My notes 2

Question 1

E: M testifies that T (co-conspirator) said “B wasn’t involved, it was A. Admission by party opponent?

Answer 1

No. It wasn’t in furtherance of the conspiracy, during the course of the conspiracy, or offered against the party who spoke.

Question 2

Williamson rule (for statement against interest)

Answer 2

Look at a statement piece by piece and only admit part that’s against interest.

Question 3

Then existing mental, emotional, or physical condition

Answer 3

Hearsay exception.
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 4

Short version of state of mind exception

Answer 4

1) a statement of a) the declarant’s then-existing i) state of mind, ii) emotional condition, III) sensory condition, or iv) physical condition, 2) not including a statement of memory or belief to prove the fact remembered or believed a) unless it relates to the validity or terms of the declarant’s will.
3) statements of memory are expressly exluded from the exception
4) statements of intention are included in the exception.

Question 5

State of mind vs similar that are not hearsay

Answer 5

State of mind = hearsay exception
Circumstantial evidence of state of mind = not hearsay
Effect on the state of mind of the hearer = not hearsay
state of mind is different than present sense impression (which is also an exception)

Question 6

A: “I love sally”. Offered to prove A loved sally at that moment. Admissible?

Answer 6

Yes, state of mind (direct evidence) exception

Question 7

B says “S is the best person in the world” offered to prove that he loves S.

Answer 7

Exclusion. Circumstantial evidence of D’s state of mind.

Question 8

A says “I love S” to prove that B is jealous

Answer 8

Not hearsay because effect on hearer

Question 9

W: “P is distasteful to me” admissible to show that he is distasteful to her?

Answer 9

Yes, hearsay but state of mind exception

Question 10

W: He bought me flowers, he took me to dinner, he took me for a ride, he gave me a good time, to husband. To show D did those things?

Answer 10

No. This is hearsay and doesn’t fit into the exception (because its a memory showing facts remembered).

Question 11

W: He brought me flowers, he took me to dinner, he took me for a ride, he gave me a good time. To show that wife wants to hurt husband’s feelings?

Answer 11

Yes, not hearsay because it is circumstantial evidence of state of mind.

Question 12

Can you use intent to engage in a future act as a state of mind exception?

Answer 12

Yes.

Question 13

Hillmon doctrine (statements of intenion)

Answer 13

Statements regarding plan or intention may be admissible to prove that the plan or intention was acted upon.
a) falls within the 803(3) exception
b) can prove that the person had that state of mind in mkaing that statement and that they acted on that intention.

Question 14

W: “H poisoned me.” Admissible under SOM?

Answer 14

No because it is a belief/backwards looking.
Could get in as circumstantial evidence of state of mind of being non-suicidal. But it is very likely to be used for the prejudicial effect.

Question 15

E: W’s letter saying he intended to go with H to Colorado. To show they both went to Colorado?

Answer 15

Yes, under SOM exception. This is the Hillmon doctrine. Hearsay but gets in.

Question 16

L: “I’m going to meet A at 9:30 at the restaurant to pick up MJ a promised to give me? To show that L went to the restaurant? To show that L met A? To show A promised MJ?

Answer 16

Hillmon doctrine: yes (majority)
Hillmon doctrine: Controversial
Hillmon doctrine: NO (backwards looking).

Question 17

S wants to offer testimony of B that 2 days before assault, J said “the day after tomorrow, I’m going to start a fight with S.” Admissible to show intent to start a fight?

Answer 17

Yes. SOM. Under Hillman Doctrine. Presumption that people will act the way they say they will act.

Question 18

G said”I saw J start that fight with S.” Admissible?

Answer 18

No. Backwards looking so no SOM.

Question 19

S charged with murdering J. S claims that she was in another city that day. P wants to present B as a witness to testify that on morning of J’s death he heard J say “I’m planning to spend some time with S this afternoon,” in order to prove that he spent time with S on the date of his death. Admissible?

Answer 19

Minority of courts follow leg history restriction (you can’t use Hillmon to prove actions of another person). Majority goes with ACN/Pheaster (full force Hillmon doctrine). Some courts will allow the inference when there’s some corroboration of the activity of the other individual.

Question 20

“I plan to cut J out of my will.” to show that the person had that intention had carried through that intention?

Answer 20

Yes. SOM Hillmon. Also will exception.

Question 21

“I feel sick” to prove they were feeling sick at that very moment?

