Evidence –Carter – Fall 2010

ARTICLE I: GENERAL PROVISIONS:

  • FRE 101: Scope: Rules govern proceedings in federal courts except:
  • FRE 1101(d)(1): Preliminary questions of fact
  • FRE 1101(d)(2): Grand jury proceedings
  • FRE 1101(d)(3): Misc. proceedings e.g. preliminary examinations in criminal cases, sentencing, issuance of arrest warrants and search warrants, etc.
  • FRE 102: Purpose and Construction: Rules shall be construed to secure:
  • Fairness in administration
  • Elimination of unjustifiable expense and delay AND
  • Promotion of growth and development of law of evidence
  • To the end that the truth may be ascertained and proceedings justly determined
  • FRE 103: Rulings on Evidence (Preserving Error)
  • FRE 103(a): Effect of erroneous ruling: Error may not be predicated upon a ruling admitting/excluding evidence unless:
  • A substantial right of the party is affected (reversible v. harmless error) AND
  • (1) Objection: If admitting evidence: Timely objection or motion to strike appears of record, stating specific ground of objection, if not apparent from context OR
  • Motion in limine is like an objection and raises a preliminary question
  • (2) Offer of proof: If excluding evidence: Substance of evidence was made known to court by offer or was apparent from context within which questions were asked
  • FRE 104: Preliminary Questions (Preliminary question hearing/Sidebar)
  • 104(a): Questions of Admissibility Generally:
  • Covers qualification of person to be a witness, existence of a privilege, or admissibility of evidence
  • Rules of evidence do not apply, except privilege
  • Preliminary questions of fact are determined by the court by a preponderance of the evidence, see, e.g. Bourjaily
  • 104(b): Relevancy Conditioned on Fact:
  • When relevancy of evidence depends on fulfillment of condition of fact:
  • Court shall admit it upon, or subject to, introduction of evidence sufficient to support finding of fulfillment of condition
  • 104(c): Hearing of Jury:
  • Hearings on admissibility of confessions always outside hearing of jury
  • Hearings on other matters outside hearing of jury:
  • When interests of justice require
  • When accused is a witness and so requests
  • 104(d): Testimony by Accused:
  • Accused does not become subject to cross on other issues in case by testifying on a preliminary matter
  • 104(e): Weight and Credibility:
  • Party can introduce to jury evidence relevant to weight and credibility.
  • FRE 105: Limited Admissibility (Limiting Instruction):
  • When evidence admissible as to one party/for one purpose but not admissible as to another party/for another purpose admitted:
  • Court, upon request shall restrict evidence to proper scope and instruct jury accordingly.
  • FRE 106: Remainder of or Related Writings or Recorded Statements:
  • When writing or recorded statement or part thereof introduced by a party:
  • Adverse party may require introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

ARTICLE II: JUDICIAL NOTICE:

  • FRE 201: Judicial Notice of Adjudicative Facts:
  • FRE 201(b): Kinds of Facts:
  • A judicially noticed fact must be one not subject to reasonable dispute in that it is EITHER:
  • FRE 201(b)(1): generally known within the territorial jurisdiction of the trial court OR
  • FRE 201(b)(2): capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
  • FRE 201(c): When Discretionary:
  • Court may take judicial notice, whether requested or not
  • FRE 201(d): When Mandatory:
  • Court shall take judicial notice if:
  • Requested by party AND
  • Supplied with the necessary information
  • FRE 201(g): Instructing Jury:
  • In a civil action or proceeding:
  • Court shall instruct the jury to accept as conclusive any fact judicially noticed
  • In a criminal case:
  • Court shall instruct jury that it may, but is not required to, accept as conclusive any fact judicially noticed

ARTICLE IV: RELEVANCY AND ITS LIMITS:

  • FRE 401: Definition of Relevant Evidence:
  • Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
  • FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible:
  • FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time:
  • Although relevant, evidence may be excluded if:
  • Its probative value is substantially outweighed by the danger of:
  • Unfair prejudice
  • Confusion of the issues OR
  • Misleading the jury
  • Or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
  • Chapple: Error to admit gory pictures of charred body and skull of victim.
  • While pictures were relevant, they had little probative value because:
  • Cause of death was not contested/defense offered to stipulate
  • Case turned on whether defendant was “Dee”, the murderer
  • Substantive Character Evidence: FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes:
  • FRE 404(a): Character Evidence Generally:
  • Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
  • FRE 404(a)(1): Character of the Accused:
  • In a criminal case, evidence of a pertinent trait of character:
  • Offered by the accused, OR
  • By the prosecution to rebut the same, OR
  • If evidence of a trait of character of the alleged victim is offered by accused and admitted, evidence of same trait of character of accused offered by the prosecution
  • FRE 404(a)(2): Character of the Alleged Victim:
  • In a criminal case, and subject to limitations of 412 (evidence of victim’s past sexual behavior/sexual predisposition in a sex offense case), evidence of pertinent trait of character of victim:
  • Offered by the accused, OR
  • By the prosecution to rebut the same, OR
  • Homicide case: Evidence of character trait of peacefulness of alleged victim, offered by prosecution to rebut evidence that alleged victim was first aggressor.
  • FRE 404(a)(3): Character of a Witness (Character for Credibility): Governed by FRE 607/608/609.
  • FRE 404(b): Other crimes, wrongs, or acts*:
  • Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
  • It may, however, be admissible for other purposes, such as proof of:
  • Motive
  • Opportunity
  • Intent
  • Preparation
  • Plan
  • Knowledge
  • Identity (may be based on M.O.) OR
  • Absence of mistake or accident
  • Provided that, upon request by accused, prosecution shall provide reasonable notice of general nature of any such evidence it intends to introduce at trial
  • In advance of trial, or during trial if court excuses pretrial notice on good cause shown
  • *Huddleston: When there is a question as to whether D really committed the prior act:
  • Judge must find that evidence is probative of material issue other than character. (Preliminary question of whether FRE 404(b) is satisfied)
  • Question of conditional relevance under 104(b): Jury determinesx that proof of prior crime/act/wrong is relevant if it reasonably concludes by a preponderance of the evidencex that:
  • Act occurred
  • D was the actor
  • Therefore, possible for evidence of prior crime/act/wrong to be admitted even if D was acquitted (note case: Dowling)
  • xSome states require judge to determine that act occurred AND
  • xSome states also require higher level of proof that act occurred e.g. clear and convincing evidence
  • FRE 405: Methods of Proving Character
  • FRE 405(a): Reputation or Opinion:
  • In all cases in which evidence of character or trait of character of a person is admissible:
  • Proof may be made by testimony as to reputation or by testimony in form of opinion
  • On cross, inquiry allowable into relevant specific instances of conduct
  • FRE 405(b): Specific Instances of Conduct:
  • In cases in which character or trait of character of a person is an essential element of a charge, claim, or defense:
  • Proof may also be made of specific instances of that person’s conduct
  • FRE 406: Habit; Routine Practice:
  • Evidence of habit of person or of routine practice of organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
  • Whether corroborated or not AND
  • Regardless of presence of eyewitnesses
  • Forbidden Evidence: FRE 407-411:FRE 407: Subsequent Remedial Measures: Not admissible to prove negligence, culpable conduct, product defect, design defect, or need for warning or instruction. Admissible when offered for another purpose, e.g. proving ownership, control, or feasibility of precautionary measures if controverted, or impeachment.
  • FRE 408: Compromise and Offers to Compromise:
  • FRE 408(a): Prohibited Uses
  • FRE 408(b): Permitted Uses
  • FRE 409: Payment of Medical and Similar Expenses: Evidence of furnishing/offering/promising to pay medical/hospital/similar expenses not admissible to prove liability for injury
  • FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements:
  • Except as provided, not admissible in any civil or criminal proceeding against defendant who made the plea or was a participant in the plea discussions:
  • FRE 410(1): Plea of guilty later withdrawn
  • FRE 410(2): Plea of nolo contendere
  • FRE 410(3): Any statement made in the course of proceedings regarding either of foregoing pleas, OR
  • FRE 410(4): Any statement made in course of plea discussions with an attorney (NOT POLICE) for the prosecuting authority:
  • Which do not result in a plea of guilty OR
  • Which result in a plea of guilty later withdrawn
  • However, such a statement is admissible:
  • FRE 410(4)(i): in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, OR
  • FRE 410(4)(ii): in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel
  • FRE 411: Liability Insurance:
  • Evidence that person was/was not insured against liability not admissible upon issue whether person acted negligently or otherwise wrongfully.
  • Evidence of insurance admissible when offered for another purpose, e.g.:
  • Proof of agency
  • Proof of ownership
  • Proof of control
  • Bias or prejudice of a witness
  • FRE 412: Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition:
  • FRE 412(a): Evidence generally inadmissible
  • FRE 412(b): Exceptions:
  • FRE 412(b)(1): Admissible in a criminal case:
  • FRE 412(b)(1)(A): Evidence of specific instances of sexual behavior by victim offered to prove that person other than accused was source of semen, injury, or other physical evidence
  • FRE 412(b)(1)(B): Evidence of specific instances of sexual behavior by victim with respect to person accused of sexual misconduct
  • Offered by accused to prove consent, OR
  • Offered by prosecution
  • FRE 412(b)(1)(C): Evidence the exclusion of which would violate constitutional rights of defendant
  • FRE 412(b)(2): Admissible in a civil case:
  • Evidence offered to prove sexual behavior OR sexual predisposition of victim, if:
  • Otherwise admissible, AND
  • (Reverse 403) Probative value substantially outweighs danger of harm to any victim and of unfair prejudice to any party.
  • Evidence of victim’s reputation admissible only if it has been placed in controversy by victim
  • FRE 412(c): Procedure to determine admissibility:
  • FRE 413: Evidence of Similar Crimes in Sexual Assault Cases:
  • FRE 413(a): Admissible
  • FRE 413: Evidence of Similar Crimes in Child Molestation Cases:
  • FRE 414(a): Admissible
  • FRE 414(d): “Child” is a person below the age of 14.
  • FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation:
  • FRE 415(a): Admissible

