Federal Rules of Evidence 2014

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  1. Plain error defined
    FRoE 103(e) – so serious an error that there is no waiver for not objecting
  2. Relevance
    The fact that the witness testifies to or evidence shows is of consequence to the case
  3. Harmful/prejudicial error
    mistake so bad that justice compels a new trial
  4. Harmless error
    mistake that does not affect a fundamental right of a party to a trial
  5. Limiting Evidence otherwise admissible: FRoE 105
    • Evidence can be admitted for some purposes while be inadmissible for other purposes
    • Party must request exclusion or inclusion
  6. Threshold questions: FRoE 104(a) + (b)
    • (a) standard- preponderance of the evidence when determining
    • (b) standard: could a reasonable juror believe that the presented facts
    • ·often granted on the condition that supporting facts will be presented during trial
  7. FRoE 106
    Allows a party to insist that an entire document be introduced if a part of it is introduced
  8. Huddleston v. U.S. (USSC 1988) (Use of 404(b) and 104(b))
    • D is accused of selling stolen cassette tapes.
    • Prosecution, using FRoE 404(b), introduces testimony from an under cover FBI agent and a vendor who both purchased stolen goods from the defendant. D - protests to admission of the testimony from the UC FBI agent and vendor, saying the “other acts” were not proven to have occurred by a preponderance of the evidence (argument based on FRoE 104(a)). State - the evidence showed knowledge of the defendant that the tapes were stolen. The trial court admits the evidence and the issue is appealed.
    • SCOTUS: The Defendant wants the threshold
    • question to be 104(a), which has a higher burden. The State wants the threshold question to the 104(b), a lower standard (could a reasonable jury conclude from this evidence that the tapes were stolen). The court should use FRoE 104(b) to decide whether the jury could reasonably find the conditional fact to be true, that the TVs were stolen.
  9. Wilson v. Williams (7th Circ. 1999)
    • You have to get your objection on the record
    • 42 USC 1983 case- violated constitutional rights under color of law
    • D filed a motion in limine to exclude all references to his involvement in the death of a police officer. Judge denies request to exclude mention of D killing a police officer. Upon denial, the State uses the fact that he had killed a police officer excessively. The court allows a guard who was not present at the incident to testify to what Wilson said ~”should have killed me, I’m coming after you.”

    Crt of Appeals: The trial court errored by giving a conditional ruling, allowing the information for one purpose but not for another. Counsel at oral argument did not object to the guard’s testimony. Because he waived that objection, the fact that the judge had made the mistake during the in limine ruling made the error harmless.
  10. US v. Adams (10th Circ. 2001) (Adequacy of offer of proof)
    • Adams confessed to police of felony possession of firearm by a felon. At trial, defense wanted to introduce an expert to testify to Adam’s mental problems that would lead him to lie to the police. On appeal, defense counsel complains he was unable to present the information at trial. 
    • Lesson: the clearer you are at describing the
    • evidence you wanted to get in, and its relevance, the better you’ll be on appeal.
  11. Methods of proffer
    • Examine the witness before the court and have it added to the record
    • Statement by counsel of a summary of what would be shown
    • Written statement by counsel of what answers would be given by witness
    • Written statement by witness introduced into the record
  12. What must a proffer contain? (US v Adams)
    • must describe the evidence and what it would show, and
    • identify the grounds for admitting the evidence.
  13. Luce v. US (SCOTUS 1984) (Risk of error not appealable)
    • D is indicted on charges of conspiracy. D moved to exclude the government from using a prior conviction. Defendant moved to exclude the conviction and the trial court said “no, the gov’t can use your conviction to impeach you if you testify.” D does not testify, is convicted, and appeals the trial court’s decision on the basis that he was unable to testify without risk of his prior conviction being used.
    • Prior convictions can be used to impeach a defendant/witness’ credibility under FRCP 609(a).
    • SCOTUS: Defendant has to testify, and prosecution has to bring up the conviction, for the admission of a prior conviction to be appealable.
  14. Ohler v. US (SCOTUS 2000) (D opening the door)
    • Ohler is caught smuggling drugs. Pros. wanted to introduce evidence of Ohler’s prior conviction for two different purposes: impeachment and character. Trial court said it would be admissible for 609(a)(1) (Impeachment after defendant/witness testifies).  Defense preemptively had d testify about the prior conviction. Upon conviction, the D appealed.
    • SCOTUS: the defendant waived their right to appeal the inclusion of the evidence because they brought it in.
  15. Opening the door
    although you can object to something being brought out, if you bring out the issue yourself then you waive your right of appeal
  16. Carbo  v. US (FRoE 105)
    • Instructions must be asked for, otherwise right to appeal is waived
    • Extortion case where man is convicted of extorting a boxing manager to give up control of his boxer. Pros wanted victims to testify to their knowledge of the dangerous nature of the extortionist to show their fear of harm/extortionists use of that fear. Judge instructed jury to use the evidence only for the purposes of understanding the mindset of the victims and not for developing the understanding of the character of the extortionist.
    • Man was convicted, and appellate court upheld the use of the evidence.
    • Crt: Know how the instructions work, and know that you must affirmatively ask for the instructions.
  17. Napue v. IL (SCOTUS 1959)
    • Napue, Hamer, and others enter bar and make known their intent to rob the place. They kill an off duty cop. Hamer is convicted and serving a 199-yr sentence. Hamer, on the stand for state against Napue, says he was not offered anything in return for his cooperation in Napue’s case.
    • Pros had offered him a lower sentence for helping against Napue. Napue is convicted, and Napue brought up a habeus case.
    • SCOTUS: Prosecution cannot sit aside while its
    • witness lies.
  18. US v. Bagley (SCOTUS 1985)(US v. Brady standard of what must be disclosed by prosecutors)
    • Defense made a request for names and contact information of witnesses, and an agreement between government and witness for payment for information/testifying. The contracts were not disclosed.
    • Two standards:
    • (Harmless error standard)- unless prosecution can show beyond a reasonable doubt that the failure to turn over perjured testimony was harmless
    • (Materiality) – there is a reasonable probability that is would have changed the outcome
  19. Holmes v South Carolina (SCOTUS 2006) (Rule of evidence grounded in the Constitution)
    • D on trial for murder and rape of 86-yr-old woman. Pros has significant forensic evidence to tie D to the scene- victim’s blood on his shirt, palm print at scene, etc.
    • D tries to introduce evidence suggesting 1) Prosecution’s mishandled the forensic evidence, and 2) there was another man, White, who was the murderer. Evidence proffered was 1) expert testimony that suggested the State did not handle the evidence properly, and 2) that White admitted to the crime to several people and was in the area around the time of the murder. Trial court denied use of third party guilt, saying its use was not connected enough to Holmes’ guilt or innocence.
    • SCOTUS: SC only evaluated the strength of one side’s evidence and upon determining that it was ‘good enough’ it no longer considered evidence from D. The rule is “Arbitrary”/”disproportionate to the purpose [it is] designed to serve” as it did not serve the same end that the Gregory third-party guilt rule served. Violated the Due process clause of the 14th Amendment or in the compulsory process or confrontation clause of the 6th amendment.