Answer 21

Yes, statement of them existing physical condition.

Question 22

“I do believe that I feel sick.” Admissible?

Answer 22

Yes. It’s the exact equivalent of something we would allow. You can also add “I believe” when you’re looking inward. “I believe” matters when looking outward. That is inadmissible hearsay.

Question 23

“I felt sick to my stomach all last week.” Admissible?

Answer 23

Not under SOM because backwards looking, but maybe a statement made for medical diagnosis or treatment.

Question 24

Statement made for medical diagnosis or treatment

Answer 24

admissible hearsay if a statement that
a) is made for – and is reasonably pertinent to – medical diagnosis or treatment; and
b) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Note: Statement is made by the person seeking diagnosis.
Note2: Statement does not have to be to a doctor.

Question 25

Statement for medical purpose shorthand

Answer 25

1) made for medical diagnosis or treatment, and, 2) reasonably pertinent to diagnosis or treatment, 3) describing medical history, past or present symptoms or sensations, their inception, or their general cause.

Question 26

“I fell on my arm, doc, and felt the bone snap. Now it is completely numb. Offered to prove all of those things?

Answer 26

Yes, under medical diagnosis. Under SOM only numbness would be admissible.

Question 27

J is riding as a passenger in S’s car. Moments before an accident they have, J says to S in a clam voice “hmmm that red car is kind of weaving in its lane.” Moments later there is a crash. Is this admissible?

Answer 27

Yes. PSI.

Question 28

10 minutes after car crash, J shaking, pale, says to motorist who stopped “that fool in the red car did this to us.” Admissible?

Answer 28

Yes, EU

Question 29

J, in slow calm voice, tells a passerby who chanced upon scene of car crash “it’s funny how peaceful I feel under these circumstances.” Admissible?

Answer 29

Yes, state of mind

Question 30

S “my leg hurts like crazy”

Answer 30

Yes SOM (physical condition). Possible medical treatment based on further facts (this would be a 104(a) preliminary. Also PSI. Possibly EU depending on more facts.

Question 31

45 minutes after accident, S tells ambulance attendant, after saying my leg hurts like crazy, “its the same leg that I broke five years ago.” Admissible?

Answer 31

Yes, if for medical diagnosis or treatment. This would be a 104(a) question.

Question 32

1 hour after a crash, S says to doctor at hospital “I hurt my leg in an automobile collission.” Can it be used to show ti was hurt in an automobile collision?

Answer 32

Yes for medicla diagnosis or treatment. It could give the doctor better insight into the injury.

Question 33

“I hurt my leg in a head on collision, when the red car crossed the line and smashed into us.” Admissible?

Answer 33

First half ok, second is to specific for medical diagnosis/treatment. It simply isn’t relevant.

Question 34

Statement as to fault for medical/treatment exception?

Answer 34

Statements as to fault don’t ordinarily qualify under medical diagnosis/treatment exception (although expections for domestic violence, especially when children involved, because the perpetrator is relevant to the treatment plan).

Question 35

4 months after car crash, S says to doctor hired by her lawyer to serve as an expert witness in the case “My knee slammed really hard against the dashboard during the crash, it hurt terribly and has never been the same.” Witness not hired to treat S at all. Admissible?

Answer 35

Current federal rules: Yes, because it is made for diagnosis.
ACN: Says they traditionally weren’t admissible, but expert could state the basis of their opinion, including statements of this kind.

Question 36

Motorist who witnessed a crash approached the ambulance attendant and said, referring to S, “see those cuts, she got those when she was dragged out of the car and across the gravel.”

Answer 36

Admissible. It is still for medical diagnosis/treatment. It doesn’t matter that it isn’t for the speakers medical diagnosis/treatment.

Question 37

Identity of the abuser relevant for medical diagnosis/treatment?

Answer 37

Yes.

Question 38

Statement to a babysitter or caseworker identifying domestic violence perpetrator?

Answer 38

Not if not made for purpose of getting medical treatment (maybe if it was made so babysitter or doctor could communicate info to doctor then it would be admissible).

Question 39

Statement under the belief of imminent death

Answer 39

Admissible if the declarant is unavailable as a witness and:
in a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Question 40

Evidence in murder trial. Just before dying, with blood spurting out, “J has killed me by stabbing this dagger into my chest.”
Admissible?

Answer 40

Yes, belief of imminent death.

