressly addresses that issue – this can be seen as a management question for the judge b) if the detail is vital to the witness’s story, judge should favor introduction of extrinsic evidence – e.g., if witness says on the stand that he saw a man with long blonde hair snatch the purse, but in a previous statement he says that he saw a bald man snatch the purse, we understand intuitively the defense lawyer’s interest in proving that the witness had once said it was a bald man ← that isn’t a peripheral issue – it goes right to the identity of the perpetrator of the crime; casts doubt on witness’s credibility on a central issue ← this balancing (core vs. peripheral) fits into judge’s 403 balancing authority B. Problem 8F: “He’s Trying to Sandbag Us” – application of FRE 613(b) 1. Δ lawyer tries to introduce a prior inconsistent statement of π’s witness, but has not satisfied the procedural rules of 613(b); witness, Welch, is out of the courtroom, and π’s lawyer objects: “I’m not going to have a chance to interrogate Welch about this statement, and Welch won’t have a chance to explain or deny the statement, which are two protections that 613(b) gives me. Counsel should have afforded that right while Welch was here – now he’s gone and Murphy should not be allowed to testify.” 2. this is a pretty strong argument a) the lawyer with the power to protect the rights under the rule, knowing that he’ll call Murphy to introduce evidence of Welch’s prior inconsistent statement, has the responsibility either to ensure that Welch can be called back, or else go through the steps while Welch is in the courtroom ← he didn’t, so this is likely to be upheld b) if it’s easy to bring Welch back (i.e., he’s just across the street), then we’ll bring him back; but if it’s difficult, then the party that failed to ensure that it was done right loses the use of the evidence C. US v. Webster (7th Cir 1984) (p.551) – “abuse” of FRE 607 1. prosecutor doesn’t know what witness will say; she asked for a prelim examination outside presence of the jury, but Δ objected; thus, she calls witness hoping for the best and he says unfavorable things, so she impeaches the witness with prior inconsistent statements; Δ objects a) this situation depends on our assumption that the prior inconsistent statement is not admissible substantively but only to impeach 2. cite to Morlang case – lawyer has interviewed a witness, and witness gave him a really good statement; a week before trial, witness seriously diluted the value of her statement and it’s inconsistent in some regard; the lawyer wants the jury to hear the prior inconsistent statement, even if the judge provides a limiting instruction saying it can only be used for impeachment, because he thinks the jury will use it substantively; lawyer looks to FRE 607, which says that you can impeach a witness that you call; he figures he’ll call the witness, she’ll give her inconsistent answer, and he’ll impeach her with her prior statement; figures that it goes to such a central issue that he can even prove the statement extrinsically a) courts will not allow it despite the language of 607 – they will consider it an abuse of that rule b) ct in Webster says this would be an abuse of 607 in either a criminal or civil case c) Webster and DeLillo say that if that’s all that’s going on, it should be excluded – but sometimes there is more to the story 3. lawyer didn’t have to forego calling witness because she was unsure a) she had a right to expect that he would tell the truth, and when he did not, she had a right to impeach him to preserve the case 4. Posner’s example – say that witness has five facts in a statement, all of which were really good; by the time trial comes, witness remembers three of them in a way that are good and two in a way that are not good; the lawyer would like to elicit the three good facts and impeach the witness on the two statements that have changed a) must lawyer accept the statement of the two bad facts, or can he ask about the three good ones and impeach on the two bad facts? b) might say the lawyer can stop his questioning on direct, not asking about the bad facts ← however, the opponent will surely bring up the bad facts on cross and it will look like the other lawyer was hiding something ← even if opponent wasn’t going to bring out the bad facts, some stories will seem artificially shortened if only three facts are brought out and not the two – the jury might wonder why this lawyer so constrained the testimony, and he might suffer in the eyes of the jury c) Posner says in this case, lawyer isn’t in the Morlang category – lawyer is not behaving improperly by bringing out good facts and impeaching on the ones that are unhelpful D. impeachment by Miranda-barred statements – prior statement of witness is suppressed under Miranda 1. obviously, such evidence can’t be used by prosecutor in direct case – but can it be used at all? 2. Harris v. New York (US 1971) (p.555) a) prior statement showed that he knew the powder was heroin, was suppressed under Miranda; Δ took the stand and testified that he had sold white powder to agent, but said it was baking powder; on cross, judge allowed prosecutor to ask Δ about those prior statements; Δ was convicted b) question: does suppression prevent govt from using suppressed statement to impeach where Δ takes witness stand and denies elements of charge c) holding: no, suppression doesn’t go this far ← if Δ doesn’t take the stand, the statement can’t be used; but if Δ does take the stand, and testifies inconsistently with prior statement, Δ loses protection of Miranda suppression rule 3. contra Agnello (1925) – Agnello denied that the substance he sold and possessed was drugs; on cross, govt asked if he had ever seen cocaine before, A answered “no”; govt wanted to use fruits of a suppressed search that would show that that was a lie a) here, govt opened the door itself by asking a question, by which it could then get A to lie so as to bring forth the suppressed evidence b) ct didn’t allow this – held that govt went outside scope of direct, created its own platform for use of suppressed evidence ← a variation on “smuggling in,” except here it’s even more serious, since material was constitutionally suppressed c) side note: question as to whether Agnello is still good law today 4. does the Harris rule undermine the policies underlying Miranda? a) Brennan – statements obtained in violation of privilege can’t be used to increase the likelihood of conviction – this is the whole purpose of suppression ← distinguishes