Evidence – Carter – Fall 2010 – Attack Sheet

ARTICLE I: GENERAL PROVISIONS

  • 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
  • FRE 104(e): Weight and credibility
  • FRE 105: Limited Admissibility (Limiting Instruction)

ARTICLE II: JUDICIAL NOTICE

  • FRE 201: Judicial Notice of Adjudicative Facts
  • FRE 201(b): Kinds of facts: not subject to reasonable dispute
  • 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
  • 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 III: RELEVANCY AND ITS LIMITS

  • FRE 401: Definition of “Relevant Evidence”
  • FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
  • FRE 403: Prejudice substantially outweighs probative value
  • Chapple: error to admit gory pictures of charred body of skull and victim, when cause of death not contested
  • FRE 404: Substantive Character Evidence
  • FRE 404(a): Character evidence not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
  • FRE 404(a)(1): Character of the accused:
  • Crim case:
  • Offered by the accused OR
  • By the prosecution to rebut the same OR
  • If evidence of trait of victim is admitted for accused, evidence of same trait of accused for prosecution
  • FRE 404(a)(2): Character of victim:
  • Crim case
  • Subject to limits of FRE 412 (victim’s past sexual behavior/sexual predisposition in a sex offense case)
  • Offered by the accused OR
  • By the prosecution to rebut the same OR
  • Homicide case:
  • Evidence of peacefulness of victim, offered by prosecution to rebut evidence that victim was first aggressor
  • FRE 404(a)(3): Character of 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 not admissible to prove character of person in order to show action in conformity therewith
  • It may be admissible for other purposes:
  • Motive
  • Opportunity
  • Intent
  • Preparation
  • Plan
  • Knowledge
  • Identity (may be based on M.O.) OR
  • Absence of mistake or accident
  • Prosecution shall provide rxable notice of general nature of any such evidence it intends to introduce in advance of trial or during trial
  • Huddleston: When there is a question as to whether D really committed the prior act: (See p. 4 of outline)
  • FRE 405: Methods of Proving Character
  • FRE 405(a): Reputation or Opinion:
  • Inquire into relevant specific instances on cross
  • FRE 405(b): Specific Instances of Conduct
  • In cases in which character/trait of character an essential element of charge, claim, defense
  • FRE 406: Habit; Routine Practice
  • Relevant to prove conduct in conformity
  • FRE 407-411: Forbidden Evidence
  • FRE 407: Subsequent Remedial Measure
  • FRE 408: Compromise and Offers to Compromise (civil)
  • FRE 408(a): Prohibited uses
  • FRE 408(b): Permitted uses
  • FRE 409: Payment of Medical and Similar Expenses
  • FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements (Guilty pleas admissible)
  • FRE 411: Liability Insurance:
  • Not admissible to prove N.
  • Admissible to prove agency/ownership/control/bias
  • FRE 412: Relevance of Victim’s Past Sexual Behavior/Sexual Predisposition in Sex Offense Cases (see p. 5-6 of outline)

ARTICLE V: PRIVILEGES (SUPER OBJECTION—ALL STAGES, ALL PROCEEDINGS)

  • FRE 501: General rule (for federal criminal and federal question cases)
  • Privilege governed by principles of common law, as they may be interpreted in 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: Attorney-client privilege survives the death of the privilege holder (client)
  • Confidential information must be treated by privilege holder as such
  • Cabbie/murderer
  • Suburban Sew ‘N Sweep v. Swiss Bernina: If company does not take precautions to destroy privileged docs, cannot claim that info is protected by A-C privilege when gotten by dumpster divers
  • Privilege holder can tell multiple people with whom talks are privileged
  • Privilege holder must have rxable expectation of confidentiality under the circumstances
  • Non-communicative observations/actions are not privileged
  • E.g. person shows up at attorney’s office covered in blood
  • Proposed but Rejected FRE on Privilege
  • Required reports privileged by statute
  • Attorney-Client (p.7)/FRE 502 (p.11-12):
  • A-C Privilege and Work Product Protection
  • Upjohn:
  • A-C privilege attaches to lawyers’ convos with EEs
  • WPP attaches to notes/memos of interviews
  • Exceptions: Crime/Fraud: In re Francis Carter: If services of lawyer were sought/obtained to enable anyone to commit/plan to commit what client KoSHK to be crime/fraud
  • Joint Clients: Communication relevant to matter of common interest between two or more clients
  • Etc. (p.7-8)
  • Psychotherapist-Patient
  • Jaffee v. Redmond: Federal courts recognize a psychotherapist-patient privilege under FRE 501 (p.9)
  • Patient holds
  • 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 sough
  • Trammel: Witness spouse is privilege holder
  • D spouse cannot claim privilege to stop spouse from testifying against him
  • Spousal Confidences Privilege: Blocks testimony about private communications between spouses while they were married
  • Applies forever to protect communications during marriage
  • Montgomery: Spouses are co-privilege holders
  • D spouse can claim privilege to stop spouse from testifying about confidential communications between spouses
  • Clergy-Penitent
  • Political Vote
  • Trade Secrets
  • Secrets of state and other official information
  • Identity of informer