  20. Gregory Third-party guilt rule
    • Evidence tending to show the commission by
    • another person of a crime may be introduced by the accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt
    • but such proffers are often remote and lack such connection to the crime that they are excluded
  21. House v. Bell (SCOTUS 2006) (How error in trial can be raised on appeal without being raised during the trial)
    • Habeas corpus relief sought by House from his
    • 20-yr-old conviction for murdering Ms. Muncey. All evidence was circumstantial-blood on jeans “consistent” with murder victim’s, lied to police about whereabouts, semen was found on victim. 20 yrs later forensic testing showed discrepancy between blood on jeans and victim’s blood samples, poor handling of evidence that could have led to corruption, DNA testing showing semen was Mr. Muncey’s, and evidence suggesting that Mr. Muncey might have killed his wife (beat her, searched for alibi, confessed drunk), not House. House never raised the issues he was appealing during the initial trial. 
    • SCOTUS: Habeus review warranted when clear injustice may be caused by lack of review.
    • This case - it was likely a jury would not find beyond a reasonable doubt that House was guilty- did not warrant an outright claim of innocence.
    • The persuasive nature of the evidence counter to his conviction overruled his waiver of objecting to the error at the trial.
  22. (FRCP 12(b)(6))
    • Failure to state a claim for which relief can be granted
    • Before evidence is collected/introduced
  23. Motion for summary judgment (civ pro)
    Court looks at facts as purported by each side to see if there is no genuine dispute about a material fact
  24. Motion for judgment as a matter of law (Civ Pro)
    • Also known as motion to dismiss
    • Plaintiff in Civ case only
    • Court determines whether plaintiff presented all necessary elements supported by evidence persuasive enough that a reasonable juror could find them based on a preponderance of the evidence
  25. Three standards of review
    • De novo - matters of law
    • Clearly erroneous - review of matters of fact
    • Abuse of discretion - review of procedural issues
  26. Motion for judgment of acquittal
    Standard of review: could a reasonable juror find D guilty on every element of the gov't's case beyond a reasonable doubt
  27. Burden of proof
    • the burden placed on a party to litigation to prove or disprove a given fact
    • (not the amount of evidence needed to prove a fact, just the requirement to prove it to continue with their case)
  28. Burden of production
    • plaintiff has to produce enough evidence on all
    • of the necessary elements to persuade the jury to find them existing by a preponderance of the evidence
  29. Burden of persuasion and three levels
    • The probability that what one party is saying is true
    • Preponderance of the evidence - more likely than not (civil)
    • Clear and convincing - beyond 75%
    • Beyond a reasonable doubt - beyond 95%
  30. Circumstantial evidence
    evidence based on inference
  31. Direct evidence
    scientific evidence, not based on a conclusion
  32. Scott v. Hansen (SC Iowa 1940) (state equivalent of judgment as a matter of law)
    • Car crash with a witness testifying to a bouncing cow.
    • The lower court should have granted the motion for judgment as a matter of law. There must be a level of reasonableness to the evidence for it to be used to support a claim. The evidence was contradicted by physical facts.
  33. US v. Nelson (9th Cir. 1969) (use of circumstantial evidence)
    • Nelson - accused - an accomplice after the fact. Waited in car for Brewton to rob a bank. Witness claimed seeing a man (not necessarily Nelson) in a car across the street gunning the engine. After the robbery, Nelson and Brewton fled the scene, got in a high-speed chase, ran from the cops on foot, and were found with money in their pocket that was likely from the bank. 
    • Nelson appeals saying the Gov't never proved that he was the one - used inferences based on other inferences - Gov't did not exclude all other possibilities
    • Crt: Circumstantial evidence can be just as probative as direct evidence, especially when proven to a high level of certainty
    • Correct standard: whether a juror could reasonably arrive at the conclusion
  34. Delaware Coach Co. v. Savage (Dist. Crt. 1948)(P's burden of proof)
    • Competing eye-witness testimony about who ran a red light. 
    • Crt: Burden of proof rests upon the party asserting the evidence, such as negligence, Once met the burden is upon the other party to refute the evidence.
    • Once D has refuted the evidence, P’s case still carries the burden of persuasion by a preponderance of the evidence.
    • Judgment entered for D because P failed to show negligence by a preponderance of the evidence.
  35. Riley Hill General Contractor, Inc. v. Tandy
    Corp. (SC OR 1987) (state equivalent: clear and convincing)
    • Riley Hill claimed Tandy sold them bad computers and claimed “fraud” and “breach of warranty”. 
    • Crt: In civil cases, clear and convincing evidence is necessary for all elements of a quasi-criminal deceit cases 
    • general damages arising from the deceit may be proved by a preponderance of the evidence.
  36. In re Winship (SCOTUS 1970) (burden of proof- criminal/juvenile)
    • Juvenile case where a state law requires a preponderance of the evidence only in adjudications. The trial judge ackowledged that the proof did not meet the beyond a reasonable doubt standard, but that it wasn’t required by the 14th amendment because he was a juvenile and state law didn’t require it.
    • SCOTUS:
    • Brennan: 14th Amendment compels the courts to use a beyond a reasonable doubt standard in all criminal cases, including for juveniles.
    • Harlan: It’s better to let a guilty man go free than to lock up an innocent man. Burden of proof affects the likelihood of each of these mistakes.
  37. “the bursting bubble theory of presumption”
    If the defendant offers evidence to rebut the presumed fact, then the presumption goes away, applies in the federal rules
  38. FRoE 301 Presumptions in Civil Cases Generally
    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.
  39. Liptak v. Security Benefit Ass’n (SC IL 1932) (burden and order of proof)
    • Defendant admits that there was a death and a certificate of insurance, but the insurance payment was made to the wrong person.
    • Crt: The fact in contention was the affirmative
    • special plea by the insurance company Liptak made an incorrect payment, then the insurance company had the burden of proof. Because it had the burden of proof, the Insurance company had the right to the opening and closing of the argument of that issue.
  40. Relevance
    • FRoEs 400s
    • an item of evidence that tends to prove or to
    • disprove a proposition is relevant to that proposition
  41. FRoE 401 - Test for Relevant Evidence
    • a) it has a tendency to make a fact more or less probable than it would be without the evidence, and
    • b) the fact is of consequence in determining the action
  42. FRoE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
    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.
  43. City of Cleveland v. Peter Kiewit Son’s Co. (6th Circ. 1980)
    • Kiewit (large, foreign, insured, gov. Ktor) leases the use of a dock in Cleveland. The dock collapses after Kiewit is done with it, including a small portion that Kiewit was using. Kiewit appeals jury verdict saying counsel for Cleveland repeatedly raised
    • matters that were prejudicial. The trial court admonished Cleveland’s counsel but still allowed the case to proceed to the jury (after giving an instruction to disregard).
