- Carter - Fall... · Web viewThe appearance, content, substance, internal patterns, or distinctive...
Transcript of - Carter - Fall... · Web viewThe appearance, content, substance, internal patterns, or distinctive...
Evidence Outline – Carter – Fall 2011
I. Introduction and Basics: Evidence Law System
A. Policy: Why Do We Have Rules of Evidence:
(1) Mistrust of Juries
Although we rely on juries, a general mistrust exists
Evidence law is generally a screening function of the Judge
We believe that some evidence may not be weighed accurately by the jury, so judge screens to determine adequacy of evidence and whether a jury could appropriately judge the evidence
(2) Ensure Accurate Fact-Finding
Many of the rules of evidence help to bolster the accuracy of facts
Thus, along with the fear that a jury cannot be trusted, we want the jury to evaluate accurate facts
(3) Pragmatism
Rules control the amount of evidence, scope of evidence
This ensures: quick, accurate, and cost-effective, not overly duplicative
These are embodied in FRE 102, infra
B. History and the Federal Rules of Evidence General Provisions:
General:
California was the first state to attempt to codify evidence rules
Prior to, evidence rules existed at common law
Federal Rules followed, first adopted in 1975
Proposed by advisory committee appointed by the Supreme Court
Transmitted to Congress pursuant to the Rules Enabling Act
Thus, if not amended by Congress They become law after 90 days of inaction
Were amended
Purpose:
Accessibility is the main reason
All rules are in a short, concise 63 rule-book
FRE 102: Purpose:
Rules shall be construed so as to:
1. Create Fair proceeding
2. Eliminate unjustifiable expense and delay
3. Promote development of evidence law
4. In order to ascertain truth and secure justice
Note:
This is a fall back objection to get rule construed in your favor
General Provisions:
FRE 101: Scope of Application:
1101(a) Rules apply to those Courts listed:
1. US District Courts
2. US Bankruptcy Courts and Magistrate Judges
3. US Court of Appeals
4. US Court of Federal Claims
5. District Courts of the Territories
1101(b) The Rules apply to:
Civil Cases and Proceedings, admiralty and maritime cases
Criminal cases and proceedings
Contempt proceedings
Bankruptcy proceedings
1101 (c): Privilege
Privilege rules apply to all stages of a case or proceeding
Note:
So, although FRE may not always apply, privilege portions do
The Super Objection
1101 (d) The FRE do not apply to (except for privilege):
1. 104 Preliminary Questions of Fact
2. Grand Jury
3. Miscellaneous Proceedings listed***
C. What Occurs at Trial:
1. The Beginning
A. Civil
Civil Complaint: Explains what was alleged to have occurred
B. Criminal
1. Indictment:
Grand Jury gets to, in secret, evaluate evidence presented to it to determine whether enough evidence to indict suspect
Not adversarial
∆ does not present evidence
2. Or, Criminal Complaint/Information Statement
Explains what alleged to have occurred
Preliminary Hearing
This hearing follows to determine if probable cause exists
Witnesses are called
∆ may utilize evidence (but may not to avoid exposing arguments to π)
2. Pre-Jury Selection Motions:
A. Civil
Discovery and motion practice occurs
B. Criminal
Some type of discovery occurs (jurisdictionally dependant)
Evidence is collected and cataloged
Motions occur
3. Jury Selection
Generally:
At this point and trial, differences between the civil and criminal systems converge
Differences are minor
“Voire Dire”
Each side gets to question potential jurors, assessing their ability to beneficially decide the case
Judge may also question
Each Side May Challenge:
A. Challenge for Cause
Judge must determine if “cause” has been determined
EG: prejudiced/related
B. Peremptory Challenge
Each side is given a limited number of exclusions without cause/for any reason
Note:
Some courts have held that race cannot be a factor
4. Trial begins:
A. Opening Statement
Puts together a theme of the case, and explains what the evidence will show and what they will prove
B. Presentation of Proof
1. Case in Chief of Each Party Begins
A. Plaintiff/Prosecutor Presents Case-In-Chief by calling witnesses
Direct Examination:
Testimony elicited
Demonstrative evidence sponsored, objected to, and admitted/denied
∆ Cross-Examines
π Re-Direct
B. Defendant Presents its Case in Chief
Π Cross-Examines
∆ Re-Direct
C. Plaintiff’s Rebuttal
∆ Cross-Examines
π Re-Direct on Rebuttal
Note:
The Scope of Direct Rule applies
The party presenting their case-in-chief gets to determine the order, sequence, and subjects they present
The party with the burden of proof always begins and ends
During Case-In-Chief: Introduction of Evidence:
Party presenting the evidence:
1. Introduces it
Lays foundation for evidence
Sponsoring Witness to admit the evidence
Authenticates the Evidence
2. Offer to Admit Evidence as Exhibit
3. Objection to Evidence Occurs
Note:
If you fail to object to evidence, you waive the right to and do not preserve for appeal
4. Offer of Proof
Note:
If you fail to make an offer of proof, you waive the right to and do not preserve for appeal
5. Ruling
5. Trial Motions:
Parties Motion the Court for judgment
Parties may desire to have case taken away from jury
Directed Verdict
This is rare as it removes from jury
Subject to easier reversal on appeal
6. Closing Arguments
Order:
(1) Plaintiff
(2) Defendant
(3) Plaintiff’s Rebuttal
7. Jury Instructions:
Generally:
Parties submit, object to and argue to the instruction
Two Special Types:
1. Curative Instruction
May occur during trial, after objection is sustained, or at end of trial
Instructs the jury to ignore certain evidence
2. Limiting Instruction
Instructs the jury on how certain evidence may be considered or applied to one point and not another
FRE 105: The Judge may be requested to give a limiting instruction
8. Deliberations, Verdict, Judgment, and Post-Trial Motions
Generally
Time for appeal begins to run
Post Trial Motions:
Losing Parties typically move for:
Judgment as a Matter of Law/Judgment Notwithstanding the Verdict
9. Appellate Review:
Generally:
A “Final” judgment must occur before appeal is granted
Preservation of Claim of Error:
To get Full Review:
Parties must have stated the position to the trial court, objecting/making offering of proof
D. Making the Record:
1. Generally:
The record, recorded by a stenographer or computer, is used to present a case to the judge and jury in the trial court and also a potential appellate court on review
The Only Consideration of the Appeals Court
It is extremely important, as it is a permanent writing of what is said and done at trial
Attorneys should get into the record, as clearly as possible, their case and what occurred at trial then, in preparation for potential appellate review
Get Evidence in
Show your attempt to get evidence in with (1) Objection or (2) Offer of Proof
2. A Record is Composed of:
A. Pleadings
B. Filed Documents
Motions, briefs, discovery, jury instructions
C. Record of Proceedings
the written account of what transpires during the trial
Note:
The most important to appellate review regarding evidence
Questions, responses/testimony, objections and rulings by the trial judge
Side-Bar discussions
D. Physical Exhibits
E. Docket Entries
A dated, chronological version of everything that happened from beginning to end of the action
3. Issues in Making the Record: What to do and what not to do
A. What to Avoid:
Repeating Answers of Witnesses
Interrupting the Witness
Failing to explain numbers mentioned clearly as to what they mean
Failing to Explain who a name corresponds to/spelling
Which evidence is being referred to
Non-verbal references should be explained
B. What to Do:
Assure that what is in the record is
(1) Clear, and
(2) Meaningful when evaluated by a potential Court of Appeals
Be Aware of the Reporter
Remember that someone is typing what occurs
Be as clear as needed to ensure the reporter can get what occurs on paper
E. The Admission or Exclusion of Evidence:
1. Getting Evidence In:
A. Testimony from Direct Examination
Generally:
When an attorney is questioning a witness, 3 things are done
1. Background Information:
Basic Questions that ease the witness, and presents to jury in positive light
2. Foundation of Testimony:
Shows witness has personal knowledge of the information (meeting FRE 602)
Authenticates Evidence
Background to adequately testify to the information
EG: at the scene, or expertise as an “expert witness”
3. Substantive Testimony:
Testifies as to knowledge of the pertinent facts
Form of Questioning-FRE 611:
A. Judge Has Control Over the Interrogation of Witnesses/Court- FRE 611(a):
Court may exercise reasonable control over mode/order of questioning to
1. Make procedure effective to determine truth
2. Avoid wasting time, and
3. Protect witness from harassment/embarrassment
Note:
The judge has inherent authority to control court room subject to the lawyers right to represent his client
B. Leading Questions on Direct Examination Are Restricted FRE 611(c):
Leading Questions should not be used in direct examination except as necessary to develop witness’s testimony
EG: child who is shy, etc… may be able to use leading questions
Permitted When:
(1) Hostile Witness
A party whom you thought would testify to benefit you, but turns on the stand
You may ask leading questions
(2) Adverse Party
The party against whom you are bringing the case
(3) Affiliate of Adverse Party
If relationship to an adverse party, you may
EG: Spouse, mother, brother
B. Testimony from Cross-Examination
Generally:
In this instance, the party cross-examining seeks to control the witness to extract the truth
Form of Questioning- FRE 611:
A. Leading Questions are Permitted- 611(c)
In cross-examination, leading questions are permitted
Policy:
Narrows the inquiry
Invokes the memory to dislodge previous questioning’s track
Exposes inaccuracies in memory
Focuses attention on important details
B. The “Scope of the Direct” Rule- 611(b)
General Rule:
On subsequent-examination, the questioning is limited to the scope of the matters addressed and explored in the previous examination
This limits the ability of the party to interrupt the case-in-chief
Thus:
Cross-Examination is limited to scope of Direct
Re-direct is limited to scope of Cross
Re-cross is limited to scope of Re-direct
Note:
As each subsequent questioning occurs, the issues get narrower and narrower until parties have had enough or judge ends
2 Exceptions—611(b):
Limited to Scope of previous examination, unless
1. “Credibility” issues/impeachment are always permitted
2. Judge has discretion to allow inquiry beyond the scope of direct
Note:
The issue becomes what the “scope” of the previous examination was
Characterizing as broader or narrower will lead to how questions may be phrased
C. Real and Demonstrative Evidence:
Real:
Tangible things directly involved in litigation
Note:
Evidence does not require “production”, but instead, testimony may establish real evidence
Demonstrative:
Tangible proof that in some way makes a graphic of the point to be proven