Question 41

Dying declaration shorthand

Answer 41

A statement 1) by an unavailable declarant, 2) made while believing death to be imminent, 3) about its cause or circumstances, 4) in a homicide prosecution or civil case.

Question 42

How soon must declarant expect their death to be for dying declaration?

Answer 42

They have to believe it to be imminent. It doesn’t have to be immeidate. A very short distance indeed. If he thinks he will die-tomorrow it will not do.

Question 43

How certain a belief of death for dying declaration to apply/

Answer 43

A settled, hopeless expectation of death. Abandoned all hope of living.

Question 44

Where does witness knowledge have to come from when witness unavailable?

Answer 44

Has to come from direct observation. it can’t just be their opinion based on circumstances. Only applies to what the declarant would have been able to testify to in court, under oath.

Question 45

Suicide note and dying declaration?

Answer 45

Not certain that death is imminent while writing the note. They have time to think about the words they are writing and they might change their minds. Whether or not they die is in their hands. Not admissible.

Question 46

statement of prior identification

Answer 46

A declarant-witness’s prior statement is not hearsay (exclusion) if the declarant testifies and is subject to corss examination about a prior statement and that statement
c) identifies a person as someone the declarant perceived earlier.

Question 47

Statement of prior identification shorthand

Answer 47

A prior statement is not hearsay if 1) it identifies a person, 2) as someone the declarant perceived earlier, 3) provided that the declarant testifies, 4) and is subject to cross-examination about the prior statement.

Question 48

St. v. S for robbery of J. J testifies that S robbed him and points to her in court identifying her. Police offer gets on stand and testifies that he attended a pre-trial lineup. He saw J point to S at the pre-trial lineup. Admissible?

Answer 48

Yes, so long as J testifies at some point and is subject to cross-examination about the prior statement. If J isn’t their, then this can’t be done.

Question 49

St. v. S for robbery of J. J fails to identify S in Court. could police officer take the stand and testify that J had earlier identified S in a lineup?

Answer 49

Yes, if J is subject to cross-examination about the prior statement. J has to be available for that.

Question 50

J can’t remember anything about a lineup. Can officer who witnessed lineup testify about it?

Answer 50

Yes, as long as J available for cross, because the memory loss can be brought out on cross.

Question 51

J identifies S at lineup. Is to sick to come to the trial (was well at time of lineup). Officer wants to testify about what happened at lineup. Admissible?

Answer 51

No, because J is unavailable to testify under 801.

Question 52

J testifies at trial. Testifies that he couldn’t see assailant and that they never saw their face. But he did see their car and has a good memory about the car. Police officer wants to testify that J told him, that’s the car of the person who robbed me. Admissible?

Answer 52

No. For identification exclusion to apply it has to be the person who was identified.

Question 53

J saw the assailant, S. Later J picked her picutre out of a photo array. No real people there at all. Just pictures. Would this be admissible if J testifies and is subject to cross-examination of the photo array?

Answer 53

Yes, as a prior indentification.

Question 54

Tools to refresh memory of forgetful witness:

Answer 54

1) leading, 2) leaving it for a moment and asking about something associated with it, 3) refresh with an exhibit, 4) if (3) fails, past recollection recorded.

Question 55

Is refreshment a hearsay exception?

Answer 55

Refreshment is not an exception to hearsay, because there is no hearsay.. It is just an examination technique.

Question 56

Is past recollection recorded a hearsay exception?

Answer 56

Yes.

Question 57

Past recorded recorded

Answer 57

Hearsay is admissible if:
There is a record that:
a) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
b) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
c) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Question 58

Past recollection recorded shorthand

Answer 58

A record 1) on a matter the witness once knew about, 2) but now can’t recall fully and accurately, 3) made or adopted by the witness, 4) when the matter was fresh in the witness’s memory, 5) and that accurately reflects the witness’s knowledge, 6) may be read into evidence, but not received as an exhibit (except when offered by an adverse party).

Question 59

Rutherford’s report contains transcripts of his interviews with two of Sana’s co-workers, and with Sana’s immieidate supervisor.
Rutherford is an insurance agent, working for an insurance company, hired by Hawaiian cruises.
Rutherford report: “1) The co-workers said, 2) Sana was behaving abnormally and 3) Sana told us that a) he bumped his head at work and b) that he felt sick.”
Sana has a claim for maintenance and cure.

Admissible?

Answer 59

1) Business record report (no problem with it being five days after the event), 2) admission by party opponent (employees of party), 3) a) no key b) state of mind [court says both are sense of mind, but it’s really just b. A is backwards looking]
Isn’t report made in preparation of litigation? It doesn’t matter here. It wasn’t made by Hawaiian Cruises, but by the insurance company, and it is Sana who is trying to get the info is. There is no incentive for the insurance company to falsify in favor of Sana. This makes it trustworthy.
When you have an added element of trustworthiness (like the report being made for the other side) it will likely get in. The trustworthiness element is the key to problems like Palmer.

Question 60

Public record exception

Answer 60

hearsay admissible if:
(8) Public records. A record or statement of a public office if:
(a) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
b) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
[observations of law enforcement ok if used against government or in civil case, but not against D in criminal case, assuming it was part of a legally authorized investigation].

Question 61

Public records shorthand

Answer 61

Public Records Exception: 1) A record of public office setting out activities of the office (internal stuff), a matter observed while under a legal duty to report (except by law enforcement personnel in criminal cases), or factual findings from a legally-authorized investigation (except when offered against the accused in a criminal case, and, 2) no showing of untrustworthiness by the opponent.
Note: Can be a statement, doesn’t have to be a formal record
Note: Does not have to be at or near the time. Does not have to be in regular course of office.

Question 62

Are public records self-authenticating?

Answer 62

Yes. They require no extrinsic evidence of authenticity to be admitted, if the copy is certified as correct by the custodian or another person authorized to make the certification.

Question 63

Does business record exception include public office?

Answer 63

yes.

Question 64

Mine explosion. 1 week investigation by bureau of mines. Report published 3 weeks after explosion. Focuses on extent of damage in coal mine based on what investigators saw with their own eyes. If offered in wrongful death to show the nature of the explosion is it admissible?

Answer 64

Yes as a public record (under II). Could time lapse make it untrustworthy? People could have forgotten between observation and making the report. [burden on opponent to make this argument]. If business record? Probably not, not timely enough.

Question 65

Mine explosion. Bureu of Mines talk to people who were there shortly after. Looks like factual findings. Is there a Johnson v. Lutz problem for public records, because factual findings are based on the statements of an outsider?

Answer 65

No. If factual finding there is no Johnson v. Lutz problem. But, if no factual finding, and under (i) or (ii) there is a Johnson v. Lutz problem.

Question 66

Assume report made immediately after talking with people about extent of damage from coal mine accident. Investigator is bureau of mines. Admissible?
What if Report describes bureau’s conclusion that explosion caused by inadequate ventilation in the mind. This is based upon conflicting information they gathered from a variety of sources, including outside information. Admissible in wrongful death case under public records?

Answer 66

Admissible as a business record exception in a wrongful death case to show extent of damage? No. Johnson v. Lutz problem. You need two keys. Can only get through first door.
Report describes bureau’s conclusion that explosion caused by inadequate ventilation in the mind. This is based upon conflicting information they gathered from a variety of sources, including outside information. Admissible in wrongful death case under public records? Yes (see Beech Aircraft v. Rainey).

Question 67

Do factual findings include opinions and conclusions?

Answer 67

Yes

Question 68

Mine case. Child dies. Owner charged with murder. Can Bureau of Mines report be used against owner?

Answer 68

Admitted over hearsay objection as public record? No. Can’t be used against D in criminal case under (ii) or (iii) and it isn’t about the activities of the office. This is (iii)?

Question 69

Parallel police investigation into mine incident. That very day, police officer acting in regular course of duties, goes to scene and writes down report. Admissible in manslaughter case under public records exception?

Answer 69

No. See (ii). Would be admissible in civil wrongful death case. In criminal case, can it be used against government? No (although some courts don’t read ii strictly and let it be used).

Question 70

Police investigation admissible against mine owner, in criminal manslaughter case, under business records exception?

Answer 70

you have a problem with the confrontation clause (See U.S. v. Oats, if it doesn’t fit within public records exception because of these provisos regarding criminal cases, then it can’t come in under the business record exception either).

Question 71

If public records exception doesn’t apply because of provisos regarding criminal cases, can it come under bsuiness record exception?

Answer 71

No.

Question 72

Residual hearsay exception

Answer 72

A statement is admissible over hearsay objection if 1) supported by sufficient guaranttes of trustworthiness that is 2) more probative on the point than any other reasonably available evidence, if 3) reasonable notice in writing is gven before the trial or hearing (unless excused for good cause).