    • CRT: City tried to plant the image in the mind of the juror that Kiewit was a large company. Evidence as to the company’s size was not relevant to whether Kiewit was negligent. Wealth of the parties is only relevant in determining awards of punitive damages (to figure out what amount would “punish” the D). Counsel for Clevalnd unfairly brought the evidence in.
  44. Plumb v. Curtis (Conn 1895) (relevancy of wealth)
    • Plumb sues Curtis for faulty building material for 8 homes. Curtis admitted to fault in three of eight homes (when he claimed a man was acting as his agent), but not for five of them (when the man was acting
    • independently).
    • The trial court (Upheld) allowed the use of Simeon’s wealth to prove that Simeon would not have had the means to be independent because he was too poor.
  45. State v. Mathis (SC NJ 1966) (Poverty and criminal defendants)
    • Mathis is convicted of killing local door-to-door insurance man. Witness places Mathis at scene, saw Mathis push insurance man into his car, then the car was found burnt in the woods. Mathis testified that he periodically worked with his father at his father’s home
    • (where the murder took place) but that he never saw the insurance man. The State tried to use how much Mathis made to show that he either worked often with his Dad and would have seen the insurance man, or in the alternative that he was poor enough to have a motive.
    • Crt: A lack of money would prove too much against too many. The probative value of the evidence was too low in comparison to how prejudicial the evidence was.
  46. Major exception to introducing wealth/poverty as evidence
    Fraud cases- admissible when relevant to a transaction
  47. Hall v Montgomery Ward & Co (SC Iowa 1977) (Wealth can be introduced to determine pecuniary damages)
    • Hall (mentally ill) worked at MW&co as a cleaner. He moonlighted using the cleaning equipment of MW&co. A security agent from MW&co interrogated him, made him sign 4 statements incriminating himself. Expert testimony says that his mental state kept him from telling the truth, and Hall himself introduced evidence showing he did not have the wealth or property to the amount that he was accused of stealing. Despite the objections of MW&co’s counsel, MW&co’s balance sheets were introduced to the jury (2bill.).
    • Hall sued and won for pecuniary damages. MW&co appealed saying its balance sheets should not have been allowed to be introduced.
    • Crt: MW&co’s assets are relevant in determining pecuniary damages, as a rich company would only be “smartened” by a large penalty
  48. Reed v. GM Corps (5 Circ. 1985) (FRoE 411- Admissibility of Insurance)
    • Meche and Boudreaux are driving recklesslytogether and hit and hurt a family of four. Meche’s car missed the Reed family but Boudreax’s car did not. LA had an ‘ability to pay doctrine’ so to not bankrupt the defendant. Meche introduced evidence saying that he had less insurance, and that Boudreaux had more insurance and thus a greater ability to pay. The jury apportioned fault disproportionately to Boudreaux (insured by GM) who had a larger policy.
    • Applying Erie doctrine, LA substantive law controls, but Federal procedure is applied. Thereby the FRoE 411 should have been applied, not LA law. Under FRoE 411, evidence of insurance is generally not admissible except for showing certain exceptions.
  49. Rule 411: 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.
  50. Jones v Pak More
    Defective machine that injures a man. Can the defendant offer evidence that there has been no evidence in the past? In liability cases hinging on defective design, the trial court can use Rule 403 to decide whether to use a history of a lack of injury based on the 403 balance test.
  51. Reyes v. Missouri Pac R.R. (5th Circ. 1979) (FRoE 404 and prior acts vis-a-vis habits)
    • Man was passed out on the tracks and was run over by the train. He survived and brought diversity case against the RR. The RR’s counsel says he was wearing dark clothing, was intoxicated and passed out on the tracks, and there was contributory negligence. Reyes claimed he was knocked unconscious by an unknown assailant. The RR wanted to offer evidence that Reyes had four prior convictions for public intoxication over a 3.5 yr. period.
    • Crt: too infrequent to rise to the level of habit.
  52. FRoE 406 - Habit, Routine Practice
    Evidence of a person’s habit or an organization’s routine practice may be admitted as evidence that the person or an organization acted in way consistent with that habit.
  53. Eaton v. Bass (FRoE 406)
    • Whether the company’s breaks were defective and thus the company was negligent in not checking the brakes. Nobody remembered that they checked the breaks on the particular truck that got in an accident.
    • The trucking company wanted to introduce its habit of checking every truck’s break before it goes out.
    • Crt: Allowed it under FRoE 406.
  54. FRoE 405 – Methods of Proving Character (how you prove it)
    • (a) Reputation by opinion- when you call someone on direct, the witness cannot give specific instances of behavior, just general behavior (he’s a good person, rather than he saved a kitten in a tree).
    •   a.On Cross the specific instances of behavior can be asked about
    • (b) Specific Instances of Conduct-
  55. State v. Renneberg  (Pulp Fiction case) (WA 1974)
    • D on trial for grand larceny. D took money from restaurant cash register. D testified on direct to her good character: work history, college, Miss pageant, glee club, etc. 
    • On cross P asks D whether she was addicted to using narcotics. The court instructed the jury to only consider the evidence of D’s drug use to weigh the credibility of D’s character.
    • Upheld. D opened the door by giving good character evidence of herself.
  56. Reputation testimony defined
    testimony based on what someone has heard other people in the community say, as long as the person has the basis.
  57. Opinion testimony
    establish a basis for your knowledge of someone and state what you think of them.
  58. Broyles v. Commonwealth (Kentucky 1954) (Defense opening the door for character evidence- specific acts on cross)
    • Man convicted of murder, called witnesses to testify to his quietude and peacefulness. P asked on cross whether the witnesses knew of the convicted man’s prior convictions (FRoE 405(a)) for drunk driving. Appeal: is drunk driving relevant to “peacefulness?”
    • Crt: it has a reasonable connection to quietude and peacefulness and is allowable.
  59. Evans v. US (DC App. 1960)
    • D convicted of 2nd degree murder. The deceased interacted with D on the street, and without motive D killed the deceased. D proffered evidence from deceased’s wife’s testimony that he was generally violent when drinking (FRoE 405 opinion). Appealed.
    • Crt: deemed reversible error.
  60. Communicated Character: two ways evidence of the victim's character can be relevant
    • (a) To demonstrate the defendant’s state of mind
    • (b) to prove that the victim was more likely the aggressor
  61. FRoE 404(a)(1)
    • Forbidden character propensity inference
    • (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.
  62. FRoE 404 (b)(1)
    • Crimes, Wrongs, or Other 
    • 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.
  63. FRoE 404(b)(2) permitted uses
    • 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:
    • (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.
  64. FRoE 412 Victim's character 
    • (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 a victim engaged in other sexual behavior; or
    • (2) evidence offered to prove a victim’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 victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and(C) evidence whose exclusion would violate the defendant’s constitutional rights.
    • (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.