EG: diagrams, maps, photographs
FRE 901 Authentication Requirement:
Evidence must be proven to be what the proponent says it is
2. Keeping Evidence Out:
A. Motion in Limine:
Generally:
When a party anticipates that evidence will be objected to, or that evidence will be significantly contested, may wish to obtain a ruling in advance of the matter
Motion in Limine is the appropriate tool
EG:
Motion to Suppress is most common version
Daubert hearing
Note:
If the motion is denied, there is not need to later object to preserve an appeal
103(a)
Judge may alter ruling, depending on how trial plays out—Motion ruling is not dispositive
B. The Introduction of Evidence, Objection, and Offer of Proof:
Generally:
FRE 103 defines how to each side must properly preserve claims of error and get evidence in or keep it out
Once evidence has been introduced, these follow
1. The Objection:
Purpose:
1. Keeps evidence out
2. Preserves right of appeal if Meets 103 Requirements, and admitted
Requirements:
103(a)1(A): A party may claim error in a ruling if it affects substantial right and
1. Timely Objects/Motions to Strike
Generally:
This means that, at the earliest reasonable opportunity, the party objects to the evidence admitted
If it occurs after a witnesses’ answer, it becomes a ‘motion to strike’
2. States the Specific Ground (unless apparent)
Generally:
You must state the reason you are objecting and specifically what you are objecting to
Types of Grounds:
A. Specific/Substantive:
Rest on a particular exclusionary principle in FRE
B. Formal Objection:
Focuses on the manner of questioning
Tactical usage to break cadence, delay, or obstruct momentum
Types:
1. Asked and Answered: the question has already been asked and answered and questioner is seeking different response
2. Assumes Facts not in Evidence: information in question should be supported by evidence already admitted
3. Argumentative: Being rude, sarcastic with witness not permitted, court may step in per FRE 611(a)
4. Leading Question: Counsel is telling witness what to answer
5. Misleading: Question may misstate evidence
6. Speculation: If too guess-work of an answer
7. Narrative: If question calls for broad response, and opposing lawyer believes that answer may have objectionable things inside
8. Ambiguous, Uncertain, and Unintelligable: Points out flaw in question that record cannot capture or question is confusing and cannot be understood
C. General Objection:
EG:
“Objection” or “Irrelevant, Incompetent, Immaterial”
Useful in that, if objection is obvious, court may understand
Or, if attorney believes something is wrong but cannot put his finger on it, this will give him time to think
Effect on Appeal:
If Overruled: Does not preserve the right to appeal
If Sustained: Will preserve right if there are any grounds which support it
2. The Offer of Proof:
Purpose:
1. Opportunity to convince judge evidence is admissible following objecting
2. Preserves right to appeal on the matter if excluded
Requirements:
103(a)(2): If a ruling excludes evidence, party informs the court of the evidence’s substance with an “offer of proof”
To Do:
Present evidence, and then be prepared to explain its specific purpose to the trial judge, arguing what would have been said
A. By Attorney: Attorney may explain what would have occurred
B. By Witness: 103(c): May Question Witness to Offer Proof
Offer of proof may be presented in a “question and answer” form
This means that, party may have witness on the stand and ask questions which seek to show the purpose of the offer
Effect:
Questioning witness preserves issue on the record for Court of appeals to see what evidence would have been
103(d): Must Prevent Jury From hearing Inadmissible Evidence:
When offering proof, either by attorney, or questioning witness, jury should leave
To the extent possible, the Court should conduct a trial so that inadmissible evidence is not shown to jury in any means
Therefore:
If Q&A of witness, parties may ask jury to leave
Lawyer’s Responsibility
3. 103(e), Plain Error, and Preservation for Appeal:
Generally:
It is required that an objection and/or offer of proof occur to preserve an issue on appeal
However, if these do not occur, 103(e) provides for relief
103(e) Plain Error
A court may take notice of a plain error affecting a substantial right despite not being properly preserved
Note:
See discussion, infra, on appeals
C. Judicial Mini-Hearings of 104 Preliminary Questions:
Generally:
The Role of the judge is to provide a screening function for evidence, and to judge the parties’ contentions about evidence
Therefore, when evidence is offered, objected to, and offer of proof occurs, the judge must rule on these issues
These objections and offers of proof create ad-hoc mini-evidentiary hearings
104(a):
The Judge must decide any preliminary question of
(1) witness qualification
(2) privilege, or
(3) whether evidence is admissible
Judge is not bound by rules of evidence:
Therefore, although a jury can only hear admissible evidence, a judge may consider any and all considerations when ruling on a piece of evidence
104(b) Conditional Relevancy:
When judge is considering evidence, and it depends on some fact being fulfilled the Judge may admit it conditionally
Evidence is then admitted on, or subject to introduction of evidence that supports the condition precedent
104(c) Preliminary Question must be Conducted Outside of Jury’s Hearing if:
1. Involves admissibility of confession
2. Defendant in criminal case is witness and requests jury not be present
3. Justice so Requires
104(d) Testimony by Criminal Defendant:
If a criminal defendant testifies on a preliminary question, he does not become subject to cross-examination
EG:
If there is an evidentiary issue of privilege, the criminal defendant can testify to show when privilege attached
This does not waive 5th amendment
104(e):
Even if evidence is admitted by the judge, parties may still argue that credibility of it to the jury
F. Witnesses and Rules Dealing with Them:
Generally:
A large portion of the trial process
Special rules govern
1. FRE 601: Witness Competency
Every Person is deemed competent to be a witness, unless the rules provide otherwise
2. FRE 602: Personal Knowledge Requirement
A witness may testify to a matter only if the witness has personal knowledge about it
To prove personal knowledge—witnesses own testimony may occur
EG:
Laying “Foundation” in testimony is meeting FRE 602
3. FRE 603: Oath or Affirmation to Testify Truthfully:
A witness must give an oath or affirmation to testify truthfully before testifying
It should be such that it impresses upon the witness this duty
4. FRE 604: Use of an Interpreter:
Must be
1. Qualified
2. Give oath or affirmation to be truthful
5. FRE 605: Judges May Not Be Witnesses:
Presiding judge may not testify as a witness
Party need not object to preserve this
6. FRE 606: Juror May Not Be Witnesses:
A Juror may not testify as a witness
If called, adverse party must have opportunity to object outside of jury’s presence
However, a Juror may testify about:
1. Whether extraneous prejudicial information was used by jury
2. Outside influence was improperly used
3. Mistake made in entering verdict on verdict form
G. Appealing from Evidential Error:
1. Requirements of Appeal:
1. Must show there was an Error
2. Show it affected a “substantial right.” (I.E., it was reversible) per FRE 103
Affecting a “Substantial Right”
In general, there is a need to distinguish between errors that were harmless and those that are reversible
If it is reversible, it effected a substantial right
Reversible:
“Probably did effect judgment/outcome/result and was preserved”
Harmless:
“Probably did not effect judgment/outcome/result”
Mistake May Be Harmless If:
1. Cumulative Evidence/Overwhelming Evidence: Although yes, there was an erorr admitting/excluding, there was so much other evidence, a jury would have come out the same way or the other evidence supports the judgment
2. Curative Instruction Given: May avoid reversal with a curative instruction
3. Have Adequately Preserved it (Via Objection or Offer of Proof)
2. Plain Error: FRE 103 (e):
Even if an evidential error has not been properly reserved, the parties may still seek review under plain error
Must be a clearly obvious mistake of admission/exclusion Rare
3. Standard of Review on Appeal:
Generally:
In evidentiary matters, 104 issues are generally within the broad discretion of the trial judge and rarely overturned
Standard:
1. Abuse of Discretion or
2. Clear Error/Clearly Erroneous
Basically:
Reversal will rarely occur, and appellate courts want to affirm
4. Common Issues Affecting Appeal:
1. Failure to Preserve
You must (1) Object or (2) Offer Proof in order to preserve you right to appeal the issue
If you do not You waive the right (subject to plain error which is rare)
2. Appellate Courts Find a Ground Typically
Even if a judge ruled incorrectly on an objection/offer, if another unmentioned ground exists which supports the judge’s ruling it will be sustained
II. The Authentication Requirement
Generally:
Prior to the admission of evidence, it must be shown that it is what it is being said to be
This process is the “authentication” of the evidence
Applies to All Evidence:
Tangible evidence (I.E., a gun)
Testimony (although to a lesser extent, through the “personal knowledge” requirement of FRE 602)
Note the Two stages of Authentication of Evidence:
1. A Preliminary 104 Question of Whether Evidence is Admissible:
This is what we undertake here
A question for the Judge
Screening Function of the Court
Decision of whether the evidence is sufficient to show to a jury
Whether there is enough that a jury could decide evidence to be authentic
Possible Results:
1. If proponent offers inadequate authentication Excluded
2. If proponent offer adequate authentication Included, allowing jury to decide
2. Jury’s Decision of Whether it is Authentic
A Question of whether the jury believes you’ve met your Burden of Proof
A. Laying a Foundation /Authenticating Evidence:
Generally:
Foundation is essentially how you authenticate
The process by which you prove the thing is authentic
Traditionally, 7 steps occur to lay a foundation and authenticate evidence
1. Court reporter marks an exhibit for identification
2. Offering testimony identifying or describing the exhibit
Sponsoring Witness
This is where authentication occurs
3. Offer of Exhibit Into Evidence
4. Opposing Counsel’s Examination
5. Objections
6. Ruling
7. Asking Permission to present the exhibit
Note:
Prior to getting evidence authenticated and admitted, do not allow the jury to see substance of evidence
May be reversible error as jury may have seen inadmissible evidence
B. The Standard of Authentication- FRE 901:
901(a)
To authenticate, the proponent must:
“Produce evidence sufficient to support a finding that the item is what proponent claims it is”
Sufficiency is required ( A very easy standard to meet)
Evalute:
(1) What are you claiming the evidence is
(2) Is it that?
