Evidence Outline – Carter – Fall 2011

I. Introduction and Basics: Evidence Law System

A. Policy: Why Do We Have Rules of Evidence:

(1) Mistrust of Juries

Although we rely on juries, a general mistrust exists

Evidence law is generally a screening function of the Judge

We believe that some evidence may not be weighed accurately by the jury, so judge screens to determine adequacy of evidence and whether a jury could appropriately judge the evidence

(2) Ensure Accurate Fact-Finding

Many of the rules of evidence help to bolster the accuracy of facts

Thus, along with the fear that a jury cannot be trusted, we want the jury to evaluate accurate facts

(3) Pragmatism

Rules control the amount of evidence, scope of evidence

This ensures: quick, accurate, and cost-effective, not overly duplicative

These are embodied in FRE 102, infra

B. History and the Federal Rules of Evidence General Provisions:

General:

California was the first state to attempt to codify evidence rules

Prior to, evidence rules existed at common law

Federal Rules followed, first adopted in 1975

Proposed by advisory committee appointed by the Supreme Court

Transmitted to Congress pursuant to the Rules Enabling Act

Thus, if not amended by Congress They become law after 90 days of inaction

Were amended

Purpose:

Accessibility is the main reason

All rules are in a short, concise 63 rule-book

FRE 102: Purpose:

Rules shall be construed so as to:

1. Create Fair proceeding

2. Eliminate unjustifiable expense and delay

3. Promote development of evidence law

4. In order to ascertain truth and secure justice

Note:

This is a fall back objection to get rule construed in your favor

General Provisions:

FRE 101: Scope of Application:

1101(a) Rules apply to those Courts listed:

1. US District Courts

2. US Bankruptcy Courts and Magistrate Judges

3. US Court of Appeals

4. US Court of Federal Claims

5. District Courts of the Territories

1101(b) The Rules apply to:

Civil Cases and Proceedings, admiralty and maritime cases

Criminal cases and proceedings

Contempt proceedings

Bankruptcy proceedings

1101 (c): Privilege

Privilege rules apply to all stages of a case or proceeding

Note:

So, although FRE may not always apply, privilege portions do

The Super Objection

1101 (d) The FRE do not apply to (except for privilege):

1. 104 Preliminary Questions of Fact

2. Grand Jury

3. Miscellaneous Proceedings listed***

C. What Occurs at Trial:

1. The Beginning

A. Civil

Civil Complaint: Explains what was alleged to have occurred

B. Criminal

1. Indictment:

Grand Jury gets to, in secret, evaluate evidence presented to it to determine whether enough evidence to indict suspect

Not adversarial

∆ does not present evidence

2. Or, Criminal Complaint/Information Statement

Explains what alleged to have occurred

Preliminary Hearing

This hearing follows to determine if probable cause exists

Witnesses are called

∆ may utilize evidence (but may not to avoid exposing arguments to π)

2. Pre-Jury Selection Motions:

A. Civil

Discovery and motion practice occurs

B. Criminal

Some type of discovery occurs (jurisdictionally dependant)

Evidence is collected and cataloged

Motions occur

3. Jury Selection

Generally:

At this point and trial, differences between the civil and criminal systems converge

Differences are minor

“Voire Dire”

Each side gets to question potential jurors, assessing their ability to beneficially decide the case

Judge may also question

Each Side May Challenge:

A. Challenge for Cause

Judge must determine if “cause” has been determined

EG: prejudiced/related

B. Peremptory Challenge

Each side is given a limited number of exclusions without cause/for any reason

Note:

Some courts have held that race cannot be a factor

4. Trial begins:

A. Opening Statement

Puts together a theme of the case, and explains what the evidence will show and what they will prove

B. Presentation of Proof

1. Case in Chief of Each Party Begins

A. Plaintiff/Prosecutor Presents Case-In-Chief by calling witnesses

Direct Examination:

Testimony elicited

Demonstrative evidence sponsored, objected to, and admitted/denied

∆ Cross-Examines

π Re-Direct

B. Defendant Presents its Case in Chief

Π Cross-Examines

∆ Re-Direct

C. Plaintiff’s Rebuttal

∆ Cross-Examines

π Re-Direct on Rebuttal

Note:

The Scope of Direct Rule applies

The party presenting their case-in-chief gets to determine the order, sequence, and subjects they present

The party with the burden of proof always begins and ends

During Case-In-Chief: Introduction of Evidence:

Party presenting the evidence:

1. Introduces it

Lays foundation for evidence

Sponsoring Witness to admit the evidence

Authenticates the Evidence

2. Offer to Admit Evidence as Exhibit

3. Objection to Evidence Occurs

Note:

If you fail to object to evidence, you waive the right to and do not preserve for appeal

4. Offer of Proof

Note:

If you fail to make an offer of proof, you waive the right to and do not preserve for appeal

5. Ruling

5. Trial Motions:

Parties Motion the Court for judgment

Parties may desire to have case taken away from jury

Directed Verdict

This is rare as it removes from jury

Subject to easier reversal on appeal

6. Closing Arguments

Order:

(1) Plaintiff

(2) Defendant

(3) Plaintiff’s Rebuttal

7. Jury Instructions:

Generally:

Parties submit, object to and argue to the instruction

Two Special Types:

1. Curative Instruction

May occur during trial, after objection is sustained, or at end of trial

Instructs the jury to ignore certain evidence

2. Limiting Instruction

Instructs the jury on how certain evidence may be considered or applied to one point and not another

FRE 105: The Judge may be requested to give a limiting instruction

8. Deliberations, Verdict, Judgment, and Post-Trial Motions

Generally

Time for appeal begins to run

Post Trial Motions:

Losing Parties typically move for:

Judgment as a Matter of Law/Judgment Notwithstanding the Verdict

9. Appellate Review:

Generally:

A “Final” judgment must occur before appeal is granted

Preservation of Claim of Error:

To get Full Review:

Parties must have stated the position to the trial court, objecting/making offering of proof

D. Making the Record:

1. Generally:

The record, recorded by a stenographer or computer, is used to present a case to the judge and jury in the trial court and also a potential appellate court on review

The Only Consideration of the Appeals Court

It is extremely important, as it is a permanent writing of what is said and done at trial

Attorneys should get into the record, as clearly as possible, their case and what occurred at trial then, in preparation for potential appellate review

Get Evidence in

Show your attempt to get evidence in with (1) Objection or (2) Offer of Proof

2. A Record is Composed of:

A. Pleadings

B. Filed Documents

Motions, briefs, discovery, jury instructions

C. Record of Proceedings

the written account of what transpires during the trial

Note:

The most important to appellate review regarding evidence

Questions, responses/testimony, objections and rulings by the trial judge

Side-Bar discussions

D. Physical Exhibits

E. Docket Entries

A dated, chronological version of everything that happened from beginning to end of the action

3. Issues in Making the Record: What to do and what not to do

A. What to Avoid:

Repeating Answers of Witnesses

Interrupting the Witness

Failing to explain numbers mentioned clearly as to what they mean

Failing to Explain who a name corresponds to/spelling

Which evidence is being referred to

Non-verbal references should be explained

B. What to Do:

Assure that what is in the record is

(1) Clear, and

(2) Meaningful when evaluated by a potential Court of Appeals

Be Aware of the Reporter

Remember that someone is typing what occurs

Be as clear as needed to ensure the reporter can get what occurs on paper

E. The Admission or Exclusion of Evidence:

1. Getting Evidence In:

A. Testimony from Direct Examination

Generally:

When an attorney is questioning a witness, 3 things are done

1. Background Information:

Basic Questions that ease the witness, and presents to jury in positive light

2. Foundation of Testimony:

Shows witness has personal knowledge of the information (meeting FRE 602)

Authenticates Evidence

Background to adequately testify to the information

EG: at the scene, or expertise as an “expert witness”

3. Substantive Testimony:

Testifies as to knowledge of the pertinent facts

Form of Questioning-FRE 611:

A. Judge Has Control Over the Interrogation of Witnesses/Court- FRE 611(a):

Court may exercise reasonable control over mode/order of questioning to

1. Make procedure effective to determine truth

2. Avoid wasting time, and

3. Protect witness from harassment/embarrassment

Note:

The judge has inherent authority to control court room subject to the lawyers right to represent his client

B. Leading Questions on Direct Examination Are Restricted FRE 611(c):

Leading Questions should not be used in direct examination except as necessary to develop witness’s testimony

EG: child who is shy, etc… may be able to use leading questions

Permitted When:

(1) Hostile Witness

A party whom you thought would testify to benefit you, but turns on the stand

You may ask leading questions

(2) Adverse Party

The party against whom you are bringing the case

(3) Affiliate of Adverse Party

If relationship to an adverse party, you may

EG: Spouse, mother, brother

B. Testimony from Cross-Examination

Generally:

In this instance, the party cross-examining seeks to control the witness to extract the truth

Form of Questioning- FRE 611:

A. Leading Questions are Permitted- 611(c)

In cross-examination, leading questions are permitted

Policy:

Narrows the inquiry

Invokes the memory to dislodge previous questioning’s track

Exposes inaccuracies in memory

Focuses attention on important details

B. The “Scope of the Direct” Rule- 611(b)

General Rule:

On subsequent-examination, the questioning is limited to the scope of the matters addressed and explored in the previous examination

This limits the ability of the party to interrupt the case-in-chief

Thus:

Cross-Examination is limited to scope of Direct

Re-direct is limited to scope of Cross

Re-cross is limited to scope of Re-direct

Note:

As each subsequent questioning occurs, the issues get narrower and narrower until parties have had enough or judge ends

2 Exceptions—611(b):

Limited to Scope of previous examination, unless

1. “Credibility” issues/impeachment are always permitted

2. Judge has discretion to allow inquiry beyond the scope of direct

Note:

The issue becomes what the “scope” of the previous examination was

Characterizing as broader or narrower will lead to how questions may be phrased

C. Real and Demonstrative Evidence:

Real:

Tangible things directly involved in litigation

Note:

Evidence does not require “production”, but instead, testimony may establish real evidence

Demonstrative:

Tangible proof that in some way makes a graphic of the point to be proven

EG: diagrams, maps, photographs

FRE 901 Authentication Requirement:

Evidence must be proven to be what the proponent says it is

2. Keeping Evidence Out:

A. Motion in Limine:

Generally:

When a party anticipates that evidence will be objected to, or that evidence will be significantly contested, may wish to obtain a ruling in advance of the matter

Motion in Limine is the appropriate tool

EG:

Motion to Suppress is most common version

Daubert hearing

Note:

If the motion is denied, there is not need to later object to preserve an appeal

103(a)

Judge may alter ruling, depending on how trial plays out—Motion ruling is not dispositive

B. The Introduction of Evidence, Objection, and Offer of Proof:

Generally:

FRE 103 defines how to each side must properly preserve claims of error and get evidence in or keep it out

Once evidence has been introduced, these follow

1. The Objection:

Purpose:

1. Keeps evidence out

2. Preserves right of appeal if Meets 103 Requirements, and admitted

Requirements:

103(a)1(A): A party may claim error in a ruling if it affects substantial right and

1. Timely Objects/Motions to Strike

Generally:

This means that, at the earliest reasonable opportunity, the party objects to the evidence admitted

If it occurs after a witnesses’ answer, it becomes a ‘motion to strike’

2. States the Specific Ground (unless apparent)

Generally:

You must state the reason you are objecting and specifically what you are objecting to

Types of Grounds:

A. Specific/Substantive:

Rest on a particular exclusionary principle in FRE

B. Formal Objection:

Focuses on the manner of questioning

Tactical usage to break cadence, delay, or obstruct momentum

Types:

1. Asked and Answered: the question has already been asked and answered and questioner is seeking different response

2. Assumes Facts not in Evidence: information in question should be supported by evidence already admitted

3. Argumentative: Being rude, sarcastic with witness not permitted, court may step in per FRE 611(a)

4. Leading Question: Counsel is telling witness what to answer

5. Misleading: Question may misstate evidence

6. Speculation: If too guess-work of an answer

7. Narrative: If question calls for broad response, and opposing lawyer believes that answer may have objectionable things inside

8. Ambiguous, Uncertain, and Unintelligable: Points out flaw in question that record cannot capture or question is confusing and cannot be understood

C. General Objection:

EG:

“Objection” or “Irrelevant, Incompetent, Immaterial”

Useful in that, if objection is obvious, court may understand

Or, if attorney believes something is wrong but cannot put his finger on it, this will give him time to think

Effect on Appeal:

If Overruled: Does not preserve the right to appeal

If Sustained: Will preserve right if there are any grounds which support it

2. The Offer of Proof:

Purpose:

1. Opportunity to convince judge evidence is admissible following objecting

2. Preserves right to appeal on the matter if excluded

Requirements:

103(a)(2): If a ruling excludes evidence, party informs the court of the evidence’s substance with an “offer of proof”

To Do:

Present evidence, and then be prepared to explain its specific purpose to the trial judge, arguing what would have been said

A. By Attorney: Attorney may explain what would have occurred

B. By Witness: 103(c): May Question Witness to Offer Proof

Offer of proof may be presented in a “question and answer” form

This means that, party may have witness on the stand and ask questions which seek to show the purpose of the offer

Effect:

Questioning witness preserves issue on the record for Court of appeals to see what evidence would have been

103(d): Must Prevent Jury From hearing Inadmissible Evidence:

When offering proof, either by attorney, or questioning witness, jury should leave

To the extent possible, the Court should conduct a trial so that inadmissible evidence is not shown to jury in any means

Therefore:

If Q&A of witness, parties may ask jury to leave

Lawyer’s Responsibility

3. 103(e), Plain Error, and Preservation for Appeal:

Generally:

It is required that an objection and/or offer of proof occur to preserve an issue on appeal

However, if these do not occur, 103(e) provides for relief

103(e) Plain Error

A court may take notice of a plain error affecting a substantial right despite not being properly preserved

Note:

See discussion, infra, on appeals

C. Judicial Mini-Hearings of 104 Preliminary Questions:

Generally:

The Role of the judge is to provide a screening function for evidence, and to judge the parties’ contentions about evidence

Therefore, when evidence is offered, objected to, and offer of proof occurs, the judge must rule on these issues

These objections and offers of proof create ad-hoc mini-evidentiary hearings

104(a):

The Judge must decide any preliminary question of

(1) witness qualification

(2) privilege, or

(3) whether evidence is admissible

Judge is not bound by rules of evidence:

Therefore, although a jury can only hear admissible evidence, a judge may consider any and all considerations when ruling on a piece of evidence

104(b) Conditional Relevancy:

When judge is considering evidence, and it depends on some fact being fulfilled the Judge may admit it conditionally

Evidence is then admitted on, or subject to introduction of evidence that supports the condition precedent

104(c) Preliminary Question must be Conducted Outside of Jury’s Hearing if:

1. Involves admissibility of confession

2. Defendant in criminal case is witness and requests jury not be present

3. Justice so Requires

104(d) Testimony by Criminal Defendant:

If a criminal defendant testifies on a preliminary question, he does not become subject to cross-examination

EG:

If there is an evidentiary issue of privilege, the criminal defendant can testify to show when privilege attached

This does not waive 5th amendment

104(e):

Even if evidence is admitted by the judge, parties may still argue that credibility of it to the jury

F. Witnesses and Rules Dealing with Them:

Generally:

A large portion of the trial process

Special rules govern

1. FRE 601: Witness Competency

Every Person is deemed competent to be a witness, unless the rules provide otherwise

2. FRE 602: Personal Knowledge Requirement

A witness may testify to a matter only if the witness has personal knowledge about it

To prove personal knowledge—witnesses own testimony may occur

EG:

Laying “Foundation” in testimony is meeting FRE 602

3. FRE 603: Oath or Affirmation to Testify Truthfully:

A witness must give an oath or affirmation to testify truthfully before testifying

It should be such that it impresses upon the witness this duty

4. FRE 604: Use of an Interpreter:

Must be

1. Qualified

2. Give oath or affirmation to be truthful

5. FRE 605: Judges May Not Be Witnesses:

Presiding judge may not testify as a witness

Party need not object to preserve this

6. FRE 606: Juror May Not Be Witnesses:

A Juror may not testify as a witness

If called, adverse party must have opportunity to object outside of jury’s presence

However, a Juror may testify about:

1. Whether extraneous prejudicial information was used by jury

2. Outside influence was improperly used

3. Mistake made in entering verdict on verdict form

G. Appealing from Evidential Error:

1. Requirements of Appeal:

1. Must show there was an Error

2. Show it affected a “substantial right.” (I.E., it was reversible) per FRE 103

Affecting a “Substantial Right”

In general, there is a need to distinguish between errors that were harmless and those that are reversible

If it is reversible, it effected a substantial right

Reversible:

“Probably did effect judgment/outcome/result and was preserved”

Harmless:

“Probably did not effect judgment/outcome/result”

Mistake May Be Harmless If:

1. Cumulative Evidence/Overwhelming Evidence: Although yes, there was an erorr admitting/excluding, there was so much other evidence, a jury would have come out the same way or the other evidence supports the judgment

2. Curative Instruction Given: May avoid reversal with a curative instruction

3. Have Adequately Preserved it (Via Objection or Offer of Proof)

2. Plain Error: FRE 103 (e):

Even if an evidential error has not been properly reserved, the parties may still seek review under plain error