  65. Doe. V. US (4th Circ. 1981)
    • Appelant is chief witness and victim of alleged rape. Black, alleged rapist, asked and was granted subpoenas to compel
    • individuals to testify about Doe’s sexual past. Doe learns of the subpoenas (instituted erroneously) and tried to have them sealed but was denied. At the pre-trial evidence hearing, Black offered evidence spanning the victim’s general reputation, victim’s habit of calling out to and on the barracks, etc.  Doe appealed the decision to allow the evidence to be admitted and the Circ. Court took the case on an interlocutory appeal.
    • Crt: The testimony about Black’s conversation with the victim, as well as evidence of the defendants state of mind as a result of what he knew of her reputation and what she had said to him.” Other evidence of her reputation or history was excluded.
  66. US v. Azure (8th Circ. 1988)(minor's vaginal enlargement as proof of another)
    • D convicted of having carnal knowledge of a minor (Wendy) who was 10. There was vaginal enlargement. D wanted to use the injury exception in FRoE 412 to introduce testimony of Wendy’s sexual contact with another boy to demonstrate that he may not have been the person to injure Wendy. 
    • Crt: Because of the nature of the injury, it is not possible for the injury to have been caused by the other boy. FRoE 403 balance test leans towards the evidence being prejudicial and that its probative value was significantly outweighed by the prejudicial nature. D must to more than just allege alternatives, it must be plausible.
  67. Redmond v. Kingston (7th Circ. 2001) (Counselor accused of having sex with 15 yr old prior liar) (limit of FRoE 412)
    • D lost on appeal in WI courts, then on post-conviction makes a habeus claim and makes it to the 7th Circ. Victim lied about being raped before the incident at hand, and D wants to bring up this fact. The WI courts do not allow this. D appealed saying that he was being denied his right, under the confrontation clause, to bring up evidence.
    • Crt of Appeal: FRoE 412 doesn’t apply because D was trying to show the non-act of having sex- that the victim made up the story to get her mother’s attention. D wanted to introduce this as an alternative theory. FRoE 403 is the real question- the probative value/prejudice balance test must be undertaken. 
  68. Olden V Kentucky (SCOTUS 1998)
    Victim alleges she was raped in a car and dropped off at Bill Russell’s house. D wanted to enter evidence that Russell’s relationship with Olden was an extramarital affair (motive to lie). Lower court denied it but scotus reversed.
  69. FRoE 413 Similar Crimes in Sexual Assault Cases
    (a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
  70. US v. LeMay (9th Circ. 2001) (use of prior child rape conviction)
    • LeMay appealing from his conviction for child
    • molestation. P’s case depended on two boys (ages 5 and 7) and their testimony of what happened to them two years prior. Then P’s introduce evidence of LeMay’s prior conviction of raping a 2-year-old eleven years prior. The Court does a 403 balance test: the probative value is that it shows a predilection for abusing children, and it constitutionally allowable because it outweighed the risk of unfair prejudice.
  71. US v. Robinson (7th 1998) (clown costume bank robber)
    • Gov’t is trying to introduce evidence of Robinson’s second bank robbery to show evidence of his first bank robbery. Robinson was claimed to have a guilty mind in the second robbery because he was caught after a high speed chase, and that the details of the bank robberies were very similar.
    • Court suggests a Four Prong Test:
    • 1.Evidence is directed towards establishing a matter in issue other than D’s propensity to commit the crime charged
    • 2.The evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in law
    • 3.The evidence is sufficient to support a jury
    • finding that D committed the similar act
    • 4.FRoE 403 balance test – whether the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice
  72. 4 Prong Test for use of prior acts
    • 1.Evidence is directed towards establishing a matter in issue other than D’s propensity to commit the crime charged
    • 2.The evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in law
    • 3.The evidence is sufficient to support a juryfinding that D committed the similar act
    • 4.FRoE 403 balance test – whether the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice
  73. US v. Miller (7th Circ. 2012) (same baggies of coke)
    • Cocaine and a pistol are found near Miller’s
    • possessions. The Cocaine was placed in small baggies with price tags on them. He had a prior conviction for intent to distribute.  He only testifies that the drugs are not his. P introduces evidence of his prior conviction, saying that it was important to show his intent. P accuses, a D is found guilty of, intent to distribute
  74. FRoE 407 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.
  75. FRoE 407 impeachment exception
    brought into court usually when someone testifies that their design was the safest possible design.
  76. Rule 408. Compromise Offers and Negotiations
    • (a) prohibited use: can't use anything said during attempts to come to a negotiation or settlement
    • (b) exception: Can be used for proving witness bias or prejudice, negating claims of unjust delay, or to prove an effort to obstruct a criminal investigation or prosecution
  77. Likely hypo for 408(b)
    • Compromise Offers and Negotiations (Exceptions)
    • If there are two plaintiffs and one settles but is called to testify for the defendant in the other's trial.
    • The plaintiff that didn't settle can use the settlement to show bias on the part of the settled plaintiff.
  78. FRoE 410 Pleas, Plea Discussion, and Related Statements
    • (a) You can't use
    • that someone participated in a plea agreement,
    • pled guilty,
    • a nolo contendere plea
    • statement made to prosecutor during plea agreement negotiations
    • (b) Exceptions:
    • if another part of the statement made during the same plea was introduced and the statements should be considered together
    • Criminal proceeding for perjury/false statement if made under oath, on the record, and with counsel present
  79. State is prosecuting D for the murder of V. The government calls a detective to testify that blood was found on the defendant’s clothing and that it was tested for DNA.  The defense objects that the evidence is irrelevant because there is no proof that blood was from the victim. What should the government say?
    104(b) question. State will ask for the evidence to be allowed conditionally. The Crt will allow it.
  80. State is prosecuting D for the murder of V.
    The government calls an expert witness to testify that the DNA found on the defendant’s clothing matches the victim’s and the match means that there is an extremely high probability that it was the victim’s. Defense counsel challenges the reliability of using DNA evidence. 
    The government argues that the reliability of DNA evidence is well-established and, in any event, it is up the jury to decide reliability. 
    Wrong- judge decides admissibility, and the jury decides probative value
  81. State is prosecuting D for the murder of V.The government calls an expert witness to testify that the DNA found on the defendant’s clothing matches the victim’s and the match means that there is an extremely high probability that it was the victim’s. Defense counsel challenges the reliability of using DNA evidence. Defense counsel wants to call an expert to testify that DNA evidence is not scientifically reliable.
    D has a constitutional right to do so.
  82. State is prosecuting D for the murder of V. The government wants to offer evidence that D used a scalpel to injure a neighbor two years ago. The defense objects that this evidence is irrelevant and is improper character evidence.
    Prior conduct raises the possibility of inadmissible character inference. This might be admissible under 404(b) as a signature crime/modus operandi.
  83. State is prosecuting D for the murder of V. The government wants to offer evidence that D used a scalpel to injure a neighbor two years ago. The defense objects that the prior assault has not been proved beyond a reasonable doubt.
    • Could a reasonable juror conclude that the assault occurred? Is the 104(b) legal
    • standard. Otherwise, it has to be more likely than not.
