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Evidence Flowchart

FRE Basics

#1: FRE Basics

-rule application

-relevancy

-objections

Where and when?

-US district courts

-US bankruptcy & magistrate judges

-US courts of appeal

-US Court of Federal Claims

-district courts of Guam, the Virgin Islands and the Northern Mariana Islands

-SCOTUS

-federal administrative agency

-state courts

Do the rules apply?

1101

  • rules apply only during main event: the trial
  • many judges continue to follow FRE “loosely” in stages outside of trial
  • rules of privilege are always followed

Evidence Relevancy

401

  • facts in evidence prove facts of consequence
  • very low standard
  • evidence is relevant even when opposing party concedes to issue that evidence would prove
  • trial lawyers should always be prepared to articulate a clean connection b/t evidence they offer and their legal theory

Is evidence relevant?

403

Raising Objections

How to Object

103

2 Mechanisms for Disputing Evidence @ Trial

1) by objections - registered before opponent introduces potentially inadmissible evidence

2) motion to strike - occurs after disputed evidence has already entered

  • MTS examples:
  • witness answered irrelevant question before opposing counsel objected
  • witness answered relevant question w/ inadmissible information

  • parties are required to challenge evidence in a timely manner
  • object as soon as objection ground(s) is known or reasonably should be known
  • counsel required to state “the specific ground” for any objection
  • no specificity = no preserved challenge of denied objections
  • multiple grounds = multiple explanations of specificity

"once trial counsel has made a specific & timely objection and judge rules definitely, issue is preserved for appeal"

#2: Specialized Relevance Rule

Relevant & Inadmissible?

Does it fall under a recognized relevant but excluded rule?

(when its used to show liability or fault)

Subsequent Remedial Measures

407

  • encouragement of prompt action to dangerous conditions
  • action taken after the injury
  • actions taken by a 3rd party are not excluded here
  • DOES NOT exclude evidence when used for:
  • impeachment
  • if disputed:
  • ownership
  • control
  • feasibility

Subsequent Remedial Measures

407

INADMISSIBLE unless disputed

  • putting salt on icy walkway or drive
  • changing a product’s design
  • adding a warning label
  • firing/disciplining a (liable) employee

open dispute BAR

  • witness claims “excellent and proper design”

open dispute ADMIT

  • caution/warning within a memo describing (contradictory) safety usage
  • using words like “best” or “only” in reference to product at trial
  • denying ownership/control of display shelf (in toppled display = injury)

Examples

Negotiations & Settlements

408

  • to ensure that parties are not inhibited from making offers or statements during the settlement negotiation process
  • precludes settlement discussions

1) claim that was

2) disputed and it occurred during

3) "compromise negotiations" and party is offering statement

4) liability purposes

Negotiations & Settlements

408

Offers to Pay Medical

409

Offers to Pay Medical

409

  • "paying, promising to pay, or offering to pay medical (or similar) expenses
  • similar expenses: all kinds of medical treatments & physical rehabilitation
  • NOT: lost wages, automobile repairs, other economic or property damages

property damage (offer or promise of) payment does not fall in this rule of evidence

Examples

Motorist & Pedestrian Collision

“Golly, that accident was entirely my fault. Just give me a call. I have good insurance that will cover all of your medical bills.”

Wet Restaurant Floor Slip

“I have told the staff not to mop the floor like this when people are in the restaurant. Go ahead and put your wife in a private room and get the best possible medical care. We will take care of it.”

Truck Stop Clean-up

bad driving led to a huge spill at a fuel station; trucking company had already paid for some of the clean up cost --> implicitly acknowledging their employee’s negligence in ruptured fuel tank

Plea Bargaining

410

-this rule applies in both civil & criminal trials

BARS:

  • some evidence of offers to plead guilty
  • statements made during plea bargaining process
  • nolo contendere plea

ADMITS:

  • final guilty plea - that's a conviction
  • statement outside of a "plea discussion"
  • statement introduced that goes against someone other than Δ
  • statements against Δ when....

--needed for fairness from misleading statements

--used for perjury prosecutions

  • use of any plea discussions DURING SENTENCING PHASE

Plea Bargaining

410

"2 Tiers" of Plea Discussion Determination

Was there plea bargaining?

1) Δ displayed “an actual subjective expectation to negotiate a plea” and

2) that expectation was “reasonable given totality of the objective circumstances”

- PQ involvement (**really important)

- Δ’s counsel involvement

- evidence of a quid pro quo

- specificity of negotiation terms

- gov’t expressing interest in negotiation (prompting?)