Walder, where Δ blew the protection by opening the door with his own direct testimony, gratuitously volunteered more than he needed to ← in Harris, Δ was testifying, but it wasn’t a gratuitous volunteering – just got up there and maintained his innocence of the charge ← H shouldn’t have to give up his rt to tell his story to the jury, b/c of fear that prosecutor can then use statement that was taken in violation of his 5th A rts b) note: Brennan view suffered repeated rejection in years following 5. contra Mincey and Portash, where ct didn’t allow prior statements to be used to impeach a) in both, statements were taken in violation of 5th A, but of a different caliber from Harris (which was just suppressed b/c not preceded by reading of Miranda rts) b) in Portash – convicted of taking bribes, called before grand jury, given immunity – either testify, or go to jail (no longer had a reason not to testify), so he testified ← testified in a way that turned out to be inconsistent with what he said at trial a) govt wanted to use immunized testimony to impeach him ← SC: this is different – violation of 5th A b/c it’s truly involuntary a) violation as in Harris is just a violation of the ct-created rules, “involuntary” as a legal matter; here, it was truly involuntary b) Portash was in a situation where state was threatening incarceration absent a truthful answer – goes to core of 5th A values, can’t be used to impeach c) in Mincey – different situation with the same essential point ← M seriously wounded in hospital, unable to go to ct, when he made his statements ← in these situations, the statements were involuntary, not just the product of failure of prophylactic measures meant to insure voluntariness E. use of silence to impeach 1. Doyle v. Ohio – silence is not allowed to impeach Δ’s credibility post-Miranda warning (“You have the right to remain silent”) a) implicit promise in Miranda warning that Δ may remain silent without fear of impeachment 2. Jenkins v. Anderson – pre-arrest silence can be used to impeach if deemed relevant a) Δ killed someone, didn’t say anything to anyone about it for two weeks; at trial, Δ claimed that it was self-defense ← prosecutor arg – if it was truly self-defense, you should have spoken up b) ct recognizes that this arg has low probative value – ppl are sometimes wary of the police, may not trust their fairness, even if they really believe they’re innocent ← but this goes to weight – let jury decide what to do with the pre-arrest silence c) note: in some states, pre-arrest silence won’t be allowed – relevance is too low to warrant admission, creates risk of unfair prejudice (judicial gatekeeping decision) 3. Fletcher v. Weir – post-arrest, pre-warning silence can be used to impeach a) no implicit promise, no one says anything – sitting around waiting with Δ, he doesn’t say anything at all; at trial, Δ comes up with another story explaining his innocence ← prosecutor arg – after your arrest, you knew what you were arrested for; sitting at police station, within earshot of cops, why didn’t you say at that point that you were in Nebraska when the bank was robbed? ← counter inference: Δ had heard Miranda warnings on TV, wanted to keep silent ← it’s a weak inference for prosecutor, but again, goes to weight b) cynical view – interrogators could be opportunistic about this, decide to wait around a few hours before giving Miranda warnings ← probably too cynical, cops don’t tend to think like this when they’ve arrested a suspect
V. Specific Impeachment: Contradiction A. contradiction – three kinds of counterproof in these cases 1. counterproof that not only contradicts but also tends to prove a substantive point a) such counterproof ordinarily gets in, as it would even if it did not have contradicting effect, for it goes to the merits of the case 2. counterproof that not only contradicts but tends to prove some other impeaching point (i.e., that the witness and accused have been seeing each other) a) such counterproof usually gets in, as would be true once again even if it did not have contradicting effect, for it tends to show bias b) serves two purposes – it contradicts the witness and also shows the witness’s bias 3. counterproof that only contradicts (i.e., testimony that they saw Annie Hall and not Hannah and Her Sisters) a) this evidence is usually excluded, has no relevancy apart from contradicting witness b) sometimes, however, cts admit counterproof on such a point where it seems that a witness could not be innocently mistaken on the point c) e.g.,, witness may say that he knew it was May 3 when the incident occurred because it is his daughter’s birthday, but the daughter’s birthday is actually on May 8; if the witness pegs his memory to a fact that he uses to show the accuracy of what he’s explaining, its falsity can cause a reasonable juror to feel uncomfortable with the story. The opposing advocate may be able to introduce the true date of the daughter’s birth. In the Woody Allen example, on the other hand, the witness’s memory isn’t pegged to whether it’s Annie Hall or Hannah and Her Sisters – it’s a background fact. B. SG example: “The Tale of Micah and the Accident” 1. at 8pm on July 17, Shira, driving a blue car, is in an accident at Waverly Place and McDougal with Roy, driving a brown car; Micah is an apparent eyewitness called by Roy 2. prior inconsistent statements a) that he didn’t see the accident ← can be proved extrinsically – goes to what was at stake in this case b) that he was in restaurant until 8:40 and only heard the accident ← again, undermines core importance of his testimony c) that he had dinner at a different restaurant with a different person that night ← just a peripheral point, doesn’t change his ability to have been on the corner to witness the accident 3. new iteration of the problem a) see class notes, p.66, for examples of contradicting statements C. Problem 8G: “That’s Just Collateral, Your Honor” (p.571) 1. criminal prosecution of Oswald, charged with a Seattle robbery on July 14 at 7pm; defense calls Ardiss, who says Oswald was in his Portland restaurant that night a) on cross, prosecutor asks: “Was he in your restaurant every day during the prior weeks?” – Ardiss, trying to help Oswald, not prepared for this, said yes 2. prosecutor rebuttal – Kinney, a Seattle police officer: “I saw Oswald in Seattle June 27, and he said he’d been there for three or four days” a) this contradicts Ardiss, since June 27 is within the time period – this shakes Ardiss’s testimony (might be honest, but jury