  84. State is prosecuting D for the murder of V. The government wants to offer evidence that D used a scalpel to injure a neighbor two years ago. Assume the court allows the evidence. Can defense counsel ask for an instruction to the jury? What would the instruction be?
    FRoE 105- admissible for one purpose but not for another. Can show modus operandi, not character.
  85. State is prosecuting D for the murder of V. 
    The government wants to introduce an excerpt from D’s diary in which he wrote he hated V.  Defense counsel wants to introduce two other pages in the diary in which D wrote about his loving feelings toward V.
    • FRoE – remainder of 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.
  86. P sues D for negligence. P offers three witnesses, P1, P2 and P3, who testify that D was driving too fast, ran into P, and caused injuries; P rests his case in chief; D offers two witnesses who saw the collision and testify that D was not driving fast; D rests; P wants to call another witness, P4, to testify that D was driving too fast.
    P cannot, he should have done that in his case in chief.
  87. P sues D for negligence. D calls two witnesses, D1 and D2; D1 testifies that D was not driving fast; D2 testifies that P1 stands to gain financially if D is found liable.  D rests; P wants to recall P1 to testify that he will not gain financially.
    Because the financial gain claim is new, P would be allowed to call a witness in rebuttal.
  88. P sues D for negligence. P’s theory is that D’s employee was driving a truck that collided with P’s car.  P calls witnesses to testify that a truck owned by D was driving too fast, ran into P and caused injuries; P rests. D testifies that driver, Bob, was not on regular route; P calls another employee of D’s, Larry, to testify that Bob was on regular route; D wants to call a witness to testify that Larry was recently fired by D.
    Allowable- sur-rebuttal, as it deals with something new.
  89. P sues Toyota for personal injuries when the accelerator pedal of her vehicle became stuck. After the accident, P attempts to fix the accelerator pedal in her vehicle on her own. She wants to testify that she made
    this modification.
    FRoE  407- inadmissible to introduce subsequent remedial measures (if all they are showing is negligence). The evidence can be used to show control or to rebut other statements. This evidence is generally unreliable if introduced by Plaintiff.
  90. P sues Toyota for personal injuries when the accelerator pedal of her vehicle became stuck. P’s attorney contacts Toyota after the accident and demands compensation for her client.  Toyota’s management then asks its engineering department to analyze the cause of the accident.  P obtains this analysis during discovery and wants to introduce it.
    Two possible rules apply (not 408, as its not a settlement). Possibly 407 (remedial measures).
  91. P sues Toyota for personal injuries when the accelerator pedal of her vehicle became stuck. In a settlement negotiation session, Toyota offers P one million dollars and admits that it had several complaints about the accelerator. P wants to offer these statements.
    Inadmissible FRoE 408 – bars not only the settlement offer, but statements made during compromise discussions.
  92. P sues Toyota for personal injuries when the accelerator pedal of her vehicle became stuck. Toyota is sued by A in addition to P; Toyota settles with A; Toyota then calls A to testify that the accelerator problem was really her fault, not the design of the vehicle. P wants to ask A about her settlement with Toyota during cross-examination.
    FRoE 408(b) Exception: Allowable- (motorcycle case) D wants to bring up settlement with P to show it was someone else’s fault. If the settled-D is brought into court to testify, then P can bring out the settlement to show bias.
  93. P sues Toyota for personal injuries when the accelerator pedal of her vehicle became stuck. A Toyota expert testifies that the accelerator design was the safest possible; P wants to call a witness to testify that Toyota redesigned the accelerator after the accident.
    Would be excluded as remedial measure under FRoE 407, but Toyota went too far. The door has been opened to impeachment under 407 by showing subsequent improvements.
  94. Adjudicative fact
    not subject to judicial notice
  95. Legislative fact
    • those facts that are necessary to interpret the scope and meaning of the law
    • not unique to the parties involved in litigation
  96. Basic Fact
    something that people know about (the fact that jealously leads to crimes)
  97. State v. Canady (FRoE 201 – whose accuracy cannot reasonably be questioned)
    • Manslaughter case. Neighbor testified that she heard a scuffle and she called the law. She testified that she saw the defendant. Defendant asked for judicial notice of the time of the sunset and the fact that there was a new moon based on a local newspaper.
    • The Crt denied it- the newspaper was not a strong enough source.
  98. FRoE 201(f)
    • judicial notice in criminal cases is not binding on the jury
    • “in a criminal case, the judge shall instruct the jury that it may, but not is required, to accept as concluding any fact judicially noticed.” 
  99. FRoE 901
    • Authenticating or Identifying Evidence
    • 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.
    • Look for Examples
  100. Four issues to deal with when entering documents
    • Relevance
    • Can you authenticate it
    • Best evidence
    • Heresay
  101. Best Evidence Rule (original document rule)
    • Proving the contents of a written document is based on details- details best shown by the original document. Recollections and copies are too prone to error.
    • US v. Duffy - writing on t-shirt D-U-F found in stolen car were not enough to trigger the best writing rule
  102. If evidence being offered is implausible on its face...
    • Other side can claim it is:
    • irrelevant (401) or
    • (403) that its probative value is substantially outweighed by the danger of unfair confusion
    • Scott v Hanson- Bouncing cows
  103. Washington v. Texas (SCOTUS 1967)
    • Question: Whether the right of a defendant in a criminal trial under the Six Amendment to have compulsory process for obtaining witnesses in his favor is applicable to the States through the 14th Amendment due process clause, and whether that right was violated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the sam crime cannot be introduced as witnesses for each other.
    • State argues- risk of perjury is high and must be curtailed by not allowing co defendants of serious crimes from being able to testify for each other.
    • SCOTUS: The defendant’s right to compel witnesses’ overrides the states interest in preventing perjury.
  104. When is a child competent to testify
    • FRoE 601 - can she tell something relevant to the court:(examples)
    • Child's ability to receive and communication info
    • Spontaneity of the child's statement
    • Indications of "coaching"
    • Child's ability to remember
    • Child's ability to distinguish between truth and falsehood
    • Likelihood that child will make stuff up
  105. FRoE 611(b) Scope of cross examination
    Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
  106. FRoE 602 Objection against lack of personal knowledge
    "Cause for speculation"
  107. FRoE 602
    witness can only testify to a matter if sufficient evidence is introduced to support the witness's personal knowledge of the matter
  108. FRoE 701 Opinion of lay witness
    • lay witness opinions are limited to:
    • rationally based on witness's perception
    • helpful to clearly understand the witness's testimony or determining a fact in issue; and
    • not based on scientific, technical, or other specialized knowledge within the scope of FRoE 702
  109. FRoE 702 Expert Witness testimony
    • A witness who is qualified can give an opinion or otherwise if:
    • the expert's specialized knowledge will help the trier of fact to understand the evidence or determine facts
    • testimony is based on sufficient facts or data
    • testimony is the product of reliable principles and methods
    • expert has reliably applied the principles and methods to the facts of the case
  110. What can qualify an expert?
    knowledge, skill, experience, training, or education
  111. Daubert v Merrell Dow Pharma, Inc. (SCOTUS 1993) (Methodology for determining reliability of expert testimony in scientific questions)
    • Daubert sued Merrell for the birth defects of their children they claim resulted from ingesting Merrell’s medication for morning sickness, Bendectin. Merrell introduced a well credentialed physician who works with risks associated with chemical exposure. The physician claimed that he reviewed epidemiological (comparing human populations) data found in 30 studies about Bendectin or birth defects that did not show a link between Bendectin and birth defects. Plaintiff introduced 8 experts that concluded based on non-epidemiological data that there was a link (based on tests on animals). The court ruled the plaintiff’s evidence was inadmissible based on a prior, rigid Frye test of “general acceptance.”