Must be a clearly obvious mistake of admission/exclusion Rare

3. Standard of Review on Appeal:

Generally:

In evidentiary matters, 104 issues are generally within the broad discretion of the trial judge and rarely overturned

Standard:

1. Abuse of Discretion or

2. Clear Error/Clearly Erroneous

Basically:

Reversal will rarely occur, and appellate courts want to affirm

4. Common Issues Affecting Appeal:

1. Failure to Preserve

You must (1) Object or (2) Offer Proof in order to preserve you right to appeal the issue

If you do not You waive the right (subject to plain error which is rare)

2. Appellate Courts Find a Ground Typically

Even if a judge ruled incorrectly on an objection/offer, if another unmentioned ground exists which supports the judge’s ruling it will be sustained

II. The Authentication Requirement

Generally:

Prior to the admission of evidence, it must be shown that it is what it is being said to be

This process is the “authentication” of the evidence

Applies to All Evidence:

Tangible evidence (I.E., a gun)

Testimony (although to a lesser extent, through the “personal knowledge” requirement of FRE 602)

Note the Two stages of Authentication of Evidence:

1. A Preliminary 104 Question of Whether Evidence is Admissible:

This is what we undertake here

A question for the Judge

Screening Function of the Court

Decision of whether the evidence is sufficient to show to a jury

Whether there is enough that a jury could decide evidence to be authentic

Possible Results:

1. If proponent offers inadequate authentication Excluded

2. If proponent offer adequate authentication Included, allowing jury to decide

2. Jury’s Decision of Whether it is Authentic

A Question of whether the jury believes you’ve met your Burden of Proof

A. Laying a Foundation /Authenticating Evidence:

Generally:

Foundation is essentially how you authenticate

The process by which you prove the thing is authentic

Traditionally, 7 steps occur to lay a foundation and authenticate evidence

1. Court reporter marks an exhibit for identification

2. Offering testimony identifying or describing the exhibit

Sponsoring Witness

This is where authentication occurs

3. Offer of Exhibit Into Evidence

4. Opposing Counsel’s Examination

5. Objections

6. Ruling

7. Asking Permission to present the exhibit

Note:

Prior to getting evidence authenticated and admitted, do not allow the jury to see substance of evidence

May be reversible error as jury may have seen inadmissible evidence

B. The Standard of Authentication- FRE 901:

901(a)

To authenticate, the proponent must:

“Produce evidence sufficient to support a finding that the item is what proponent claims it is”

Sufficiency is required ( A very easy standard to meet)

Evalute:

(1) What are you claiming the evidence is

(2) Is it that?

EG:

“This is the knife that killed him,” or “This is a knife that resembles,” or “this is a knife of equal size and weight”

Depending on what you claim it is, the sufficiency of evidence may change

901(b)

Enumerates examples that satisfy the 901(a) sufficiency requirement

1. Testimony of a Witness with knowledge of what item is

EG: The baby in the jar presented is the one from hospital

Use custodian, or chain of custody

2. Non-Expert Opinion about handwriting

EG: mother or friend is familiar with it

3. Expert Comparison

4. Distinctive Characteristics

The appearance, content, substance, internal patterns, or distinctive characteristics of the item taken together

5. Opinion about a voice from testimony as to who it is

If you’ve heard before even once or twice (There is no clear limit to giving opinion)

6. Evidence about Telephone Call

Call made to a number associated with person showing person was one answering

8. Ancient Documents

9. Evidence about a process or system

Showing a process or system is accurate

C. Specific Types of Evidence and Their Authentication:

1. Tangible Objects:

US v. Johnson:

F: At trial, ax was offered into evidence as the weapon via testimony by witness who was a bit hesitant. Johnson objected that there was not sufficient authentication to show this was the ax

R:

1. The “Sufficiency Standard” is satisfied on a prima facie case:

The witness was “pretty sure” it was the ax

He had used it before

He had seen it before

Adequate to admit evidence to jury, who was then free to reject

The “Chain of Custody Rule”:

Rule:

One may account for where evidence has been from its seizure until its presentation at trial

Demonstrating each chain in the link of custody

A sufficient method of meeting authenticating requirement

However Not Required

If Chain of Custody Cannot Be Demonstrated:

Typical Authentication must occur meeting “sufficiency” standard

US v. Howard-Arias (where marijuana seized, but not all of chain of custody established prior to admission at trial):

Evidence must be sufficient to “convince court it is improbable that evidence is not the original item and has not been tampered with”

Missing Links and gaps are ok, as long as “sufficiency” of 901 met

2. Writings:

Generally:

Writings may pose unique issues if they are being claimed to be from a particular party

Issues of how exactly you demonstrate a letter came from party A, rather than an imposter are difficult

A. Factors that May Lead to Document being Authenticated as Coming from a Specific Party- US v. Bagaric:

F: letter presented at trial, stating it was letter from the ∆ to someone regarding drug sale. Objection to authentication

R:

Post-marked from where ∆ resided

Signed with ∆’s known alias

Referred to other ∆’s in the letter

Referenced friends of the ∆

901(b) 4:

Distinctive characteristics of the content

Adequate to meet 901(a) sufficiency requirement

B. Stylistic and Characteristics in Writing:

Stylistic, and characteristics in writing may be used to authenticate a letter per 901(b)4

EG:

Spelling mistakes known of the party may authenticate

Use of letterhead may be, along with other evidence, authenticating

Recognition of Handwriting per 901(b)

Note:

If proponent claims it came from a party, there is an issue of authenticating that it did and avoiding claims that someone else wrote it

C. E-Mail:

Generally:

Same issues arise as with a letter

How exactly do we know the e-mail, although from A’s address was sent by A

Factors to Consider:

1. Substance and Characteristics per 901(b)4

Facts only party knows about?

Writing Styles?

2. Address (password to utilize the address, only known to one or few)

3. “Reply Doctrine”

Writing may be authenticated by showing it was in reply to an earlier communication to that person

Overall:

Remember the issues is one of the sufficiency of presenting it to a Jury

Convincing a Jury that the e-mail was, in fact from A, is different issue

3. Tape Recordings:

US v. Oslund:

F: Tapes were used by prosecutor to assist in conviction. ∆ challenges the authentication of the tapes.

R:

1. McMillan Factors May Be Evaluated in Determining Authenticity of Tapes:

1. Device Capable of Recording

2. Operator was competent to operate

3. Recording is correct and authentic

4. Changes, additions, deletions have not occurred

5. Recording has been preserved in the manner shown to court

6. Speakers are identified

7. Conversation was voluntary and not induced

Note:

Although dated with the advent of new improved recording technology, these are helpful guidelines to evaluate in totality of circumstances

Not Required

2. Process and System May be Authenticated

If the participants don’t testify, reliance on 901(b)5 may be appropriate

3. Use of Parties Involved

Officer in charged authenticated

Identified Speaker

Was fully responsible for tape when finished

4. Gaps in Tapes Do Not Go to Admissibility—They Go to Weight Of Evidence

If there are gaps in the tapes, they do not effect “authentication” of admission

901(b)5: Hearing Voice:

Note that a party could identify a speaker in a tape, bolstering authenticity if they have heard the voice before potentially

4. Telephone Conversations:

Generally:

Like letters and e-mails, determining whether a phone call from a number is in fact the person who the number is attributed to may not be as easy as it appears

901(b)5 (recognition of voice) and 901(b)6 (number associated with party), together, may be enough

Caller Self Identification Insufficient—US v. Pool:

R:

A telephone call from a number, identifying caller as X may not, alone, be sufficient to authenticate the party as coming from X

More is Needed:

Recognition of Voice from familiarity

Even hearing once or twice before is enough

Recording

Style, Characteristics of Content.

But, that alone is not sufficient to “authenticate” per 901

D. Self Authenticating Evidence- FRE 902:

Generally:

Some evidence does not require authentication, and alone, will be considered admissible

Opponent may still reject authenticity:

Gets a 104 Preliminary Question hearing to check if authentic

However, the proponent has no initial burden to prove authenticity

902:

1. Public Documents that are signed and have a seal/crest of some public jurisdiction (US, State, etc…)

5. Official Publications: Book, pamphlet from a public authority (E.G. The Census or Budget)

6. Newspapers and Periodicals (E.G. The Wall Street Journal)

7. Trade Inscriptions: If affixed in the course of business, presumed authentic (E.G. Mountain Dew Bottle does not need to be authenticated as Mountain Due)

8. Commercial Paper

III. Relevancy

A. The Broad Relevance Standard-FRE 401:

1. 401 Standard:

Evidence is relevant if: “It has any tendency to make more/less probable the existence of a fact that is of consequence to action”

402:

Relevant Evidence is admissible unless:

Constitution

Federal Statute

Federal Rules of Evidence

or Court Rules say Not

Irrelevant evidence is inadmissible

Note:

This is where the “objection” to irrelevant evidence lies

2. Tendency Defined:

The standard is extremely broad, sweeping most items into the relevant ambit

Leans toward admissibility of evidence

Most evidence is “Logically Relevant” and will be admitted

Generally:

if it “adds to” or makes something even a small amount more or less probable Relevant

3. Examples of Relevant Evidence:

A. Efforts to Avoid Capture:

Generally, fleeing from police is relevant evidence “tending to establish guilt.”