less confident in his memory) b) note: like in Agnello, prosecutor has opened his own door – and in the real case, that’s what the ct held – won’t permit the opponent of the witness to ask questions about otherwise irrelevant facts solely to cast doubt of credibility of witness on an irrelevant fact c) if this had been offered on direct (i.e., Ardiss opened the door) – still collateral, just not important enough to the case to permit extrinsic evidence 3. prosecutor also calls Samuels, a waiter: “I never saw Oswald in the restaurant” a) if this is to directly contradict Ardiss’s statement that Oswald was there July 14 (i.e., Samuels was working the night of July 14, and the restaurant is small enough that he would have seen all the guests) – certainly permissible: goes directly to the alibi b) if waiter had not worked on the night of July 14 – could cast doubt on Ardiss’s basis of knowledge; if Oswald was not there any day that Samuels worked, do we really credit Ardiss’s claim to know Oswald and remember that he was there on July 14? ← if Ardiss is saying that he knows Oswald b/c Oswald was a regular, and came there often enough for Ardiss to remember his face and testify that he was likely at the restaurant on July 14 (if this was his response to prosecutor’s question “How do you know Oswald was there”) – this is all you need as a platform to bring in Samuels’s testimony ← “lynchpin evidence” – both statements can’t be true as a practical matter – highly unlikely that both statements are true, casts real doubt on A’s testimony D. US v. Havens (US 1980) (p.573) 1. two lawyers from Indiana have a side business of importing cocaine; were successful on two occasions, by cutting holes in t-shirts and sewing cocaine into the shirts; McLeroth, wearing the shirt, is searched and picked up; Havens has already made it past customs; McLeroth rats on Havens, who is apprehended; his luggage is searched, and there are t-shirts with holes in them, which match the pockets sewn onto McLeroth’s shirt a) t-shirts are suppressed as evidence – and H’s lawyer sculpts testimony so as to not give prosecutor a lead into contradicting testimony by introducing suppressed t-shirts ← testimony on direct – “I had nothing to do with any wrapping or bandages or anything else with McLeroth, in connection with this cocaine matter” ← on cross – “You had nothing to do w/ sewing of the pockets?” answer: “No” ← govt then wants to bring suppressed evidence of what was in Δ’s luggage b) such a fine line to have to draw… could credit Havens’ lawyer for believing that this testimony was on the Agnello side of the line ← but the line moves when the law changes – and the law changed at least somewhat in this case 2. here, ct says the cross was “plainly within the scope of the defendant’s direct examination” a) holding that this was cross-examination “growing out of the direct” 3. ct doesn’t expressly overrule Agnello, but SG doesn’t think much of Agnello really remains a) SG: “within the scope,” “growing out of” could easily encompass the cross at question in Agnello b) ct in Havens distinguishes Agnello, saying that the cross there had “too tenuous a connection” to the direct – but SG still disagrees 4. Brennan: this rule redefines the constitutional limitation so it offers no protection if the question is within the evidentiary limits on the “scope of cross” a) Brennan objects that opening up the std to be as broad as the question (“is it within the scope of the direct”), given the flexibility/elasticity of that std – there’s almost no limit on what the govt can do – only real option for the accused who wants to avoid having this suppressed evidence heard by jury is to refrain from testifying at all
VI. Repairing Credibility A. evidence of good character 1. FRE 608(a): The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. a) note: one can “open the door” in other ways – e.g., character attacks suggested by a fierce cross-examination 2. US v. Medical Therapy Services (2d Cir 1978) (p.583) a) criminal Medicare fraud case; Barbara Russell, primary witness for govt, used to work for Δs; govt tried to “pull the teeth” of the potentially impeaching evidence by asking her about it on direct – depriving other side of ability to attack witness ← note: the “or otherwise” of 608(a) has to be by the opponent on cross – govt “pulling the teeth” won’t open the door to character witness for BR ← but Δ rose to the bait, also attacked her credibility b) holding: this is close, but it’s enough to permit govt to call a character witness ← defense examination of BR triggered govt’s right to call a character witness – it was sufficiently aggressive, attacking her character for truthfulness such that the govt could repair that harm through a character witness B. prior consistent statements 1. FRE 801(d)(1)(B) carves out a certain category of prior consistent statements that may come in for their truth – a subset of prior consistent statements that were admissible to rehabilitate a) how to understand what SC was doing with FRE 801(d)(1)(B) in Tome – to take advantage of the (d)(1)(B) route, prior consistent statement has to have been made before the motive to fabricate arose ← if you can’t prove that, then you can’t admit the prior consistent statement for its truth ← but you may be able to fall back on the old common law rule allowing prior consistent statements for rehabilitation, w/a limiting instruction if necessary b) examples of when you might want to introduce a prior consistent statement for rehabilitation, even if you can’t prove it was pre-motive so can’t bring it for its truth: ← to rebut a claim of faulty memory (most obvious example) a) e.g., on cross, Δ lawyer brings up question of Micah’s faulty memory; π then wants to bring in statement that Micah made the day after the accident that is consistent with his testimony ← to put a seemingly inconsistent statement in context ← to rebut the claim that an alleged inconsistent statement was even made ← to rebut a claim of improper motive even if the statement was not pre-motive, but where the alleged motive was weaker when the prior consistent statement was made 2. Problem 8I: “She Handed Me the Heroin” (p.591) a) Clair and Arla, purported to sell drugs to undercover agent Turner, meets agent in a café; T asked them to go to restroom, put some of the drugs in a paper towel, so T can test the quality; they return from the restroom, one of them hands the agent a paper towel with a sample of heroin; both are searched; only C is found in possession in the ensuing