    • Circuit court upheld the decision.
    • Crt: Liberal thrust of the federal rules of evidence call for a relaxing of the Fry test. FRoE 702 does not mention the Frye test. The test is one of reliablility, of which the factors are:
    • Has it been tested
    • subject to peer review
    • potential rate of error
    • generally accepted
  112. Daubert Test
    • Test of reliability of expert testimony in scientific questions
    • The test is one of reliablility, of which the factors are:
    • Has it been tested
    • subject to peer review
    • potential rate of error
    • generally accepted
  113. Kumho Tire Co. v. Carmichael (SCOTUS 1999) (Daubert extended to non-scientific experts)
    Crt: The Daubert test applies to all types of experts, but the factors of Daubert test are not exhaustive in determining the reliability of expert testimony. The experts testimony was based on methodology that was not reliable (not generally accepted, doubtable based on expert’s imprecise methodology, and the limited time under which he examined the tires). 
  114. Steps on analysis of expert testimony
    • 1.Does this testimony require an expert?
    • 2.What is the methodology that this expert is
    • using?
    • a.Daubert – applying scientific analysis – is that methodology reliable?
    • 3. How do I qualify the expert?
    • 4.What’s the scope of that expert’s testimony? What can he testify to?
  115. Mechanics of FRoE 702
    • Is the evidence coming in reliable?
    • IS the methodology used reliable?
    • Was the conclusion reached reasonable?
  116. How can otherwise inadmissible evidence be admitted if an expert relied upon it?
    FRoE 703 - probative value in helping jury evaluate the opinion substantially outweighs prejudicial effect
  117. When can an expert not give an opinion on an ultimate issue?
    • FRoE 704(b)
    • Criminal case- cannot testify to whether D did or did not have a mental state or condition that is an element of the crime charged or of a defense
  118. Seiler v Lucasfilm (9th Circ. 1986)
    • Best Evidence Rule (original document rule)
    • Seiler claimed copyright infringement over the use by Lucas of his “idea” for Imperial Walkers in the Empire Strikes Back.
    • Crt: the idea should have been written down, and it wasn’t. The idea would fall under the best evidence rule as a document, as the details of the supposed drawing would have mattered.
  119. US v. Rouse (8 Circ. 1997) 
    • Three child victims were too scared to testify in court in front of the defendant. The Court allows the interviews of the witnesses to be done via closed circuit television. The defense counsel was allowed to be in the room as well.
    • Crt: The children must be afraid of the defendant to be granted a special system.
  120. FRoE 611 Control by Courts over Examination of Witnesses
    • The court should exercise reasonable control over the mode and order of examining
    • witnesses and presenting evidence so as to:
    • (1) make those procedures effective for determining the truth;
    • (2) avoid wasting time; and
    • (3) protect witnesses from harassment or undue embarrassment.
  121. FRoE 611 Scope of Cross-Examination
    Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
  122. FRoE 611 Leading Questions
    • Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
    • (1) on cross-examination; and
    • (2)when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
  123. Definition: Current recollection refreshed
    where something is used to jog the memory of someone testifying, but the testimony is the evidence, not what is used to job the memory
  124. Definition: Past recollection recorded
    The witness in the past recorded the event for posterity. The note, not the testimony, is the evidence.
  125. FRoE 602 Need for Personal Knowledge
    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 a witness’s expert testimony under Rule 703.
  126. Kemp v Balboa (8 Circ. 1994) 
    • FRoE 602 - scope of personal knowledge
    • Nurse Maness testified that Mr. Kemp, a prisoner, did not pick up his medication. She based this off of her reading a medical chart, not her personal knowledge of Mr. Kemp’s actions. The documents were not introduced as evidence, just as documents that were used by the nurse to recall what happened. 
    • Crt: the nurse had no personal knowledge of Mr. Kemp’s actions, just what was written on the chart. She could testify as to what was on the chart, not what Mr. Kemp had done.
  127. FRoE 701 Opinion Testimony by Law Witness
    • 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 the witness’s testimony or to determining a fact in issue; and
    • (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
  128. Additional reliability factors listed in FRoE 702 advisory committee notes (additional to the Daubert/Kumho Tire Co. Tests)
    • Underlying research conducted independent of litigation?
    • Whether the expert unjustifiably extrapolated?
    • Whether the expert has accounted for obvious alternate explanations
    • Whether the expert was careful as she would be in her work outside litigation
  129. Appellate standard of review: Relevancy/character evidence?
    Abuse of discretion
  130. Appellate standard of review: trial court making factual determinations, usually when a case is tried to a judge and the court writes its opinion
    clearly erroneous
  131. Appellate standard of review: Legal question
    De novo
  132. Wheeling Pittsb. Steel Co. v. Beelman River Terminals inc. (8th Circ. 2001)
    • What are you an expert in?
    • Beelman is housing Wheeling’s steel. Flood- steel is damaged. Floods expert (not a warehouse expert) testified for Wheeling to what are good warehousing practices. Lower court allowed.
    • Crt: Abuse of discretion.
  133. The three questions to answer for FRoE 702
    • Is reliable evidence coming in?
    • Is the methodology used reliable?
    • Was the conclusion reached reasonable?
  134. FRoE 703- What can an expert base her opinion on?
    • Information that would otherwise be inadmissible
    • Facts or data in the case that the expert has been made aware of or observed
    • Don't have to have personal knowledge of the incident
  135. FRoE- when can inadmissible evidence relied upon by an expert be admitted?
    • To help the jury evaluate the opinion
    • ONLY: if the probative value substantially outweighs their prejudicial effect
  136. Alford v. US (SCOTUS 1931)
    • Alford is on trial in CA for mail fraud. Gov’t calls as witness former employee of Alford to help the prosecution on direct. During cross defense counsel asks the defendant where he currently lives (trying to elicit testimony that he was incarcerated).  He was blocked from doing so.
    • FRoE that Introduce Bias by reference 411- exception for bias from rule against using proof of insurance as evidence  
    • 801(d)(1)(B)- prior consistent statements admissible if offered to rebut an express or implied charge of recent fabrication, improper influence, or motive
    • 608(a)- advisory note mentions corruption
  137. FRoE 608(A)
    • Reputation or Opinion Witness
    • Can attack or support witness's credibility with
    • 1) testimony about witness's reputation for truthfulness 
    • 2) opinion testimony about character for truthfulness
    • Evidence of truthful character can only be introduced after the witness has been attacked
  138. FRoE 608(b)
    rule generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility. There are, however, two exceptions: (1) specific instances are provable when they have been the subject of criminal conviction, and (2) specific instances may be inquired into on cross-examination of the principal witness or of a witness giving an opinion of his character for truthfulness.
  139. Davis v. Alaska (SCOTUS 1974)
    • P convicted of burglary following trial in which the trial court issued a protective order prohibiting questioning Green, a key prosecution witness, concerning Green's adjudication as a juvenile delinquent relating to a burglary and his probation status at the time of the events as to which he was to testify. The trial court's order was based on state provisions protecting the anonymity of juvenile offenders. The Alaska Supreme Court affirmed.
    • Crt: P was denied his right of confrontation of witnesses under the Sixth and Fourteenth Amendments. Wide berth for cross-examination subjects.
  140. FRoE 609(a)(1)
    • You can attack a witness's character for truthfulness with prior criminal conviction if
    • the crime was a felony, but
    • subject to FRoE 403 in a civil case or criminal case where witness is not defendant
    • MUST be admitted if the probative value outweighs its prejudicial effect
  141. FRoE 609(a)(2)
    Evidence of a prior conviction for a crime of dishonesty must be admitted to be used to attack a witness's character for truthfulness 
  142. difference between character for truthfulness and bias
    • character for truthfulness: your personality in general
    • bias: your propensity to lie in a particular situation
  143. Someone three months before trial says “Dave
    killed Bob". Can that statement be admitted to prove that Dave killed Bob?
    No- because it’s being offered for the truth of the matter asserted.
  144. Someone three months before trial says “Davekilled Bob". Can it be offered to show that Dave knew Bob?
    Yes, as long as the judge gives jury instructions
  145. Can you use a financial report to show that a company made a $100 profit?
    • There is a hearsay issue
    • The document must be authenticated:
    • what is that document?
    • how do you know what that document is?
    • best evidence rule?
  146. Dave was asked if he killed Bob. He nods his head. Hearsay?
    Yes, his actions were offered for the truth of the matter asserted.
  147. Silver v NY Cent. R.R. (Mass 1952) (Cold Train
    • Woman has a circulatory disease and is left on a cold train without heat for hours. The RR proffered the testimony of the conductor who would have said that eleven others in the car did not complain. The trial court denied the proffer.
    • Crt: Error below- failure of people to complain did not present a hearsay issue because there is no assertion by anyone, just a recollection of the conductor as to a condition.
  148. US v. Summers (10 Circ. 2005) 
    (statements posited as questions can be assertions)Officer on the stand testifies that one of four suspected bank robbers got out of the car and said “How did you guys find us so fast?” Crt: The statement was made with an intended assertion, even though it was posited as a question. The witness was not merely interested in modern law enforcement techniques. The statement intimated both guilt and wonderment at the cops’ abilities.
  149. FRoE 801(d)
    • Statements that are not hearsay
    • Witness testifies and is subject to cross-examination about a prior statement and the statement is
    • (A) inconsistent with the declarant's testimony and was given under penalty or perjury or in a deposition
    • (B) consistent with the testimony and is used to rebut a charge of improper motive or to rehabilitate the declarant's credibility as a witness
    • (c) identifies a person as someone the witness perceived earlier (aka a line-up)
  150. Can a prior inconsistent statement be used to help the prosecution meet its burden of proof?
    No- only evidence admitted substantively helps the prosecution meet its burden of proof.
  151. Tome v. US (SCOTUS 1995)
    • FRoE 801(d) and bias
    • Child abuse case. Tome and mother are divorced with Tome having primary physical custody. On vacation, daughter tells mother that Tome abuses her. The defense said that she was motivated to lie because she wanted to live with her mother. Prosecution wanted to, and did, introduce testimony from other witnesses. The issues are 1) whether the statements she made about the abuse were made before the motive to lie arose, and 2) there must be a link between what is being offered and the rebuttal of the motive to lie.
    • SCOTUS: Issue 1- FRoE 801(d)(a) is a relevancy and a hearsay rule. They are only allowed to be heard if the temporal requirement of being stated/asserted prior to the moment where the alleged bias arose.
    • Issue 2- The exception to the hearsay rule means that the evidence is substantive, not just rebuttal – it can be admitted to prove the truth of the matter asserted.
  152. Crawford v. Washington (SCOTUS 2004)
    • Police want to play a tape of Crawford’s wife’s statement implicating him in a stabbing. Scalia: Police cannot offer that statement. The State hearsay law allowing the introduction of such evidence violated the Confrontation Clause.
    • Test: 1) is the statement testimonial (aka testimony under oath)? 2) was there any cross examination at the time? 3) is there cross examination at trial?
    • If you make a statement to the police without the chance for cross examination, and you are unavailable for testimony at trial, then use of the statement is barred because it violates the Confrontation Clause.
  153. Mechanics of recognizing a Crawford issue
    • Look for an out of court statement
    • Government is offering the statement
    • The statement is testimonial in nature
    • The person who gave the statement is not present in court (often domestic violence)
  154. Davis v Washington & Hammon v. Indiana (SCOTUS 2006)
    • Davis v. Washington
    • Police arrive within four minutes of a 911 call about domestic violence. The woman makes some statements to police. The prosecution wanted to bring in her statements to police and 911.
    • Crt: During a real time emergency, statements made are not testimonial and therefore the rule of Crawford does not apply – there is not a need for cross examination.
    • Hammon v. Indiana
    • Police arrive after a domestic dispute. The woman makes statements to the police. Her statements are admitted under the excited statements doctrine.
    • Crt: This was not an emergency situation. This was more akin to talking to the police during an investigation. She needed to be cross examined and did not fall under the excited statements doctrine.
  155. Excited statement doctrine
    • FRoE 803(2)
    • A statement relating to a startling event or condition made while the declarant was under the stress of excitement that it caused.
    • Davis v. Washington - 911 call is used
    • Hammon v. Indiana - wife statement to police after they arrived is not at the time of the event
  156. Present sense impression
    • FRoE 803(1)
    • A statment describing or explaining an event or condition made while or immediately after the declarant perceived it
    • Ex. a note describing a license plate (if it was authenticated as accurate at trial by the person who wrote it)
  157. FRoE 803(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.
  158. Mutual Life Ins. CO. v. Hillmon (SCOTUS 1892) (Hillmon Doctrine)
    • Hillmon is suing the insurance company for a policy on her deceased husband. Mutual said that they cannot positively identify the body and that a body that was found at Crooked Creek was of another man, Walters. Walters had written to his wife saying that he was going to Crooked Creek to meet Hillmon. The letter was being offered to show that Walters intent to go to Crooked Creek demonstrated his acting on the intent.