EG:
“This is the knife that killed him,” or “This is a knife that resembles,” or “this is a knife of equal size and weight”
Depending on what you claim it is, the sufficiency of evidence may change
901(b)
Enumerates examples that satisfy the 901(a) sufficiency requirement
1. Testimony of a Witness with knowledge of what item is
EG: The baby in the jar presented is the one from hospital
Use custodian, or chain of custody
2. Non-Expert Opinion about handwriting
EG: mother or friend is familiar with it
3. Expert Comparison
4. Distinctive Characteristics
The appearance, content, substance, internal patterns, or distinctive characteristics of the item taken together
5. Opinion about a voice from testimony as to who it is
If you’ve heard before even once or twice (There is no clear limit to giving opinion)
6. Evidence about Telephone Call
Call made to a number associated with person showing person was one answering
8. Ancient Documents
9. Evidence about a process or system
Showing a process or system is accurate
C. Specific Types of Evidence and Their Authentication:
1. Tangible Objects:
US v. Johnson:
F: At trial, ax was offered into evidence as the weapon via testimony by witness who was a bit hesitant. Johnson objected that there was not sufficient authentication to show this was the ax
R:
1. The “Sufficiency Standard” is satisfied on a prima facie case:
The witness was “pretty sure” it was the ax
He had used it before
He had seen it before
Adequate to admit evidence to jury, who was then free to reject
The “Chain of Custody Rule”:
Rule:
One may account for where evidence has been from its seizure until its presentation at trial
Demonstrating each chain in the link of custody
A sufficient method of meeting authenticating requirement
However Not Required
If Chain of Custody Cannot Be Demonstrated:
Typical Authentication must occur meeting “sufficiency” standard
US v. Howard-Arias (where marijuana seized, but not all of chain of custody established prior to admission at trial):
Evidence must be sufficient to “convince court it is improbable that evidence is not the original item and has not been tampered with”
Missing Links and gaps are ok, as long as “sufficiency” of 901 met
2. Writings:
Generally:
Writings may pose unique issues if they are being claimed to be from a particular party
Issues of how exactly you demonstrate a letter came from party A, rather than an imposter are difficult
A. Factors that May Lead to Document being Authenticated as Coming from a Specific Party- US v. Bagaric:
F: letter presented at trial, stating it was letter from the ∆ to someone regarding drug sale. Objection to authentication
R:
Post-marked from where ∆ resided
Signed with ∆’s known alias
Referred to other ∆’s in the letter
Referenced friends of the ∆
901(b) 4:
Distinctive characteristics of the content
Adequate to meet 901(a) sufficiency requirement
B. Stylistic and Characteristics in Writing:
Stylistic, and characteristics in writing may be used to authenticate a letter per 901(b)4
EG:
Spelling mistakes known of the party may authenticate
Use of letterhead may be, along with other evidence, authenticating
Recognition of Handwriting per 901(b)
Note:
If proponent claims it came from a party, there is an issue of authenticating that it did and avoiding claims that someone else wrote it
C. E-Mail:
Generally:
Same issues arise as with a letter
How exactly do we know the e-mail, although from A’s address was sent by A
Factors to Consider:
1. Substance and Characteristics per 901(b)4
Facts only party knows about?
Writing Styles?
2. Address (password to utilize the address, only known to one or few)
3. “Reply Doctrine”
Writing may be authenticated by showing it was in reply to an earlier communication to that person
Overall:
Remember the issues is one of the sufficiency of presenting it to a Jury
Convincing a Jury that the e-mail was, in fact from A, is different issue
3. Tape Recordings:
US v. Oslund:
F: Tapes were used by prosecutor to assist in conviction. ∆ challenges the authentication of the tapes.
R:
1. McMillan Factors May Be Evaluated in Determining Authenticity of Tapes:
1. Device Capable of Recording
2. Operator was competent to operate
3. Recording is correct and authentic
4. Changes, additions, deletions have not occurred
5. Recording has been preserved in the manner shown to court
6. Speakers are identified
7. Conversation was voluntary and not induced
Note:
Although dated with the advent of new improved recording technology, these are helpful guidelines to evaluate in totality of circumstances
Not Required
2. Process and System May be Authenticated
If the participants don’t testify, reliance on 901(b)5 may be appropriate
3. Use of Parties Involved
Officer in charged authenticated
Identified Speaker
Was fully responsible for tape when finished
4. Gaps in Tapes Do Not Go to Admissibility—They Go to Weight Of Evidence
If there are gaps in the tapes, they do not effect “authentication” of admission
901(b)5: Hearing Voice:
Note that a party could identify a speaker in a tape, bolstering authenticity if they have heard the voice before potentially
4. Telephone Conversations:
Generally:
Like letters and e-mails, determining whether a phone call from a number is in fact the person who the number is attributed to may not be as easy as it appears
901(b)5 (recognition of voice) and 901(b)6 (number associated with party), together, may be enough
Caller Self Identification Insufficient—US v. Pool:
R:
A telephone call from a number, identifying caller as X may not, alone, be sufficient to authenticate the party as coming from X
More is Needed:
Recognition of Voice from familiarity
Even hearing once or twice before is enough
Recording
Style, Characteristics of Content.
But, that alone is not sufficient to “authenticate” per 901
D. Self Authenticating Evidence- FRE 902:
Generally:
Some evidence does not require authentication, and alone, will be considered admissible
Opponent may still reject authenticity:
Gets a 104 Preliminary Question hearing to check if authentic
However, the proponent has no initial burden to prove authenticity
902:
1. Public Documents that are signed and have a seal/crest of some public jurisdiction (US, State, etc…)
5. Official Publications: Book, pamphlet from a public authority (E.G. The Census or Budget)
6. Newspapers and Periodicals (E.G. The Wall Street Journal)
7. Trade Inscriptions: If affixed in the course of business, presumed authentic (E.G. Mountain Dew Bottle does not need to be authenticated as Mountain Due)
8. Commercial Paper
III. Relevancy
A. The Broad Relevance Standard-FRE 401:
1. 401 Standard:
Evidence is relevant if: “It has any tendency to make more/less probable the existence of a fact that is of consequence to action”
402:
Relevant Evidence is admissible unless:
Constitution
Federal Statute
Federal Rules of Evidence
or Court Rules say Not
Irrelevant evidence is inadmissible
Note:
This is where the “objection” to irrelevant evidence lies
2. Tendency Defined:
The standard is extremely broad, sweeping most items into the relevant ambit
Leans toward admissibility of evidence
Most evidence is “Logically Relevant” and will be admitted
Generally:
if it “adds to” or makes something even a small amount more or less probable Relevant
3. Examples of Relevant Evidence:
A. Efforts to Avoid Capture:
Generally, fleeing from police is relevant evidence “tending to establish guilt.”