search, and pleads guilty ← at Arla’s trial, Turner testifies that Arla handed him the towel b) on cross, Arla’s lawyer asks Turner ← “You really don’t remember who it was” a) offering a prior consistent statement is legit in rehabilitating Turner b) immediately after arrest, Turner dictated events of what happened, “the woman in the black and white dress gave me the towel” ← “You’re lying about who gave you the towel in order to incriminate Arla” – basically, that the prior consistent statement isn’t pre-motive; the reason Turner made that statement was to make his case against Arla – that’s why he’s lying now, that’s why he lied then a) at first blush, there’s some validity to this – law enforcement does gather evidence to build a case against targets of investigation b) to rehabilitate, prior statement has to add something to the credibility of the witness, and if there’s same motive back then, what does it add? c) answer: he didn’t have the same motive back then i) if you read the time sequence in the problem, T dictated the tape before Clair and Arla were searched, so he couldn’t have known at the time that Arla didn’t have any drugs on her – no motive at the time to put the towel in Arla’s hands
VII. Forbidden Attacks A. religious belief and impeachment

|7 • OPINION AND EXPERT TESTIMONY; SCIENTIFIC EVIDENCE |

I. Lay Opinion Testimony A. FRE 701: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 1. opinion has to be rationally based on witness’s perception 2. has to be helpful to a clear understanding for the jury 3. has to be a lay opinion – there’s a separate rule that deals with expert opinion B. Problem 9A: “It Was My Impression” (p.598) 1. “He never actually said that, you know, he had blown it up, but it was my understanding by his mentioning that he had a friend and showing me the article that it was my impression when we were done talking that he was involved in having blown it up.” a) leap in logic – witness is giving jury that additional bit of information b) on the other hand, witness knows the Δ, knows how to read his body language, signal in the words he used, etc. ← that experience would be valuable to jury, and would ordinarily be allowed – this is someone who knows him well 2. remember: jury doesn’t have to buy it, it just goes to weight a) and witness can be cross-examined for her rational basis in drawing that inference, if defense lawyer wants to do that 3. example of an opinion by a lay witness which would be allowed today, based on her experience with the person whose conduct she was reading C. Problem 9B: “The Watchful Neighbor” (p.598) 1. class notes, p.73: breakdown of permissible opinion testimony and what lawyers can challenge
II. Expert Witnesses A. FRE 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 1. std used by judges in deciding to admit expert testimony – will it assist the jury in answering the questions posed by the case a) note: “assist” is a low bar – jury might have the underlying knowledge, but an expert testimony will assist them in understanding the facts 2. also note: expertise may come from experience, as opposed to education a) e.g., police officer who has looked at traffic accidents for 30 years, knows how to parse the data at hand 3. underlying principles have to be reliable – e.g., science invoked has to be generally accepted, principles have to have been reliably applied 4. the judge makes all these threshold decisions – that the expert is an expert, and the predicate of expert’s knowledge satisfies the bar of FRE 702 B. FRE 703: Bases of opinion testimony by experts 1. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing… a) note: can be expert’s opinion based on things brought to expert’s attention on the stand 2. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted… a) experts should be allowed to consider whatever evidence they want to consider, untroubled by the limitations of the courtroom b) other disciplines (economist, doctor, etc.) have their own stds for credibility, about what to rely on – fact that doctors or economists rely on certain data in helping to form their opinion, which data may not be admissible in evidence (or not offered in evidence b/c burdensome or expensive), that won’t prevent them from testifying ← we let the expert decide what’s impt to experts in that area of expertise ← we let the judge decide what the jury can hear/see – just b/c jury can’t see all underlying data doesn’t mean that expert’s opinion can’t be admitted 3. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. a) exceptions to the second sentence – jury won’t find out what expert relied on if what the expert relied on isn’t independently admissible (judge’s 403 responsibility) C. FRE 704: expert opinion on ultimate issue 1. used to be that expert couldn’t state an opinion on the ultimate issue at stake in the case, which will go to the jury; now, under 704, that’s okay to ask experts a) sometimes, very difficult for experts to testify if they can’t couch testimony in a way that encroaches on the ultimate issue b) now we rely on cross-examination to counter that 2. one exception: mental state or condition of a criminal defendant a) don’t want experts testifying on ultimate issue of an insanity defense in a criminal case D. FRE 705: “The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” 1. note: good advocacy – you want jury to hear the facts/data underlying the opinion, which enhances the credibility of the expert a) but note that it’s okay to submit naked expert opinion b) might start out with the naked opinion, and then ask for the bases – and a good expert witness will go into a long narrative supporting the validity of his opinion 2. qualifying the expert – must satisfy the judge that you’re actually an expert (not an amateur, or a charlatan) a) proponent really wants this – this is where he can bring up all the qualifications of the expert, enhancing the credibility of the witness E. Problem 9D: “.24 Percent Alcohol” (p.610) 1. can an expert base an opinion on evidence that is otherwise suppressed? test cited by expert mentioned result of this suppressed test a) under FRE 703: “…the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted…” ← so at first blush, looks like expert can rely on the suppressed evidence b) problems with this – FRE 703 doesn’t mean to eviscerate law that develops for other policy reasons in other settings (e.g., 4th or 5th A suppression law) ← if 703 is read to permit expert to rely on const’ly suppressed evidence, that would be an end run around 4th and 5th A suppression rules 2. this case arose out of certain state procedures for testing for blood alcohol level – so here, suppression was statutory, not constitutional a) so ct could decide to hear the results – when suppression is as a result of state protocol, won’t forbid expert from testifying his opinion b) or, ct could decide that suppression rule is important, and expert can’t testify unless he can do so without relying on the suppressed evidence 3. here, expert’s testimony was inextricably linked to the suppressed test a) ct’s decision was based on its view of the imptance of the underlying state policies for suppressing evidence in the first instance b) note: if it were const’ly suppressed, no question that expert wouldn’t be allowed to rely on such evidence