    • Crt: It showed his then-existing intent and was a valid exception to hearsay. ***Courts are divided on whether one party’s intent can be used to show third party actions.
  159. FRoE 803(6)
    • Business records exception
    • this interplays with the admission of a party opponent (A sues B and asks for B’s records. B’s records can be introduced without needing to use the “business records exception.)
  160. Shepard v. US (SCOTUS 1933) 
    • Poisoned wife - FRoE 804 (unavailable witness)
    • Shepard poisons his wife with mercury bromide. The wife slowly dies. Two weeks before her death, she asks her nurse to have her whiskey bottle tested because it smelled and tasted funny. She also told her nurse that she thought Shepard did so.
    • Crt: The woman had no personal knowledge of her husband poisoning her, and the speculative nature of her statement made its probative value heavily outweighed by its unfair prejudicial nature. The dying person “must have spoken with the consciousness of a swift and certain doom.”
  161. US v. Duenas (9th Circ. 2012)
    • FRoE 804 - similar motive requirement
    • After a two-day botched search warrant, Duenas is arrested and tried for drugs and stolen goods. Duenas’s statements incriminating himself were made during questionable interrogations. There was a suppression hearing, where Duenas argued that his statements were involuntary and the result of a failure to be provided a Miranda warning. He looses the suppression hearing, and in the meantime a police officer who interviewed Duenas dies. The State wants to introduce the officer’s prior testimony at the suppression hearing, saying there was a similar motive at a 804(b (1) testimony.
    • Crt: Error. The motives behind the suppression
    • hearing and the trial are different. 
  162. Williamson v. US (SCOTUS 1994)
    • Statement against interest - FRoE 804(b)
    • A man is stopped by police and, upon consenting to search of his car, is found with 19 lbs of coke. The man tells a DEA agent that he got the coke from a Cuban but it belonged to Williamson. The DEA sets him up to wear a wire to make a controlled drop, then he recants and says that he lied and that Williamson was in the car in front of him. The man refuses to testify at trial (making him unavailable). The State wants to use his prior statements to the police.
    • Crt: You can only use the self-inculpatory statement that exposes himself to criminal liability. You cannot use the corollary statements about the guilt of another person that are made during a general statement that includes self-inculpatory statement. Only those statements that are self-inculpatory can be extracted from general testimonial statements.
  163. 804(b)(3) Prison Paradigm situation
    Where a D wants to introduce a statement made to a witness by a third party that the third party admits to committing the crime D is on trial for.
  164. Trammel v. US (SCOTUS 1980)
    • Spousal privilege
    • Trammel is on trial with two others for trafficking drugs. His wife was getting a plea bargain and was trying to testify at trial. Trammel asked to be tried separately, saying that his communications with his wife are privileged. She is allowed to testify and he is convicted.
    • Crt: The adverse witness spouse alone has the privilege to testify or not. They cannot be either compelled or forclosed from testifying. Affirmed.
  165. Timing and spousal privilege
    • Must be married at the time of the confidential communication
    • Must be married at the time of trial to stop testimony at trial
  166. Swidler & Berlin v. US (SCOTUS 1998)
    • attorney-client privilege applies posthumously
    • Hamilton, attorney for Deputy White House Counsel Foster, interviewed Foster after Foster sought legal advice from Hamilton regarding false statements made to Congress. Hamilton took three pages of handwritten notes. Nine days later Foster committed suicide. Independent Counsel subpoenaed the pages of notes and Hamilton said they were protected from disclosure by both the attorney-client privilege and the work product doctrine.
    • Crt: The attorney-client privilege applies posthumously. Releasing such information, even posthumously, would chill the communications between client and attorney. 
  167. Upjohn Co. v. US (SCOTUS 1981)
    • attorney-client communications & Work product doctrine
    • Upjohn learned of overseas salespeople violated FCPA. The vice-president/counsel started an investigation into the matter: sent a questionnaire to lower level employees and told them to respond directly to him (confidentially).
    • IRS subpoenaed all of the records pertaining to the investigation. Upjohn refused and the enforcement action was started.
    • Crt: The communications were initiated by or sent to counsel, and they were done in preparation for litigation.
  168. P sues D for negligence, alleging that D’s motorcycle crashed into P when D was speeding in a residential area.  D pleads contributory negligence. P calls PW1 to testify that 'in her opinion, P is an extremely careful driver.
    • PW1 is giving a lay opinion - could a lay person know enough to give such an opinion?
    • FRoE 404(b) forbidden character propensity inference
  169. P sues D for negligence, alleging that D’s motorcycle crashed into P when D was speeding in a residential area.  D pleads contributory negligence. P calls PW1 to testify that 'D has had several accidents on his motorcycle'.
    • FRoE 404(b) forbidden character propensity inference
    • Specific instances of conduct are not allowable
  170. P sues D for negligence, alleging that D’s motorcycle crashed into P when D was speeding in a residential area.  D pleads contributory negligence. P calls PW1 to testify that 'she was walking in the neighborhood at the time of the accident and heard shouts from around the corner a few seconds before the collision, "look how fast D is driving that cycle!" This person cannot be found to testify.
    • FRoE 803 exceptions to hearsay issue.
    • Is it an excited utterance? Yes.
    • Is it a present sense impression? Yes.
  171. P sues D for negligence, alleging that D’s motorcycle crashed into P when D was speeding in a residential area.  D pleads contributory negligence. D's counsel asks PW1 on cross examination if she has been convicted of embezzlement.
    • FRoE 609 impeachment of a witness by challenging the witness's credibility
    • 3rd balancing test of FRoE (crimes of deceit) says 'the evidence must be admitted'
  172. P sues D for negligence, alleging that D’s motorcycle crashed into P when D was speeding in a residential area.  D pleads contributory negligence. D's counsel asks PW1 on cross examination if P owes her $300,000
    • Asking a question to discover bias. 
    • Is it relevant under FRoE 401?
  173. P sues D for negligence, alleging that D’s motorcycle crashed into P when D was speeding in a residential area.  D pleads contributory negligence. D's counsel asks PW1 on cross examination if P owes her $300,000, and asks her whether she has been convicted of embezzlement. She says no to both. D wants to offer a witness and documents to demonstrate that PW1 is lying
    • Extrinsic evidence rule issue
    • You can do it for embezzelment, as the matter is about the truthfulness of the witness
    • You cannot for $300,000 because it is about bias and not character for truthfulness
  174. P sues D for negligence, alleging that D’s motorcycle crashed into P when D was speeding in a residential area.  D pleads contributory negligence. P wants to call an auto mechanic who will testify that D got his motorcycle checked the day before the accident and AM told him "your throttle gets stuck at high speeds."
    • Hearsay issue, but is it for the truth of the matter asserted? Yes.
    • Is there an exception? Yes, it shows notice to D about his motorcycle.
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Federal Rules of Evidence 2014
2014-12-07 03:28:07
evidence federal rules

Federal Rules of Evidence with cases
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