However, it may be insufficient to prove guilt
Note:
Flight may be predicated on knowing one is being chased/investigated
This may lead to a FRE 104(b) Contingent Evidence Requirement
B. Use of a False Identification
C. Destroying or Concealing Evidence
D. Killing/Threatening Witnesses
E. Escape from Prison
F. Murder Weapon
B. Limitations on Relevant Evidence
1. General:
However, even though most evidence is “logically relevant,” it may not be admissible
Thus, although FRE 401 broadly admits even slightly probative evidence, other rules restrict the use of relevant evidence
Rule 403 Limits the expansive scope of relevance
Evidence will be “relevant but inadmissible”
2. FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Duplicative Nature, Waste of Time
A judge may exclude relevant evidence if:
Probative value is substantially outweighed by danger of:
1. Unfair Prejudice to the truth
2. Confusion to the Jury of the issues
3. Misleading Jury
4. Undue Delay or waste of time
5. Cumulative evidence
Note:
So, the danger or prejudice must be > the probative value
Standard still leans towards admissibility
Determining the Probative Value depends on the “Offer of Proof”:
The “purpose of the offer of proof” will determine the weight given to the probative value
Why something is introduced/purpose of the offer may:
Increase the probative value of the evidence offered or
Decrease the probative value of the evidence offered
Applied:
If The purpose of the offer is to prove something already stipulated to, proven, then the weight of the probative value will not be significant
Therefore, the weight of the danger will not have to be as high
If the purpose of the offer is to prove a contested issue, issue of great importance to the case, the weight of the probative value will be higher
Thus, the weight of the danger will have to be extremely high
3. Application of 403- State v. Chappele (AZ 1983):
F: ∆ was accused of killing victim, but claimed to have been in another state at the time. Two witnesses, placed ∆ at the scene identifying him as the killer, who later confessed to them of the crime. At the trial, photographs of the dead body were shown in gruesome detail to the jury. ∆ only contested his being there, and stipulated to the dead body, means of death.
Objection: ∆ argues that photos were prejudicial per 403, and relevant but inadmissible.
R:
1. Photographs of a Corpse are Relevant When:
1. To prove corpus delicti (concrete evidence)
2. Identify the Victim
3. Show the nature and location of fatal injury
4. Help determine the degree of atrocity of the crime
5. Corroborate evidence of state witnesses
6. Illustrate testimony
7. Corroborate state’s theory of how and why homicide occurred
2. To determine the probative value of the photos, determine the offer of proof:
If state is offering relevant evidence regarding a contested issuemore probative
If not contested, stipulated to, not at issue in case far less probative
3. Probative Value is Substantially Outweighed by the Dangers in 403:
The evidence is relevant, but the probative value is essentially “zero”
The issues the photographs were offered for are not contested, but stipulated to
The issue is where the ∆ was, which the photographs do not help contest
Thus, Relevant Evidence of little probative value
Substantially Outweighed by prejudicial, duplicative nature?
The photographs are gruesome, have been stipulated to so are duplicative
Used to inflame the jury, and outweigh the probative value of them
Note:
State had a weak case and threw in gruesome photos to inflame jury, most likely
Limiting Instruction was not enough to cure inadmissibility
Relevant but, probative value substantially outweighed by 403 dangers
4. What is Prejudicial, Cumulative, Misleading?
Modernly:
Courts may be more willing to let evidence in
Juries are desensitized to many images and things, and may not be as big an issue
Note:
New York is not as restrictive May be more inclined to admit
Prejudicial Includes:
Race, Sex, Gruesome Photographs, effect of a bloody murder weapon,etc…
Tactics:
Typically, Defense will stipulate to evidence so that it is not contested
Therefore, will argue that the probative value of evidence is far less than danger of 403
However, Judge will need to make the call and the purpose of the offer will greatly effect if it is admissible
Note that a trial does not have to be sterile:
Trial does not have to be “Sterile” and many times such evidence will be admitted
403 merely polices the danger of juries being tricked/confused from important issues
Therefore, not excluded merely because gruesome
But may be if probative worth is minimal
Modification of evidence/pictures will lead to “misleading” jury
EG:
Autopsy Photographs mislead jury, as it occurred after event
C. Problem 2-B:
Probably relevant given broad 401, but may be contingently relevant on where coming from 104(b)
Also, 403 may be issue of prejudicial effect if boy, black/white
However, may not substantially outweigh probative valuebe careful in use
IV. Judicial Notice:
Generally:
Judicial notice is the process by which a court determines certain things without a need for formal proof/evidence
Facts of concern are those that would have gone to the jury to weigh
A. Adjudicative Facts:
FRE 201 and Judicial notice is largely concerned with adjudicative facts
Facts that normally would be heard by a jury, and would have to be proven by evidence
Therefore, taking judicial notice substitutes evidence and relieves party of burden to produce
More Efficient Trial Process
EG: What day of the week a date was, what was on tv at a specific time, the weather on a specific date
B. FRE 201- Standard of Judicial Notice:
FRE 201(b): A court may judicially notice a fact
1. That is not subject to reasonable dispute because
A. it is generally known within the jurisdiction or
B. Can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned
FRE 201(c):
At any stage of the proceeding a Court:
1. May take Judicial Notice on its own or
2. Must take it if a party requests and the court is supplied with necessary information
Note:
Subject to US v. Jones, infra.
FRE 201(d):
A party is entitled to be heard regarding judicial notice and nature of the noticed fact
Note:
Thus, even if court takes judicial notice, you may still argue to the contrary and have an opportunity to be heard
C. Judicial Notice in a Criminal Case versus Civil Case:
FRE 201(e):
Instructing a jury regarding judicial notice
1. Civil Trial:
A jury must accept the noticed fact as conclusive
2 Criminal Trial:
A jury may or may not accept the noticed fact as conclusive
Distinctions:
In Civil case, judicial notice may occur after the fact at the appellate level-FRE 201(c); (e).
However, not in a Criminal Case-FRE 201(e)
US v. Jones (6th Cir. 1978):
F: After ∆’s conviction, ∆ motioned for acquittal on grounds that π failed to prove that ∆ acted within the definition of the federal statute violated. To save conviction, Prosecution appealed seeking Judicial Notice of the Fact.
R:
1. At the Appellate Level in a Criminal Case, Judicial Notice may not Occur:
Congress was concerned with the trial by jury and constitutional right
Jury has large discretion in criminal trial—6th amendment
Therefore, if Appellate Court in criminal case took judicial notice, it would bypass FRE 201(e), as jury would not have had the ability to or to not consider noticed fact
V. The Best Evidence Doctrine:
General:
There is no obligation for parties to produce the “best evidence” they have—this is a misnomer
Litigants are free to choose whatever evidence they feel is appropriate and necessary for their case
Instead, “The Best Evidence Doctrine” is an evidentiary requirement to protect from in certain evidence
A. The Doctrine-FRE 1002-1006:
1. FRE 1002: The Best Evidence Rule
To prove the content of a writing, photograph, or recording, the original is required unless statute provides otherwise
Doctrine applies when:
1. Writing, Photograph, or Recording
2. When content is being proved
Note:
If you are proving something else, other than the content does not apply
Does not merely apply because writing, photo, or recording exist
Policy Reasons:
1. Safeguards against forgery and errors in summary of contents
2. Helps revolve authenticity disputes
ensures the document, photo, recording says or shows what you are describing
3. Premised on common law, where modern copying methods were not as sophisticated an thorough
2. FRE 1001: Definitions
Writing: consists of letters, words, numbers, or equivalent in any form
Recording: consists of letters, words, numbers or their equivalent in any form
Photograph: means photograph or equivalent in any form
Includes negatives and videos
Original: 1001(d)
Duplicate: 1001(e)
3. FRE 1003: Duplicates
Duplicates are admissible to the same extent as originals unless:
1. A genuine question about original’s authenticity or
2. Circumstances make it unfair to admit duplicate
Note:
Modernly, this largely usurps from original best evidence rule
4. FRE 1004: 4 Exceptions To When Original Is Required to Prove Content
An original is not required if:
1. Destroyed Original:
All originals are lost, destroyed, not by bad faith
2. Judicial Process Cannot Get:
if an original cannot be obtained by judicial process
I.E., subpoena
3. Party Offered Against is In Control:
If the party whom the original would be offered against has control, and knew the original would be needed and fails to produce it at trial or hearing
4. Collateral to Controlling Issue:
If a writing, recording, or photograph is not closely related to a controlling issue
Whether something is “collateral” is not clear
The judge has discretion to determine whether evidence is collateral or not
5. FRE 1005: Duplicate of Public Record May Be Acceptable
6. FRE 1006: Summaries to Prove Content
If writing, recording, or photographs are voluminous, and cannot be conveniently examined in court, a summary of them may be used
Summary:
Includes summary, chart, or calculation
Proponent must make originals available for examination
Court may still order them produced in court
7. FRE 1007:
You may prove content by testimony, deposition, or written admission of party against whom the evidence is offered
B. Defining a Writing, Recording, or Photograph:
1. Chattel/Property with writing on it does not apply to BER:
US v. Duffy:
F: Jury convited the ∆ of stealing a car and driving it across state lines. In the trunk of the car, there was found a suitcase with a t-shirt inside. The shirt had initials transcribed on it. However, although the shirt could have been used, the prosecutors did not use the shirt to describe the initials found.