III. Reliability Standard for Scientific and Other Technical Evidence A. defining a standard – question of when expert evidence offered as science is admissible 1. old rule: Frye (1923) – the principle supporting the testimony must “have gained general acceptance in the particular field in which it belongs” a) what judge is really doing is delegating the authority to the field – if your field generally accepts your theory (principles supporting conclusion), that’s good enough b) problems in this standard ← how to measure “general acceptance” – through the same expert (bootstrapping)? citing journals or a treatise in the field? ← how to determine the “particular field” – if position is generally accepted in a highly specialized part of a bigger field, is this enough to constitute general acceptance? c) πs didn’t like Frye test – viewed the “general acceptance” std as too burdensome, had to do too much to persuade judge to let jury hear it d) Δs didn’t like Frye test – didn’t think judge exercised enough power to exclude testimony 2. Daubert (US 1993) – unanimous rejection of Frye standard a) the only question in Daubert std: is the science reliable and relevant ← is the reasoning or methodology scientifically valid? [reliability] ← can it be applied to the facts before the court (assist trier of fact)? [relevance] b) list of nonexclusive factors for determining if reliability req’t is established ← can the theory be tested (falsifiable) ← has it been subjected to peer review ← what’s the error rate on its application ← general acceptance in the relevant community (note: not essential any longer, but if there is general acceptance, that’s good evidence that it’s reliable) 3. Kuhmo Tire Company, Ltd. v. Carmichael (US 1998) (p.632) a) factual issue was whether a tire that blew out was defectively made, or whether it was just abused by driver ← evidentiary question: does Daubert apply to this kind of expert? technical expertise, not “science” in the way the facts of Daubert seemed to require b) holding: Daubert applies not only to science, but to all expert testimony ← having to decide whether testimony is “expert” or “technical” would require litigating a very close question, not something ct wants to get into c) abuse of discretion standard for reviewing trial judge’s decision ← highly deferential – if judge listens to both sides, holds hearings as necessary, and explains his reasons rationally, then app ct will uphold that regardless of what app ct itself would have done were this de novo review ← this shifts power to the trial judge, whose judicially competent decision is final (in the fed system) a) pre-Daubert, more got through to the jury; new std puts heavier burden on judge, to get up to date on scientific knowledge, etc. B. modern science in the courtroom 1. toxic tort cases a) here, part of the problem is that science often has no answer to the crucial question ← proof of causation usually takes form of cluster studies, short-term screening assays, “differential diagnosis,” animal studies, etc. – typically leave ultimate question of causation unanswered ← problem for factfinder is compounded when issues of multiple or synergistic causation appear (a la contributory negligence) b) increased scrutiny of such proof has led to increase use of motions for SJ to throw out cases that depend on unproven science c) proposals to address these problems are varied, and often involve procedural mechanisms like class actions to consolidate claims, use of stats to prove general causation, etc. – but more innovative reforms haven’t yet been adopted d) modest reform of civil discovery rules has at least made expert testimony more readily discoverable than it had previously been ← FRCP 26(a)(2) requires every civil litigant to identify any person who might be used at trial as expert witness ← in many cases, must supply expert’s written report containing a complete statement of all opinions to be expressed and the basis/reasons therefore, list of publications written by expert in last 10 years, details of expert compensation, and list of other cases where witness has testified as expert in the last 4 years 2. syndrome and social framework evidence a) Battered Wife Syndrome, Child Sexual Abuse Accommodation Syndrome, etc. b) might want to bring evidence about syndromes to explain conduct that jury may misinterpret ← e.g., question of whether there was a rape – if woman waited a while before reporting the rape, might raise question of whether there was a rape at all; rape trauma expert could testify on how her behavior after the rape is consistent with rape syndrome, to clarify psychological condition to the jury ← e.g., could explain why alleged victim of rape initially denied it and protected the abuser – CSAAS expert could testify to the established pattern of behavior (syndrome) of denying abuse c) how this fits with Daubert and Kuhmo Tire – works according to same methodology; there’s a principle behind conclusion based on investigation, lots of cases, behavioral patterns; expert will have been qualified to speak about these things by virtue of his own research and being familiar with research of others ← once qualified to satisfaction of judge, if allowed under judge’s enhanced Kuhmo Tire power, would be allowed in order to dispel jury’s contrary inference from the behavior C. a lot of expert testimony simply doesn’t fall under Daubert line of cases 1. e.g., in legal malpractice case – question of if lawyer behaved competently a) there’s no science behind this – expert testimony would be based on another lawyer’s experience in the field (purely experiential) 2. rule is that when evidence is susceptible to Daubert/Kuhmo Tire test, it must go through that test – the point here is that there’s a lot of expert evidence that doesn’t fit this framework a) just not a Daubert problem at all – lawyer who calls such an expert doesn’t have to worry about qualifying the expert within confines of Daubert