However, it may be insufficient to prove guilt

Note:

Flight may be predicated on knowing one is being chased/investigated

This may lead to a FRE 104(b) Contingent Evidence Requirement

B. Use of a False Identification

C. Destroying or Concealing Evidence

D. Killing/Threatening Witnesses

E. Escape from Prison

F. Murder Weapon

B. Limitations on Relevant Evidence

1. General:

However, even though most evidence is “logically relevant,” it may not be admissible

Thus, although FRE 401 broadly admits even slightly probative evidence, other rules restrict the use of relevant evidence

Rule 403 Limits the expansive scope of relevance

Evidence will be “relevant but inadmissible”

2. FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Duplicative Nature, Waste of Time

A judge may exclude relevant evidence if:

Probative value is substantially outweighed by danger of:

1. Unfair Prejudice to the truth

2. Confusion to the Jury of the issues

3. Misleading Jury

4. Undue Delay or waste of time

5. Cumulative evidence

Note:

So, the danger or prejudice must be > the probative value

Standard still leans towards admissibility

Determining the Probative Value depends on the “Offer of Proof”:

The “purpose of the offer of proof” will determine the weight given to the probative value

Why something is introduced/purpose of the offer may:

Increase the probative value of the evidence offered or

Decrease the probative value of the evidence offered

Applied:

If The purpose of the offer is to prove something already stipulated to, proven, then the weight of the probative value will not be significant

Therefore, the weight of the danger will not have to be as high

If the purpose of the offer is to prove a contested issue, issue of great importance to the case, the weight of the probative value will be higher

Thus, the weight of the danger will have to be extremely high

3. Application of 403- State v. Chappele (AZ 1983):

F: ∆ was accused of killing victim, but claimed to have been in another state at the time. Two witnesses, placed ∆ at the scene identifying him as the killer, who later confessed to them of the crime. At the trial, photographs of the dead body were shown in gruesome detail to the jury. ∆ only contested his being there, and stipulated to the dead body, means of death.

Objection: ∆ argues that photos were prejudicial per 403, and relevant but inadmissible.

R:

1. Photographs of a Corpse are Relevant When:

1. To prove corpus delicti (concrete evidence)

2. Identify the Victim

3. Show the nature and location of fatal injury

4. Help determine the degree of atrocity of the crime

5. Corroborate evidence of state witnesses

6. Illustrate testimony

7. Corroborate state’s theory of how and why homicide occurred

2. To determine the probative value of the photos, determine the offer of proof:

If state is offering relevant evidence regarding a contested issuemore probative

If not contested, stipulated to, not at issue in case far less probative

3. Probative Value is Substantially Outweighed by the Dangers in 403:

The evidence is relevant, but the probative value is essentially “zero”

The issues the photographs were offered for are not contested, but stipulated to

The issue is where the ∆ was, which the photographs do not help contest

Thus, Relevant Evidence of little probative value

Substantially Outweighed by prejudicial, duplicative nature?

The photographs are gruesome, have been stipulated to so are duplicative

Used to inflame the jury, and outweigh the probative value of them

Note:

State had a weak case and threw in gruesome photos to inflame jury, most likely

Limiting Instruction was not enough to cure inadmissibility

Relevant but, probative value substantially outweighed by 403 dangers

4. What is Prejudicial, Cumulative, Misleading?

Modernly:

Courts may be more willing to let evidence in

Juries are desensitized to many images and things, and may not be as big an issue

Note:

New York is not as restrictive May be more inclined to admit

Prejudicial Includes:

Race, Sex, Gruesome Photographs, effect of a bloody murder weapon,etc…

Tactics:

Typically, Defense will stipulate to evidence so that it is not contested

Therefore, will argue that the probative value of evidence is far less than danger of 403

However, Judge will need to make the call and the purpose of the offer will greatly effect if it is admissible

Note that a trial does not have to be sterile:

Trial does not have to be “Sterile” and many times such evidence will be admitted

403 merely polices the danger of juries being tricked/confused from important issues

Therefore, not excluded merely because gruesome

But may be if probative worth is minimal

Modification of evidence/pictures will lead to “misleading” jury

EG:

Autopsy Photographs mislead jury, as it occurred after event

C. Problem 2-B:

Probably relevant given broad 401, but may be contingently relevant on where coming from 104(b)

Also, 403 may be issue of prejudicial effect if boy, black/white

However, may not substantially outweigh probative valuebe careful in use

IV. Judicial Notice:

Generally:

Judicial notice is the process by which a court determines certain things without a need for formal proof/evidence

Facts of concern are those that would have gone to the jury to weigh

A. Adjudicative Facts:

FRE 201 and Judicial notice is largely concerned with adjudicative facts

Facts that normally would be heard by a jury, and would have to be proven by evidence

Therefore, taking judicial notice substitutes evidence and relieves party of burden to produce

More Efficient Trial Process

EG: What day of the week a date was, what was on tv at a specific time, the weather on a specific date

B. FRE 201- Standard of Judicial Notice:

FRE 201(b): A court may judicially notice a fact

1. That is not subject to reasonable dispute because

A. it is generally known within the jurisdiction or

B. Can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned

FRE 201(c):

At any stage of the proceeding a Court:

1. May take Judicial Notice on its own or

2. Must take it if a party requests and the court is supplied with necessary information

Note:

Subject to US v. Jones, infra.

FRE 201(d):

A party is entitled to be heard regarding judicial notice and nature of the noticed fact

Note:

Thus, even if court takes judicial notice, you may still argue to the contrary and have an opportunity to be heard

C. Judicial Notice in a Criminal Case versus Civil Case:

FRE 201(e):

Instructing a jury regarding judicial notice

1. Civil Trial:

A jury must accept the noticed fact as conclusive

2 Criminal Trial:

A jury may or may not accept the noticed fact as conclusive

Distinctions:

In Civil case, judicial notice may occur after the fact at the appellate level-FRE 201(c); (e).

However, not in a Criminal Case-FRE 201(e)

US v. Jones (6th Cir. 1978):

F: After ∆’s conviction, ∆ motioned for acquittal on grounds that π failed to prove that ∆ acted within the definition of the federal statute violated. To save conviction, Prosecution appealed seeking Judicial Notice of the Fact.

R:

1. At the Appellate Level in a Criminal Case, Judicial Notice may not Occur:

Congress was concerned with the trial by jury and constitutional right

Jury has large discretion in criminal trial—6th amendment

Therefore, if Appellate Court in criminal case took judicial notice, it would bypass FRE 201(e), as jury would not have had the ability to or to not consider noticed fact

V. The Best Evidence Doctrine:

General:

There is no obligation for parties to produce the “best evidence” they have—this is a misnomer

Litigants are free to choose whatever evidence they feel is appropriate and necessary for their case

Instead, “The Best Evidence Doctrine” is an evidentiary requirement to protect from in certain evidence

A. The Doctrine-FRE 1002-1006:

1. FRE 1002: The Best Evidence Rule

To prove the content of a writing, photograph, or recording, the original is required unless statute provides otherwise

Doctrine applies when:

1. Writing, Photograph, or Recording

2. When content is being proved

Note:

If you are proving something else, other than the content does not apply

Does not merely apply because writing, photo, or recording exist

Policy Reasons:

1. Safeguards against forgery and errors in summary of contents

2. Helps revolve authenticity disputes

ensures the document, photo, recording says or shows what you are describing

3. Premised on common law, where modern copying methods were not as sophisticated an thorough

2. FRE 1001: Definitions

Writing: consists of letters, words, numbers, or equivalent in any form

Recording: consists of letters, words, numbers or their equivalent in any form

Photograph: means photograph or equivalent in any form

Includes negatives and videos

Original: 1001(d)

Duplicate: 1001(e)

3. FRE 1003: Duplicates

Duplicates are admissible to the same extent as originals unless:

1. A genuine question about original’s authenticity or

2. Circumstances make it unfair to admit duplicate

Note:

Modernly, this largely usurps from original best evidence rule

4. FRE 1004: 4 Exceptions To When Original Is Required to Prove Content

An original is not required if:

1. Destroyed Original:

All originals are lost, destroyed, not by bad faith

2. Judicial Process Cannot Get:

if an original cannot be obtained by judicial process

I.E., subpoena

3. Party Offered Against is In Control:

If the party whom the original would be offered against has control, and knew the original would be needed and fails to produce it at trial or hearing

4. Collateral to Controlling Issue:

If a writing, recording, or photograph is not closely related to a controlling issue

Whether something is “collateral” is not clear

The judge has discretion to determine whether evidence is collateral or not

5. FRE 1005: Duplicate of Public Record May Be Acceptable

6. FRE 1006: Summaries to Prove Content

If writing, recording, or photographs are voluminous, and cannot be conveniently examined in court, a summary of them may be used

Summary:

Includes summary, chart, or calculation

Proponent must make originals available for examination

Court may still order them produced in court

7. FRE 1007:

You may prove content by testimony, deposition, or written admission of party against whom the evidence is offered

B. Defining a Writing, Recording, or Photograph:

1. Chattel/Property with writing on it does not apply to BER:

US v. Duffy:

F: Jury convited the ∆ of stealing a car and driving it across state lines. In the trunk of the car, there was found a suitcase with a t-shirt inside. The shirt had initials transcribed on it. However, although the shirt could have been used, the prosecutors did not use the shirt to describe the initials found.