I: Does the Best Evidence Rule require the use of the original shirt with writing on it? Is it Collateral?
R:
1. The “Chattel Rule”
A. When disputed evidence is a chattel with writing, and therefore both, the trial judge has discretion to consider it either
The Judge may consider the policy justifications of using the BER
Wide Discretion
The Words and Object May Merge
Generally Considered Chattel
B. Generally:
This is an issue with programmed/printed words
EG: A water bottle that has printed on it “Smart Water”
Also includes, license plate, words on street-sign
2. Collateral Issue:
Per 1004(d), even if writing, photo, or recording and content proven, not required to use original if collateral to the issues in case
Here:
Here: the t-shirt with his initials put him in the car, travelling
However, he claimed he hitchhiked across the country
Therefore, not really a collateral issue
C. The Independent Knowledge / First Hand Knowledge Rule:
Generally:
If you are proving the content of a writing, photograph, or recording, you must, according to 1002, provide the original document, subject to exception
The Independent Knowledge Rule:
However, If a witness is not proving the content on the basis of those items, but instead, is using his own memory or first hand knowledge or experience of witnessing one of the above
The Best Evidence Rule does not apply
EG P. 890:
Witness on stand is describing the content of a movie, to prove it is an obscene movie
However, if he was an actor in the movie, he is describing what he experienced, or saw and not the actual content of the movie
Regardless of the movie he can describe the content
EG P. 891:
Security officer reviewed tape of robbery. He had not been present at the robbery. He testifies about the parties in the tape
The BER applies, and the original tape must be used
Officer has no independent knowledge about the event
The tape is his only basis of knowledge
US v. Meyers:
F: In trial, the government sought to prove that Lamarre lied in his testimony before a senate committee. To prove it, the government called Mr. Rogers, a party who attended the testimony. Following his testimony, the prosecution introduced a stenographic transcript of the ∆’s testimony.
I: Should the transcript have been produced under the BER in order for Mr. Rogers to testify about the ∆’s testimony?
R:
Best Evidence Rule Does not Apply
The Witness was asked to prove what he heard/saw at the testimony
There was no attempt to prove the contents of the written transcript
Not Offering about the transcript’s content
Instead, offering about what happened at the testimony
Independent Knowledge Doctrine:
The Witness was at the hearing, and therefore, could testify to its content regardless of any writing
VI. Opinion, Expert Opinion, and Scientific, Technical and Special Evidence:
A. General:
Lay witnesses commonly testify to facts, and their testimony is their opinion about facts as they perceive them
B. Lay Witness Opinion:
Governed by FRE 701
If witness is non-expert, testimony of opinion is limited to that is:
1. Rationally based on witness’s perception
“Collective Facts Doctrine”
Witnesses may testify to ideas within the common human experience
Typically Includes:
Speed of a car, condition of person, person’s character, reputations, size, flavor, height, weight, color, time, etc…
Embodies FRE 602 Personal Knowledge Requirement
You still must have personal knowledge of the matter, but you may give your opinion, draw inferences about the personal knowledge you’ve obtained
EG:
You saw man drinking all night—you may give opinion that he was “drunk”
2. Helpful to understanding testimony or determining fact
3. May not testify to:
Scientific
Technical or
Specialized knowledge that enters scope of “expert testimony” in 702
C. Expert Witness Opinion:
Governed by FRE 702
A witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in opinion if:
1. Helpful to Trier of Fact in understanding
2. Based on sufficient facts or data
3. Based on Reliable principles and methods, and
4. Expert Reliably applies to the facts of the case
1. Process of Presenting and Using Expert:
A. Call Expert:
Show that they are beyond the layman
Ask about education, skill, experience, training, and knowledge
Familiarity with subject of the lawsuit
B. Qualify the Witness as an Expert
Note:
Very broad standard on who can be an expert
Does not require that you be paid for your work
Expert Can be Used As Layman:
Remember that if someone who could be considered an expert, i.e., a cardiologist, is merely testifying to non scientific, technical or special knowledge, they are a layman under 701
EG:
Cardiologist happened to see the accident and testifies that he saw it
Not an expert opinion, and is goverened by 701
Opposing Party:
Gets chance to “Voire Dire” and question expertise
Attempt to Limit Scope:
If expert is an expert, and qualifications are not in question, defense counsel should attempt to narrow the application of what he may testify to
Get a 105 “limiting instruction” to alert jury that expert may testify to A, but not B if applicable
C. A 104 Preliminary Question:
The Court will then rule, within the court’s discretion as to whether party is an expert, and what scope of testimony may be
D. Testimony
1. Scope of Testimony:
Once qualified as “expert” may testify to scientific, technical, and special knowledge
2. Bases for Expert Testimony:
FRE 703:
An expert may base his opinion on
1. First hand Knowledge
His personal examination of evidence, testing, of things involved in the case
2. Facts Learned at Trial
If he heard testimony while at trial, may use them to base his opinion
Note**
The 602 requirement of personal knowledge does not apply to an expert
3. Outside Data
An expert can use data and facts which he has acquired through course of his expertise
Books, studies, that he is familiar with
Issue:
The expert may be relying on things which may be inadmissible
Therefore, the inadmissible evidence creeps in, through the opinion of the expert
FRE 703:
“If experts in the particular field would reasonably rely on those kinds of facts and data in making opinion, they do not need to be admissible for the opinion to be admitted
These inadmissible facts may be disclosed to a jury only if:
“Probative Value is Substantially > Prejudicial Effect
3. The Ultimate Issue/Hinkley Rule-704:
704(a)
An opinion is not objectionable because it embraces an ultimate issue
704(b)
In criminal cases, an expert must not state opinion about whether a ∆ did or did not have a mental state/condition that constitutes an element of the crime
Therefore:
An expert cannot say the ∆ had mens rea or couldn’t form it
This is in direct response to the Hinkley rule, and expert’s who testified that he couldn’t form the requisite mens rea to assassinate Reagen
But, expert may get near to this in testimony
Exception: Some States Have not adopted the Hinkley Rule:
Permit experts to testify to ultimate issue, without any limitation like FRE 704(b)
Policy:
There is a fear that a jury may simply adopt what the expert’s opinion is, folding to the impressiveness of the expert
Yates is a good example
Yates v. Texas:
F: Andrea Yates murdered her 5 children, and defense attempted to get insanity. State had 1 doctor who testified that she did have the requisite mental state to understand what she was doing. However, in the process he misled jury about how she based her murder on a Law and Order episode, therefore believing she chould get away with murder
R:
1. Texas Does Not Have Hinkley Rule:
Experts in states similar to Texas may testify that ∆ did or did not have requisite mental state
In Federal Court, This would not be permitted with 704(b)
2. Mistrial Standard:
1. Whether there is a reasonable likelihood that false testimony affected the juries judgment of
2. A material fact, therefore
3. Affecting a substantial right
4. Disclosing the Expert’s Opinion- FRE 705:
An expert may state an opinion, and give the reasons for it without providing the underlying facts or data
However, he may be required to disclose those facts on cross-examination
2. The Court Appointed Expert:
Generally:
Although court appointed experts are possible, they are rare
Why:
1. Adversarial System
Judges are reluctant to enter the substantive trial
Do not want to step into the ambit of the attorneys
2. Compensation
Judges are reluctant to draw on public funds to do so
FRE 706
3. Daubert—The Reliability Standard for Evidence Presented by the Expert at Trial:
Generally:
Experts testify to scientific, technical and specialized knowledge
However, how Daubert deals with how courts evaluate that knowledge to determine whether it is sufficient
Common Law Standard:
Frye standard (D.C. Cir. 1923)
Is the evidence generally accepted?