|8 • BURDENS OF PROOF AND PRESUMPTIONS |

I. Burdens and Presumptions in Civil Cases A. basic notes on burdens 1. burdens don’t come from FRE, but from statutory or judge-made law a) becomes pertinent to FRE b/c once burdens are established, they play out in interesting ways in a trial – it’s the play-out part that we’ll look at in context of rules of evidence 2. burdens of pleading vs. burdens of proof a) burden of pleading – somewhere in interstices of substantive law in your jurisdiction, you’re told who, as b/t π or Δ, has to inject the factual issue in its pleading ← e.g., in breach of K action, ordinarily π has to assert in the complaint that there was an agreement, there was performance by me, breach by Δ, and damages a) even with all that in the pleading, there are lots of reasons why breach of K action might fail – defenses against it b) but for efficiency reasons, jurisdiction won’t make π answer every possible reason why breach of K action might fail ← gives to Δ burden of raising those tertiary issues, if Δ feels they’re important (this is Δ’s burden of pleading) ← all jurisdictions allocate burdens of pleading b) burden of proof – incorporates two distinct kinds of burdens ← burden of production: basic duty to produce evidence ← burden of persuasion: duty to produce a quantum of evidence that will persuade the trier of fact B. the burdens “dance” – as applied to a breach of K action, where state law says π must prove agreement, consideration, performance, breach, and damages 1. π puts in her proof – either: a) her proof on each element could support a jury finding of fact (which by definition means she has meet her burden of production on these) ← judge decides that a rational person could find that π has proved each of these 5 elements by the requisite burden of proof a) not saying that judge himself is persuaded; his job is deciding that a decision for π by jury, based on her proof, would be a rational one ← in almost all civil jurisdictions, the weight of burden of production is preponderance of the evidence (51/49) a) vs. clear and convincing (around 70/30) b) vs. beyond a reasonable doubt (around 95/5) ← if this burden of production is met, then π rests b) (or) her proof on one or more elements could not support a jury finding of fact – case dismissed ← evidence is insufficient to show by a preponderance of the evidence that one of the elements is satisfied ← π failed in her burden of proof (production), and it never gets to the jury 2. if π has met her burden of production (proof is adequate to support a jury finding by a preponderance on each element) – then: a) Δ puts on any case it wishes and rests; then either: ← case goes to the jury which will decide if π has met her burden of persuasion ← (or) judge decides that no reasonable jury can fail to find for π, in which case it does not go to jury – directed verdict for π ← (or) judge decides that no reasonable jury could fail to find for Δ – directed verdict for Δ b) note: even if π puts on an overwhelming case for each of the elements of breach of K, it doesn’t get a directed verdict at that point – Δ has rt to be heard, have chance to cross-examine π’s witnesses, bring forth own witnesses and proof 3. if there are affirmative defenses in the case – defenses on which the state gives Δ the burden of proof – the same back and forth format plays out in reverse a) Δ then has burden of production and burden of persuasion b) a defense that isn’t an affirmative defense, if raised by Δ, will require π to disprove the defense, by some burden of proof ← π doesn’t have to plead it, but if Δ raises it, then π will have burden of disproving the claimed defense ← Δ injects issue in some way – maybe in a pleading, maybe thru introduction of proof – which then places the burden on π to rebut C. the presumption: a special device for shifting and allocating burdens 1. presumption = rule of law that says that under certain circs, if a party proves that one fact is true to the satisfaction of the trier of fact, then trier of fact must find that another fact is true a) vs. inferences – permissive; something can rationally be drawn from a set of facts b) presumptions are mandatory: if basic facts are proved by the required burden of proof, the presumed facts must be found to be true unless rebutted 2. examples of presumptions (basic fact ⋄ presumed fact) a) regularly addressed, mailed letter ⋄ letter was received by addressee b) lawfully stopped vehicle rear-ended ⋄ driver of second car negligent c) violent death, external means ⋄ death an accident d) 7 years absent and no word ⋄ person dead e) will cannot be found following T’s death ⋄ T revoked it f) goods delivered to bailee in good condition, returned in bad ⋄ bailee was negligent g) employee in accident while driving employer’s car ⋄ employee driving w/in scope of employment 3. rationales for presumptions a) some are experiential – we know that generally the presumed fact follows the basic (e.g., letter) b) puts on recipient the burden of challenging the presumed fact – e.g., recipient of mailed letter is the one who is likely to have the info, is in position to challenge or confirm c) probabilities – e.g., accident is statistically most likely explanation for the violent death d) helps πs – e.g., employee car example establishes vicarious liability, forces employer to come forward with information peculiarly in its possession e) social policy – e.g., presumption of legitimacy (that a child born to a married woman is the child of the husband); e.g., presumption of death after 7 years resolves issue when no proof available D. the “in-between” situation – what happens when the opponent of the presumed fact tries to negative the presumed fact [NPF] (as opposed to normal battle over basic facts) 1. e.g., if bailor gives goods to bailee in good condition and they are returned damaged, the presumption is that they were damaged due to negligence of the bailee; then bailee introduces evidence that goods were destroyed because of an event that negates the bailee’s negligence (a flood, a crime, etc.) 2. Thayer’s view: all the bailee must do is introduce evidence that could support a rational person in concluding that the goods were damaged by reason other than the bailee’s negligence (opponent of presumption has burden of production NPF) a) once the bailee does that, in Thayer’s