I: Does the Best Evidence Rule require the use of the original shirt with writing on it? Is it Collateral?

R:

1. The “Chattel Rule”

A. When disputed evidence is a chattel with writing, and therefore both, the trial judge has discretion to consider it either

The Judge may consider the policy justifications of using the BER

Wide Discretion

The Words and Object May Merge

Generally Considered Chattel

B. Generally:

This is an issue with programmed/printed words

EG: A water bottle that has printed on it “Smart Water”

Also includes, license plate, words on street-sign

2. Collateral Issue:

Per 1004(d), even if writing, photo, or recording and content proven, not required to use original if collateral to the issues in case

Here:

Here: the t-shirt with his initials put him in the car, travelling

However, he claimed he hitchhiked across the country

Therefore, not really a collateral issue

C. The Independent Knowledge / First Hand Knowledge Rule:

Generally:

If you are proving the content of a writing, photograph, or recording, you must, according to 1002, provide the original document, subject to exception

The Independent Knowledge Rule:

However, If a witness is not proving the content on the basis of those items, but instead, is using his own memory or first hand knowledge or experience of witnessing one of the above

The Best Evidence Rule does not apply

EG P. 890:

Witness on stand is describing the content of a movie, to prove it is an obscene movie

However, if he was an actor in the movie, he is describing what he experienced, or saw and not the actual content of the movie

Regardless of the movie he can describe the content

EG P. 891:

Security officer reviewed tape of robbery. He had not been present at the robbery. He testifies about the parties in the tape

The BER applies, and the original tape must be used

Officer has no independent knowledge about the event

The tape is his only basis of knowledge

US v. Meyers:

F: In trial, the government sought to prove that Lamarre lied in his testimony before a senate committee. To prove it, the government called Mr. Rogers, a party who attended the testimony. Following his testimony, the prosecution introduced a stenographic transcript of the ∆’s testimony.

I: Should the transcript have been produced under the BER in order for Mr. Rogers to testify about the ∆’s testimony?

R:

Best Evidence Rule Does not Apply

The Witness was asked to prove what he heard/saw at the testimony

There was no attempt to prove the contents of the written transcript

Not Offering about the transcript’s content

Instead, offering about what happened at the testimony

Independent Knowledge Doctrine:

The Witness was at the hearing, and therefore, could testify to its content regardless of any writing

VI. Opinion, Expert Opinion, and Scientific, Technical and Special Evidence:

A. General:

Lay witnesses commonly testify to facts, and their testimony is their opinion about facts as they perceive them

B. Lay Witness Opinion:

Governed by FRE 701

If witness is non-expert, testimony of opinion is limited to that is:

1. Rationally based on witness’s perception

“Collective Facts Doctrine”

Witnesses may testify to ideas within the common human experience

Typically Includes:

Speed of a car, condition of person, person’s character, reputations, size, flavor, height, weight, color, time, etc…

Embodies FRE 602 Personal Knowledge Requirement

You still must have personal knowledge of the matter, but you may give your opinion, draw inferences about the personal knowledge you’ve obtained

EG:

You saw man drinking all night—you may give opinion that he was “drunk”

2. Helpful to understanding testimony or determining fact

3. May not testify to:

Scientific

Technical or

Specialized knowledge that enters scope of “expert testimony” in 702

C. Expert Witness Opinion:

Governed by FRE 702

A witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in opinion if:

1. Helpful to Trier of Fact in understanding

2. Based on sufficient facts or data

3. Based on Reliable principles and methods, and

4. Expert Reliably applies to the facts of the case

1. Process of Presenting and Using Expert:

A. Call Expert:

Show that they are beyond the layman

Ask about education, skill, experience, training, and knowledge

Familiarity with subject of the lawsuit

B. Qualify the Witness as an Expert

Note:

Very broad standard on who can be an expert

Does not require that you be paid for your work

Expert Can be Used As Layman:

Remember that if someone who could be considered an expert, i.e., a cardiologist, is merely testifying to non scientific, technical or special knowledge, they are a layman under 701

EG:

Cardiologist happened to see the accident and testifies that he saw it

Not an expert opinion, and is goverened by 701

Opposing Party:

Gets chance to “Voire Dire” and question expertise

Attempt to Limit Scope:

If expert is an expert, and qualifications are not in question, defense counsel should attempt to narrow the application of what he may testify to

Get a 105 “limiting instruction” to alert jury that expert may testify to A, but not B if applicable

C. A 104 Preliminary Question:

The Court will then rule, within the court’s discretion as to whether party is an expert, and what scope of testimony may be

D. Testimony

1. Scope of Testimony:

Once qualified as “expert” may testify to scientific, technical, and special knowledge

2. Bases for Expert Testimony:

FRE 703:

An expert may base his opinion on

1. First hand Knowledge

His personal examination of evidence, testing, of things involved in the case

2. Facts Learned at Trial

If he heard testimony while at trial, may use them to base his opinion

Note**

The 602 requirement of personal knowledge does not apply to an expert

3. Outside Data

An expert can use data and facts which he has acquired through course of his expertise

Books, studies, that he is familiar with

Issue:

The expert may be relying on things which may be inadmissible

Therefore, the inadmissible evidence creeps in, through the opinion of the expert

FRE 703:

“If experts in the particular field would reasonably rely on those kinds of facts and data in making opinion, they do not need to be admissible for the opinion to be admitted

These inadmissible facts may be disclosed to a jury only if:

“Probative Value is Substantially > Prejudicial Effect

3. The Ultimate Issue/Hinkley Rule-704:

704(a)

An opinion is not objectionable because it embraces an ultimate issue

704(b)

In criminal cases, an expert must not state opinion about whether a ∆ did or did not have a mental state/condition that constitutes an element of the crime

Therefore:

An expert cannot say the ∆ had mens rea or couldn’t form it

This is in direct response to the Hinkley rule, and expert’s who testified that he couldn’t form the requisite mens rea to assassinate Reagen

But, expert may get near to this in testimony

Exception: Some States Have not adopted the Hinkley Rule:

Permit experts to testify to ultimate issue, without any limitation like FRE 704(b)

Policy:

There is a fear that a jury may simply adopt what the expert’s opinion is, folding to the impressiveness of the expert

Yates is a good example

Yates v. Texas:

F: Andrea Yates murdered her 5 children, and defense attempted to get insanity. State had 1 doctor who testified that she did have the requisite mental state to understand what she was doing. However, in the process he misled jury about how she based her murder on a Law and Order episode, therefore believing she chould get away with murder

R:

1. Texas Does Not Have Hinkley Rule:

Experts in states similar to Texas may testify that ∆ did or did not have requisite mental state

In Federal Court, This would not be permitted with 704(b)

2. Mistrial Standard:

1. Whether there is a reasonable likelihood that false testimony affected the juries judgment of

2. A material fact, therefore

3. Affecting a substantial right

4. Disclosing the Expert’s Opinion- FRE 705:

An expert may state an opinion, and give the reasons for it without providing the underlying facts or data

However, he may be required to disclose those facts on cross-examination

2. The Court Appointed Expert:

Generally:

Although court appointed experts are possible, they are rare

Why:

1. Adversarial System

Judges are reluctant to enter the substantive trial

Do not want to step into the ambit of the attorneys

2. Compensation

Judges are reluctant to draw on public funds to do so

FRE 706

3. Daubert—The Reliability Standard for Evidence Presented by the Expert at Trial:

Generally:

Experts testify to scientific, technical and specialized knowledge

However, how Daubert deals with how courts evaluate that knowledge to determine whether it is sufficient

Common Law Standard:

Frye standard (D.C. Cir. 1923)

Is the evidence generally accepted?

Some states continue to follow Frye standard

Daubert Standard:

Daubert Standard

Delaware Follows

Followed by many states

A. Daubert v. Merrell Dow (US 1993):

F: Petitioners brought suit alleging that defendant’s drug caused birth defects. Defendant provided many expert witnesses on the matter, who testified that no scientific research of the epidemiological type had found it caused birth defects. Plaintiff expert argued that it did based on other types of scientific research

PH: District court held it was not accepted per Frye standard, and 9th circuit affirmed

I: Whether the Frye Standard was superseded when the federal rules of evidence were decided. And if so, what standard applies

R:

1. Frye is Superseded by the Federal Rules of Evidence:

A. 1. Not aligned with the Federal Rules

Federal rules are pro-admissibility and Frye is not

702 speaks on the issue and doesn’t cite Frye anywhere

The statute is not a generally accepting statute

Frye is superseded

Federal Courts are not to use Frye

2. The “Daubert” Standard:

A. The Trial Judge is a Gatekeeper

N.7 in Daubert

Gives Judges great discretion (or at least they have interpreted this way)

They decide whether the evidence is sufficient

B. To determine whether science is valid and is therefore applicable to facts

1. Is the Scientific Evidence Relevant?

2. Is the Scientific Evidence Reliable?

1. Can it and has it been tested?

2. Has the theory/technique been subject to peer review?

Exposes flaws in research

Critiqued by other good scientists/community

3. The Known/Potential Rate of Error

4. Has it been generally accepted?

Note:

This still permits the Frye standard to be used

But it is now one of several factors to consider

These are Factors to be considered:

Are merely guidelines and not required

The test is flexible, and should determine the relevance and reliability

Rehnquist Dissent:

Agrees that it is superseded, but creating a standard goes beyond the question presented

Should confine ruling to narrow one, allowing trial courts to create jurisprudence, and let it rise to supreme court if need be

B. The Effect of Daubert:

1. 702 and Daubert:

Note that the new 702 attempts to incorporate Daubert but dos not do so verbatim

However, Daubert is to be used when analyzing a 702(b) question

2. Daubert Hearing:

Modernly, the Daubert inquiry has turned into a Motion In Limine, prior to trial to determine if such evidence is admissible

3. The Effect:

There is an ongoing debate of whether Daubert allows more evidence in or excludes more

Gives trial judge vast discretion

A. Allows More In:

Science is made up of where the funding is

Where funding is is where the scientific community is

Therefore, the “generally accepted” Frye standard tended to exclude lots of evidence, as much of the unknown science was not accepted and therefore inadmissible

Issue:

“Junk” or “soft” science may be admitted

B. Excludes More:

However, with the judge as a “gatekeeper” and more factors to consider, judges may be over matched and simply exclude more reasons to do so

“amateur scientists” may become overwhelmed

No longer able to simply rely on if “generally accepted”—may exclude

Gives more reasons to exclude with at least the 4 Daubert factors to consider

*Still considers Frye standard as one factor

4. Khumo Tire:

Daubert was specifically limited to “scientific” evidence in n.8

Khumo Tire expanded Daubert’s analysis to “scientific, technical, and special knowledge,” as worded in 702

Conduct a Daubert analysis when expert evidence sufficiency in question

5. Daubert’s Flexibility:

Remember that Daubert is not an exhaustive list of factors

Not a check-list but factors that may be considered. Khumo Tire.

Case-by-case analysis of when they will be helpful, although helpful in many cases

VII. Hearsay:

A. Generally:

1. What is Hearsay

An out of court statement offered into evidence to prove the truth of the matter asserted in the statement

FRE 801, 802

2. Effect of Hearsay:

If something is hearsay, it is excluded unless an exception exists

If it is not hearsay, no exclusion is needed to admit it

3. Policy:

We exclude hearsay because the following 3 protections are not available:

1. Absence of Cross Examination:

An out of court statement’s declarant cannot be cross-examined to find the truth of what was said, whether was lie, mistake, etc…

Because he cannot be cross-examined, the court’s truth finding function is disabled

2. Absence of Oath:

The out of court declarant was not under oath

Thus, the judge has no indication whether they felt a moral or legal obligation, punishable by perjury to speak the truth

3. Absence of Demeanor Evidence:

Because we are relying on a witness to restate a declarant’s out of court statement, we do not get to see the declarant’s demeanor

Inflection, expression, pause, appearance of declarant who made the out of court statement is important to judge and jury to determine truthfulness

Overall:

There is a general policy choice of Evidence that live testimony is preferred

More Reliable

Reliability is Risked because:

4. Misperception of Declarant:

the declarant may have been mistaken, and cross-examination helps find out but is unavailable

5. Faulty memory of Witness:

There are issues with exactly how an out of court scenario occurs

The memory can be tested on cross-examination, but cannot occur due to the out of court nature

6. Risk of Faulty Narration:

Witness restating what was said out of court may not be correct in narrating

He may not have fully understood meaning, context of the declarant

Cross examination and Oath help establish accuracy but the declarant cannot be subject to them

7. Risk of Distortion, Lying, Deception:

If the witness is completely lying or making something up, there is no realy way to check it

Thus, exclude hearsay in addition to cross-examination and oath helps assure this does not occur

Inquiry into Intention of Statement is Policy of Hearsay:

Hearsay is premised on the idea that intentional statements, or statements that are intended to imply something are more at risk of being lied about

You can think, and therefore, formulate a lie

However, if unintended, it is seen as more reliable and therefore, not likely to be hearsay

Basic Hearsay Framework:

1. Is the statement Hearsay?

Is there a statement?

Express statement, implication, non-verbal conduct intended as an assertion?

If No No Hearsay Issue

If Yes Examine the purpose of the offer and truth of matter asserted

Is it offered for truth of matter in statement or implied by statement?

If Yes Hearsay

If not Hearsay, and no admissible

2. If Hearsay, is there a Hearsay Exception to Admit?

Common Law Categorical Exceptions

Federal Rules Exceptions

B. The Basic Elements of Hearsay:

a. General:

Must meet the elements of hearsay to show that something is excludable as hearsay

b. When Something is hearsay:

1. Out-of-Court

Whenever someone is not at trial, someone is testifying to someone else’s statement begin to consider hearsay

2. Statement:

A. The Declarant:

FRE 801(b): The declarant is the party who makes the out of court statement

B. A Statement (FRE 801 (a):

An oral or written assertion

Non-verbal conduct if intended as an assertion

Examples:

Nodding, shaking of head, pointing to identify

Statement Under the Federal Rules:

A. The assertion within the statement must be intended to be considered hearsay

The Assertion can be

1. Direct

2. Implied (if strong implication versus merely circumstantial evidence)

3. Non-Verbal conduct intended as assertion

Example:

1. People outside are putting up umbrellas

We can draw implication that it is raining, and circumstantial evidence implies such

This is unintended, however, and not hearsay

2. Paul Revere put up two green lanterns to warn of English

Non-verbal conduct intended to assert that English are coming

Non-verbal assertion may be hearsay

3. Letter in Wright

Implied competence in letter, but was not substance or strong implication of letter

Not hearsay

The Distinction Between Statement at Common Law and Federal Rules:

Generally:

Anything implied by a statement was, at CL, hearsay

Wright v. Tatham (England 1837):

F: In suit to set aside a will, both parties put forth evidence to show the mental capacity of the testator. The defendant put forth 3 letters, each of which discussing a business transaction with the testator. They were used to show he was fully competent as he entered into complex transactions and stated “you must settle this business dispute or suit will follow.”

R:

1. At CL Evidence that can imply a statement or opinion of a third party is inadmissible just as if the implication had been said:

Therefore, the letter implied that the testator was competent even though it did not assert in any way that matter intentionally

If the statement had been made Hearsay

Therefore, if it’s implied Hearsay

2. This Case Under the Federal Rules:

Would not be hearsay—the implication was unintended, and therefore there was no statement

No Hearsay issue

3. Offered into evidence to prove truth of the matter asserted in the statement:

Two Part Inquiry:

1. What is the truth of the matter of/implied by the statement?

2. Is the statement offered to prove the truth/implication in the statement?

What is the purpose of the offer?

Is it to prove substance of the statement?

Will depend on the claims of the party offering the statement in the pleadings

The context of the time the statement is offered

Who has the burden of proof at that point of the trial

Four Key Rules:

1. If offered to prove the truth of the matter asserted in statement

Will be Hearsay

A technical and mechanical application of the rule

Examples:

1. Victim: “The Dean tried to kill me”

In suit against Dean for murder

Truth: is that dean tried to kill her

Offer: To show dean tried to kill her

Hearsay

In suit against paramedics alleging negligent homicide where their defense is she was dead when they got there

Truth: is that dean tried to kill her

Offer: to show she was alive when they got there

Not hearsay as it shows she was alive, purpose doesn’t match substance of the statement

EG p. 108 (2A):

In trial for armed robbery of defendant, witness testifies he heard someone say:

1. “Defendant Did it” Hearsay

2. If offered to prove the implication/indirect assertion of the statement/assertion

A. If implication is so strong that should be treated as statement:

Will Be Hearsay

Why:

The indirect/implied hearsay argument is that—while a mechanical and rigid application of the hearsay rule doesn’t meet—the offer and truth don’t match, the statement is still offered for truth of the matter implied by the statement—implication is very strong

EG:

Man arrested, and as walking away with cops yells to his friend “I didn’t tell them anything about you.”

Hearsay: The implication was intended that the cops didn’t know about criminal dealings

B. Check & Pacelli and Indirect/Implied Hearsay—Framework To Deal With

1. Determine Implication

What is the truth of the matter implied in the statement?

2. Determine the Implication and if offered to prove the implication?

Argue that Hearsay is beyond a mere technical definition

Although technical and rigid application of the rule would not constitute hearsay as truth doesn’t = purpose of offer

What is truth of the matter implied (strength of implication)

3. Argue Policy

That Hearsay is more than mechanical application of rule—must be broader to include implied or indirect hearsay

That implication is very strong—hearsay should reach it

That implied/indirect assertion should be hearsay:

Added danger of misinterpreting the declarant’s implication

No ability to cross-examine

No Oath

Implication is so strong that should expand past mere technical application of hearsay

Our language is broader than express truth

That implied/indirect assertion should not be:

The danger of insincerity is reduced when implied assertion of declarant’s

Definition is technical

4. Relevancy Question—403

If dealing with implication’s of a declarant, one may be able to raise an issue of confusion the jury or misrepresenting the statement to the jury

EG p. 108 (2A):

In trial for armed robbery of defendant, witness testifies he heard someone say:

1. “Defendant should be put in jail”; “He carried money bag out”

Argument:

Technically, the truth of the matter is that he should be put in jail; he carried $ out

Your offering it to show he robbed a bank

Not the same not hearsay

Implied Hearsay Argument:

This implicates defendant, and may intentionally imply that the defendant is guilty…there is a statement

It clearly demonstrates the witness’s belief, and additionally would be unlikely to simply say this unless it was intended to show the defendant robbed the bank

Policy

Hearsay

EG:

Negligence trial against doctor that plaintiff could not write any more

Doctor introduces letter that discusses invitation to party

Offered to show implication that plaintiff could still write

No Hearsay— offered to prove the unintended implication of letter—is not a statement—and no hearsay issue

EG p. 110:

Non-verbal assertion by truck driver had no intended implication in it

Merely reacted to the green light

Therefore, no hearsay, as no statement

But:

If driver yelled “when I move, you move because I know you cannot see”

Hearsay—intended implication is that the light is green and therefore it’s safe for you to move

3. Statements that can convict or prove the ultimate fact in issue in a case will be hearsay regardless of whether they were intended:

US v. Pacelli:

F: Witness, on stand, testified to the statements of the defendant’s wife, uncle and friend. Implied from their statement was that the defendant clearly knew and probably did kill the victim. “He bungled the murder, and should have hid the body”; “He should leave town”

R:

1. Implied or circumstantial inference from out of court statement will be hearsay if it can prove the ultimate issue

Here:

Witness is restating out of court statements that imply the defendant killed the victim

This fits exactly with policy of being unable to cross-examine such witnesses to assure the implication drawn from their statement is accurate

2. Irrelevant Whether Intended or Not:

To be considered a statement, implications usually must be intended

In a case where speaks to ultimate issue, implication does not have to be intended

Example:

In trial for armed robbery of defendant, witness testifies he heard someone say:

1. “I saw defendant walking out with bags of $”

If we can prove this, the ultimate issue in the case is likely proven, that ∆ committed the robbery

Because this is the implication, Hearsay

4. A Prior, Out-Of-Court Statement by a Testifying Witness is Hearsay:

Although a declarant is now in court, their out of court statements are still hearsay

Note:

Policy arguments may lead to judge admitting, as he can be crossed and under oath now

Prior, in court statements, can be used by testifying witness

See Exceptions dealing with declarant testifying

c. Common Law Categorical Exceptions to Hearsay:

Generally:

As seen above, when the purpose of the offer is to prove something other than the truth of the matter asserted in the statement there is not hearsay

Generally, there are several instances that are accepted by courts as other uses of out of court statements

These may be considered categorical exceptions or exemptions

Some will be hearsay and not treated as such, while others will not fit hearsay definition

1. Interrogatory

When witness restates an out of court question it is not hearsay

There is no truth in a question

Must be an assertion

Compound Questions with Statement Inside:

An interrogatory could potentially have compound parts, where one part does have an assertion in it

In these circumstances, the interrogatory can be argued not hearsay, but the portion that is hearsay will circumvent the interrogatory nature of the statement

Thus, there can be a hearsay issue with interrogatories

2. Imperative:

May not be hearsay

“Go to Florida”

“Look at the Red Barn”

Note:

Can be if “offered to prove the truth of the matter asserted”

I.E., “Look at the Red Barn” To prove the barn was red Hearsay

Argue Policy

3. Negative Hearsay

Generally:

Evidence that “no one said anything,” or no one complained is not hearsay

Cain v. George:

F: Boy died of carbon monoxide and parents sued hotel. They allege that heater was not working properly and that ∆ was negligent.

R:

1. Testimony that no one said anything is not hearsay

There is no out of court statement

No one to rely on, and therefore, policies of hearsay not implicated

Although implies, circumstantially, something, there is no intentional assertion

Note:

At CL, the implication would be hearsay regardless of the intent

4. Impeachment by prior inconsistent statement:

When a witness made a prior inconsistent out of court statement with testimony being given

Can occur on cross-examination or by a later witness’s testimony

Is Not Hearsay

The purpose is to show the statement is conflicting, not the truth/substance of one or the other

Whichever one is truthful is irrelevant, as the other must be untrue and therefore witness is impeached

Some Counsel may attempt to slip hearsay into testimony with this exception:

403 objection to the confusion of jury

105 limiting instruction to limit the testimony to impeachment, but not substance

P.124 3-C

5. The Verbal Act Doctrine:

When the substance of a statement is their independent legal significance

Offered to prove the legal effect of the statement even though it may be the substance

Thus, the words are a legal action, and that they were said is what they are being offered for

Policy:

These types of statements are not casually stated

Persons using them are typically not likely to lie

Example:

Words that create a contract, transfer title, grant authority, a confession

P. 125:

Words in the statement have legal significance of passing title

“I offer you 3000 units” to show offer of contract

“We guarantee the loan” to show a guarantee

Not Hearsay

6. Verbal Object:

When words are on an object they are not treated as statements

Merge with the chattel and thought of as the object

Policy:

Typically used with words that are attached to some good, created by a business

Thus, more trusting of businesses as they are unlikely to lie on a good they produce

Example:

“Smart Water” printed on a water bottle

It is an out of court created statement, but not considered hearsay

Not Hearsay

7. Words Offered to Prove Their Effect on The Hearer:

If the way the hearer of words reacted to them is important to a case, the words or statement may be offered to establish the reaction

105 Limiting Instruction should be used:

It is easy for a jury to listen to their substance rather than thinking about the effect they had on the hearer

Thus, judge should tell jury to limit their use to the hearer’s reaction

P.126 Example

Agent of company comes to examine pipe, saying “I work for Pipe company.” Hearer follows over to pipe, which explodes.

Reasonableness of Hearer’s Act:

These words may come in, as they show it may be reasonable to follow a professional to a damaged pipe if he is doing it

However: To show he is employee:

Hearsay: falls directly into the definition of hearsay, as you are offering to prove the truth of the matter asserted

8. Circumstantial Evidence of State of Mind or Memory:

When out of court statements are offered to draw an inference or circumstantial evidence of the declarant’s state of mind or what they remember

Their indirect implication is what is of importance to claims at trial

Not Offered to prove truth of the matter asserted

Instead, their implication proves state of mind

Implies that they remembered something

P. 128 Example:

The journal writing implies that, by giving him $1, he could not have expected anything else as she did not like him anymore

Thus, we can draw the inference that she had a negative state of mind towards him

Example:

“Can you give me the key to the library so that I can go downstairs and get the red evidence book out of the locked container it is in?

Implication is that she has memory of the location and book Not Hearsay

See Wright, supra

9. Animals and Machines:

Animals are not declarants

There is no hearsay issue

Machines are not declarants

There is no hearsay issue

d. Hearsay Within Hearsay—FRE 805:

General:

Out of court statements may be layered

There must be an exception for each layer of hearsay for the hearsay statement that contains other hearsay to be admissible

ALWAYS LOOK FOR STATEMENTS THAT HAVE OTHER STATEMENTS

Example:

“Then, the doctor said that he spoke to the wife, who mentioned her husband had discussed his feeling sick”

Out of Court Statements:

1. Doctor—“Wife said…”

2. Wife—“Husband Said he felt feel sick”

3. Husband—“I feel sick”

Applicable Cases:

Check; State v. Motta; Petrocelli; Mahlandt

VIII. The Hearsay Exceptions

Generally:

Hearsay is excluded from trial, unless there is an exception

The Federal Rules Exceptions utilize the out of court statement for its substantive evidentiary value

1. Declarant Testimony Exceptions:

General:

There are 3 exceptions for when a declarant’s out of court statement is admissible

1. Prior Inconsistent Statement—FRE 801(d)1(A):

A. Generally:

Substantive Use:

This is a statement you want to bring into court for its substantive use

Impeachment Use

It is different from the Impeachment exception

With Impeachment, you rely on a common law categorical hearsay exception

It is not made for substance, but to impeach the witness

A Witness may get on the stand and change their story—here, you want to bring in the prior out of court statement to show the truth—to use its substance

B. Rule: Declarant’s out of court statement is admissible if:

1. Testifies and is subject to cross examination about the prior statement

2. It is inconsistent with the declarant’s testimony

3. The prior statement was given under the penalty of perjury

4. And was made at a trial, hearing, deposition, or other proceeding

C. The Elements:

1. “Subject to Cross Examination”

Often times, witnesses may get on the stand and say they forget the event or cannot remember what actually happened.

General Rule:

You are subject to examination even if you forget what happens

If you are feigning loss “Subject” to cross

If you have actual/diagnosed loss Not “Subject” to cross

2. “Prior Inconsistent Statement”

Inconsistency does not require complete opposite of prior statement

May occur if

evasive answers

silence

change in position

Loss of memory (if feigned)

Not if diagnosed

Overall, these the question of admissibility is usually answered by admitting such “inconsistencies,” and letting the jury decide what the truth is

3. Penalty of Perjury

Note:

Although the old rules required an “oath,” the new rules do not require an oath

They merely require you be under penalty of perjury when prior statement was made

4. “Trial, Hearing, Deposition, or Other Proceeding”

General:

This includes grand jury, and preliminary hearing testimony

Other Proceeding—State v. Smith:

F: Victim was assaulted by a man, and gave testimony to police. She went to the police station, wrote an affidavit in her own words, initialed each page, witnesses read it back to her, and she agreed with it, signing it. She understood it would be used, and was under the penalty of perjury. On the stand, she changed her story, saying it was a different man than the one in the affidavit. Prosecutor admitted it as a “prior inconsistent statement.”

I: Is the written affidavit at police station an “other proceeding?”

R:

1. Minority View: A Written Affidavit May be an “other proceeding”

Totality of Circumstances will show what “other proceeding is”

Reliability is of Key Importance for “proceeding”

It was near the time of the event, and all the facts show she knew it was of great importance, she wrote it in her own words

It appears to be reliable testimony, and she is now subject to cross examination if it is not

“Proceeding”

Trial, deposition, grand jury demonstrate the significance of the event—promoting reliability

The Facts here show affidavit sufficiently reliable

2. Majority Position: A written Affidavit is Not “Other Proceeding”

Most states do not abide by the Smith view

The police station affadavit is too coercive

Too much possibility that witness’s statements may not be reliable—given the intimidation of the surroundings

Policy of Hearsay too strong an issue

As Reliability is key issue with hearsay, the affadavit may not be adequately reliable

Washington is Unique:

The prosecutors came up with the system of having witness write her own statement knowing they would potentially get it in with hearsay exception

Reliability not as much an issue with the facts of Smith

3. Practice Note:

Here, the prosecutor used the prior statement to impeach—which does not require an exception

Defense argues for “limiting instruction” to ensure that it is not used substantively

He then admitted it substantively

Note: when you admit prior inconsistent statements substantively, you are also impeaching the witness by showing they contradicted themselves

2. Prior Consistent Statement—801(d)1(B)

A. General:

This exception largely mirrors the prior one

Prior Inconsistent:

Used to Impeach (Common Law Exception)

Used Substantively (FRE)

Prior Consistent:

Used Substantively (FRE)

To offer the truth of the prior statement

Used to Rehabilitate the Witness (Common Law)

Note:

For instance, if your witness has been cross-examined and seems to be impeached, or troubled, you may offer statements made prior to the questioning to rehabilitate character

I.E., statements that were consistent with testimony, rehabilitating character

Use:

Again, much like “inconsistent” rule, this rule is used to admit prior testimony that was consistent as substantive evidence

B. Rule: A Declarant’s prior out of court statement may be admitted if:

1. Testifies and subject to cross-examination

2. The statement is consistent with declarant’s testimony, and

3. Offered to rebut an

Express or Implied charge that the declarant recently fabricated testimony, or acted from a recent improper influence or motive to testify

C. Pre-Motive Requirement of Prior Consistent Statements:

Tome v. US:

F: Tome was convicted of sexually abusing is daughter. She told many people about the incidents. Her parents had recently been divorced, and she was living with her father. She was difficult to talk to on the stand, as a child, and the defense suggested that she was motivated by her desire to live with her mom. The prosecutor then admitted 5 statements by witnesses, describing what she said to them about the incidents.

I: Do prior consistent statements have to have been made before the improper motive arose?

R:

1. Prior Consistent Statements must have been made prior to improper motive:

Used in this way, they directly rebut the suggestion

Although consistent statements made after the motive to lie arose do help, they do not squarely rebut the improper motive

Construction of FRE:

Silence here is construed to incorporate the common law pre-motive requirement

Unlike Daubert: which utilized silence to demonstrate that the common law was superseded

The Court interprets that if the Advisory Committee was departing from the common law, it would have stated so

801(d)1(B) Pre-Motive Requirement:

To Be used, a prior consistent statement must occur prior to the motive/improper influence arising

Dissent (Breyer):

The common law pre-motive requirement was linked to whether something was relevant to rehabilitate; not to hearsay, offered substantively

It was used to rehabilitate witnesses

Thus, to rehabilitate, it had to have occurred before the improper motive arose

The Federal Rules, however, permit prior consistent statements for substance

They were not concerned when substantive comment occurred

Effect:

Tome extends the pre-motive requirement to the substantive use of consistent statements

It is unclear whether this is required for rehabilitative use as well, but courts generally construe it as only applying to substantive use

D. Determining When the Motive Arose:

General:

The difficulty in applying the pre-motive requirement is to determine when the improper motive arose, then determining if the statements that are consistent with testimony were made before

Effect:

Every statement after the motive arises is now inadmissible hearsay under this rule

Defense or Plaintiff, therefore, may exclude much with choosing time of motive

Note:

Other exception will likely still lead to prior-consistent statements becoming admissible

3. Prior Statement of Identification—801(d)1(C):

A. Generally:

When a party has identified someone prior to trial, that may be admitted

Policy:

Pre-trial identifications are more trustworthy

They are conducted in method to ensure accuracy, and occur closer to the incident

Less pressure than an in-trial identification

This rule permits the admission of pre-trial statements, that were made by a witness after perceiving the subject

B. Rule:

1. Party testifies and is subject to cross-examination

2. Prior statement identifies a person as someone they have perceived earlier

C. Elements:

Statement

The prior, out of court statement can be

Verbal

Sketch

Picture

Identification in line-up

Remember the Statement must be an intentional assertion

Analysis may require argument that the out of court action is indeed a “statement”

D. Sketch as a Statement of Identification—State v. Motta:

F: Coffee store was robbed at gun point. Anna worked with a sketch artist to come up with a picture of the suspect. Later, ∆ was arrested pursuant to this sketch. At trial, anna confirmed her prior identification, and the sketch was admitted.

I: Is the sketch hearsay, or subject to the identification exception?

R:

1. A Sketch is a Statement—and Hearsay:

It asserts the truth of the matter and was an intentional, non-verbal assertion

Has the same effect as a verbal description of the party

2. 801(d)1(C) Permits Prior identification:

The sketch was a prior “statement” that identified the party

It is properly admitted as substantive evidence under the exception

2. Opposing Party’s Statements—801(d)(2):

General:

This is one of the more important exceptions, as it broadly applies to many statements

Must be offered against a party in the litigation

Any statement made by the opponent you seek to use statement against applies under this rule

Does not require a “statement against interest”

You do not have to concede something, or admit to crime

You merely have to have said something

Must be a “statement” per 801: Intentional Assertion:

Sleep talk

Intoxicated

Injured

Hospitalized,

Silence, and non-verbal cues may constitute a statement

Question is Was it an intended assertion (direct or implied)

Statement

Unintentional, coerced, or under duress?

Not Statement

Statement does not include admissions by settlement:

Your acts at settlement may not constitute a statement

Policy:

Statements by an opponent at trial come in against that opponent because

1. We have adversarial system—conduct in and out of co