Some states continue to follow Frye standard
Daubert Standard:
Daubert Standard
Delaware Follows
Followed by many states
A. Daubert v. Merrell Dow (US 1993):
F: Petitioners brought suit alleging that defendant’s drug caused birth defects. Defendant provided many expert witnesses on the matter, who testified that no scientific research of the epidemiological type had found it caused birth defects. Plaintiff expert argued that it did based on other types of scientific research
PH: District court held it was not accepted per Frye standard, and 9th circuit affirmed
I: Whether the Frye Standard was superseded when the federal rules of evidence were decided. And if so, what standard applies
R:
1. Frye is Superseded by the Federal Rules of Evidence:
A. 1. Not aligned with the Federal Rules
Federal rules are pro-admissibility and Frye is not
702 speaks on the issue and doesn’t cite Frye anywhere
The statute is not a generally accepting statute
Frye is superseded
Federal Courts are not to use Frye
2. The “Daubert” Standard:
A. The Trial Judge is a Gatekeeper
N.7 in Daubert
Gives Judges great discretion (or at least they have interpreted this way)
They decide whether the evidence is sufficient
B. To determine whether science is valid and is therefore applicable to facts
1. Is the Scientific Evidence Relevant?
2. Is the Scientific Evidence Reliable?
1. Can it and has it been tested?
2. Has the theory/technique been subject to peer review?
Exposes flaws in research
Critiqued by other good scientists/community
3. The Known/Potential Rate of Error
4. Has it been generally accepted?
Note:
This still permits the Frye standard to be used
But it is now one of several factors to consider
These are Factors to be considered:
Are merely guidelines and not required
The test is flexible, and should determine the relevance and reliability
Rehnquist Dissent:
Agrees that it is superseded, but creating a standard goes beyond the question presented
Should confine ruling to narrow one, allowing trial courts to create jurisprudence, and let it rise to supreme court if need be
B. The Effect of Daubert:
1. 702 and Daubert:
Note that the new 702 attempts to incorporate Daubert but dos not do so verbatim
However, Daubert is to be used when analyzing a 702(b) question
2. Daubert Hearing:
Modernly, the Daubert inquiry has turned into a Motion In Limine, prior to trial to determine if such evidence is admissible
3. The Effect:
There is an ongoing debate of whether Daubert allows more evidence in or excludes more
Gives trial judge vast discretion
A. Allows More In:
Science is made up of where the funding is
Where funding is is where the scientific community is
Therefore, the “generally accepted” Frye standard tended to exclude lots of evidence, as much of the unknown science was not accepted and therefore inadmissible
Issue:
“Junk” or “soft” science may be admitted
B. Excludes More:
However, with the judge as a “gatekeeper” and more factors to consider, judges may be over matched and simply exclude more reasons to do so
“amateur scientists” may become overwhelmed
No longer able to simply rely on if “generally accepted”—may exclude
Gives more reasons to exclude with at least the 4 Daubert factors to consider
*Still considers Frye standard as one factor
4. Khumo Tire:
Daubert was specifically limited to “scientific” evidence in n.8
Khumo Tire expanded Daubert’s analysis to “scientific, technical, and special knowledge,” as worded in 702
Conduct a Daubert analysis when expert evidence sufficiency in question
5. Daubert’s Flexibility:
Remember that Daubert is not an exhaustive list of factors
Not a check-list but factors that may be considered. Khumo Tire.
Case-by-case analysis of when they will be helpful, although helpful in many cases
VII. Hearsay:
A. Generally:
1. What is Hearsay
An out of court statement offered into evidence to prove the truth of the matter asserted in the statement
FRE 801, 802
2. Effect of Hearsay:
If something is hearsay, it is excluded unless an exception exists
If it is not hearsay, no exclusion is needed to admit it
3. Policy:
We exclude hearsay because the following 3 protections are not available:
1. Absence of Cross Examination:
An out of court statement’s declarant cannot be cross-examined to find the truth of what was said, whether was lie, mistake, etc…
Because he cannot be cross-examined, the court’s truth finding function is disabled
2. Absence of Oath:
The out of court declarant was not under oath
Thus, the judge has no indication whether they felt a moral or legal obligation, punishable by perjury to speak the truth
3. Absence of Demeanor Evidence:
Because we are relying on a witness to restate a declarant’s out of court statement, we do not get to see the declarant’s demeanor
Inflection, expression, pause, appearance of declarant who made the out of court statement is important to judge and jury to determine truthfulness
Overall:
There is a general policy choice of Evidence that live testimony is preferred
More Reliable
Reliability is Risked because:
4. Misperception of Declarant:
the declarant may have been mistaken, and cross-examination helps find out but is unavailable
5. Faulty memory of Witness:
There are issues with exactly how an out of court scenario occurs
The memory can be tested on cross-examination, but cannot occur due to the out of court nature
6. Risk of Faulty Narration:
Witness restating what was said out of court may not be correct in narrating
He may not have fully understood meaning, context of the declarant
Cross examination and Oath help establish accuracy but the declarant cannot be subject to them
7. Risk of Distortion, Lying, Deception:
If the witness is completely lying or making something up, there is no realy way to check it
Thus, exclude hearsay in addition to cross-examination and oath helps assure this does not occur
Inquiry into Intention of Statement is Policy of Hearsay:
Hearsay is premised on the idea that intentional statements, or statements that are intended to imply something are more at risk of being lied about
You can think, and therefore, formulate a lie
However, if unintended, it is seen as more reliable and therefore, not likely to be hearsay
Basic Hearsay Framework:
1. Is the statement Hearsay?
Is there a statement?
Express statement, implication, non-verbal conduct intended as an assertion?
If No No Hearsay Issue
If Yes Examine the purpose of the offer and truth of matter asserted
Is it offered for truth of matter in statement or implied by statement?
If Yes Hearsay
If not Hearsay, and no admissible
2. If Hearsay, is there a Hearsay Exception to Admit?
Common Law Categorical Exceptions
Federal Rules Exceptions
B. The Basic Elements of Hearsay:
a. General:
Must meet the elements of hearsay to show that something is excludable as hearsay
b. When Something is hearsay:
1. Out-of-Court
Whenever someone is not at trial, someone is testifying to someone else’s statement begin to consider hearsay
2. Statement:
A. The Declarant:
FRE 801(b): The declarant is the party who makes the out of court statement
B. A Statement (FRE 801 (a):
An oral or written assertion
Non-verbal conduct if intended as an assertion
Examples:
Nodding, shaking of head, pointing to identify
Statement Under the Federal Rules:
A. The assertion within the statement must be intended to be considered hearsay
The Assertion can be
1. Direct
2. Implied (if strong implication versus merely circumstantial evidence)
3. Non-Verbal conduct intended as assertion
Example:
1. People outside are putting up umbrellas
We can draw implication that it is raining, and circumstantial evidence implies such
This is unintended, however, and not hearsay
2. Paul Revere put up two green lanterns to warn of English
Non-verbal conduct intended to assert that English are coming
Non-verbal assertion may be hearsay
3. Letter in Wright
Implied competence in letter, but was not substance or strong implication of letter
Not hearsay
The Distinction Between Statement at Common Law and Federal Rules:
Generally:
Anything implied by a statement was, at CL, hearsay
Wright v. Tatham (England 1837):
F: In suit to set aside a will, both parties put forth evidence to show the mental capacity of the testator. The defendant put forth 3 letters, each of which discussing a business transaction with the testator. They were used to show he was fully competent as he entered into complex transactions and stated “you must settle this business dispute or suit will follow.”
R:
1. At CL Evidence that can imply a statement or opinion of a third party is inadmissible just as if the implication had been said:
Therefore, the letter implied that the testator was competent even though it did not assert in any way that matter intentionally
If the statement had been made Hearsay
Therefore, if it’s implied Hearsay
2. This Case Under the Federal Rules:
Would not be hearsay—the implication was unintended, and therefore there was no statement
No Hearsay issue
3. Offered into evidence to prove truth of the matter asserted in the statement:
Two Part Inquiry:
1. What is the truth of the matter of/implied by the statement?
2. Is the statement offered to prove the truth/implication in the statement?
What is the purpose of the offer?
Is it to prove substance of the statement?
Will depend on the claims of the party offering the statement in the pleadings
The context of the time the statement is offered
Who has the burden of proof at that point of the trial
Four Key Rules:
1. If offered to prove the truth of the matter asserted in statement
Will be Hearsay
A technical and mechanical application of the rule
Examples:
1. Victim: “The Dean tried to kill me”
In suit against Dean for murder
Truth: is that dean tried to kill her
Offer: To show dean tried to kill her
Hearsay
In suit against paramedics alleging negligent homicide where their defense is she was dead when they got there
Truth: is that dean tried to kill her
Offer: to show she was alive when they got there
Not hearsay as it shows she was alive, purpose doesn’t match substance of the statement
EG p. 108 (2A):
In trial for armed robbery of defendant, witness testifies he heard someone say:
1. “Defendant Did it” Hearsay
2. If offered to prove the implication/indirect assertion of the statement/assertion
A. If implication is so strong that should be treated as statement:
Will Be Hearsay
Why:
The indirect/implied hearsay argument is that—while a mechanical and rigid application of the hearsay rule doesn’t meet—the offer and truth don’t match, the statement is still offered for truth of the matter implied by the statement—implication is very strong
EG:
Man arrested, and as walking away with cops yells to his friend “I didn’t tell them anything about you.”