view, the presumption disappears b) evidence NPF changes the “must” that would appear in the jury instructions to “may,” which is important – jury is no longer compelled to find negligence c) in bailment situation, b/c bailment presumption is not experientially based, having lost benefit of the presumption, the bailor will be out of court; w/o the presumption, bailor will not have sufficient evidence to meet a production burden and get to jury on the issue of the bailee’s negligence 3. Morgan’s view: this doesn’t give presumptions enough respect; opponent of presumption has not only burden of production NPF, but also burden of persuasion a) jury instruction should say: “Everyone agrees that the basic fact is true. You must find that presumed facts are true unless opponent of presumed facts has persuaded you by a preponderance of evidence that presumed fact is not true.” 4. fed committee agreed with Morgan, but Cong went with Thayer a) FRE 301: “In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.” b) note: doesn’t mean that FRE 301 and Thayer will govern in every case ← Cong, in a Σ as construed by ct, can adopt Morgan rule on presumptions – in which case, that Σ overrules for that particular area of law FRE 301 c) also note: FRE 302 says that if the case is governed by a state rule of decision, then the state rules on presumptions apply ← presumptions can decide who wins or loses; Cong didn’t want fortuity of being in fed ct to deny what a state has decided is the proper weighting of burdens E. Texas Dept of Community Affairs v. Burdine (SC 1981) (p.681) 1. SG: this is a rather useful exercise of application of presumption that SC had itself created, in context of Title VII cases alleging intentional discrimination in employment 2. π has burden of proving a prima facie case – π has produced the basic facts, which, if believed by jury, will give rise to a presumption (π’s burden of production) a) judge decides whether a reasonable jury could find the elements of the prima facie case by a preponderance of the evidence b) prima facie case creates a rebuttable presumption of discrimination 3. if Δ does nothing in face of the prima facie case, and π’s evidence is believed, the ct “must enter judgment for the plaintiff” a) if Δ wants to avoid this (dislodge the presumption), Δ must meet a burden of production b) but then the ct says something else, which makes some commentators think SC is giving presumption more respect than Thayer would ← ct says that the proof must be “clear and reasonably specific” – suggests that Δ, to negative the presumed fact, has a higher obligation than the traditional burden of production (preponderance of the evidence) 4. if burden is met, whatever it is (we’ll call it a production burden) – then battle shifts to π’s ct a) the presumption is gone, and π (who never lost the burden of persuasion) has to rely on her original proof to support the finding of discrimination b) if original proof is insufficient as a matter of law to satisfy the production burden on discrim, π is out of ct – even if nobody believed Δ’s evidence negativing presumed fact c) ct points out that jury might look at Δ’s proof negativing the presumed fact (offer of a nondiscrim reason), and disbelieve it – and that disbelief can actually bolster π’s case
II. Burdens, Presumptions and Inferences in Crim Cases ((issues complicated by crim protections)) A. old rule re burdens in criminal cases: In re Winship, back in the 1970s (notes, p.696) 1. state has burden of proving every element of a crime beyond a reasonable doubt a) note: “beyond a reasonable doubt” comes from a gloss of the const (not in const itself) 2. BUT note: who decides what the elements of the crime are? the state does a) so what kind of victory is this for civil liberties, if state could just redefine a crime, take out an element that it doesn’t want to prove beyond a reasonable doubt? b) yes, but this is lawmaking – historically a prerogative of the state to define crimes c) and there is no const’l law of substantive crimes – these are political decisions (in the best sense of the word) d) if this is true, then what did Winship achieve, if state can get out from under burden simply by redefining the crime? 3. questions that followed Winship – are there any const’l limits on how a state does this? a) SG: almost no such limits – Cruel and Unusual Clause, but this is almost useless when it comes to non-capital crimes b) is there a substantive due process limit on the state’s ability to define crimes? or is the issue entirely a product of the political process? ← though note: the political process is a decent limit on state’s actually going to define crimes – political backlash of manipulation of criminal statutes B. shifting of the law into the modern era 1. Mullaney v. Wilbur (1975) (notes, p.696) – seemed to support Winship… a) murder Σ in Maine had “malice aforethought” as an element; judge told jury that “malice aforethought” would be “implied” (which SC read to mean presumed) from a “deliberate act [done] suddenly… or without a considerable provocation” ← Δ could defend by proving by preponderance of evidence that he “acted in the heat of passion, on sudden provocation” – would reduce crime to manslaughter b) issue: both a defense and an element of the crime involve the same fact – provocation ← state has to prove absence provocation (BRD) to get malice aforethought; Δ could prove provocation (preponderance) in order to defend ← Maine admitted that these are two opposite things – one negates the other c) holding: this overlap b/t the defense and the defn of the crime has the effect of violating Winship by shifting the burden of proof on provocation to the Δ, though this is an element of the crime ← Winship expressly doesn’t allow state to do this – state must prove every element beyond a reasonable doubt ← at very least, this could confuse jury about who had what burden and dilute the state’s BRD duty; at worst, jury could believe Δ had the burden on provocation d) so Mullaney seems to say that ct will examine every element of the defense so that one doesn’t negative the other, creation of affirmative defenses aren’t a backdoor way of reducing the Winship obligation ← this broad reading, more Δ-protective: state can’t create an affirmative defense that overlaps the elements of the crime, even if it accepts the responsibility to prove every element of the crime 2. another reading of Mullaney – what the state did that was unacceptable was allow jury to presume absence of provocation, once the