Question 73

Confrontation clause

Answer 73

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

Question 74

Who does the confrontation clause apply to?

Answer 74

criminal defendants only.

Question 75

What does the confrontation clause require under Ohio v. Roberts (old standard)

Answer 75

Unavailable + hearsay exception or indication of trustworthiness

Question 76

Ohio v. Roberts (old confrontation clause) shorthand

Answer 76

When a hearsay declarant is not present, the confrontation requires: 1) unavailability of the declarant (“normally”), and 2) adequate indicia of reliability, which can be satisfied by either a) a firmly rooted hearsay exception, or b) particularized guarantees of trustworthiness.

Question 77

Confrontation rule for non-testimonial hearsay?

Answer 77

For nontestimonial hearsay, it is consistent with the framers’ design for a state 1) to follow the approach of Roberts, or 2) to exempt such statements from Confrontation Clause scrutiny altogether (second is adopted in Davis v. Washington).

Question 78

For testimonial hearsay (confrontation clause)

Answer 78

For testimonial hearsay, the 6th Amendment requires 1) unavailability of the declarant, and 2) a prior opportunity for cross-examination of the declarant.

Question 79

What is the difference between testimonial and nontestimonial evidence?

Answer 79

Whatever else the term testimonial covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.

Question 80

What is non-testimonial

Answer 80

1) Primary purpose of interrogation 2) is a purpose other than creating record for trial, a) including, but not limited to, responding to an ongoing emergency).

Question 81

What is testimonial

Answer 81

1) primary purpose of interrogation is 2) to create a crecord for use at trial, that is 3) to create an “out-of-court substitute for trial testimony.”

Question 82

How to determine primary purpose of interrogation

Answer 82

Its a combined inquiry (reasonable person stadnard and can use from police and declarant perspective too).

Question 83

“He is here, jumping on me again. He is using his fists” to 911 operator. Then “he is running now.” Is this testimonial?

Answer 83

Note present tense.
No, this is non-testimonial.

Question 84

Police respond to call of domestic disturbance. Question at scene. “There was an argument, but its better now.” - husband. Talked to each separetely. Wife gives account and fills out and signs a battery affidavit. “Broke lamp and phone, hit me in chest and threw me down. Attacked my daughter. Testimonial?

Answer 84

Note past tense. Yes.

Question 85

When are statements non-testimonial? When are they testimonial?

Answer 85

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
This comes to be known as the primary purpose test.
More formal = more likely testimonial. More formal in Hammond (separate conversation with officers, sworn affidavit) vs less formal in Davis (911 call).

Question 86

Police find someone bleeding out at 3:25 AM. Ask about what happened, who shot him, where. They are told that Rick shot him at 3 AM.
Says he was talking to Rick through a door and was shot in the back when he turned to leave.
Admissible over confrontation clause?

Answer 86

It is non-testimonial.
After Davis there is no confrontation clause if it is non-testimonial.
Why is it non-testimonial? This is an ongoing emergency. Consider perspective of both victim and cops. When cops were called their was nothing to suggest that the emergency had ended.

Question 87

How do you determine primary purpose?

Answer 87

You look at the perspective of both parties to determine the primary purpose of the investigation. Why not just look at it from the view of the victim? The victim isn’t thinking of anyone else, the police are worried about the public at large.
Other factors matter as well here to determine the primary purpose: What questions the police are asking, is there a continuing danger to the public (here he had a gun which makes him a bigger and more distant threat).
Implicit in Davis is idea that because of possibility of fabrication when looking????. This sounds like Roberts.

Question 88

statements in ancient documents

Answer 88

Hearsay exception if
A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

Question 89

Statements in learned treatises, periodicals, or pamphlets

Answer 89

Hearsay exception if
A statement contained in a treatise, periodical, or pamphlet if:
a) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
b) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.

Question 90

3-year old abuse victim’s statements admissible over confrontation clause?

Answer 90

Yes. Primary purpose of questioning ongoing emergency to identify threat to child.
Statements by young children rarely, if ever, are testimonial, especially if made to non-law enforcement.
Statement to mandatory reporter (by mandatory reporter???) usually not testimonial.

Question 91

Statement offered against a party that wrongfully caused the declarant’s unavailability

Answer 91

A statement is admissible over hearsay objection if:
A statement offered against a party that wrongfully caused – or acquiesed in wrongfulyl causing – the declarant’s unavailability as a witness, and did so intending that result.

Question 92

Facts: D shot ex-gf. D says self-defense.
Evidence: Gf told police D abusing her and threatened to kill her.
Trying to get in via forfeiture by wrongdoing?

Answer 92

D did not forfeit CC unless D killer her intending her unavailability as a witness.
Decided on preponderance standard.

Question 93

What stanandard is used when you have to decide guilt determine admissibility?

Answer 93

Preponderance

Question 94

Non-hearsay due to being used to prove something other than truth of the matter asserted and CC?

Answer 94

No CC issue if not hearsay

Question 95

CC and co-conspirator statemetns?

Answer 95

Not usually CC becuase usually non-testimonial (in furtherance of conspiracy)

Question 96

Former testimony and CC

Answer 96

NO CC if it meets elements (because opportunity to cross)

Question 97

CC and business records

Answer 97

Usually not testimonial, unlles prepared for litigation. Sometimes applies.

Question 98

Prior identification and CC

Answer 98

NO CC issue (not hearsay and they’re available at trial)

Question 99

Past recollection recorded and CC

Answer 99

No CC issue because witness available at trial

Question 100

Dying declaration and CC

Answer 100

No CC issue even if testimonial (historic exception), unless forfeiture exception (they killed intending unavailability).

Question 101

Forensic lab results and CC

Answer 101

Testimonial when made for trial. Usually CC issue, most say D can demand to confront the analyst.

Question 102

Medical diagnosis and CC

Answer 102

Typically non-testimonial for purpose treatmnet/diagnosis. Might need more scrutiny if diagnosis is for trial

Question 103

Ways to impeach

Answer 103

1) Prior inconsistencies, 2) showing witness’s bias (prejudice, special relationship, interest in outcome), 3) contradicted by other witnesses/evidence, 4) challenge the witness’s memory, 5) perception or interpretation, 6) character of witness (ex. Truth and veracity).

Question 104

Can you impeach your own witness?

Answer 104

Yes.

Question 105

Rule 607 who may impeach a witness.

Answer 105

Any party, including the party that called the witness, may attack the witness’s credibility.

Question 107

Hogan and someone else busted for smuggling marijuana.
At grand jury, and under oath, other person [Carpenter] says Hogan had nothing to do with it. Hogan is charged with perjury.
Opening statement of Hogan trial, prosecutor says they expect other person to lie, and they will impeach him with his confession.
Defense wants to voir dire witness outside of jury’s presence. This is under oath.
On voir dire he says Hogan was not involved.
Then prosecutor calls other person at trial. Says Hogan not involved. On cross by defense, they bring in the confession (that had already been discussed on direct). Say it was made because of torture.
Then DEA agents get called. All four testify that he said this and there was no torture.
Problem in larger case: Primary purpose was not to impeach them, it was to impeach them so they could admit evidence that would otherwise be inadmissible. is this allowed?

Answer 107

1) You can’t call a witness for the primary purpose, 2) of impeaching the witness, 3) with evidence that is otherwise inadmissible.

Question 108

Can you call a witness for the primary purpose of impeaching the witness with evidence that is otherwise inadmissible?

Answer 108

No.

Question 109

E1: Carpenter’s confession implicating the Hogans.
FP1: Hogans were indeed involved in the drug smuggling conspiracy. This would be hearsay without an exclusion or exception. Can it be used for impeachment when primary purpose is to get it in?

Answer 109

This turns into something resembling a 403 analysis.
Attacking credibility of something with zero probative value (because it can’t get in) doesn’t have any probative value.

Question 110

Does counsel waive grounds for appeal by following judges ruling?

Answer 110

Counsel doesn’t waive by acting in accord with the judges decision.

Question 111

Seattle, July 14: Crime
Defense alibi witness says D was in Portland on July 14. Impossible to have been in Seattle at time of crime (direct, defense).
Oswald had been in restaurant every day for the last couple of months (cross, prosecutor).
Rebuttal Case (by prosecutor): Police detective testifies that they talked to Oswald in Seattle on June 12th and Oswald said he had been in Seattle for a few days.
Was this rebuttal evidence appropriate in impeachment of witness

Answer 111

No.
This would be impeachment by contradiction.
This is irrelevant except for its value in contradicting the witness.