Hearsay: The implication was intended that the cops didn’t know about criminal dealings
B. Check & Pacelli and Indirect/Implied Hearsay—Framework To Deal With
1. Determine Implication
What is the truth of the matter implied in the statement?
2. Determine the Implication and if offered to prove the implication?
Argue that Hearsay is beyond a mere technical definition
Although technical and rigid application of the rule would not constitute hearsay as truth doesn’t = purpose of offer
What is truth of the matter implied (strength of implication)
3. Argue Policy
That Hearsay is more than mechanical application of rule—must be broader to include implied or indirect hearsay
That implication is very strong—hearsay should reach it
That implied/indirect assertion should be hearsay:
Added danger of misinterpreting the declarant’s implication
No ability to cross-examine
No Oath
Implication is so strong that should expand past mere technical application of hearsay
Our language is broader than express truth
That implied/indirect assertion should not be:
The danger of insincerity is reduced when implied assertion of declarant’s
Definition is technical
4. Relevancy Question—403
If dealing with implication’s of a declarant, one may be able to raise an issue of confusion the jury or misrepresenting the statement to the jury
EG p. 108 (2A):
In trial for armed robbery of defendant, witness testifies he heard someone say:
1. “Defendant should be put in jail”; “He carried money bag out”
Argument:
Technically, the truth of the matter is that he should be put in jail; he carried $ out
Your offering it to show he robbed a bank
Not the same not hearsay
Implied Hearsay Argument:
This implicates defendant, and may intentionally imply that the defendant is guilty…there is a statement
It clearly demonstrates the witness’s belief, and additionally would be unlikely to simply say this unless it was intended to show the defendant robbed the bank
Policy
Hearsay
EG:
Negligence trial against doctor that plaintiff could not write any more
Doctor introduces letter that discusses invitation to party
Offered to show implication that plaintiff could still write
No Hearsay— offered to prove the unintended implication of letter—is not a statement—and no hearsay issue
EG p. 110:
Non-verbal assertion by truck driver had no intended implication in it
Merely reacted to the green light
Therefore, no hearsay, as no statement
But:
If driver yelled “when I move, you move because I know you cannot see”
Hearsay—intended implication is that the light is green and therefore it’s safe for you to move
3. Statements that can convict or prove the ultimate fact in issue in a case will be hearsay regardless of whether they were intended:
US v. Pacelli:
F: Witness, on stand, testified to the statements of the defendant’s wife, uncle and friend. Implied from their statement was that the defendant clearly knew and probably did kill the victim. “He bungled the murder, and should have hid the body”; “He should leave town”
R:
1. Implied or circumstantial inference from out of court statement will be hearsay if it can prove the ultimate issue
Here:
Witness is restating out of court statements that imply the defendant killed the victim
This fits exactly with policy of being unable to cross-examine such witnesses to assure the implication drawn from their statement is accurate
2. Irrelevant Whether Intended or Not:
To be considered a statement, implications usually must be intended
In a case where speaks to ultimate issue, implication does not have to be intended
Example:
In trial for armed robbery of defendant, witness testifies he heard someone say:
1. “I saw defendant walking out with bags of $”
If we can prove this, the ultimate issue in the case is likely proven, that ∆ committed the robbery
Because this is the implication, Hearsay
4. A Prior, Out-Of-Court Statement by a Testifying Witness is Hearsay:
Although a declarant is now in court, their out of court statements are still hearsay
Note:
Policy arguments may lead to judge admitting, as he can be crossed and under oath now
Prior, in court statements, can be used by testifying witness
See Exceptions dealing with declarant testifying
c. Common Law Categorical Exceptions to Hearsay:
Generally:
As seen above, when the purpose of the offer is to prove something other than the truth of the matter asserted in the statement there is not hearsay
Generally, there are several instances that are accepted by courts as other uses of out of court statements
These may be considered categorical exceptions or exemptions
Some will be hearsay and not treated as such, while others will not fit hearsay definition
1. Interrogatory
When witness restates an out of court question it is not hearsay
There is no truth in a question
Must be an assertion
Compound Questions with Statement Inside:
An interrogatory could potentially have compound parts, where one part does have an assertion in it
In these circumstances, the interrogatory can be argued not hearsay, but the portion that is hearsay will circumvent the interrogatory nature of the statement
Thus, there can be a hearsay issue with interrogatories
2. Imperative:
May not be hearsay
“Go to Florida”
“Look at the Red Barn”
Note:
Can be if “offered to prove the truth of the matter asserted”
I.E., “Look at the Red Barn” To prove the barn was red Hearsay
Argue Policy
3. Negative Hearsay
Generally:
Evidence that “no one said anything,” or no one complained is not hearsay
Cain v. George:
F: Boy died of carbon monoxide and parents sued hotel. They allege that heater was not working properly and that ∆ was negligent.
R:
1. Testimony that no one said anything is not hearsay
There is no out of court statement
No one to rely on, and therefore, policies of hearsay not implicated
Although implies, circumstantially, something, there is no intentional assertion
Note:
At CL, the implication would be hearsay regardless of the intent
4. Impeachment by prior inconsistent statement:
When a witness made a prior inconsistent out of court statement with testimony being given
Can occur on cross-examination or by a later witness’s testimony
Is Not Hearsay
The purpose is to show the statement is conflicting, not the truth/substance of one or the other
Whichever one is truthful is irrelevant, as the other must be untrue and therefore witness is impeached
Some Counsel may attempt to slip hearsay into testimony with this exception:
403 objection to the confusion of jury
105 limiting instruction to limit the testimony to impeachment, but not substance
P.124 3-C
5. The Verbal Act Doctrine:
When the substance of a statement is their independent legal significance
Offered to prove the legal effect of the statement even though it may be the substance
Thus, the words are a legal action, and that they were said is what they are being offered for
Policy:
These types of statements are not casually stated
Persons using them are typically not likely to lie
Example:
Words that create a contract, transfer title, grant authority, a confession
P. 125:
Words in the statement have legal significance of passing title
“I offer you 3000 units” to show offer of contract
“We guarantee the loan” to show a guarantee
Not Hearsay
6. Verbal Object:
When words are on an object they are not treated as statements
Merge with the chattel and thought of as the object
Policy:
Typically used with words that are attached to some good, created by a business
Thus, more trusting of businesses as they are unlikely to lie on a good they produce
Example:
“Smart Water” printed on a water bottle
It is an out of court created statement, but not considered hearsay
Not Hearsay
7. Words Offered to Prove Their Effect on The Hearer:
If the way the hearer of words reacted to them is important to a case, the words or statement may be offered to establish the reaction
105 Limiting Instruction should be used:
It is easy for a jury to listen to their substance rather than thinking about the effect they had on the hearer
Thus, judge should tell jury to limit their use to the hearer’s reaction
P.126 Example
Agent of company comes to examine pipe, saying “I work for Pipe company.” Hearer follows over to pipe, which explodes.
Reasonableness of Hearer’s Act:
These words may come in, as they show it may be reasonable to follow a professional to a damaged pipe if he is doing it
However: To show he is employee:
Hearsay: falls directly into the definition of hearsay, as you are offering to prove the truth of the matter asserted
8. Circumstantial Evidence of State of Mind or Memory:
When out of court statements are offered to draw an inference or circumstantial evidence of the declarant’s state of mind or what they remember
Their indirect implication is what is of importance to claims at trial
Not Offered to prove truth of the matter asserted
Instead, their implication proves state of mind
Implies that they remembered something
P. 128 Example:
The journal writing implies that, by giving him $1, he could not have expected anything else as she did not like him anymore
Thus, we can draw the inference that she had a negative state of mind towards him
Example:
“Can you give me the key to the library so that I can go downstairs and get the red evidence book out of the locked container it is in?