ARTICLE V: PRIVILEGES:

  • FRE 501: General Rule (for federal criminal and federal question cases):
  • Except as otherwise required by Constitution, or provided by act of Congress, or in rules prescribed by Supreme Court pursuant to statutory authority:
  • Privilege of witness, person, government, state, or political subdivision thereof shall be governed by:
  • Principles of the common law, as they may be interpreted in the light of reason and experience
  • However, in diversity cases, privilege determined in accordance with state law
  • Background Info on Privilege, esp. Attorney-Client Privilege:
  • Swidler & Berlin: The attorney-client privilege survives the death of the privilege holder
  • Here, the government cannot subpoena the notes an attorney made at his meeting with Vince Foster, even though Foster subsequently committed suicide
  • Confidential information must be treated by the privilege holder as such
  • E.g. If cabbie/murderer tells friend he killed his wife, he cannot claim that information is protected by attorney-client privilege
  • E.g. Suburban Sew ‘N Sweep v. Swiss Bernina: If company does not take precautions to destroy privileged documents, it cannot claim that information is protected by attorney-client privilege when plaintiff-scavengers fish the documents out of the dumpster
  • BUT Privilege holder can tell multiple people with whom talks are privileged
  • E.g. Tells lawyer, then tells priest, then tells psychotherapist
  • Privilege holder must have reasonable expectation of confidentiality under the circumstances
  • E.g. Conversation conducted in public won’t be held to be confidential
  • Privilege circle extends to necessary persons and persons whose presence is reasonable
  • Necessary: E.g. Intermediaries like translators, supervised parties like secretaries, paralegals, interns
  • Reasonable: E.g. Infant
  • Non-communicative observations/actions are not privileged
  • E.g. Lawyer must testify that client was covered in blood when he arrived at office
  • Proposed but Rejected FRE on Privilege:
  • Required reports privileged by statute
  • Lawyer-Client
  • The Rule: Client has privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for purpose of facilitating rendition of professional legal services to client
  • (1) between himself or his representative and his lawyer or his lawyer’s representative OR
  • (2) between his lawyer and lawyer’s representative OR
  • (3) by him or his lawyer to a lawyer representing another in a matter of common interest OR
  • (4) between representatives of the client or between the client and a representative of the client OR
  • (5) between lawyers representing the client
  • The privilege holder: The privilege may be claimed by:
  • The client
  • His guardian or conservator
  • The personal representative of a deceased client
  • Successor/trustee/similar representative of a corporation/association/other organization, whether or not in existence
  • Lawyer at the time of the communication—but may only claim on behalf of client
  • Exceptions/No Lawyer Client Privilege:
  • Carter listed: Prevention of an imminent future crime
  • Furtherance of a crime or fraud: If services of lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what client knew or reasonably should have known to be a crime or fraud
  • Attorney need not know of crime/fraud but is used to perpetuate it
  • In re Francis Carter: Crime-fraud exception applies, statements are not protected by attorney-client privilege, nor by work product protection.
  • For exception to attorney-client:
  • Client made privileged communications with intent to further unlawful/fraudulent act AND
  • Client carried out crime or fraud
  • Here, perjury and obstruction of justice in having affidavit prepared
  • For exception to work product:
  • Client consulted lawyer/used material for purpose of committing crime or fraud
  • Claimants through the same deceased client: Lawyer can say who decedent would have wanted to win in case of contested will
  • Breach of duty by lawyer or client: Communication relevant to an issue of breach of duty by lawyer to client or by client to lawyer
  • e.g. in malpractice case, lawyer can describe how she advised the clients
  • Document attested by lawyer:
  • Joint clients: As to a communication relevant to a matter of common interest between two or more clients
  • If the communication was made by any of them to a lawyer retained or consulted in common
  • When offered in an action between any of the clients.
  • Definitions: Client: Person, public officer, or corporation/association/organization/entity, either public or private:
  • Who is rendered professional legal services by a lawyer OR
  • Who consults a lawyer with a view to obtaining professional legal services from him
  • Lawyer: Person
  • Authorized OR
  • Reasonably believed by client to be authorized
  • To practice law in any state or nation
  • Representative of the lawyer: One employed to assist lawyer in rendition of professional legal services
  • Communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to client or those reasonably necessary for transmission of communication
  • Psychotherapist-Patient
  • Jaffee v. Redmond (US 1996): The federal courts recognize a psychotherapist-patient privilege under FRE 501
  • This privilege extends to licensed social workers in the course of psychotherapy
  • The Rule: Patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the director of the psychotherapist, including members of the patient’s family
  • The Privilege Holder: The privilege may be claimed by:
  • The patient
  • His guardian or conservator
  • The personal representative of a deceased patient
  • Psychotherapist, but may only claim on behalf of patient
  • Exceptions:
  • Proceedings for hospitalization: No privilege for communications relevant to issue in proceedings to hospitalize patient for mental illness, if psychotherapist in course of diagnosis or treatment has determined that patient is in need of hospitalization
