Evidence


Class Info

Law School: Liberty University School of Law

Course ID: LAW 545

Term: Spring 2019

Instructor: Prof. Kline

My Grade Earned: B

Books Used
  • Courtroom Evidence Handbook by Steven J. Goode & Olin Guy Wellborn III
  • Evidence by George Fisher
  • Evidence 2018–2019 Statutory and Case Supplement by George Fisher

Relevance

Evidence is relevant if it is both probative and material. FRE 401.

Probative

Evidence is probative if it has any tendency to make a fact more or less probable than it would be without the evidence. FRE 401(a).

Material

Evidence is material if the fact [that it is probative of] is of consequence in determining the action. FRE 401(b).

The credibility of every witness is at issue, and therefore, impeachment is always relevant, although not always allowed.

Conditional Relevance

If evidence's relevance is conditional on a fact, admissible evidence must be sufficient such that a reasonable person could believe that the fact does exist. FRE 104(b).

Relevant evidence is admissible unless unwise barred. FRE 402.

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

All relevant evidence will be prejudicial. For it to run afoul of FRE 403, it must be unfairly prejudicial.

In determining whether evidence is admissible (other than conditional relevance), the judge is not bound by evidence rules. He must only find that it is more reasonable than not under the totality of the evidence. FRE 104(a).

Subsequent Remedial Measures

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 a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

This is a French rule.

Subsequent remedial measures are admissible for direct impeachment but not indirect impeachment.

Direct Impeachment

Impeachment is direct impeachment if, in light of the subsequent remedial measure, the testimony is likely untrue.

The more expansive the view of feasibility (including more than that it is merely possible, such as that it was a good idea), the more likely there is to be disagreement over it and thus the more likely subsequent remedial measures are to be allowed.

Compromise
  1. Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim . . . .
  2. Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

This is a French rule.

Only the negotiation statements are excluded; the information can still be brought in by other evidence.

Only disputed claims are excluded. There has to be compromise/a demand of quid pro quo.

  • Asking to reduce an amount owed is admissible. Offering a job back is admissible. Offering a job back in return for dropping a claim is excluded.

Things prepared intended to be used for negotiation are barred too for public policy.

Settling with others is also barred, often under a "common event" test.

Medical Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

This is a French rule.

Does not have to be related to a claim.

Only the offer to pay is excluded. Any admission of guilt therewith is still admissible.

Pleas

Guilty pleas (in criminal cases) later withdrawn, nolo contendere pleas, statements in plea proceedings, and statements in plea talks with prosecutor are not admissible. FRE 410(a).

  1. Exceptions. The court may admit a statement described in Rule 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 defendant made the statement under oath, on the record, and with counsel present.

This is a German rule.

Admissions in a civil trial are admissible in criminal trials, so if prosecuted under both, negotiate for both, not the civil first.

Liability Insurance

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.

This is a French rule.

The purpose of this rule is to encourage insurance.

Character Evidence
Character

Character is one's general disposition to volitional, moral conduct. FRE 406 notes.

Habit

Habit is more specific than character. It is one's regular response to a repeated specific situation, without a moral component. Basically subconscious, non-volitional things. FRE 406 notes.

  1. Character Evidence.
    1. Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
    2. Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
      1. a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
      2. subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
        1. offer evidence to rebut it; and
        2. offer evidence of the defendant’s same trait; and
      3. in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
    3. Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
  2. Crimes, Wrongs, or Other Acts.
    1. Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with 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 request by a defendant in a criminal case, the prosecutor must:
      1. provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
      2. do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

This is a French rule.

FRE 405(a) forbids testimony about the basis of or specific situations giving rise to one's opinion or reputation. Only the opinion or reputation itself is admissible.

Also, one cannot imply a specific situation, say by saying he was a violent guy and then that she was his girlfriend.

The cross-examiner can ask questions about specific instances if he has a good faith basis that they are true. The witness can then answer. FRE 405(a). However, he must accept the answer as it is received; he cannot admit any extrinsic evidence about it. FRE 608(b).

Knowledge is specially probative to identity. The more specific and unique the knowledge, the more specially probative it is and the more likely that evidence of past actions showing that one has such knowledge is admissible for the permitted use instead of to show character.

  • If it is specific and unique enough, past crimes can also be used to show similar modi operandi. (Like the Wet Bandits in Home Alone.
  • The similarity of two crimes can be a bit lower when it is the defendant seeking to admit evidence of the other crime.

Incredibly unlikely things can be allowed to show intent (because, like, one would be careful to avoid such a thing), but courts are likely to allow really unlikely things even though they really violate FRE 404.

  • They are likely to come in when state of mind is the primary issue and actions are not in dispute.

The exceptions about the defendant or victim in FRE 404(a)(2) are only for criminal cases, not civil.

Other Times Admissible under FRE 404(a)
  1. FRE 608
  2. FRE 609
  3. FRE 412
Actual Exceptions to FRE 404(a)
  1. FRE 404(a)(2)(A)
  2. FRE 404(a)(2)(B)
  3. FRE 404(a)(2)(C)
  4. FRE 404(a)(3), as elaborated by FRE 607, FRE 608, & FRE 609
  5. FRE 413
  6. FRE 414
  7. FRE 415

Under FRE 413/414, evidence that one committed another sexual assault/child molestation is allowed to come in in criminal cases, even if the defendant was not convicted of the other crime.

  • Its admissibility is contingent on a fact under FRE 104(b), and thus only needs a preponderance of the evidence.
  • Evidence of child molestation is also allowed in civil cases under FRE 415.

Either party may attack a witness's credibility.

Witness
Competence

A person is presumed to be competent to testify. FRE 601.

A witness must have personal knowledge of the matter. FRE 602.

  • Else it's speculation.

Before testifying, a witness must give an oath or affirmation to testify truthfully. FRE 403.

  • This is a flexible rule however and the judge can determine the competency of a witness beforehand in voir dire.
  • Also, they must know lying is perjury.

Neither the judge nor a juror can be a witness and neither is to do his own investigation. FRE 605 & FRE 606.

  • Except a juror may testify about racial prejudice present in the deliberations or improper influence on the jury in the trial.
Truthfulness

The truthfulness of a witness is always relevant to the case, so testimony about a reputation for untruthfulness or opinion of untruthful character can always be admitted. FRE 608(a).

The truthfulness of a witness can only be bolstered by a character witness if it has been attacked by the other side. FRE 608(a).

Attacking a specific instance of untruth is not attacking the person's truthfulness and therefore does not open the door to character evidence of truthfulness.

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 for truthfulness. But the court may, on cross-examination, 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.

Specific instances of crimes one is convicted for cannot be admitted under FRE 608, only FRE 609.

Saying that one is mistaken is not saying that one is lying or that he is a liar. It is just impeachment by contradiction and only possibly prohibited by FRE 403's test for unfair prejudice or wasting time.

Impeachment by Contradiction
Collateral Matter

A collateral matter is one that would not reasonably call into question the accuracy of the witness's testimony if it is not true.

Non-collateral contradiction is when extrinsic evidence calls into question the truth of a statement, such as by bias.

If extrinsic evidence does not reasonably call into question the accuracy of a witness's testimony, it is collateral evidence and not admissible under FRE 403.

  • Because the court does not want a bunch of mini-trials over little, barely-related matters which would just waste time.
  • You can still ask the question of whether that is true or not though.
  • This is similar to subsequent remedial measures.
Prior Inconsistent Statement

It is possible for one to have previously remembered something, but not know it now without lying. They could have forgotten. Forgetfulness is not an inconsistent statement unless it is faked.

Evidence of a prior inconsistent statement can be read in court. FRE 613.

A prior inconsistent statement can be admitted even if it is not direct impeachment. (Barrett v. United States allowed one to testify he heard the witness testify something else earlier.)

Silence may be used to impeach before a Miranda warning is given but not after.

Evidence of a Criminal Conviction

Evidence of a criminal conviction is admissible, subject to five rules from FRE 609:

  1. If punishable by more than a year, it is admissible in civil cases or criminal cases where the witness is not a defendant subject only to FRE 403.
  2. If punishable by more than a year, it is admissible in criminal cases where the witness is a defendant unless its prejudicial effect to that defendant outweighs the probative value of the evidence. (It does not have to be substantially outweighed.)
  3. If the crime involved a dishonest act as an element, it should be admitted regardless of the punishment therefor.
    • such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.
  4. If the conviction or release was more than ten years ago (whichever is later), its probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. (Reverse of FRE 403)
    • Reconfinement for parole violations counts as imprisonment for the original conviction.
    • The five factors from Brewer are used in a balancing test to determine admissibility:
      1. The nature of the crime (Its bearing on honesty and veracity)
      2. The time of conviction and the witness's subsequent history
      3. Similarity between the past crime and the charged crime
        • Cuts against admissibility, as it increases the risk of unfair prejudice
      4. Importance of defendant's testimony
        • Cuts against admissibility of the crime, as the defendant should be allowed to testify freely in his defense
      5. The centrality of the credibility issue
        • Cuts towards admissibility
    • If the defense brings up a crime, he loses the right to appeal the crime's admissibility, even if the judge had issued a motion allowing it already.
  5. Evidence of a juvenile adjudication is admissible only if it is in a criminal case, the adjudication was of a witness other than the defendant, an adult’s conviction for that offense would be admissible to attack the adult’s credibility, and admitting the evidence is necessary to fairly determine guilt or innocence.

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Leading Question

A leading question is one that suggests the answer.

Just asking a specific question is not leading.

  • "Was the car green?" – OK
  • "Isn't it true the car was green?" – Bad
  • "And the car was green?" – Maybe

Leading questions are permitted in cross-examination or with hostile witnesses.

Leading questions are generally prohibited in direct examination but are allowed at the judge's discretion as necessary to develop the witness’s testimony, usually for non-substantive things.

Objecting to leading questions is often stupid because they are so easy to fix.

Any writing may be provided to a witness to refresh his recollection if he first says that he does not recall.

  • A witness cannot read something out loud though. That's hearsay.
  • The witness's memory must usually be exhausted before refreshing his memory. Rush v. Ill. Cent. R.R. Co..
  • The opposing party can inspect, cross-examine, and admit into evidence a refreshing document under FRE 612.
  • The proponent party might be able to read an unsuccessful refreshing document into evidence under FRE 803(5).

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. FRE 613.

  • Extrinsic evidence is only allowed when a witness says he does not know if the judge believes that the witness is faking his lack of knowledge.

The judge may call witnesses himself, but this is very rarely done. FRE 614.

A party or the court itself may have other witnesses excluded so that they cannot hear other witnesses’ testimony. FRE 615.

Rape Shield Rule
412 handout
PDFs unsupported in your crummy browser.
Hearsay

Hearsay is a statement that the declarant does not make 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. FRE 801.

This is a French rule.

Hearsay is not admissible unless otherwise permitted. FRE 802.

The main purpose of the hearsay rule is to prevent people's intentions to deceive, but also to guard against faulty memory, perception, and narration.

If a truth is not the intended assertion but only implied thereby, it is only circumstantial evidence of the declarant's state of mind and therefore not hearsay.

  • E.g., someone asking to place a bet implies the intended recipient is a bookie, but he was only intending to communicate that he wanted to place a bet.
  • Although, the minority position established in Stoddard, holds that such a truth is an implied assertion and barred by the hearsay rule.
Hearsay That Is Not Hearsay (Totally Not Exceptions)

A witness's prior statements are admissible to show that his testimony is inconsistent with them, that it is consistent if his credibility is attacked, or to identify someone he perceived earlier. FRE 801(d)(1).

  1. A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
    1. is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
    2. is consistent with the declarant’s testimony and is offered:
      1. to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
      2. to rehabilitate the declarant's credibility as a witness when attacked on another ground; or
    3. identifies a person as someone the declarant perceived earlier.
  2. An Opposing Party’s Statement. The statement is offered against an opposing party and:
    1. was made by the party in an individual or representative capacity;
    2. is one the party manifested that it adopted or believed to be true;
    3. was made by a person whom the party authorized to make a statement on the subject;
    4. was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
    5. was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

A prior statement under FRE 801(d)(1)(A) uses the same standard as FRE 613 but is better because it can be used to prove the truth of the assertion. FRE 613 only allows it for impeachment purposes.

Under FRE 801, the earlier statement must also be under oath and the declarant must then testify otherwise at trial and be cross-examinable.

  • Forgetfulness is not enough.

A prior consistent statement under FRE 801(d)(1)(B) cannot be introduced if it was made after the alleged improper influence.

  • If the bias existed for both statements, showing that the statements were the same both times does not show that the bias did not influence them.
Adoption

Adoption is when one makes a statement that he did not say his own. It is admissible against an opposing party under FRE 801(d)(2)(B).

Adoption by Silence

For silence to constitute an adoption, the adopter must have:

  1. Heard
  2. Had an opportunity to respond
  3. Been in circumstances that called for a response
  4. Failed to respond

Silence is not an adoption after receiving a Miranda warning. Circuits are split as to whether it may be an adoption pre-Miranda.

A statement cannot show that one is an agent/coconspirator under FRE 801(d)(2)(E) alone. There must be corroborating circumstantial evidence.

Verbal Object

Verbal objects are short, easy-to-remember writings, such as "Sears" on the side of a truck, a street name on a sign, a business's name on a business card, or one's initials on a laundry tag.

Verbal objects are not hearsay.

Verbal objects are usually also going to be inscribed chattels.

To reverse under FRE 103 you must show grounds, parts, parties, and purpose.

Actual Hearsay Exceptions
  1. Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
    1. is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
    2. refuses to testify about the subject matter despite a court order to do so;
    3. testifies to not remembering the subject matter;
    4. cannot be present or testify at the 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:
      1. the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
      2. the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
    But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
  2. The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
    1. Former Testimony. Testimony that:
      1. was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
      2. 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 redirect examination.
    2. Statement Under the Belief of Imminent Death. 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.
    3. Statement Against Interest. A statement that:
      1. 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
      2. 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:
      1. 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
      2. 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 so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
    5. [Other Exceptions .] [Transferred to Rule 807.]
    6. Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. 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.
  • Courts will be harder on the prosecution and its ability to make witnesses available than criminal defendant.
  • Under FRE 804(b)(3), the statement against interest cannot be an affirmative defense or something. Only the inculpatory parts of a testimony may be admitted. It must be based on personal knowledge however, unlike an FRE 801(d)(2) statement by a party opponent, and corroborating evidence must indicate its trustworthiness.
  • Death is not required for FRE 804(b)(2), but the declarant must believe that sure death is eminent.
  • Under FRE 804(b)(1)(B):
    • In a civil case, the statement must have been against a predecessor in interest with similar motive and opportunity and who had the opportunity to cross.
    • In a criminal case, the statement must have been against the same defendant with similar motive and opportunity and who had the opportunity to cross.
  • Predecessor in Interest

    To admit former testimony under FRE 804(b)(1) in a civil case, the previous testimony must have been against a predecessor in interest.

    There are three approaches to determine whether or not one is a predecessor in interest:

    1. Community of Interest Approach
    2. Same nucleus of operative fact
    3. Privity Approach
      Property interest tied to another person; rare (bottom of 487)
    4. Formal Tie Approach

      The formal tie approach says that one is a predecessor in interest of another if the two share a formal tie. (Usually a business relationship)

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 or 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.
  3. Then-Existing Mental, Emotional, or Physical Condition. 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.
  4. Statement Made for Medical Diagnosis or Treatment. A statement that:
    1. is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
    2. describes medical history; past or present symptoms or sensations; their inception; or their general cause.
  5. Recorded Recollection. A record that:
    1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
    2. was made or adopted by the witness when the matter was fresh in the witness’s memory; and
    3. 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.
  6. Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
    1. the record was made at or near the time by — or from information transmitted by — someone with knowledge;
    2. the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
    3. making the record was a regular practice of that activity;
    4. all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
    5. the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
  7. Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
    1. the evidence is admitted to prove that the matter did not occur or exist;
    2. a record was regularly kept for a matter of that kind; and
    3. the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
  8. Public Records. A record or statement of a public office if:
    1. it sets out:
      1. the office’s activities;
      2. 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
      3. in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
    2. neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.
  9. Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
  10. Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:
    1. the testimony or certification is admitted to prove that
      1. the record or statement does not exist; or
      2. a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
    2. in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

...

  • FRE 803(1)–(4) all require personal knowledge of the event.
  • FRE 803(1) requires it to be very immediately after an event, before one had time to form intent to fabricate.
  • FRE 803(3) does not allow anything based on memory, but allows, like, "I'm afraid of him," because it is a present cause.
  • Hillmon Doctrine

    Second-hand intent allows evidence to come in under FRE 803. I.e., "I'm doing this with him," to show that the other person did that too.

    Most courts require corroborating evidence.

  • FRE 803(4) allows statements made to friends and family for medical care.
  • An accident report is not a record of a regularly conducted activity under FRE 803(6) & (7).
  • FRE 803(6) requires a custodian to testify as to how records were made and kept, but not as to the contents of the record.
  • Police activity can sometimes come in under FRE 803(8), such as fingerprinting.
  • FRE 803(16) allows "ancient documents"—documents more than 20 years old.
  1. In General. 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.
  2. Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
Hearsay Within Hearsay

For hearsay within hearsay to be admissible, both statements must be independantly admissible. FRE 805.

If admissible hearsay or the admissible or FRE 801 totally-not-hearsay is admitted, the declarant's credibility may be attacked and supported as if he were a witness himself. FRE 806.

ADAMPBOP

Judicial Notice
  1. Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
  2. Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
    1. is generally known within the trial court’s territorial jurisdiction; or
    2. can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
  3. Taking Notice. The court:
    1. may take judicial notice on its own; or
    2. must take judicial notice if a party requests it and the court is supplied with the necessary information.
  4. Timing. The court may take judicial notice at any stage of the proceeding.
  5. Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
  6. Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Interpreting statutes or common law is a legislative decision, where the judge is unlimited.

The sources must actually state the information. Assumptions cannot be made thereupon. (One can notice that it rained that day, but not that the pavement was wet.)

Subsection (d) does not apply in criminal cases for some reason.

Confrontation

The Sixth Amendment says that in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.

If the statement is not hearsay (it was not admitted for the truth of the matter asserted), it does not violate the Confrontation Clause. Tennessee v. Street.

This right is preserved if one had the ability to fully cross-examine the testimony at a previous trial. A preliminary hearing is not enough.

Previous testimony is allowed if the declarant is also testifying now.

If one makes a witness unavailable, he forfeits his right to confrontation.

A dying declaration is allowed despite the Confrontation Clause.

Ohio v. Roberts allowed testimony if it is reliable and necessary. This was overruled with the testimonial standard in Crawford v. Washington, but that standard has since been brought back in as factors in that test.

Testimonial

Hearsay complies with the Confrontation Clause if its primary purpose is not testimonial under the totality of the circumstances.

Testimonial basically means it is intended to preserve the testimony at trial or to convict the guy.

The purpose is still whether it is reliable, so sometimes courts will just allow it if it is reliable, even if it is testimonial. They will just say that reliability is a factor in whether or not it is testimonial, so if it is reliable, it is not testimonial.

Long-standing hearsay exceptions are indicative of reliability.

Justices' Views
Thomas

It is testimonial if there is solemnity. (If it was sworn testimony.)

Sotomayor

Reliability is an important factor. (The plurality viewpoint.)

We don't have to know cuz Gorsuch and Kavanaugh.

Factors for Hearsay Being Testimonial
  1. Statement “describes past events,” rather than “events as they were actually happening.” (Bryant, p. 629, quoting Davis).
  2. There was no ongoing emergency (Bryant, p. 629) taking into account factors such as:
    1. The nature of the assault – domestic, known or stranger (greater familiarity between victim and assailant, less likelihood of ongoing emergency).
    2. The weapon used (greater ability to harm others, greater likelihood of emergency), Bryant, pp. 632-633; and
    3. Whether the assailant remained at large – if yes, greater possibility of ongoing emergency, Bryant, p. 632.
  3. The statement was needed to determine “what happened,” not to “resolve the present emergency” (Bryant, pp. 629-630 (quoting Davis)).
  4. The statement was “procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Bryant, p. 630.
  5. The statement did “precisely what a witness does on direct examination,” Bullcoming, p. 649 and Melendez-Diaz;
  6. The statement bore an indicia of “formality,” such as:
    1. Being taken in calm circumstances when the declarant is out of danger. Bryant, pp. 630, 633.
    2. Statement is made while declarant is separated from the suspect. Bryant, p. 630.
    3. Statement taken in the stationhouse rather than at crime scene. Bryant, pp. 631, 633.
    4. Statement taken when defendant in custody and following Miranda. Crawford, pp. 594-5, 605.
    5. Statement is being recorded by police interrogator. Crawford, p. 601, n. 4. But also note that 911 calls are often NOT testimonial.
    6. The interrogation involved a “structured” series of questions. Crawford, p. 601, n. 4. But also note that 911 calls often include structured questions but often are NOT testimonial.

A child can be questioned by just the lawyer and be in court by video if it is found he could not handle being questioned in court.

Kline has an 8-step test:

  1. Is it a criminal case?
  2. Is it against a criminal defendant?
  3. Is it 801(a)–(c) hearsay?
  4. Was there not a prior full opportunity to cross?
  5. Is the defendant in the courtroom?
  6. Is there not forfeiture?
  7. Was the past statement not a dying declaration?
  8. Was the statement testimonial?

If all eight are yes, then the testimony is excluded by the Confrontation Clause.

Expert Testimony

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

  1. rationally based on the witness’s perception;
  2. helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
  3. not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

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:

  1. 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;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.
  • Specialized knowledge is knowledge that is not particularized. The knowledge applies to things that one does not have experience with.
  • The expert's testimony must be helpful to the jury. It cannot confuse or invade the providence of the jury. (Such as addressing witness credibility or saying that something was negligent or another legal term)
  • Daubert Standard

    Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are

    1. whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability;
    2. whether the technique or theory has been subject to peer review and publication;
    3. the known or potential rate of error of the technique or theory when applied;
    4. the existence and maintenance of standards and controls; and
    5. whether the technique or theory has been generally accepted in the scientific community.

    Daubert applies to all expert testimony.

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.

  • An expert can provide his opinion on things he did not perceive, even things provided at trial. (Like hypotheticals)
  1. In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
  2. Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant 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.

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Presumption

In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.

Initially, the plaintiff has the burden of pleading with sufficiency to state a claim. This then creates a presumption that the claim is true.

Bursting Bubble

Under the bursting bubble theory, a presumption vanishes upon the introduction of any evidence which would support the nonexistence of the assumed fact. Such a claim would then fail summary judgment.

The bursting bubble theory is followed by the Federal Rules of Evidence, but courts usually do not follow the rule for being unfair to parties with presumptions. They do this by raising the bar of sufficiency for evidence to support the presumption's non-existence, usually sending it to a jury.

  • The sufficiency required is almost a preponderance of the evidence, but courts do not raise it quite that high because that would shift the burden of persuasion, violating FRE 301.
    • The "Professor Morgan" approach would say just shift the burden of persuasion, but this is not followed by any court.

In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.

Authentication

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Examples
  1. The following are examples only — not a complete list — of evidence that satisfies the requirement:
    1. Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
    2. Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
    3. Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
    4. Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
    5. Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
    6. Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
      1. a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
      2. a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
    7. Evidence About Public Records. Evidence that:
      1. a document was recorded or filed in a public office as authorized by law; or
      2. a purported public record or statement is from the office where items of this kind are kept.
    8. Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
      1. is in a condition that creates no suspicion about its authenticity;
      2. was in a place where, if authentic, it would likely be; and
      3. is at least 20 years old when offered.
    9. Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.
    10. Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.
  • For ancient documents, they must have logically had a reason to have been corrected if incorrect.
Chain of Custody

A chain of custody is not technically required, but a court will if it has any doubt. It is required if the item is not distinctive in its appearance, such as with DNA evidence.

A break in the chain is not necessarily fatal to authenticity if the evidence is not key to the case. It will likely be admitted, and the break will be up to the jury to determine the weight of the evidence.

Best Evidence Rule

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

  • If you are not trying to prove the content of the writing (if the writing is the source of the information), you (such as with eyewitness testimony), you are not required to produce the original.

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

  • Duplicates are admissible only if it is a mechanical process that produced the duplicate. If a human produced it, human error raises a question about its authenticity.

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

  1. all the originals are lost or destroyed, and not by the proponent acting in bad faith;
  2. an original cannot be obtained by any available judicial process;
  3. the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
  4. the writing, recording, or photograph is not closely related to a controlling issue.
  • A court may find bad faith where it does not exist if it thinks the evidence should not be admitted for the purpose of the rule. (Maybe if gross negligence)
Inscribed Chattel

Inscribed chattels are short, easy-to-remember writings.

The best evidence rule is not applied to writings that are inscribed chattels, allowing it to show that the writing was there.

Inscribed chattels are really similar to verbal objects.

Some factors that courts might use in finding something an inscribed chattel are:

  1. Need of precise information
  2. Central to issue
  3. Civil or criminal
  4. Case of prod.
  5. Simplicity or complexity
Privilege

Privilege allows one to not testify about something that it applies to. Privilege can be based on the Constitution or statute.

The holder of a privilege must take reasonable steps to prevent disclosure and to rectify an inadvertent disclosure.

Self-Incrimination
Fifth Amendment to the United States Constitution

No person . . . shall be compelled in any criminal case to be a witness against himself

The Fifth Amendment right against self-incrimination is implicated when the evidence is:

  1. Used for criminal liability against the declarant
  2. Testimonial
    • Forcing one to disclose the contents of his mind
  3. Compelled by the government
    • Business records are ordinarily not compelled by the government.
      • It can be though if the government cannot describe the incriminating documents with reasonable particularity. United States v. Hubbell.
    • Required Records

      The Fifth Amendment protection against self-incrimination does not apply to required records.

      For the required-records doctrine to apply:

      1. The purpose of the regulatory scheme must be essentially regulatory.
      2. The records must be of a kind customarily kept.
      3. The records must have acquired "public aspects."
Immunity
Use Immunity

Use immunity protects one from prosecution from one's testimony. The testimony cannot be used against him.

Transactional Immunity

Transactional immunity is a broader form of immunity that grants total immunity from prosecution for the crimes discussed.

Attorney-Client Privilege

The attorney-client privilege protects communication, not the information inherent therein.

The attorney-client privilege is held by the client, but ethics require attorneys to assert it.

Fees and names are not typically confidential, but can be if it would expose the client to liability.

Conduct not intended to be confidential communication is not covered.

The attorney-client privilege survives the client's death.

Marital Privilege

The marital privilege is comprises both the communication privilege and the testimonial privilege.

The marital communication privilege gives both people the right to protect intended confidential communication made during the marriage but not actions unless the actions were intended to communicate something. Either spouse can claim this privilege indefinitely and prevent the communication from being admitted.

The testimonial privilege protects currently married partners from being compelled to testify against each other, but one can waive this privilege and testify anyway.