- charges already filed

- absence of caveat statements

Examples

FBI Investigates Bribery & Wire Fraud

-Δ voluntarily met with FBI agent and claimed he wanted to cooperate & declined counsel; agent clearly informs Δ of benefits of cooperation and agent’s inability to control courts or prosecutor (no promises)

-Δ later meets w/ PQ and PQ makes general cooperation benefit statements & stresses Δ’s right to cooperate (or refusal); Δ later makes statement of guilt to other officials

LSD Distributor “Sting”

-Δ is indicted for LSD distribution; Δ contacts DEA and offers to help get someone else in return for “something to be down about his own charges”

agent informs Δ he is interested but needs to talk to the PQ

-when informed, PQ talks to Δ’s attorney; agent gets back to Δ about the proposed sting; no plea results, PQ wants to admit these conversations

-Δ subjectively believed that he was participating in a plea discussion and agent’s behavior made the belief reasonable

Plea Evidence Admissibility

Plea

Admissibility Table

Joe’s Bar Drunk Driving Accident (different pleas)

-jury convicts Δ guilty of drunk driving in a criminal case (issue preclusion)

-Δ pleads guilty to drunk driving criminal charge (issue preclusion)

-Δ pleads nolo contendere to drunk driving criminal charge

Federal Money Laundering Negotiations (against Δ?)

-plea attempted & failed; Δ admits responsibility from transactions, PQ acknowledges Δ had “good intentions"" in said transactions

**subject to fairness from misleading

Talbot Plea w/ Apology (perjury exception)

-Δ pleas guilty to a lesser degree of assault; during plea hearing he also states “I did it, your honor. I stuck victim with my knife and I’m sorry.”

-Δ later takes stand & claims “I was nowhere near victim at the time of his unfortunate knifing.”

FBI Investigates Bribery & Wire Fraud (outside plea discussion)

-Δ voluntarily met w/ FBI and claimed he wanted to cooperate & declined counsel; agent clearly informs Δ of cooperation benefits & agent’s inability to control courts or PQ

-Δ later meets w/ PQ and PQ makes general cooperation benefit statements & stresses Δ’s right to cooperate (or refusal); Δ later makes statement of guilt to other officials

Examples

Liability Insurance

411

  • only precludes evidence of liability insurance if offered to prove fault

  • any purpose other than proof of liability is permissible as long as purpose is relevant to the dispute:
  • proving a witness’s bias or prejudice
  • proving agency, ownership, or control

Examples

Insurance-Employed Witness

Δ sued for medmal; P brought in W’s testimony to validate P’s medical standard of care; Δ wants to introduce W’s bias by showing W works for P’s liability insurance

Kodak Film Scratches

-P received 105 rolls of Kodak (Δ) [scratched] film; Δ is sued and wants to introduce P’s specialized insurance (that protects from this type of loss) and counter P’s denial of “industry custom”

-Δ’s insurance is not considered liability insurance! (judges are tripping or asleep);ΠP would have overcome this rule either way

Witnesses

Can they take the stand?

#3: Witnesses

-can W take the stand?

Is the witness qualified?

Witness Qualifications

Competency

601

-every person is presumed competent

-when state law controls the substantive claims, federal courts must apply these state rules of competence

Competency

601

Dodson’s Fix

W admitted he used “substantial” amounts of heroin for years (including a “fix” 2 days prior); after testimony, W was hospitalized, given Demerol, & still returned to testify again; at 2nd testimony, W was “acting high”; W was competent

Abused Children

Δ convicted w/ child abuse of 4 and 6 year old daughters; both girls able to answer matters such as their age, school grade, teacher, favorite subject, & consequences to wrongful acts; girls failed to answer some of the PQ’s questions but competent

Delusional Witness

Δ's co-conspirator, JP, found incompetent to stand trial (his own charge) & had a past of suffering from auditory delusions (mental institute time); PQ called JP to testify against Δ; JP is competent

appellate ct’s reasoning: as long as witness appreciates his duty to tell the truth & is minimally capable of observing, recalling, & communicating events, testimony should come in for whatever it is worth

Examples

Personal Knowledge

602

  • "witnesses may testify only about matters that they know personally
  • "seen, heard, or otherwise sensed themselves"

  • expert witnesses do not need personal knowledge

Personal Knowledge

602

Nosey Neighbor

Δ on trial for stabbing X; Louise (L) saw Δ walking into his home w/ a knife in his hand the night of the incident; L testifies b/c she has personal knowledge

Debra’s Mild Memory

Δ is charged w/ conspiracy to cocaine distribution; PQ brought Debra (D) to testify against Δ; she testified she had “some very substantial memory problems” & was “emotionally unstable”; at cross, she admits “I don’t remember anything very well… nothing at all specific in any of it”; D has personal knowledge

--memory misrecollection does not equal no personal knowledge

Fellow Inmate Testimony

Δ (prison inmate) suing 3 guards for beating him; Δ introduces his prison inmate “neighbor”; witness describes what he saw through the 1.5” crack in his cell door; after examining cell diagram, W lacks personal knowledge

Examples

Oath

603

Oath/Affirmation

603

-allows witnesses to take either oath or affirmation & provides no particular format needed

-no oath or affirmation = witness cannot take the stand

Interpreters

604

Interpreter

604

  • witness is not disqualified due to there inability to articulate their knowledge in the English language

Interpreter must...

1) be qualified as an interpreter and

2) take an oath or affirmation, not to tell the truth but to “make a true translation"

Judge 605

  • judges (& their clerks/employees) are prohibited from reporting evidence related to experiments they conducted or visits they made to relevant site
  • **no objection needed=issue preserved automatically

Judge 605/Juror 606

Juror 606

  • jurors cannot testify in a trial where they play a decision-making role
  • party may ask a juror to appear at a subsequent trial and testify as a witness about something he or she observed in the previous trial

Example

Judge Plea Commentary

PQ put a co-conspirator (who had taken a plea) on the stand; witness gave conflicting testimony; Δ’s counsel tried to expose witness’s “lack of intent” by referring to plea hearing; before witness answered, trial judge interjected his comments; trial judge"testimony" impermissible

appellate court held that this state constituted impermissible testimony by the trial judge; error required reversal; judge did not attempt to give curative instructions

Law Clerk Experiment

plaintiff (P) suing grocery store for slip and fall; clerk visited grocery after heavy rain and witnessed what P had described as the cause for his fall; clerk consequently testified and in his testimony identifies himself as the judge’s clerk; clerk testimony impermissible

Juror to Witness

Δ indicted for re-entering the U.S. as a deported alien; Δ had previously been charged with violating the same statute 13 years earlier & acquitted; Δ put 2 jurors from previous case on the stand to testify that trial’s finding he was a citizen

Example

Lay Witness

701

Lay Witness

701

-rationally based on witness's perception.

-helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

-not based on specialized knowledge

Expert Witness 702

-not limited to the scientific and technical but extends to all specialized knowledge

Expert Witness

702

Examining Witnesses

  • 611 gives judge general discretion over all witness handling & preventing witness badgering

3b: How can we examine?

Common 611 Objections

Refreshing a Witness's Memory

Refreshing Witness's Memory

612

5 Steps of Refreshing

1) establish witness doesn't recall the answer to a question

2) describe writing W wishes to use & ask if writing would refresh

3) show W the writing

  • W will examine writing & put it aside (usually giving it back to attorney)

4) ask W if writing has refreshed their recollection or helped W remember

  • W should answer yes, then proceed to answer original question

5) either before or during this process, “refreshing” attorney must give opposing counsel a copy of writing

-any document can be used as "writing"

  • whether W completed the document themselves
  • as long as W states that it will help them remember
  • examples: diary, audiotapes, photos, newspaper article

-W’s testimony doesn't need to be exactly the same as information contained in the writing

to “qualify” writing, witness must state...

1) they do not remember the answer to the question being asked; and

2) seeing the writing will “refresh her recollection”

Refreshing Memory

v.

Recorded Recollection

Judicial Witnesses

614

  • authorizes judge to call his own witnesses & interrogate witnesses other parties call
  • counsel must object to preserve error
  • may wait until next time the jury isn't in the courtroom to object to a judge’s question or witness

Judicial Witnesses

614

Witnesses Vacating the Courtroom

615

Witnesses Vacating the Courtroom

615

  • upon request, judge must exclude witnesses out of the courtroom until it is their time to testify

1) can be invoked by either party or by judge

2) gives the judge no discretion (almost always excluded)

3) does NOT apply to...

  • criminal Δs (COTUS right)
  • expert witnesses (observe other witnesses for their own testimony)

Witnesses & Impeachment

  • any party can attack a witness's credibility 607

3c: How can we impeach?