state proved BRD that Δ committed the murder a) then it was left to Δ, in his defense, to rebut that presumed fact – by proving that he acted in the heat of passion b) this much narrower reading leads to holding that state may not shift burden of proof to Δ by presuming an ingredient of the crime upon proof of other elements ← Maine freed itself entirely from having to prove presumed element, shifted to Δ burden of disproving the presumed element c) SG: it’s this narrower reading of Mullaney that survives 3. Patterson v. New York (US 1977) (p.696) a) Δ is charged with murder (killing a person, intending to do so); NY affirmative defense of extreme emotional disturbance (Δ has to prove by preponderance) b) Δ went to SC, claiming that imposing this burden on him violated Mullaney ← claim that this burden is the modern phrasing of the “heat of passion” defense in Mullaney – still the same basic paradigm, Δ shouldn’t have burden of proving it c) holding: unlike in Mullaney, elements of crime and elements of defense can coexist here – state must still prove elements of the crime beyond reasonable doubt ← putting on Δ burden of proving an affirmative defense isn’t asking Δ to negative any element of the crime d) policy rationale: NY really expanded the number of defenses over traditional penal law standards; this is ameliorative, and we want to encourage this ← if we force NY to assume burden of disproving defense beyond a reasonable doubt as a price of creating the defense, state will likely decide not to create the defense 4. side note: SC referred to insanity cases, where ct has permitted states to impose on defense the burden of proving insanity, even going so far as to uphold an Oregon state Σ making weight of that burden BRD (Leland) a) this is okay, b/c proving elements of insanity defense isn’t inconsistent with making the state prove the elements of the crime beyond a reasonable doubt 5. Powell dissent in Patterson (note: he wrote Mullaney) a) problem: how do you articulate a standard? doesn’t want to say that every defense has to be disproved by state beyond reasonable doubt – that would really reduce motivation of states to create defenses ← so how to distinguish b/t defenses state can’t assign to Δ, and ones that it can? b) Powell’s two-part test ← does defense make a “substantial difference in punishment” or exoneration; ← and historically, has Anglo-American law treated the defense as one the state must prove beyond a reasonable doubt c) as applied here – the extreme emotional disturbance is, in Anglo-American jurisprudence, a defense that the state must disprove ← most modern defenses won’t fall within state’s obligation to disprove, but some will, and this is one of them d) but, Powell notes, state may give Δ the burden of production on these defenses ← NY can say to Δ, “You can raise this EED defense, and if you do it in the right way, we’ll have burden of persuasion to disprove it; but we don’t have to plan to disprove it unless you inject it into the case” C. Problem 10C: “Killing by ‘Calculation and Design’?” (p.711) 1. Δ killed her husband (“purposely killing another with prior calculation and design”) 2. affirmative defense of justification (self-defense): burden of persuasion by preponderance: a) not at fault in creating the situation, and b) honest belief of imminent danger of death or great harm that only force could prevent 3. Δ convicted, and appeals, arguing that if there’s anything left to Mullaney, this is it, since the elements of the defense overlap with the elements of the crime a) arg that as a practical matter, if you have an honest belief of imminent danger, then the circs are not such that you killed with prior calculation and design ← state is making Δ disprove an element of the crime, which Mullaney/Winship say is the job of the state b) also arg: how will jury understand this, when it’s told that state must prove prior calculation and design, but Δ must prove basically the absence of prior calculation and design? ← risk that jury might find that Δ didn’t carry her burden and convict, even if it also has a reasonable doubt about the elements of the crime – danger that result of jury confusion will be dilution of the state’s burden of proof BRD 4. state args a) we have to prove the elements of the crime BRD b) no element was presumed (as was the case in Mullaney) c) Δ doesn’t actually have to prove the defense to win – jury could weigh Δ’s evidence in concluding that the state has not proved case BRD and acquit even if it finds that the Δ did not carry her burden of persuasion on self-defense ← not as though Δ walks only if she proves her defense up to the 51% mark – given state’s BRD burden, Δ could walk if she just gets to the 10% mark 5. in the actual case, Martin v. Ohio (US 1987) a) “It may be that most encounters in which self-defense is claimed arise suddenly and involve no prior plan or specific purpose to take life. In those cases, evidence offered to support the defense may negate a purposeful killing by prior calculation and design, but Ohio does not shift to the defendant the burden of disproving any element of the state's case.” b) step back from Patterson ← now, ct is saying maybe they overlap, and maybe in some cases (nearly all) the latter will negate the former at least in part, but this doesn’t trouble the ct ← state still has burden of proving the elements of the crime, none of which are presumed, beyond reasonable doubt c) instructions could have been better phrased, but jury nonetheless was aware that in order to find for Δ, they didn’t have to find by a preponderance the elements of the justification defense – could have acquitted based on reliance on her evidence to create a reasonable doubt as to whether state has met its burden of establishing the elements of the crime 6. Powell dissent in Martin a) how will a lay jury understanding such conflicting instructions? ← danger is that jury will hear Martin’s evidence, will think that the issue is at 50% (it’s as likely as not that justification defense is made out); will conclude that Δ hasn’t proved her defense and convict – even though if you’re at 50-50, you certainly have reasonable doubt as to the elements of the crime b) so if Mullaney stands for anything anymore, it stands for proposition that state cannot create an element of an offense, and create presumption of its existence from other elements ← that denies you the right to a jury trial – rt to have a jury decide whether that fact is true ← for this proposition, Mullaney definitely remains good law