Implication is that she has memory of the location and book Not Hearsay
See Wright, supra
9. Animals and Machines:
Animals are not declarants
There is no hearsay issue
Machines are not declarants
There is no hearsay issue
d. Hearsay Within Hearsay—FRE 805:
General:
Out of court statements may be layered
There must be an exception for each layer of hearsay for the hearsay statement that contains other hearsay to be admissible
ALWAYS LOOK FOR STATEMENTS THAT HAVE OTHER STATEMENTS
Example:
“Then, the doctor said that he spoke to the wife, who mentioned her husband had discussed his feeling sick”
Out of Court Statements:
1. Doctor—“Wife said…”
2. Wife—“Husband Said he felt feel sick”
3. Husband—“I feel sick”
Applicable Cases:
Check; State v. Motta; Petrocelli; Mahlandt
VIII. The Hearsay Exceptions
Generally:
Hearsay is excluded from trial, unless there is an exception
The Federal Rules Exceptions utilize the out of court statement for its substantive evidentiary value
1. Declarant Testimony Exceptions:
General:
There are 3 exceptions for when a declarant’s out of court statement is admissible
1. Prior Inconsistent Statement—FRE 801(d)1(A):
A. Generally:
Substantive Use:
This is a statement you want to bring into court for its substantive use
Impeachment Use
It is different from the Impeachment exception
With Impeachment, you rely on a common law categorical hearsay exception
It is not made for substance, but to impeach the witness
A Witness may get on the stand and change their story—here, you want to bring in the prior out of court statement to show the truth—to use its substance
B. Rule: Declarant’s out of court statement is admissible if:
1. Testifies and is subject to cross examination about the prior statement
2. It is inconsistent with the declarant’s testimony
3. The prior statement was given under the penalty of perjury
4. And was made at a trial, hearing, deposition, or other proceeding
C. The Elements:
1. “Subject to Cross Examination”
Often times, witnesses may get on the stand and say they forget the event or cannot remember what actually happened.
General Rule:
You are subject to examination even if you forget what happens
If you are feigning loss “Subject” to cross
If you have actual/diagnosed loss Not “Subject” to cross
2. “Prior Inconsistent Statement”
Inconsistency does not require complete opposite of prior statement
May occur if
evasive answers
silence
change in position
Loss of memory (if feigned)
Not if diagnosed
Overall, these the question of admissibility is usually answered by admitting such “inconsistencies,” and letting the jury decide what the truth is
3. Penalty of Perjury
Note:
Although the old rules required an “oath,” the new rules do not require an oath
They merely require you be under penalty of perjury when prior statement was made
4. “Trial, Hearing, Deposition, or Other Proceeding”
General:
This includes grand jury, and preliminary hearing testimony
Other Proceeding—State v. Smith:
F: Victim was assaulted by a man, and gave testimony to police. She went to the police station, wrote an affidavit in her own words, initialed each page, witnesses read it back to her, and she agreed with it, signing it. She understood it would be used, and was under the penalty of perjury. On the stand, she changed her story, saying it was a different man than the one in the affidavit. Prosecutor admitted it as a “prior inconsistent statement.”
I: Is the written affidavit at police station an “other proceeding?”
R:
1. Minority View: A Written Affidavit May be an “other proceeding”
Totality of Circumstances will show what “other proceeding is”
Reliability is of Key Importance for “proceeding”
It was near the time of the event, and all the facts show she knew it was of great importance, she wrote it in her own words
It appears to be reliable testimony, and she is now subject to cross examination if it is not
“Proceeding”
Trial, deposition, grand jury demonstrate the significance of the event—promoting reliability
The Facts here show affidavit sufficiently reliable
2. Majority Position: A written Affidavit is Not “Other Proceeding”
Most states do not abide by the Smith view
The police station affadavit is too coercive
Too much possibility that witness’s statements may not be reliable—given the intimidation of the surroundings
Policy of Hearsay too strong an issue
As Reliability is key issue with hearsay, the affadavit may not be adequately reliable
Washington is Unique:
The prosecutors came up with the system of having witness write her own statement knowing they would potentially get it in with hearsay exception
Reliability not as much an issue with the facts of Smith
3. Practice Note:
Here, the prosecutor used the prior statement to impeach—which does not require an exception
Defense argues for “limiting instruction” to ensure that it is not used substantively
He then admitted it substantively
Note: when you admit prior inconsistent statements substantively, you are also impeaching the witness by showing they contradicted themselves
2. Prior Consistent Statement—801(d)1(B)
A. General:
This exception largely mirrors the prior one
Prior Inconsistent:
Used to Impeach (Common Law Exception)
Used Substantively (FRE)
Prior Consistent:
Used Substantively (FRE)
To offer the truth of the prior statement
Used to Rehabilitate the Witness (Common Law)
Note:
For instance, if your witness has been cross-examined and seems to be impeached, or troubled, you may offer statements made prior to the questioning to rehabilitate character
I.E., statements that were consistent with testimony, rehabilitating character
Use:
Again, much like “inconsistent” rule, this rule is used to admit prior testimony that was consistent as substantive evidence
B. Rule: A Declarant’s prior out of court statement may be admitted if:
1. Testifies and subject to cross-examination
2. The statement is consistent with declarant’s testimony, and
3. Offered to rebut an
Express or Implied charge that the declarant recently fabricated testimony, or acted from a recent improper influence or motive to testify
C. Pre-Motive Requirement of Prior Consistent Statements:
Tome v. US:
F: Tome was convicted of sexually abusing is daughter. She told many people about the incidents. Her parents had recently been divorced, and she was living with her father. She was difficult to talk to on the stand, as a child, and the defense suggested that she was motivated by her desire to live with her mom. The prosecutor then admitted 5 statements by witnesses, describing what she said to them about the incidents.
I: Do prior consistent statements have to have been made before the improper motive arose?
R:
1. Prior Consistent Statements must have been made prior to improper motive:
Used in this way, they directly rebut the suggestion
Although consistent statements made after the motive to lie arose do help, they do not squarely rebut the improper motive
Construction of FRE:
Silence here is construed to incorporate the common law pre-motive requirement
Unlike Daubert: which utilized silence to demonstrate that the common law was superseded
The Court interprets that if the Advisory Committee was departing from the common law, it would have stated so
801(d)1(B) Pre-Motive Requirement:
To Be used, a prior consistent statement must occur prior to the motive/improper influence arising
Dissent (Breyer):
The common law pre-motive requirement was linked to whether something was relevant to rehabilitate; not to hearsay, offered substantively
It was used to rehabilitate witnesses
Thus, to rehabilitate, it had to have occurred before the improper motive arose
The Federal Rules, however, permit prior consistent statements for substance
They were not concerned when substantive comment occurred
Effect:
Tome extends the pre-motive requirement to the substantive use of consistent statements
It is unclear whether this is required for rehabilitative use as well, but courts generally construe it as only applying to substantive use
D. Determining When the Motive Arose:
General:
The difficulty in applying the pre-motive requirement is to determine when the improper motive arose, then determining if the statements that are consistent with testimony were made before
Effect:
Every statement after the motive arises is now inadmissible hearsay under this rule
Defense or Plaintiff, therefore, may exclude much with choosing time of motive
Note:
Other exception will likely still lead to prior-consistent statements becoming admissible
3. Prior Statement of Identification—801(d)1(C):
A. Generally:
When a party has identified someone prior to trial, that may be admitted
Policy:
Pre-trial identifications are more trustworthy
They are conducted in method to ensure accuracy, and occur closer to the incident
Less pressure than an in-trial identification
This rule permits the admission of pre-trial statements, that were made by a witness after perceiving the subject
B. Rule:
1. Party testifies and is subject to cross-examination
2. Prior statement identifies a person as someone they have perceived earlier
C. Elements:
Statement
The prior, out of court statement can be
Verbal
Sketch
Picture
Identification in line-up
Remember the Statement must be an intentional assertion
Analysis may require argument that the out of court action is indeed a “statement”
D. Sketch as a Statement of Identification—State v. Motta:
F: Coffee store was robbed at gun point. Anna worked with a sketch artist to come up with a picture of the suspect. Later, ∆ was arrested pursuant to this sketch. At trial, anna confirmed her prior identification, and the sketch was admitted.
I: Is the sketch hearsay, or subject to the identification exception?
R:
1. A Sketch is a Statement—and Hearsay:
It asserts the truth of the matter and was an intentional, non-verbal assertion
Has the same effect as a verbal description of the party
2. 801(d)1(C) Permits Prior identification:
The sketch was a prior “statement” that identified the party
It is properly admitted as substantive evidence under the exception
2. Opposing Party’s Statements—801(d)(2):
General:
This is one of the more important exceptions, as it broadly applies to many statements
Must be offered against a party in the litigation
Any statement made by the opponent you seek to use statement against applies under this rule
Does not require a “statement against interest”
You do not have to concede something, or admit to crime
You merely have to have said something
Must be a “statement” per 801: Intentional Assertion:
Sleep talk
Intoxicated
Injured
Hospitalized,
Silence, and non-verbal cues may constitute a statement
Question is Was it an intended assertion (direct or implied)
Statement
Unintentional, coerced, or under duress?
Not Statement
Statement does not include admissions by settlement:
Your acts at settlement may not constitute a statement
Policy:
Statements by an opponent at trial come in against that opponent because
1. We have adversarial system—conduct in and out of co