Completeness

106

  • allows a party to introduce qualifying portions of a writing/recorded statement as soon as the opponent offers first portion
  • may be used to introduce other whole writings or recordings when necessary to understand document in question

INCLUDES: writings & recorded statements

DOESN'T INCLUDE: oral conversations, photographs, & physical objects

Completeness

106

Truthful or Untruthful Character

Truthful & Untruthfulness

608

608(a) reputation or opinion

-allows general reputation or opinion evidence of a character

-admits testimony of general truthfulness on those individuals that testify at trial only after that character has been attacked

-only applies to witnesses (must take the stand)

-not an attack to show bias

608(b) specific instances of conduct

-party may ask about "specific instances of untruthful conduct" on cross to suggest W is untruthful

-judge has discretion to limit to prevent/limit this questioning

-proof of the instances by extrinsic evidence is barred

(if W lies about untruthful instances, attorney is out of luck)

-truthful instances admitted if truthfulness has been "challenged"

truthfulness; not generosity, messiness

EXCEPTION: Rule 609 criminal convictions

Criminal Conviction

609

  • admits W’s prior criminal convictions to impeach in certain scenarios
  • W need not receive such a sentence; just be convicted of a crime that could be

ADMITS: pending appeal of prior conviction &/OR evidence

BARS: pardons, annulments, & certifications of rehab

Criminal Conviction

609

3 Special Barriers for Priors

> 10 Years Old

1) party seeking to use conviction must give adverse party reasonable written notice

2) judge must find specific facts & circumstances supporting conviction’s probative value

3) judge must determine probative value of conviction “substantially outweighs its prejudicial effect”

More than 10 years since conviction?

609(b)

Felony Convictions

Any Witness except Criminal Δ

  • prior felony convictions are generally admissible to impeach witnesses other than criminal Δs
  • 609 applies in civil cases too but it's more uncommon for a civil litigant to have a criminal past

Felony Convictions

Criminal Δ

  • prior felony convictions are admissible against a criminal Δ who takes the stand only if judge makes distinctive finding to its probative value

Prior Conviction Probative Value Factors

1) impeachment value of the former crime (truth telling crime)

2) timing of the prior conviction and subsequent criminality

3) similarity b/t prior crime & charged crime

4) importance of Δ’s testimony

5) centrality of credibility

Crime Involving a

Dishonest Act or False Statement

Any Witness

Crime Involving Dishonest Act or False Statement

Any Witness

  • allows litigants to use any conviction of this nature (no matter the sentence) to impeach any W’s character for truthfulness

  • criminal cases: admissible when offered to impeach W other than the accused & when evidence is necessary to fairly determine Δ’s guilt

Juvenile Adjudications

609(d)

Juvenile Adjudications

609(d)

  • always inadmissible against criminal Δ

  • most of the time inadmissible against any other witness

Religious Beliefs & Opinions

610

Religious Beliefs & Opinions

610

  • INADMISSIBLE when offered to attack or rebut W’s testimony
  • ADMISSIBLE when relevant to prove bias, damages, or motive
  • damages: loss of consortium, lost wages, pain & suffering

When is character an element?

  • defamation, child custody, entrapment, negligent entrustment

Do you go to church every Sunday?

  • depends, purpose must be narrow

Are you a member of Δ’s temple?

  • probably yes, seems to lay foundation

Example

Witnesses Prior Statements

613

Witnesses Prior Statements

613

extrinsic evidence: any evidence other than current W's testimony on stand

collateral matter: matter relevant to case solely b/c it impeaches W

non-collateral matter proves a fact of consequence besides impeachment

(proves a fact in consequence and impeaches W? it's non-collateral )

  • introducing party may surprise W with inconsistent statement but adverse party must be able to cross & examine contradictory document
  • considerable freedom to ask witnesses about prior inconsistent statement
  • more restrictive to introduce extrinsic evidence of a prior inconsistent statement

Examples

Privileges

3d: Does a privilege apply?

  • attorney-client 503
  • belongs to client
  • attorney can claim privilege to protect the client
  • doctor-patient
  • not subject to Medical Treatment hearsay exception 803(4)
  • spousal immunity
  • applies to criminal
  • belongs to "witness" spouse
  • must be a valid marriage (family law)
  • does not survive the end of marriage
  • divorce = no more privilege
  • confidential marital communications
  • applies to both criminal and civil
  • belongs to both spouses
  • survives divorce, not annulments

Character Evidence

#4: Character Evidence

character evidence

404(a)

-prohibits use of “character” to suggest that that person is acting in accordance to that character

in criminal cases

-bars admission of evidence to prove a person’s personality trait only if used for a propensity purpose (implying that other purposes okay)

character

404(a)

criminal only

crimes, wrongs, & other

404(b)

-often allows evidence for purpose other than to prove character & propensity to act in a particular way in criminal & civil cases

-requires PQ to provide reasonable notice in criminal trials

-no bar if character is an element

crimes, wrongs, & other

404(b)

criminal/civil

motive

motive

-belief motive: Δ’s commitment to a white supremacist agenda, PQ successfully argued, established motive for their robbery & other crimes (survived 403!)

-financial motive: Δ’s immense IRS debt to show why he robbed the bank

opportunity

opportunity

-may offer evidence that Δ enjoyed access to a protected place or special tools on another occasion

"other occasion” may consist of a prior crime or bad act

Creepy Motel 6

-motel owner charged w/ sexual assault of motel guest; Δ denied access to rooms & claimed door was locked from the inside; PQ wants to offer evidence of Δ's past pled guilty to theft of a motel guest (victim’s room also locked in that instance)

intent

intent

-admits use of prior acts to prove intect

SCRUTINIZE

-despite propensity inferences, courts have well established use of intent evidence in drug cases

Ungrateful Offspring

-son (Δ) charged w/ vehicular homicide of his father (F); PQ offers Δ’s wife’s testimony of her witnessing Δ put arsenic in F’s bourbon; showing intent not accident

Re-dealing Dope Dude

-Δ arrested while in possession of drugs w/ intent to sell; PQ offers evidence past narcotics sales Δ

preparation

overlaps w/ plan, knowledge, & opportunity

plan

plan

-allows evidence that shows a common plan or scheme

-evidence of past actions show a “repeat” or resemble a plan

Mortgage Pyro

-homeowner (Δ) w/ financial burden is charged insurance fraud; previous home fire resembling fire pattern is admitted to show Δ had previously tried to do the same

knowledge

knowledge

-without knowledge of "_____", Δ would not have been able to have the opportunity to commit the act

-only slight difference b/t this & opportunity (“merely semantic”)

Shoplifting Sally

-Δ charged w/ trespass; manager (M) caught Δ shoplifting & banned Δ; upon returning, Δ immediately arrested; M now testistifies why arrest was immediate

identity

"contested"

identity

-admits evidence of Δ’s other bad acts b/c participants in those acts were able to identify Δ & link him to the charged crime

1) identity must be contested

2) identity must have strong similarities b/t both charges or other crimes (like 403 balancing test)

Side Hustle & Side Chick

-prostitutes can testify on how they know hustling cop Δ (foundation/personal knowledge) to then identify him at the scene of the crime currently at trial admitted

-Δ charged w/ homicide of a patient through epinephrine overdose; PQ offers evidence that nurse previously tried to kill her husband through potassium overdose; failed prong 1 and 2 (different time & drug) barred

absence of mistake & lack of accident

overlaps w/ intent, motive, & knowledge

other non-propensity purpose

Pawnshop Checks

police officer (PO) routinely checks serial numbers of pawnshop firearms for “stolen” firearms; PO identified shotgun as stolen; PO tags it & later firearm owner (Δ) later calls the police station to claim gun

-Δ gets charged w/ convicted felon in possession; PQ offers PO to testify how he found out about the (stolen) possession

"other non-propensity" purpose

Proving Character

405

(a) allows W to offer their opinion of a person THEN

on cross, court may allow counsel to ask about specific instances of the person's conduct

proving character

405

(b) explicitly allows that specific instances of conduct are admissible to prove character as an element of a crime, claim or defense

habit

406

religious beliefs & opinions

610

Hearsay

801

1) an out of court

2) statement

  • verbal statement
  • written statement
  • non-verbal (body language)

3) offered to prove the truth of the matter asserted

#5: Hearsay

-is it hearsay?

Hearsay w/in Hearsay

805

  • separate the each "level" of hearsay
  • each level must fulfill an exemption or exception

Hearsay Exemptions

801(d)

statements are NOT hearsay

5b: Hearsay Exemptions

801(d)

Declarant-Witness's Prior Statements

801(d)(1)

Declarant-Witness's Prior Statements

801(d)(1)

Opposing Party Statement

"party-opponent"

801(d)(2)

  • a party should not be allowed to object to the admission of her own statement on the grounds that the statement is unreliable
  • any statement by a party is exempt from the hearsay rule when offered against that party
  • any: inculpatory, exculpatory, or neutral
  • in other words: "use someones words against them"

  • this exemption does not require personal knowledge

Opposing Party Statement

801(d)(2)

adopted statement

adopted statement

801(d)(2)(B)

  • party’s “statement” need not consist of the party’s own words
  • party “manifested that it adopted” a statement “or believed [the statement] to be true” is sufficient
  • example - signing a document prepared by another

Adoption by Silence Weston Smith test

  • a party’s silence can constitute an adoptive admission by the circumstances must be such that a reasonable person would speak up rather than remain silent

**presence of government authorities affects interpretation of a

criminal Δ’s silence**

authorized party

  • exemption includes statements made “by a person whom the party authorized to make a statement on the subject”

  • this overlaps with “agents” but includes relationships outside the classic agency relationship to a brief authorized agent (single subject, single occasion)

authorized party

801(d)(2)(C)

-a reference letter from a 3rd party

example

requesting a reference letter from a 3rd party is authorization for the 3rd party (reference person) to speak on your behalf about your own credentials and capabilities

-it does not matter if that person got to see the statements before “endorsing” (submitting letter)

agent of a party

agent of party

801(d)(2)(D)

  • agent - someone authorized to act for a party on a particular matter
  • INCLUDES statements that an employee or agent makes to outsiders, as well as those made w/in agency or employment context
  • thus, statements agents make throughout discovery, interviews, and other means can be admissible here

  • employee v. independent contractor - distinction here is not important here as long as statements are “w/in the scope” of agency relationship

co-conspirator

Out-of-court State is Admissible Against a Party If It Was…

1) made by a co-conspirator;

2) during the course of the conspiracy; AND

3) in furtherance of the conspiracy

  • co-conspirator is not required to be available for cross examination

co-conspirator

801(d)(2)(E)

5c: Hearsay Exceptions

whether declarant available or not

803

Hearsay Exceptions

whether available or not

803

Present Sense Impression

(1) Present Sense Impression

1) exception applies only to description or explanation of an event,

  • not to more complex analysis or interpretations
  • no complex mental process can be used

2) declarant must make it while perceiving the event or “immediately after” the event

Stranded Hit & Run

  • Henry (H) was helping a stranded motorist when an 18-wheeler side swiped their vehicles; truck driver ran; Brandon (B) was on the road and witnessed the collision and kept driving to the next payphone 8 minutes down the road
  • when B called he described the 18-wheelers logo, and lack to attempt to stop; B’s statements are admissible
  • note: cell phones were not around at the time; no closer stops or rest areas

Granny Collision Smackdown

  • recall 911 call from man across the intersection

examples

Excited Utterance

(2) Excited Utterance

1) declarant must speak while excited by a startling event

  • subjective standard: the particular Δ must have been excited by the event
  • some: extensive shock after witnessing a startling situation
  • professionals: typically more controlled
  • stress is not equated to excitement (sudden is more closely related to excitement)

2) must “relate to” the startling event

  • the statement may be a description, explanation, analysis, or interpretation of an event
  • unrelated comments aren't admissible under this even if still "excited"

State of Mind

  • state of mind is only applicable if the statement is describing a current state of mind
  • not if the comment is about a past condition

  • AR: allows parties to introduce state of mind referring to future actions of another Hillmon Doctrine

(3) State of Mind

Medical Treatment

(4) Medical Treatment

1) statement must be made for medical diagnosis or treatment [by a non-doctor]

  • subjective requirement: patient must actually be seeking medical care

2) statements must be reasonably pertinent to diagnosis or treatment

  • objective requirement

3) statements must fit within one of the rule’s categories:

  • accounts of medical history
  • descriptions of past or present symptoms or sensations
  • reports about the “inception” of the condition or its “general cause”
  • statements of blame are not okay, this must be direct
  • slight inference is still okay

**doctor to patient professional statements do not enter under this exception b/c of doctor-patient privilege

Recorded Recollection

1) a record;

  • "a memorandum, report, or data compilation" 101(b)(4)
  • not limited to a "writing"

2) witness made or adopted;

3) where witness once had a personal knowledge;

4) adopted the record when that knowledge was fresh ;

5) testifies that information was then and is now accurate; and

  • witness has forgotten

(5) Recorded Recollection

Refreshing Memory

v.

Recorded Recollection

Business Records

1) exception applies to any “record”

  • no format restrictions

2) information must have been recorded by…

  • person w/ personal knowledge of the data; or
  • person who received information from someone w/ personal knowledge in organization
  • timing must also be “at or near the time” that the data arose (*low standard)

3) organization must have made the record in the course of a regularly conducted business activity & organization must have a regular practice of keeping such records

4) a qualified witness must introduce the record into evidence (very broadly interpreted)

  • any person w/ necessary knowledge to lay a proper foundation for document is qualified
  • often record’s “custodian”

(6) Business Records

Who is a business?

any “business, organization, occupation, or calling, whether or not for profit”

Big Caveat

-some regular business records lack the indicia of reliability

(ex: routine safety checks, b/c self-serving in injury liability suits)

What is a record?

-any “memorandum, report, or data compilation”

-further includes an “act, event, condition, opinion, or diagnosis"

Public Records

  • allows parties to admit public records into evidence for the truth of the matter asserted
  • public office: any public agency

(8) Public Records

Examples

INCLUDES:

  • tollbooth receipts
  • weather reports
  • agency expenditures
  • meeting minutes
  • hiring paperwork/procedure
  • personnel files
  • votes taken

EXCLUDES:

  • reports made by police or other law enforcement personnel (b/c too much bias)
  • political party records (this is business record)

Caveats of (A)(ii)

(A)(ii) Caveats

-duty to report

-law-enforcement bar

1) applies only to matters that the agency has a duty to report

  • reports that exceed the agency’s authority are inadmissible
  • excludes information a 3rd party observes and reports to an agency

2) excludes all record of observations made by law-enforcement personnel when offered in a criminal case

  • unless the observation was ministerial

(think every 10th car crossing border)

Caveat of (A)(iii)

  • gov’t investigation results are inadmissible against a criminal Δ
  • broad interpretation
  • includes: investigator's opinions & conclusions, underlying facts
  • must have been “legally authorized” investigation

(A)(iii) Caveats

-gov't crime investigation

Advisory Committee’s Trustworthiness Factors

Trustworthiness Challenge

1) the timeliness of the investigation;

2) the special skill or experience of the official conducting the investigation;

3) whether a hearing was held by the public agency prior to the report being made; and

4) whether the public agency's motivation is suspect

example: whether the report was made in anticipation of litigation by a public agency that has a stake in the litigation)

Hearsay Exceptions

Hearsay Exceptions

declarant unavailable

804

Unavailability

804(a)

  • only if the declarant is unavailable will the statement meet the exceptions under this rule

Wrongdoing Caveat

  • to prevent improper behavior by parties
  • party offering a witness’s out-of-court statement cannot cause unavailability through wrongful means
  • don’t kill (or order a hit on) W…

Unavailability

804(a)

Privilege

  • evidentiary privileges that further social interest
  • if a witness invokes, the court agrees that their testimony is shielded (thus making them unavailable)

  • PROOF REQUIRED: party invoking privilege is called to the stand and questioned, then asserts privilege & judge agrees to it
  • unless the privilege claimed is “against self incrimination”, usually judge accepts without stand requirement

(1) Privilege

Examples

  • attorney-client
  • spousal
  • doctor-patient

Refusal to Testify

  • some witnesses refuse to testify despite a court order
  • witness may be held in contempt & may receive a penalty too
  • to avoid a party being disadvantaged due to an uncooperative witness, this section deems the witness as unavailable
  • PROOF REQUIRED: a party is called to the stand, when declarant refuses to testify, judge will find the declarant unavailable

(2) Refusal to Testify

Examples

  • claim [fake] privilege

(think journalist-source privilege or simply not recognized in Jx)

  • protecting a family member (think dom. violence case)
  • fear of retaliation

(think employer suit)

Lack of Memory

  • a witness who claims that he lacks memory about the subject matter of a previous statement
  • no need to actually find the witness has lost their memory
  • need absolute no recollection of the matter
  • lack of memory of the details is not enough
  • “crucial factor is not the unavailability of the witness but rather the unavailability of his testimony”

  • PROOF REQUIRED: party is called to the stand, when declarant states her lack of memory, judge will find the declarant unavailable

(3) Lack of Memory

Death,

Physical/Mental Illness

(4) Death or Illness

physically/mentally illness must be sufficiently disabling that…

  • the declarant cannot come to court to testify; and
  • there is little likelihood of recovery w/in a reasonable time

PROOF REQUIRED:

  • death - deceased’s death certification, if declarant is the homicide victim then unavailability fact “pre”-established
  • physical/mental illness - proponent of the evidence must introduce documentary evidence
  • physician’s letter explaining declarant’s incapacity (no FRE rules bar preliminary)
  • temporary physical/mental illness -
  • likely recovery w/in a reasonable time? trial can be continued until that time w/o undue prejudice (judge has discretion to continue until health improves)
  • recovery time long (or delay prejudices the parties)? temp disability = incapacity

Absence

  • a declarant is unavailable if a party shows that she tried to find the declarant & bring him to the hearing, but was unable to

2 Additional Obligations of “Absence”

1) party must use any “reasonable means” in addition to the subpoena to persuade the declarant to come to trial

  • in civil: pay for declarant’s travel expenses

2) proponent must use reasonable means to take the declarant’s deposition if the declarant will not attend the trial

  • deposition preference: proponent must have been unable to procure the declarant’s “attendance or testimony”

PROOF REQUIRED: showing effort documentations

  • registered letters or subpoena sent to the declarant
  • proof that declarant lives outside court’s Jx

(5) Absence

Examples

-party cannot find declarant after diligent search

-declarant refuses to come to court & is outside court’s Jx (court lacks subpoena power)

Former Testimony

Former Testimony

804(b)(1)

1) declarant is unavailable

2) prior statement was given at a trial, hearing, or deposition

  • formal setting
  • could be in a different lawsuit (careful w/ #4)

3) opponent had opportunity to develop [predessor's] testimony

  • no need for actual development, just a chance to

4) opponent had similar motive to develop testimony

  • prior questioning substitutes adequately for the absence of cross examination in the current case

Dying Declaration

Dying Declaration

804(b)(2)

1) declarant is unavailable unavailable

  • dying declarant may recover

2) only applies in homicide trials and civil proceedings

  • recognizes criminal Δ’s right to confront witnesses
  • avoids policy concerns of secondhand statements to convict Δ

3) declarant must believe that death is imminent when statement is made

  • subjective requirement: declarant must believe death will happen...
  • very soon (w/in a few hours) and
  • it is inevitable

4) statement's contains cause or circumstances of declarant’s death

  • only a statement describing cause or circumstance of death counts as a “dying declaration” for hearsay purposes

Statements Against Interest

1) declarant unavailable

2) statement was against interest

3 ways a statement is against interest

a) contrary to party's proprietary or pecuniary interest

b) invalidate party's claim against another person

c) declarant is exposed to civil or criminal liability

3) at the time in was made

4) in criminal cases, corroboration for statements against penal interest

Statement Against Interest

804(b)(3)

Forfeiture

Forfeiture

804(b)(6)

1) declarant is unavailable

2) other party engaged or acquiesced in wrongdoing

3) intended to cause unavailability

4) wrongdoing caused the unavailability

-persuasion & begging aren't wrongdoing

Confrontation Clause

  • out-of-court statements must satisfy both hearsay rules & confrontation clause
  • Confrontation Clause limits only evidence offered in criminal cases against a Δ

#6: Confrontation Clause

- unconstitutional?

statement that…

-is made under circumstances which would lead an objective witness reasonably to believe that statement would be available for use at a later trial

-has a primary purpose of creating an out-of-court substitute for trial testimony

-is to establish or prove past events potentially relevant to later criminal prosecution

  • formal statements during litigation
  • sworn statements before grand juries, at pretrial hearings, during trial, & at post-trial
  • statements responding to conventional police interrogations

statement that…

-does not bear against the accused in the same way that a crime report does

  • business records
  • statements in furtherance of a conspiracy
  • Δ’s own statements
  • statements admitted to prove a point other than the truth of matter asserted

1) Is proffered statement testimonial?

no: not subject to CC

yes: go to #2

statement that...

-is made to law enforcement outside traditional interrogation →(use objective primary purpose test)

  • primary purpose is to establish or prove past events potentially relevant to later criminal prosecution statement
  • wife fills out a battery affidavit in her living room shortly after battery occurred statement
  • wife’s 911 call during physical altercation “described ongoing emergency”, questions needed to resolve present emergency statement
  • lab reports
  • satisfies both “targeted individual” test Williams & formality line Justice Thomas statement
  • satisfies either test statement
  • fails both “targeted individual” test Williams & formality line Justice Thomas statement
  • statements among private parties

Testimony Supporting Factors Clark

1) whether the interrogator was a law enforcement official

2) absence of “ongoing emergency”

3) situation’s formality

4) whether similar evidence is regularly admitted evidence “at the time of founding”

5) declarant's age

6) absence of other indications as "primary purpose of conversation was to gather evidence for prosecution”

Chart

2) Is declarant available for

cross-examination?

no: go to #3

yes: CC satisfied

Chart

3) Can PQ establish that declarant is unavailable AND Δ had prior opportunity to cross-examine declarant?

no: go to #3

yes: CC satisfied

"Last Resort" Options

Last Resort

403 & 103

403's Balancing Test

  • balancing test requires court to evaluate unfair prejudice and probative value in the context of full evidentiary record
  • stipulations do effect balancing test but don’t bar admissibility

403's Balancing Test

5 Influential Factors in Rule 403 Decision

1) extent to which evidence will arouse emotions or irrational prejudices of jurors

  • likely to exclude those likely to trigger strong emotional reactions

2) extent to which jury might overvalue this evidence

  • evidence slightly relevant but unduly given importance (dramatic)

3) strength of connection b/t the evidence and the elements of the case

  • very strong connection may override strong emotional reaction

4) whether there are less prejudicial, alternative means advocate can use

  • alternatives available to prove fact of consequence = evidence is inadmissible

5) whether it's possible to reduce prejudice/harm from introducing evidence

  • redacted efforts, limited jury instruction

Limiting Instructions

105

  • counsel may request a limiting instruction when evidence meant to be used for a specific party or purpose
  • "don't think about a pink elephant" danger
  • judge does not have discretion here
  • is requested by a party, judge must provide limiting instructions
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