  • Examination by order of judge: If judge orders examination of mental or emotional condition of patient, communications made in course thereof are not privileged with respect to the particular purpose for which the examination is ordered
  • Condition an element of claim or defense: No privilege as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense
  • Or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense
  • Definitions:Patient: Person who consults or is examined or interviewed by a psychotherapist
  • Psychotherapist:
  • Person authorized to practice medicine in any state or nation
  • Or reasonably believed by patient so to be
  • While engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction OR
  • Person licensed or certified as a psychologist under laws of any state or nation, while similarly engaged
  • A communication is “confidential” if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family
  • Husband-Wife:
  • Testimonial Privilege: Blocks all testimony by one spouse against the other, including testimony about pre-marital events or acts
  • Applies only if spouses are married when testimony is sought
  • Trammel:Witness spouse is the privilege holder
  • Defendant spouse cannot claim privilege to stop spouse from testifying against him
  • But, in another case, witness spouse who does not want to testify cannot be compelled to testify against defendant spouse
  • Exceptions:
  • Joint criminal activity (varies by J)
  • Child abuse by other spouse
  • Marriage in clear disrepair/long separation
  • Fraudulent marriage/marriage for the purpose of blocking testimony
  • Spousal Confidences Privilege: Blocks testimony about private communications between spouses while they were married
  • Applies forever to protect communications during the marriage
  • Montgomery: Spouses are co-privilege holders
  • Defendant spouse can claim privilege to prevent witness spouse from testifying about confidential communications between spouses
  • Here, letter telling husband to stop cheating customers was confidential/privileged communication
  • Exceptions:
  • Joint criminal activity (varies by J)
  • Suits between spouses
  • Child abuse by other spouse
  • No reasonable expectation of confidentiality/waiver
  • Marriage in clear disrepair/long separation (varies by J)
  • Rule: An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him
  • Privilege Holder:
  • The accused
  • The spouse on his behalf
  • Exceptions: No privilege:
  • One spouse charged with a crime against the person or property of the other or a child of either
  • Or with crime against person or property of a third person committed in course of committing a crime against the other
  • As to matters prior to the marriage
  • In proceedings in which a spouse is charged with sex trafficking
  • Communications to Clergymen:
  • Rule: Person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor
  • Privilege Holder: Privilege may be claimed by:
  • Person
  • Guardian or conservator
  • Personal representative of deceased
  • Clergyman on behalf of the person
  • Definitions: Clergyman: Minister, priest, rabbi, or other similar functionary of a religious organization
  • Or an individual reasonably believed to be so by the person consulting him
  • A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication
  • Political Vote
  • Trade Secrets
  • Secrets of state and other official information
  • Identity of informer
  • FRE 502: Attorney-Client Privilege and Work Product; Limitations on Waiver:
  • Applies to disclosure of a communication or information covered by the attorney client privilege or work product protection:
  • FRE 502(e): Definitions:
  • FRE 502(e)(1): Attorney Client Privilege:
  • Protection for confidential attorney-client communications
  • FRE 502(e)(2): Work Product Protection:
  • Protection for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial
  • Upjohn:
  • Attorney-client privilege attaches to lawyers’ conversations with employees
  • Communications made be employees to counsel for corp. acting as such
  • Made at direction of corporate superiors
  • Made in order to secure legal advice from counsel
  • Employees aware of this purpose
  • Communications concerned matters within scope of employment
  • Work product protection attaches to notes/memos of interviews
  • Possible that no showing of necessity can ever overcome protection of work product based on oral statements from witnesses
  • FRE 502(a): Disclosure made in federal proceeding or to a federal office or agency; scope of a waiver:
  • When disclosure:
  • Made in federal proceeding or to federal office or agency AND
  • Waives attorney client privilege or work product protection
  • Waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
  • Waiver is intentional
  • Disclosed and undisclosed communications or information concern same subject matter AND
  • They ought in fairness to be considered together
  • FRE 502(b): Inadvertent disclosure:When made in federal proceeding or to a federal office or agency:
  • Disclosure does not operate as a waiver in a federal or state proceeding if:
  • Disclosure is inadvertent
  • Holder of privilege or protection took reasonable steps to prevent disclosure AND
  • Holder promptly took reasonable steps to rectify the error
  • FRE 502(c): Disclosure made in a state proceeding: When disclosure made in state proceeding and not subject of state court order re: waiver, disclosure not a waiver in federal proceeding if:
  • FRE 501(c)(1): Would not be a waiver under this rule if it had been made in a federal proceeding OR
  • FRE 501(c)(2): Is not a waiver under law of state where disclosure occurred
  • FRE 502(d): Controlling effect of a court order:
  • Federal court may order that privilege or protection is not waived by disclosure connected with litigation pending before court
  • In which event, disclosure also not a waiver in any other federal or state proceeding

ARTICLE VI: WITNESSES: