Spring 2015

Question 1

Evidence is reviewed using

Answer 1

Abuse of discretion standard

• Judges have LOTS of power
• A LOT of discretion
• Many rulings on discovery leads to settlement (which means you’ve waived any objections allowing you to appeal)

Question 2

FRE 103: Rulings on Evidence

Answer 2

(Bandera – Preserving Error/States specific ground in objection)

(a) Preserving a Claim of Error: Error may only be claimed if the error effects a substantial right of the party and

    (1) If ruling admits evidence,   
     a party, on the record
	(A) Timely objects or  
        moves to strike; and
	(B) States the specific 
        ground, unless apparent 
        from the context; or

(2) If ruling excludes
evidence, a party offers
proof unless clear from the
context

(b) Not needing to review an objection or offer of proof: Once the court rules definitively on the record – either before or at trial – a party need no renew an objection or offer proof to preserve a claim of error for appeal.
* NOTE: Plain error - No need to object but the error must be obvious/important/likely to result in a miscarriage of justice (like an innocent person getting convicted). (More likely in criminal case).

Question 3

FRE 104: Preliminary Questions

Answer 3

(a) In general, the court must decide any preliminary questions about whether:
• A witness is qualified (See below)
• A privilege exists (Bound by evidence rules)
• Evidence is admissible
o A court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In deciding so the court is not bound by evidence rules, except those on privilege.
• i.e. In ruling whether someone is qualified as a witness the court can consider things that are not admissible in the trial itself (in other words the court is just deciding whether this witness can give his opinion – on ruling on those prelim questions, he is not bound by the rules of evidence)
• Can submit diploma, affidavits, etc. (i.e. something that is hearsay if introduced at trial)

(b) Relevance that depends on a fact: When relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support that the fact does exist – the court may admit on the condition that proof will be introduced later.
(c) …

Question 4

Two basic rules of evidence:

Answer 4

1. Irrelevant evidence should be excluded (no exceptions)
2. Relevant evidence should be admitted (needs probative value)
   i. See FRE 401, 402, 403
   ii. Very low threshold
   iii. So low sometimes you might not recognize why it’s relevant

Question 5

Any fact that …

Answer 5

could matter in any degree to make it more or less likely is relevant

Question 6

FRE 403 - Surprise:

Answer 6

3. The rule does not enumerate surprise as a ground for exclusion
   i. Unfair claims of surprise may still be justified despite procedural requirements of notice and instrumentalities of discovery, the granting of a continuance is a more appropriate remedy than exclusion of evidence.

Question 7

Whether something is excluded based on unfair prejudice consideration should be given to …

Answer 7

…the probable effectiveness or lack of effectiveness of limiting instruction – the question of other means of proof is also a factor to be considered.

Question 8

Probative Value

Answer 8

• Must be SUBSTANTIALLY outweighed
• Reviewed under abuse of discretion
• Need to know the substantive law to determine whether something is or is not relevant

Question 9

FRE 401: Test For Relevant Evidence

Answer 9

Evidence is relevant if:

(a) It has a tendency to make a fact more or less probable than it would w/o the evidence and
(b) The fact is of consequence in determining the action

Question 10

FRE 402: General Admissibility of Relevant Evidence:

Answer 10

Relevant evidence is admissible unless any of the following provides otherwise: the Constitution, a federal statute, these rules; or other rules prescribed by the SC. Irrelevant evidence is not admissible.
• Mostly the rules come into play (and CL rules, not in the book)
• LOTS of reasons why relevant evidence might be excluded
o THINK: If it’s not relevant, you wont’ go to another rule and there are no exceptions

Question 11

FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons:

Answer 11

The court may exclude relevant evidence if its probative value is substantially outweighed by one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

• SUBSTANTIALLY Outweighed
• Prejudice: Relevant but might be misused by the jury
• Confusing the issues: The probative value isn’t high enough that it should allow the jury to be confused
• Needlessly presenting cumulative evidence: Mainly an issue in civil trials

Question 12

Test for Relevant Evidence:

Answer 12

Whether an item of evidence will have value is determined by logic and experience in proving the proposition in which it is offered. The standard = any tendency to make the existence of any fact more or less probable than it would be w/o the evidence.

Question 13

If relevant evidence is inadmissible in the presence of other evidence related to it, its exclusion must rest not on…

Answer 13

On the ground that the other evidence has rendered it “irrelevant” but on its character as unfair, prejudicial, cumulative or the like, its relevance notwithstanding. (See Rule 402 note; Old Chief)

Question 14

Propensity Evidence:

Answer 14

Is relevant – but creates risk that the jury will convict for crimes other than those charged bc he’s a criminal and deserves punishment

Question 15

Conditional Relevance

Answer 15

When there is a preliminary question that must be answered before determining if the evidence is relevant.

 a. FRE 104 requires the judge to decide whether or not a reasonable jury could conclude the answer to the preliminary question of fact.
        i. .e. The judge doesn’t   decide whether the preliminary fact is actually true but instead whether a reasonable jury could think so given the other evidence in the case.

Question 16

FRE 104: Preliminary Questions:

Answer 16

(a) In General. The court must decide any prelim questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact: When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof will be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear:
(d) Cross examining a D in a Criminal Case:
(e) Evidence Relevant to Weight and Credibility: This rules does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

Question 17

Hearsay Defined:

Answer 17

An out-of- court statement used to prove the truth of the matter asserted (TOMA)
	i. The “somebody else” the   
        witness refers to 
		1. Not subject to cross 
               examination/oath, etc.

Question 18

Even if it is hearsay and was introduced…

Answer 18

You must prove that the error was prejudicial or a reversible error.

i. Must prove that the error in admission effected the substantial rights of the parties to receive a new trial
D. Factors on which the value of the evidence depend on:
* (All of these things matter
but if the out of court speaker
isn’t there, we can’t follow up
or check on them)

Question 19

Reasons why it is important to hear testimony first hand:

Answer 19

1. Perception – Did the witness perceive what it is described and perceive it accurately?
   i. Were they in fact in a position to perceive what they describe.
   ii. If they were there, you could ask – where were you standing, how’s your hearing, etc.
2. Memory – Has the witness retained an accurate impression of that perception?
   i. How well did the witness remember in order to convey the statement? (Big deal to Watts)
   ii. THINK: Your description of bad events has changed over time.
   iii. If you could cross –you could bring this out possibly
3. Narration – Does the witness’ language convey that impression accurately?
   i. Is it possible that the out of court speaker miscommunicated what he was trying to say?
   ii. What he said isn’t want he meant to say.
4. Sincerity – Is the witness, with varying degrees of intention, testifying falsely?

Question 20

Hearsay Test:

Answer 20

1. Is something an out of court statement?
   
   2. Did it assert anything?
   3. If so, what?
   4. Does it matter if it’s true → If yes = Hearsay; If no → Safe.

Question 21

“Out of Court”:

Answer 21

Any statement other than one made under oath and in front of the FF during the same proceeding in which it is being offered in evidence.

Example: Testimony in an earlier trial

Rule: Whenever an out-of-court statement is offered for some purpose other than to prove the truth of the matter asserted, the value of the statement does not rest upon the declarant’s credibility and therefore, is not subject to attack

Question 22

Examples of when you might use nonhearsay out of court statements:

Answer 22

1. Declarant’s State of Mind
   i. Mistake, knowledge, belief
   ii. Lyons v. Morris Costumes, Parry
2. Effect on listener
   i. Fear, duress, knowledge
   ii. Subramniam, Southerland, Johnson, Jefferson
3. Verbal acts (“Operative conduct”)
   i. Fraud, oral transaction, demands, commands
   ii. (Oral contracts)
   iii. Saavadra, Hanson, Montanta

Question 23

Statement:

Answer 23

1. Oral or written assertion or
2. Nonverbal conduct of a person, it it is intended by the person as an assertion.
   a. Assertive Conduct: Raising hand, nodding, keeping hand down, pointing
   b. Non-Assertive Conduct: Taking off a sweater because it’s warm, staying silent because temperature is comfortable, fleeing the country to escape prosecution (highly relevant and suggests he’s guilty, but he doesn’t intend to send the message that he killed his wife), limping because your leg hurts.

Hearsay Defined: Defined. Hearsay means a statement –can be oral, written or nonverbal and has to be an assertion; not while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement.

1. Assertion: Statement
2. TOMA: Showing knowledge, notice, effect on listener, etc. (The Declarant)

Question 24

FRE 801: Definitions That Apply to this Article: Exclusions from Hearsay:

Answer 24

a) Statement – Means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion
* Note – machines are not people (parrots are not nor are dogs)

b) Declarant – Means the person who made the statement

c) Hearsay – Means a statement that
1) The declarant does not make while testifying at the current trial or hearing; and
2) A party offers in evidence to prove the truth of the matter asserted in the statement
Advisory Committee Note: If the significance of an offered statement lies solely in the fact that it was made no issue is raised as to the truth of anything asserted, and the statement is not hearsay.

Question 25

The Confrontation Clause:

Answer 25

1. The 6th Amendment grants every criminal defendant the right to: “be confronted with the witnesses against him.” a. Three Clear Requirements for application: i. Only applies to criminal prosecution b. Right of the accused only, not the government i. The accused can introduce all kinds against the government ii. The gov. seeking to accuse only!! c. Right to confront i. In court testimony, in the presence of the D, subject to an opportunity to cross is sufficient but may not always be necessary d. No implications for: i. Hearsay in civil cases ii. Hearsay induced against the prosecution in criminal cases iii. Hearsay declarations from someone who winds up testifying in open court, subject to cross e. Question: When does the Constitution prohibit the introduction against a criminal defendant, of hearsay from a declarant who does not testify ii. TEST: Whether the out of court statement was “testimonial” 2. THINK: A constitutional error generally requires reversal of a D’s conviction unless the prosecution can show that the error was harmless “beyond a reasonable doubt.”

Question 26

Testimony Defined:

Answer 26

A solemn declaration or affirmation made for the purpose of establishing or proving some fact. (See Crawford). a. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a causal remark to an acquaintance does not. b. Examples: i. Ex-parte in-court testimony ii. Extrajudicial statements iii. Statements taken by the PO in the course of interrogations (informal questioning by PO) • The CC cannot be evaded by having a note taking PO recite unsworn testimony of the declarant, instead of having the declarant sign a deposition. iv. Depositions v. Prior testimony Examples that would not be testimony: i. Casual remarks and offhanded comments

Question 27

Statements are not testimonial when the circumstances objectively indicate ...

Answer 27

That there is such ongoing emergency, and that the primary purpose of the interrogation is to est. or prove past events potentially relevant to later prosecution. a. Crawford: Even if the Sixth Amendment is not solely concerned w/testimonial hearsay, that is its primary object, and interrogations by LE officers fall squarely w/in that class. i. However, look to see if the PO is trying to determine what is happening in the present in relation to an ongoing emergency – if the primary purpose is to resolve that ongoing emergency then it does not fall within concern of the confrontation clause.

Question 28

Factors to Determine Whether the CC Applies:

Answer 28

a On-going emergency (Indications are below) i. Public safety issue (THINK: Active shooter loose) • If you separate the guy from the victim – there is no real threat to anyone else here, there’s a shooter and they can actively harm someone even though we don’t see them or he ran away b. How long does the emergency last? i. THINK: Boston bomber – terrorist attack, not sure what the reason was, what direction he was taking, etc. vs. an incident that looks more like an isolated incident - clearly he had an issue with the man in question here • In other words there’s not a clear cut test ii. Here, he was caught a year later – “We need not decide precisely when the emergency ended bc Covinton’s encounter w/the PO and all of the statements he made during that interaction occurred w/in the first few min. of the PO’s arrival and well before they secured the scene of the shooting – the shooter’s last known location” (p. 93) c. Informality d. Statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation i. *How the PP will be ascertained by looking at above ii. Disagrees w/Scalia and take a step back towards Roberts “buyer’s remorse” e. Turns out there are a whole lot of circumstances where reliable evidence will get thrown out because of Crawford (testing evidence = only cross exam)– do we want to also consider the basis behind the hearsay exceptions that deal w/reliability (don’t discuss a ton)

Question 29

``` FRE 804(b): 1) Forfeiture by wrongdoing: ```

Answer 29

1) Forfeiture by wrongdoing: If the declarant cannot testify because the D killed them or did something to keep them from testifying (forfeiture) a. Must prove that the D did it and did it to silence them b. Didn’t show up for intimidation, bribes, etc. c. Giles v. California (2008) – D charged w/murder of his gf, PO testified that D’s gf had previously told the PO that the D had threatened her life. Allowed in as forfeiture by wrongdoing. • Must find under a preponderance of the evidence (not w/o reasonable doubt) but that this likely happened • Must also find that he had intent or it was a reason that he killed her to stop her from testifying • THINK: Does it necessarily mean that if he killed her he was intending to stop her from testifying? • Intent: Purposefully/Knowingly/Desire the consequences – or substantially certain to occur

Question 30

Prior Statements by Witnesses:

Answer 30

1. Generally not inadmissible against a criminal defendant by virtue of the CC because the declarant’s appearance in trial usually satisfies the requirement of confrontation. 2. Q: Whether a prior out of court statement by a person now available for cross exam concerning it, under oath, and in the presence of the trier of fact should be classed as hearsay. a. No problem if the witness admits on the stand that he made the statement and that it was true. b. Problem arises when the witness on the stand denies having made the statement or admits having made it but denies that it was true. Rule: Prior inconsistent statements are admissible for a non hearsay purpose. It could or should affect the weight of what the jury attaches.

Question 31

F.R.E. 801(d): Definitions | (d) Statements That are Not Hearsay:

Answer 31

A statement that meets the following conditions is not hearsay (1) A declarant-witness’s prior statement. A declarant testifies and is subj. to cross exam about a prior statement, and the statement: (A) Is inconsistent w/the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition (B) Is consistent w/the declarant’s testimony and is offered to rebut an expression or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or o He said something before that is the same as what he is saying now o Example: Gets up at trail and offers evidence showing that he was threatened or bribed, if they can show that you said something consistent w/what you are now saying can come in (C) Ids a person as someone the declarant perceived earlier * All of these apply to when the declarant also comes in and testifies so he is available for cross. (2) An Opposing Party’s Statement: The statement is offered against an opposing party and: (A) Was made by the party in an individual or representative capacity (B) Is one the party manifested that it adopted or believed it to be true; (C) Was made by a person whom the party authorized to make a statement on the subject; (D) Was made by the party’s agent or employee on a matter w/in the scope of that relationship while it existed or; (E) Was made by the party’s conspirator during and in the furtherance of the conspiracy

Question 32

"Effective Cross Exam"

Answer 32

Did the cross exam have to be meaningful? (Argument – he’s here but we can’t actually get anything because he doesn’t remember) – No. F.R.E. 801: Subject to cross exam if he is placed on the stand, under oath, and responds willingly to questions. .. Needs only to concern the statement & producing the witness’s assertion of memory loss does not undermine the effect of cross – it can be effective in destroying the force or the prior statement. •Key: The CC requires only an opportunity for effective cross, not cross that is effective in whatever way, and to what extent, the D might wish •Think: It’s still effective that the guy doesn’t remember it

Question 33

Two classes of statements deemed “not hearsay” under FRE 801

Answer 33

a. First = consists of certain statements by declarants who also give sworn, in court testimony in the trial in which their statements are offered into evidence. b. Second = Statements given this special treatment consists of various kinds of “admissions by party opponents” c. When an out of court statement is offered into evidence against the person who made it, the statement = “admission” and is exempt from the hearsay rule – regardless of whether the statement seems on its face to “admit” anything contrary to the declarant’s interest. i. What matters is not what was said but who said it. ii. Not just against whom the evidence is offered – can be offered to show at least partially responsible for the out of court statement iii. THINK: A direct admission – the D cannot persuasively claim he has had no chance to “confront” himself.

Question 34

Admissions can only be offered when they are ..

Answer 34

Against a party -- cannot offer in favor of a party - No personal knowledge required - Doesn't have to be inculpatory

Question 35

Rules for Direct Admissions:

Answer 35

In general: a. No personal knowledge required b. Needs not be obviously against interest c. Must be offered against the party who said it d. No confrontation problem (THINK: You can’t confront yourself)

Question 36

Admissions and Multiple Hearsay:

Answer 36

1. Two considerations: a. Even w/admissions or w/admissions, it depends on precisely what is said. i. If the party simply says “This is what happened” as opposed to “So and so said this is what happened” ii. The latter = hearsay re: the out of court person who made the statement iii. The forcer, even though it is based on what someone else said, it’s an admission and it doesn’t matter who else said it = admission/ adoption b. The idea is that the jury can weigh this and probably won’t find it reliable

Question 37

FRE 801 Admissions: Definitions:

Answer 37

(d) Statements which are not hearsay → (2) An opposing party’s statement. The Statement is offered against an opposing party (B) The party manifested that it adopted or believed to be true

Question 38

Authorized Admissions: FRE 801(d)(2)(c):

Answer 38

Statements that are not hearsay → An opposing party’s statement → Was made by a person whom the party authorized to make a statement on the subject;

Question 39

NOTE: Rule 408: Compromise and Offers to Compromise:

Answer 39

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability, for invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish or accepting or offering or promise to accept a valuable consideration in compromising or attempting to compromise the claim; and (2) Conduct ..

Question 40

Agent and Employee Admissions: FRE 801(d)(2)(D):

Answer 40

Statements that are not hearsay → An opposing party’s statement → Was made by the party’s agent or employee on a matter w/in the scope of that relationship and while it existed or •Tradition to test the admissibility of statements by agents as admissions by applying the usual test of agency •Few principals employ agents for the purpose of making damaging statements

Question 41

Co-Conspirator Admissions:

Answer 41

1. Why are co-conspirator statements admissible? a. Only people who know about the conspirator are those involved b. When you exclude hearsay you are likely loosing relevant, probative evidence – THINK: In your life, you’d rely on this evidence.

Question 42

FRE 801(d)(2)(E): Co-Conspirator

Answer 42

Was made by the party’s co-conspirator during and in the furtherance of the conspiracy. 1) Made by the coconspirator 2) During course of the conspiracy 3) In furtherance of conspiracy •NOTE: Knowingly talking to police (here he is but he doesn’t know it) it would be rare that it would ever be in furtherance of the conspiracy.

Question 43

Admissions and the Bruton Rule:

Answer 43

1. When two or more Ds are tried together, a prior statement by one of the Ds will be admissible against that D as an admission, but typically cannot be introduced against the other D or Ds w/o violating the HR or CC.

Question 44

List of Exceptions to the Hearsay Ban:

Answer 44

1. Prior inconsistent statements 2. Prior statements of ID 3. Direct Admissions 4. Adoptive Admissions 5. Authorized Admissions 6. Vicarious Admissions 7. Coconspirator Admissions 8. Spontaneous Statements 9. Contemporaneous Statements

Question 45

Spontaneous and Contemporaneous Statements:

Answer 45

FRE 803: Exception 1: Present Sense Impression: Describing an event or condition made while the declarant was perceiving the event or condition, or immediately after. a. Theory is there is no time for fabrication and better quality then getting something that was said months ago b. The statement must be said close enough to allow an inference of spontaneity – precise contemporaneity is not often possible (THINK “He spoke at first opportunity) FRE 803 – Exception 2: Excited Utterance: a. NEED: i. An occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer ii. The statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought The idea is there is no time for “reflection” (i.e. to make up a lie)

Question 46

Re Gestae:

Answer 46

1. Res Gestae = Verbal Acts Doctrine | 2. A declaration is admissible despite the hearsay rule if it constitutes part of the “thing done.”

Question 47

FRE 803: Exceptions to the Rule Against Hearsay:

Answer 47

Regardless of whether the D is available as a witness - the following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness (1) Present Sense Impression: A statement describing or explaining an event or condition, made while ore immediately after the declarant perceived it. (2) Excited Utterance: A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused

Question 48

Exception 1 in 803

Answer 48

•Exception 1: Substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation. o If the witness is the declarant, he may be examined on the statement o If he is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement o Time: Precise contemporaneity is not possible and hence a slight lapse is allowable o Subject Matter: Limited to the description or explanation of the event or condition, the assumption being that spontaneity, in the absence of a starting event, may extend no farther Exception 3 = Specialized version of 1

Question 49

Exception 2 to 803

Answer 49

Circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. o Time: Measurement is the duration of excitement o Subject Matter: The statement need only to “relate” to the startling event or condition, affording a broader scope of SM

Question 50

State of Mind:

Answer 50

Generally when an OOCS is used as circumstantial proof the declarant’s state of mind – there is no hearsay issue because the statement is not offered to prove the TOMA.

Question 51

FRE 803(3): Then Existing Mental, Emotional, or Physical Condition:

Answer 51

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 declarants will.

Question 52

The Hillmon Doctrine:

Answer 52

The SC extended the state of mind exception to statements of intent offered to prove that the declarants actually did what they said they would. a. Think applies to future conduct ``` Examples: “I expect to travel w/Hillmon to CO” Inferences: • He did travel w/ H to Co • He did travel w/ H • The body found was W not H ``` Rationale: •“A man’s state of mind or feeligns can only be manifested to others by countenance, attitude, or gesture, or by sounds or words, spoken or written.” •Think – People often state their state of mind – if it’s being offered to prove yours tate of mind = hearsay, if you say something that someone can infer your state of the mind, it’s not being offered to prove the TOMA, it’s being offered to prove your sad so … then it’d work.

Question 53

FRE 803(3): The Then Existing Mental Emotional or Physical Condition:

Answer 53

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 or unless it relates to the validity or terms of the declarant’s will. • THINK: It’s forward looking • State of mind exception – not limited to that though, it’s just common to apply re: statements about someone’s current physical condition

Question 54

Injury Reports:

Answer 54

1. The CC announced in Crawford has created uncertainty about when the Constitution permits out of court injury reports to be introduced against a criminal D. In many cases the question is whether it is testimonial? a. Example: Patient’s statement that he was struck by a car would qualify but not his statement that the car was driven through a red light. b. The statement does not have to be made solely to a physician, can be to hospital attendants, ambulance drivers, or even sometimes members of the family. 2. Physicians who testify: a. THINK: Only for purpose of testifying = No. b. THINK: For diagnosis, to testify = Yes.3. Before being admitted, the court must decide whether the statements were reasonable considered by the declarant as being pertinent to the diagnosis or treatment sought.

Question 55

FRE 703: Basis of an Expert:

Answer 55

a. An expert can rely on hearsay statements, documents, etc. provided that experts in the field would rely on such statements (i.e. the documents, or statements are incorporated into their statements) i. It can be introduced so the jury understands how the expert went about getting to his opinion ii. It is not substantive evidence it is only coming in to help the jury decide how much weight to give the evidence (i.e. there would be a limiting instruction) b. In Rock what’s the argument for saying the court should let it in? i. Doc needed to know for a tetanus shot ii. Doesn’t matter about the doc’s honesty, not worried about that iii. Probably no chance it would have been successful because someone already testified that P planned on faking an accident.

Question 56

If there is a reporting statute should the statements made be treated as testimonial? (The person who had to report? THINK: It’s information that might or will be used to prosecute)

Answer 56

a. Bryant: Look both ways – at the intent of the declarant and the questioner b. Moses: Focus was on the declarant; wasn’t important whether the doctor knows he has to turn it over, it matters whether the patient knows. She knew that after CPS was contacted, what she said would be used in prosecution.

Question 57

FRE 803(4): Statement made for medial diagnosis or treatment:

Answer 57

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, pain, or sensations, their inception; or their general cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Question 58

FRE 703: Bases of an Expert

Answer 58

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Question 59

Two different ways in which the record may be used:

Answer 59

a. “Past recollection recorded” – Allows the record, in certain cases to be introduced into evidence, or in federal court – in many states to be read to the jury to prove the truth of what it asserts (not w/standing the hearsay rule) i. Example: The witness cannot honestly remember but knows when the list was made, it was an accurate recording of everything that took place at that time (See Fisher) b. “Present Recollection Revived” – Technique not to get a document in but for jogging the memory of a forgetful witness by allowing the witness to testify from “present recollection.” i. Conventional practices of evidence allow anything to be used to revive the recollection of a forgetful witness, as long as it is first shown to opposing counsel – and sub. to the judge’s general authority to regulate trial procedures in the interest of fairness and efficiency. ii. Example: Look at a photo to immediately remember certain things

Question 60

FRE 803(5): Recorded Recollection

Answer 60

A record that: (A) is on a matter the W once knew about but now cannot recall well enough to testify fully and accurately (B) Was made or adopted by the W when the matter was fresh in the W’s memory; and (C) Accurately reflects the W’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 61

FRE 612: Writing Used to Refresh a Witness’s Memory:

Answer 61

This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) While testifying; or (2) Before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Party’s Options; Deleting Unrelated Material: Unless 18 USC S. 3500 provides otherwise in a CC, an AP is entitled to have the writing produced at the hearing, to inspect it, to cross exam the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion and order that the rest be delivered to the AP. Any portion deleted over objection must be preserved for the record. (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a CC, the court must strike the w’s testimony – if justice so requires – declare a mistrial. * Anything can be used (recall the kangaroo cartoon) (Photos can be used, write out a note and tell – could get in trouble – jury won’t like

Question 62

Business Records:

Answer 62

1. Roots from CL decisions allowing litigants to prove commercial transactions through carefully maintained records rather than by requiring testimony from all of the es involved. a. Defended by appeal both to the reliability of such records and to the practical necessities of litigation. b. There is presumption of reliability associated w/business records because they are typically accurate for the purpose of staying in business. c. The rationale is that businesses rely on these type of records to make the most important type of decisions they make – they rely upon them so inherently they carry more reliability than just an ordinary out of court declaration. (We have reason to think the regularly kept records are going to be more reliable because someone is relying on them). 2. Probably the most important hearsay exception.

Question 63

FRE 803(6): Records of a Regularly Conducted Activity:

Answer 63

A record of an act, event, condition, opinion, or diagnosis if: (A) The record was made at or near the time by – or from information transmitted by – someone w/knowledge; (B) The record was kept in the course of a regularly conducted activity or a business, org, occupation, or calling, whether or not for profit (C) Making the record was a regular practice of that activity; (D) All these conditions are show by the testimony of the custodian or another qualified witness, or by a certification that complies w/ Rule 902(11) or (12) or w/ a statute permitting certification; and (E) Neither the source of information not the method or circumstances of preparation indication a lack of trustworthiness •Must be in the regular practice of a business – a necessary further assurance of its trustworthiness

Question 64

Qualifying Businesses:

Answer 64

1. Reliability of records is typically found admissible if they are kept regarding business concerns. a. Personal business records are admissible if they are systematically checked and regularly and continually maintained. 2. THINK: The legitimacy of the businesses goes the weight of the evidence a. It doesn’t necessarily have to be a lawful occupation but it must be used to generate profits. b. Precise recording is not required and the exception applies to things that are not typical business records i. Often see diaries, even illegal activities 3. Records that are kept for the purpose of a business being potentially liable are not systematic conduct of the enterprise as a business. (THINK: The primary utility for the reports or records are for litigation purposes and not business purposes). a. This is decided on a case by case basis, just because it is required doesn’t mean it cannot be reliable or trustworthy.

Question 65

FRE 803(7) Absence of a Record of Regularly Conducted Activity

Answer 65

Evidence that a matter is not included in a record described in paragraph (6). (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible source of information nor other circumstances indicate a lack of trustworthiness • Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence.

Question 66

Public Records: FRE 803(8):

Answer 66

a. Consists of three separate exceptions b. Not all public agencies are considered businesses c. In a criminal case, the rule of evidence and the CC must be satisfied 2. The rationale behind this rule is that a public official will perform his duty properly and will remember details independent of the record. 3. Factors to be considered in passing upon admissibility of evaluative reports: a. Timeliness of the investigation b. Special skill or expertise of the official c. Whether a hearing was held and the level at which it was conducted d. Possible motivational problem suggested by Palmer (RR case – cannot submit report because the person who would be personally liable was who created the report). 4. The language in the history of the rule suggests that it is mean to include more a. Allows you to get in things that are opinions you’re often asking the jury to get to – coming from a person who has no dog in the fight (i.e. not an expert witness).

Question 67

FRE 803(8): Public Records:

Answer 67

A record or statement of a public office : (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 a LE personnel; or • Concerned about reports that are prepared primarily for trial, while they’re regular there’s something that inherently we should be concerned about • W/criminal cases we’re more concerned because of the CC • THINK: Concerned about the individually accused right to confront (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) Neither the source of information nor other circumstances indicate a lack of trustworthiness * As long as the report contains factual findings the opinions come in as well!

Question 68

Former Testimony:

Answer 68

1. Based on the assumption that a hearsay statement w/in an exception possesses a quality which justifies the conclusion that whether the declarant is available or unavailable is not relevant factor in determining admissibility. a. 804: The declarant must be unavailable 2. Here, Hearsay which admittedly is not equal in quality to testimony of the declarant on the stand may be admitted if the declarant is unavailable and if his statement meets a specified standard. 3. A typical instance where this occurs is after a case has been reversed on appeal and remanded for a new trial. If a witness from the first trial is unavailable for the second, the witness’ testimony is admissible under the exception. a. Transcript = Hearsay (Statement of court reporter) i. Exception under public records b. Witness’s testimony at the prior trial = Hearsay i. Exception 801(d)(2) 4. The thought here is similar to 803 meaning for one reason or another it should come in not necessarily because it is more reliable but that where the declarant is unavailable Rule 804 expresses the preference for hearsay under specific circumstances, rather than a complete loss of the evidence of the declarant. a. i.e. some evidence is better than none

Question 69

FRE 804: Hearsay Exceptions; Declarant Unavailable:

Answer 69

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the SM of the declarant’s statement because the court rules that a privilege applies; (2) refuses to testify about the SM despite a court order to do so; (3) testifies to not remembering the SM; (4) cannot be present to testify at trial or hearing because of death or a then existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing, and the statement’s proponent has not been able, by process or other reasonable means, to procure: (A) the declarant’s attendance, in the case of a hearsay exception under 804(b)91) or (6); or (B) the declarant’s attendance or testimony, in the case of a hearsay exception under 804(b)(2), (3), or (4).

Question 70

FRE 804(b) Hearsay Exceptions; Declarant Unavailable - The exceptions

Answer 70

(b) The Exceptions: The following are not excluded by the HR if the declarant is unavailable as a witness: (1) Former Testimony: Testimony that: (A) Was given as a witness at trial, hearing, or lawful disposition, whether given during the current proceeding or a different one; and (B) Is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross, or re-direct (2) Statement Under the Belief of Imminent Death: In a prosecution for homicide in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about hits cause or circumstances. (3) Statements Against Interest: A statement that: (A) A reasonable person in the declarant’s position would have made only if the person believed it to be true, because when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and (B) Is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability (4) Statement of Personal or Family History: A statement about: (A) The declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or (B) Another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was s intimately associated with the person’s family that the declarant’s information is likely to be accurate.

Question 71

Fed. R. Civ. . 30(b)(6) Notice or Subpoena Directed to an Organization:

Answer 71

THINK: You are suing GM re: a products liability, you want to subpoena an employee to discuss the issue and want someone who is knowledgeable because there is so many employees, you send a 30(b)(6) motion and they must designate someone who is knowledgeable on the topic that you are suing about. oIn the absence of this rule, you’d just randomly subpoena someone with the right title then that person may not really know anything and it might take you 15 times before you get the information you actually need oThis rule allows you to force a corp. to designate someone who can answer your questions – reduced a corp. to one person who will answer your questions oThe drawback is they designate savvy people and that person is not intimidated and likely gets called often so they’re comfortable in court • You can find old depos and find things that come in under admissions under past proceedings that might hurt the company and help your case (it is the company speaking and they have been authorized to speak on the behalf of the company – they are the company) • Can still take an inconsistent position but it’s hard to explain

Question 72

Dying Declarations

Answer 72

1. One of the oldest exceptions to the hearsay rule a. Based on both grounds of reliability and practical necessity 2. The declarant has to sincerely believe death is imminent a. If they don’t die, but believed they were going to die, it can still come in b. The declarant has to have knowledge – the statement has to be surrounded by a reasonable inference that the declarant is speaking from personal knowledge and not speculation.

Question 73

FRE 804(B)(2): Statement Under the Belief of Imminent Death

Answer 73

In a prosecution for homicide or in a civil case (THINK: not robbery, rape, etc.), a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances. •The CL required that the statement be that of the victim, offered in a prosecution for criminal homicide, thus declarations for by victims in prosecutions for other crimes (i.e. declaration by a rape vic who dies in childbirth and all declaration in civil cases) were outside the scope of the exception •Must be homicide or civil case •Declarant believed (note if they don’t die but thought they would, still okay) death was imminent •Statement based upon personal knowledge •Statement must concern the cause or circumstances of the impending death

Question 74

FRE 701: Opinion Testimony by Lay Witness:

Answer 74

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is (a) rationally based on the witness’s perception; (b) helpful to clearly understanding that the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge w/in the scope of Rule 702.

Question 75

Declarations Against Interest:

Answer 75

1. Unlike the admissions doctrine, the exception for declarations against interest applies to statements by anyone, not just statements made by or attributable to the party against whom either are introduced 2. Unlike the admissions doc the present exception applies only to statements that are obviously contrary to the interest of the declarant – so contrary that a “reasonable person” would make the statement only if it were true.

Question 76

FRE 804(b)(3) Statement Against Interest:

Answer 76

A statement that: (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest so had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as on that tends to expose the declarant to criminal liability. •In criminal cases if it exposes to criminal liability – what they’re worried about when you’re dying, and you’re friend or co-D is going to jail, you might just lie because when you die does it come in against you? So in those cases you need corroborating circumstances

Question 77

FRE 804(b)(6): Statement Offered Against a Party that Wrongfully Caused the Declarant’s Unavailability

Answer 77

A statement offered against a party that wrongfully caused –or acquiesced in wrongfully causing – the declarant’s unavailability as a witness, and did so intending that result. Aimed at preventing the use of the hearsay rule by a party who purposely and wrongfully causes a declarant’s wrongdoing. • Applies to all parties including the government • Judge must determine by preponderance of the evidence that this was done intentionally •Must be intending to silence

Question 78

Residual Exception:

Answer 78

1. The residual or “catchall “exception to the federal hearsay rule allows the introduction of certain out of court statements that seem reliable and highly probative but are not “covered” by other exceptions. 2. Two theories of 807: a. A statement not specifically covered under 803 or 804 but having equivalent circumstances guarantees of trustworthiness is not excluded by the hearsay rule i. “Near miss theory” – Minority view (dissent) a near miss under a specific exception render the evidence inadmissible under the residual exception (Watts agrees here re: the construction of the rule but also thinks hearsay is stupid – period). ii. “Close enough” – Majority view (holding in Laster) – hearsay may be admissible under the residual exception even if it was close enough under a specific exception. (If you can’t get it in under another rule then come here). (Need to know the Maj. rule is right but also know to argue the minority).

Question 79

FRE 807: Residual Exceptions: In general

Answer 79

Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804. (1) The statement has equivalent circumstantial guarantees of trustworthiness; (2) It is offered as evidence of a material fact (3) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) Admitting it will best serve the purposes of these rules and the interests of justice. * Notice is required.

Question 80

nadmissibility under the CC triggers

Answer 80

The Bruton doctrine. -- This is the special prohibition the SC has crafted against relying on limiting instructions to cure prejudices created in a join trial when a confession by one D would violate the CC if introduced against the other D.

Question 81

DP stemming from the 5th and 14th Amendments

Answer 81

a. Not a hearsay exception, constitutional requirement that applies to any evidence. b. Evidentiary errors that are made re: harmless error the standard of proof varies in different jurisdictions i. Some use more likely than not ii. Beyond a reasonable doubt that it was harmless that it could not effect the outcome (if it’s a constitutional error), so it’s more likely on appeal you will prevail.

Question 82

Chambers v. Mississippi

Answer 82

The testimony rejected by the TC here bore persuasive assurances of trustworthiness and was well w/in the basic rationale of the exception for decelerations against interest & was critical to Chamber’s defense. •When Constitutional rights are directly affected, the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice. •Chambers was denied DP/ a fair trial

Question 83

Fortini v. Murphy

Answer 83

Chambers has rarely been used to overturn cases and only done so in extreme circumstances. State law justification will prevail unless it is “arbitrary or disproportionate” and “infringes upon a weighty interest of the accused.”

Question 84

Character Evidence:

Answer 84

1. A person’s character may not come in to support an inference that the person acted in conformity w/his character on a particular occasion. 2. Highly relevant but also highly prejudicial (dangerous man, lets get him off the street). 3. “Only three exceptions” a. One for character of a criminal defendant i. Generally must be invoked by criminal defendant ii. Once the D opens up the door, the prosecution can follow suit b. One for character of the victim or alleged victim of a criminal offense i. Generally must be invoked by criminal defendant ii. Once the D opens up the door, the prosecution can follow suit c. One for the character of a witness

Question 85

FRE 404(b) Crimes, Wrongs, or Other Acts:

Answer 85

(1) Prohibited Uses: Evidence of a crime, wrong, or other act is not admissible to prove a persons’s character in order to show that on a particular occasion the person acted in accordance w/ the character. (2) Permitted Uses; Notice in a Criminal Case: This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On rquest by a D in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) Do so before trial – or during trial if the court, for good cause, excuses lack of pretrial notice

Question 86

Rules 412/413 in relation to 404

Answer 86

Rule 412: Sex Offense Cases: The Vic’s Sexual Behavior or Predisposition (Rape Shield Laws): • Just because someone consented to sex in the past doesn’t mean that they can consent now • Nothing invokes rape Rules 413: Similar Crimes in SA Cases: •Can admit evidence that the D committed any other sexual assault – the evidence may be considered on any matter to which it is relevant

Question 87

FRE 405: Methods of Proving Character

Answer 87

(HOW you offer when it’s admissible under 404) *This was not the rule in Michaelson (a) By Reputation or Opinion: When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the persons’s reputation or by testimony in the form of an opinion. On cross exam of the character witness, the court may allow an inquiry (means question – about relevant specific instances and must have a good faith basis for the question) into relevant specific instances of the person’s conduct • Can give your opinion • Hearsay rule 803(21) (b) By Specific Instances of Conduct: When a person’s character or character trait is an essential element of charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct •You can bring up intrinsic evidence •You can question people – “have you heard” “are you aware” that …. (You said they were honest …) o You can only inquiry not prove it up

Question 88

FRE 404: Character Evidence; Not Admissible to Prove Conduct; Exceptions; Other Crimes

Answer 88

(a) Character Evidence (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a persons’s character in order to show that on a particular occasion the person acted in accordance w/ the character. (2) Permitted Uses: Notice in a Criminal Case: This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, ID, absence of mistake, or lack of accident. On request by a D in a criminal case, the prosecutor must: (A) Provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial – or during trial if the court, for good cause, excuses lack of pretrial notice

Question 89

FRE 404: Character Evidence ; Crimes on Other Acts:(A)(2): Exceptions for a D or V in a Criminal Case:

Answer 89

(A) A D may offer evidence of the evidence of the D’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; • Dangerous thing to do • Generally avoided unless you know that there is nothing to rebut or • You’re just out of options (B) Subject to limits in Rule 412 (rape shield laws) a D may offer evidence of an alleged vic’s pertinent trait, and if the evidence is admitted, the prosecutor may (i) Offer evidence to rebut (ii) Offer evidence of the D’s same trait; and (C) In a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the vic was the first aggressor. (3) Exceptions for a Witness. Evidence of a witness's character may be admitted under 607, 608, 609.

Question 90

FRE 406: Habit; Routine Practice:

Answer 90

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eye witness.

Question 91

FRE 412: Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition:

Answer 91

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that the vic engaged in other sexual behavior or; (2) evidence offered to prove the vic’s sexual predisposition (b) Exceptions: (1) Criminal Cases: The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a vic’s sexual behavior, if offered to prove that someone other than the D was the source of semen, injury or other physical evidence (B) evidence of specific instances of a vic’s sexual behavior w/respect to the person accused of the sexual misconduct, if offered by the D to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the D’s constitutional rights (2) Civil Cases: In a civil case, the court may admit evidence offered to prove a vic’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any vic and of unfair prejudice to any party. The court may admit evidence of a vic’s reputation only if the bic has placed it in controversy. (c) Procedure to Determine Admissibility: (1) Motion. If a party intends to offer evidence under Rule 412(b) the party must: (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the vic or, when appropriate the vic’s guardian or representative.

Question 92

FRE 407: Subsequent Remedial Measures

Answer 92

``` When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: • Negligence • Culpable conduct; • A defect in product or its design; or • A need for a warning or instruction But the court … ```

Question 93

FRE 408: Compromise Offers and Negotiations:

Answer 93

(a) Prohibited Uses. Evidence of the following is not admissible – on behalf of any party – either to rpove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) Furnishing, promising, or offering – or accepting, promising to accept, or offering to accept – a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or ..

Question 94

FRE 410: Pleas, Plea Discussions, and Related Statements:

Answer 94

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the D who made the plea or participated in the plea discussions: (1) A guilty plea that was later w/drawn (2) A nolo contendere plea; (3) A statement made during proceedings on either of those please under Fed. Rule of Crim. Pro. II or a comparable state procedure; or (4) A statement made during plea discussions w/an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later w/drawn guilty plea (b) Exceptions. The court may admit a statement described in 410(a)(3) or (4) (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) In a criminal proceeding for perjury or false statement, if the D made the statement under oath, on the record, and with counsel present.

Question 95

FRE 411: Liability Insurance:

Answer 95

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership or control.

Question 96

FRE 409:

Answer 96

ADD

Question 97

FRE 611: Mode and Order of Examining Witnesses and Presenting Evidence:

Answer 97

(a) Control by the Court: Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) Make the procedures effective for determining the truth (2) Avoid wasting time; and (3) Protect witnesses from harassment or undue embarrassment (b) Scope of Cross. Cross should not go beyond the SM of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading questions. Leading questions should not be used on direct except as necessary to develop the wintess’s testimony. Ordinarily the court should allow leading questions: (1) On cross exam; and (2) When a party calls a hostile witness, an adverse party, or a witness IDed as an adverse party

Question 98

Rule of Completeness: FRCP 32(a)(6) Using Part of a Deposition FRE 106: Remainder of or Related Writings or Recorded Statements:

Answer 98

1. Does not apply to conversations 2. When someone introduces part of a writing or statement, you can immediately introduce the rest under the rule of completeness 3. It’s true you get to cross exam – (where clarification will occur) – but at some trials, your cross might happen three days after the questions you want to clarify were asked. FRCP 32(a)(6) Using Part of a Deposition: If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts … FRE 106: Remainder of or Related Writings or Recorded Statements: If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time. - The rule is based on two considerations: (1) The misleading impression created by taking matters out of context (2) The inadequacy of the repair work when delayed to a point later in the trial - The rule does not circumscribe the right of the adversary to develop the matter on cross or as part of his own case.

Question 99

Mode of Questioning:

Answer 99

1. Most important exception re: the allowance of leading question on cross is the exception to allow leading questions when necessary to develop testimony. a. Example: When witness’s recollection needs refreshing, the witness is young, or witness appears hostile or is presumed to have sympathies w/the opposing party. 2. When one defendant crosses a friendly witness called by a co-D the cross must typically proceed w/o any leading questions.

Question 100

Sequestering Witnesses: FRE 615: Excluding Witnesses

Answer 100

1. Sequestering Witnesses – The practice of excluding witnesses from the courtroom until they testify. FRE 615: Excluding Witnesses: At a party’s request, the court must order witnesses excluded so they cannot hear other witnesses testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a) A party who is a natural person; (i.e. not a corp.) (b) An officer of employee of a party that is not a natural person, after being designated as the party’s representative by its attorney: (someone in the corp. gets to sit at the table as a rep person) (c) A person whose presence a party shows to be essential to presenting the party’s claim or defense; or (Watt’s doesn’t really remember what this means but he’s seen experts being allowed to stay and sometimes they can stay to help the attorney understand what’s going on in the case) (d) A person authorized by statute to be present (ex. Guardian ad litem)

Question 101

Questioning by the Judge:

Answer 101

1. FRE and most states expressly allow TJ to call their own witnesses and to interrogate witnesses called by the parties. a. Judges risk reveal when they ask questions that seem to reveal their own assessment of the evidence. - The idea is that jurors must be shielded from the views of judges, because they would defer improperly to those views. 2. Can be reversible errors, and most states don’t allow judges to comment directly on the evidence; event those that can comment on the evidence (in Federal court) are still subject to reversible. a. Can be done as long as the judge is careful and doesn’t go too far and instructs the jury that ultimately, it’s up to them. ``` b. Example of going to far: “I think everything that man said was a lie …” i. Too far because he actually said “wiping your hands while talking was an indication of lying” is introducing new evidence ```

Question 102

FRE 614: Court’s Calling or Examining a Witness:

Answer 102

(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross examine the witness. (b) Examining. The court may examine a witness regardless of who calls the witness. (c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

Question 103

To minimize the danger of prejudice – the TC that permits juror questioning should:

Answer 103

(1) Require jurors to submit their questions to the court in writing (2) Ensure that jurors do not display or discuss a question w/other jurors until the court reads the question to the witnesses (3) Provide counsel an opportunity to object to each question at sidebar outside the presence of the jury. (4) Instruct jurors that they should not draw adverse inferences from the courts refusal to allow certain questions and (5) Allow counsel to ask follow up questions of the witness

Question 104

Five main modes of attack upon a witness’s credibility:

Answer 104

a. Inconsistency: Self Contradiction (most frequently used) – Proof that the witness on a previous occasion has made statements inconsistent w/his present testimony. i. Relevant whether they come in for TOMA or not, not hearsay if you are showing to prove inconsistent statements. b. Bias: An attack showing the witness is partial on account of emotional influence such as kinship for one party or hostility to another, or motives of pecuniary interest (whether legit or corrupt). i. Includes a lot of other subjects. ii. 403 applies generally but no separate rule iii. Always relevant iv. Judges/Attorneys believe it to be highly probative even though it’s like prejudicial (thought to be veryyyy important). v. Examples: Family members (think they believe or are impartial and don’t see fault); experts (who are paid or have a pecuniary interest –have a reason to lie); same school, same frat, cop and cop, both members of the same union, golf together (can be very simple) – also works conversely – not in the same motorcycle gang; c. Dishonesty: Attack on the witness’s character, but lack of religious belief is not available as a basis of attack on credibility. i. Propensity but generally goes to one character trait which is dishonesty. d. Incapacity: Defect of the witness’s capacity to observe, remember, or recount the matters testified about. i. Great form of impeachment, the most compelling if you have good evidence. ii. Simply impossible for you to see what you said you saw or heard what you said you heard d. Specific Contradiction –(by other evidence): Proof by other witnesses that material facts are otherwise than as testified to by the witness being impeached. i. You didn’t say something different in

Question 105

Character for Untruthfulness:

Answer 105

1. Mode of impeachment for “untruthfulness” is a variety of character evidence – because it involves proving character of a person (in this case, a witness) in order to suggest that another person likely acted in conformity with his other character on a particular occasion. 2. Witnesses can be impeached w/evidence that it is in his or her nature to be deceitful, but not by extrinsic evidence of specific acts of dishonesty.

Question 106

FRE: 404(a)(3): Exceptions for a Witness

Answer 106

Evidence of a witness’s character may be admitted under 607, 608, and 609.

Question 107

FRE 608: A Witness’s Character for Truthfulness or Untruthfulness:

Answer 107

(a) Reputation or Opinion Evidence: A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. (b) Specific Instances of Conduct: Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character or truthfulness. But the court may, on cross, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness. (1) The witness; or (2) another witness whose character the witness being cross examined has testified about. By testifying on another matter, a witness does not waive any privilege against self incrimination for testimony that relates only the witnesss’s character for truthfulness.

Question 108

FRE 609: Impeachment by Evidence of a Criminal Conviction:

Answer 108

(a) In general. The following rules apply to attacking a witness’s character for truthfulness of evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not the defendant; and; (B) must be admitted in a criminal case in which the witness is a D, if the probative value of the evidence outweighs its prejudicial effect to that D; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that the establishing elements of the crime required proving - or the witness admitting- a dishonest act or false statement. (b) Limit on Using Evidence After 10 Years. This subdivision applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later, evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use so that the party has a fair opportunity to contest its use.

Question 109

FRE 610: Religious Beliefs or Opinions:

Answer 109

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility. •Using religion cannot be used to show character for truthfulness but it can be used to use an interest of bias (thus disclosure of affiliation w/ a church which is a party to the litigation would be allowed under the rule).

Question 110

FRE 610: Religious Beliefs or Opinions:

Answer 110

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility. •Using religion cannot be used to show character for truthfulness but it can be used to use an interest of bias (thus disclosure of affiliation w/ a church which is a party to the litigation would be allowed under the rule).

Question 111

FRE 613: Witness’s Prior Statement:

Answer 111

(a) Showing the Disclosing Statement During Examination: When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement: Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subsection (b) does not apply to an opposing party’s statement under Rule 801(d)(2). •No specific time or sequence •Several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement •Expressio Unius the rule does not apply impeachment by evidence of prior inconsistent conduct

Question 112

RULE: 607

Answer 112

Impeachment) allows any party to attack a witness’s credibility by showing the witness previously made a statement that is inconsistent w/his present testimony. Even if the prior inconsistent statement would otherwise be inadmissible as hearsay – it may be admissible for the limited purpose of impeaching the witness.

Question 113

Bias and Incapacity:

Answer 113

1. No special rules for bias or incapacity but each of these modes of impeachment can run afoul one another – more general rules of evidence. a. Basically Rule 402 which defines “relevant evidence” as any evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be w/o the evidence – provides that all relevant evidence is admissible (unless otherwise provided by the Constitution, Act of Congress, or by applicable rule). i. A successful showing of bias on the part of the witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be w/o such testimony b. Rule 402 is the only rule because bias is always relevant!!! (You want to point it out) 2. Impeachment for bias consists of proving that a witness (or hearsay declarant) has a reason to lie or to slant his testimony. 3. Impeachment for incapacity consists of demonstrating that the memory or perception of the witness is unreliable. 4. Bias in a civil case is the most common form of impeachment

Question 114

Bias and Incapacity:

Answer 114

1. No special rules for bias or incapacity but each of these modes of impeachment can run afoul one another – more general rules of evidence. a. Basically Rule 402 which defines “relevant evidence” as any evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be w/o the evidence – provides that all relevant evidence is admissible (unless otherwise provided by the Constitution, Act of Congress, or by applicable rule). i. A successful showing of bias on the part of the witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be w/o such testimony b. Rule 402 is the only rule because bias is always relevant!!! (You want to point it out) 2. Impeachment for bias consists of proving that a witness (or hearsay declarant) has a reason to lie or to slant his testimony. 3. Impeachment for incapacity consists of demonstrating that the memory or perception of the witness is unreliable. 4. Bias in a civil case is the most common form of impeachment

Question 115

Impeachment by Specific Contradiction:

Answer 115

Common Law Rule: No extrinsic impeachment by contradiction on a collateral matter. a. Collateral: If it could not be proved for any purpose other than contradiction; simply involves presenting evidence that part or all of the witness’ testimony is incorrect i. TEST: Whether the party seeking to introduce it for the purposes of contradiction would be entitled to prove it as part of his case? •Collateral evidence rule limits the extent to which the witness’ testimony about non-essential matters may be contradicted by extrinsic proof. (In short, if it could not be introduced into evidence as substantive proof) then it cannot be proven simply to contradict the witness’ testimony for impeachment purposes.

Question 116

Impeachment by Specific Contradiction:

Answer 116

Common Law Rule: No extrinsic impeachment by contradiction on a collateral matter. a. Collateral: If it could not be proved for any purpose other than contradiction; simply involves presenting evidence that part or all of the witness’ testimony is incorrect i. TEST: Whether the party seeking to introduce it for the purposes of contradiction would be entitled to prove it as part of his case? •Collateral evidence rule limits the extent to which the witness’ testimony about non-essential matters may be contradicted by extrinsic proof. (In short, if it could not be introduced into evidence as substantive proof) then it cannot be proven simply to contradict the witness’ testimony for impeachment purposes.

Question 117

Rehabilitation:

Answer 117

1. Five modes of rehabilitation: a. Honesty b. Consistency c. Disinterest d. Capacity e. Specific corroboration

Question 118

FRE 608: A Witness:

Answer 118

(a) Reputation of Opinion Evidence. A W’s credibility may be attacked by testimony about the W’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a W’s conduct in order to attack or support the W’s character for truthfulness. But the court may, on cross, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) The witness; or (2) Another witness whose character the witness being cross examined has testified about By testifying on another matter, a W does not waive any privilege against self incrimination for testimony that relates only to the W’s character for truthfulness. *NOTE Under Advisory Committee: Evidence of bias or interest does not fall under character evidence.

Question 119

FRE 608: A Witness:

Answer 119

(a) Reputation of Opinion Evidence. A W’s credibility may be attacked by testimony about the W’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a W’s conduct in order to attack or support the W’s character for truthfulness. But the court may, on cross, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) The witness; or (2) Another witness whose character the witness being cross examined has testified about By testifying on another matter, a W does not waive any privilege against self incrimination for testimony that relates only to the W’s character for truthfulness. *NOTE Under Advisory Committee: Evidence of bias or interest does not fall under character evidence.(In other words, 608 doesn't apply to allow a person to call someone to rebut the evidence of bias but you CAN show you are disinterested using extrinsic evidence). (Watts - It depends on the nature of the impeachment).

Question 120

FRE 601: Competency to Testify in General

Answer 120

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. •Grounds abolished include: religious belief, conviction of crime, and connection w/the litigation as a party or interested person or spouse of a party or interested person •A witness wholly w/o capacity is hard to imagine •The portion re: State law is re: diversity jurisdiction cases – in place to discourage forum shopping

Question 121

FRE 602: Need for Personal Knowledge:

Answer 121

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to expert testimony under 703.

Question 122

FRE 603: Oath or Affirmation to Testify Truthfull

Answer 122

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience. (MUST ALWAYS HAPPEN - Even with kids. Note: 5th Amendment right to testify).

Question 123

601(d) “Dead Man Rule” in Civil Action.:

Answer 123

(Vary from state to state) If you’re involved in some type of tort or contract dispute, the TX law says – you can’t repeat what they said that are otherwise admissions, you can’t repeat because there is no one there to defend themselves. Unless there is an eyewitness or someone who was present who can corroborate your story.

Question 124

FRE 605: Judge

Answer 124

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Question 125

FRE 606: Juror’s Competence as a Witness:

Answer 125

(a) At the trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party and opportunity to object outside the jury’s presence. (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) Prohibited Testimony of Other Evidence. During an inquiry into the validity of a verdict or indictment, a jury may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on the juror’s or another juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information as improperly brought to the jury’s attention; (B) An outside influence was improperly brought to bear on any juror; or (C) A mistake was made in entering the verdict on the verdict form

Question 126

FRE 701: Opinion Testimony by Lay Witnesses

Answer 126

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) Rationally based on the witness’s perception; (b) helpful to clearly understand the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge w/in the scope of 702. • You challenge all the time that the conclusions that are drawn from opinions that the jury can draw those conclusions themselves so there is no real need for the opinion under (b) (i.e. the jury could make the determination themselves – can allow them to describe what he saw but don’t allow them to come to the conclusion)

Question 127

FRE 704: Opinion on Ultimate Issue:

Answer 127

(a) In general – Not automatically objectionable. An opinion is not objectionable just because it embraces an ultimate issue. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether he D did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. •Testimony in the form of an inference is “not objectionable because it embraces an ultimate issue to be decided by the trier of fact

Question 128

FRE 703: Basis of an Expert’s Opinion Testimony

Answer 128

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. •On cross the D could seek to expose the material the material the expert relied on •The proponent can choose to reveal – where you might want to do that (or that he might have failed to rely on)

Question 129

Determining if Dauber Applies:

Answer 129

i. Whether the experts are proposing to testify about matters directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. • In other words, did you only look at this once you were retained? It doesn’t mean that’s not reliable but they want to see that an expert was focused on this outside the area of the litigation ii. Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion (noting that in some cases a TC may “conclude that there is simply too great an analytical gap between the data and the opinioned proffered” Kumo) iii. Whether the expert has adequately accounted for obvious alternative explanations iv. Whether the expert is “being careful as he would in his regular professional work outside his paid litigation consultation” • As in even if they are now only an expert witness, they can provide the type of testimony that they would if they were still “doctoring” v. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give

Question 130

Determining if Dauber Applies:

Answer 130

i. Whether the experts are proposing to testify about matters directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. • In other words, did you only look at this once you were retained? It doesn’t mean that’s not reliable but they want to see that an expert was focused on this outside the area of the litigation ii. Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion (noting that in some cases a TC may “conclude that there is simply too great an analytical gap between the data and the opinioned proffered” Kumo) iii. Whether the expert has adequately accounted for obvious alternative explanations iv. Whether the expert is “being careful as he would in his regular professional work outside his paid litigation consultation” • As in even if they are now only an expert witness, they can provide the type of testimony that they would if they were still “doctoring” v. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give

Question 131

Daubert Factors

Answer 131

When the TJ is making his determination he must consider these factors: o Whether the evidence can be (and has been) tested? o Whether the theory or technique has been subjected to peer review and publication? (Publication is not a must) o The court should consider the known or potential rate of error and the existence and maintenance of standards controlling the techniques operation o General acceptance can have a bearing on the inquiry

Question 132

FRE 702 Testimony by Expert Witness:

Answer 132

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliable applied the principles and methods to the facts of the case