ARTICLE VI: WITNESSES:

  • FRE 607: Who May Impeach
  • Five types of impeachment
  • Bias: Witness’ like/dislike or fear of party, or witness’ self interest
  • Basically always relevant
  • Abel: Witness’ and party’s common membership in organization probative of bias
  • Type of organization relevant to show source and strength of bias
  • No limit on use of extrinsic evidence to show bias
  • Manske:
  • Self-interest: D claims Pszeniczka fabricated testimony to frame him
  • Fear: D claims Coburn and Cambell corroborated P’s false story because he had threatened them
  • Sensory perception: Physical/mental condition of witness that leads to inability to perceive accurately/to provide credible testimony based on something perceived
  • Character for credibility: FRE 608/609
  • Prior inconsistent statement: FRE 613
  • Contradiction: something that witness said in testimony is not true
  • Generally proved by extrinsic evidence
  • Can be prior inconsistent statements—but if they are offered for contradiction, they are offered for TOMA and require HS exceptions
  • Can be other evidence, e.g. OJ is impeached by receipt after saying he wouldn’t buy BM shoes
  • No contradiction on collateral matters: Contradicting evidence should have relevance aside from its impeaching effect
  • Tends to prove a substantive point
  • e.g. the shoes were O.J.’s
  • Tends to contradict and to prove another impeaching point
  • e.g. bias: Witness said he met driver for first time after accident but they had been dating for a year
  • Collateral/not allowed: Witness said he saw accident when returning from drugstore, but drugstore was not open that day
  • FRE 608: Evidence of Character and Conduct of Witness (Character for credibility)
  • FRE 608(a): Opinion and Reputation evidence of character:
  • FRE 608(a)(1): Evidence may refer only to character for truthfulness/untruthfulness AND
  • FRE 608(a)(2): Evidence of truthful character admissible only after character of witness for truthfulness has been attacked by opinion/reputation evidence or otherwise (e.g. bias)
  • FRE 608(b): Specific Instance of (Non-Conviction) Conduct:
  • Other than conviction of crime (FRE 609), may not be proved by extrinsic evidence
  • Extrinsic evidence: anything other than acknowledgment/denial of witness himself
  • But may, if probative of (un)truthfulness*, and in discretion of court, be inquired into on cross
  • *Manske: Behavior taking advantage of others in violation of their rights is probative of (un)truthfulness e.g. threatening witnesses
  • e.g. “Isn’t it true that you lied to get into law school?”
  • Can cross on specific acts concerning character of (un)truthfulness of another witness as to whose character witness being crossed has testified
  • E.g. “Did you know that A lied to get into law school?”
  • FRE 609: Impeachment by (Specific) Evidence of Conviction of a Crime:
  • FRE 609(a)(1):
  • Evidence that a witness other than an accused has been convicted of a crime (felony): FRE 403
  • Evidence that an accused has been convicted of a crime (felony): Reverse FRE 403 (probative value outweighs prejudicial effect)
  • Lipscomb: “All felony convictions are probative of credibility to some degree”
  • FRE 609(a)(2): Evidence that any witness has been convicted of a crime (misdemeanor/felony): if readily can be determined that was crime of dishonesty or false statement
  • Not subject to FRE 403 limitation
  • Much narrower than “probative of (un)truthfulness” that comes in under 608(b)
  • FRE 609(b): 10 year time limit, unless reverse 403, requires notice to adverse party
  • FRE 611(b): Scope Rule: Cross limited to subject matter of direct and matters affecting credibility of witness
  • FRE 611(c): Leading Questions: Not on direct except as necessary to develop witness’ testimony, should be permitted on cross, permitted for hostile witness, adverse party (on direct), witness closely identified with adverse party
  • FRE 612: Writing Used to Refresh Memory (Present Recollection Refreshed): Witness uses writing to refresh memory for purpose of testifying either:
  • While testifying OR
  • Before testifying
  • Baker: Defense should have been allowed to refresh present recollection of policeman testifying by showing him report written by fellow officer regarding fact that victim did not ID D as robber/attacker
  • Witness looks at memo to refresh memory but testifies on basis of present, indep. knowledge
  • Memory aid not received or read into evidence
  • Memory aid can be ANYTHING
  • FRE 613: Prior Statements of Witnesses: Prior Inconsistent Statement
  • FRE 613(a): Examining witness concerning prior (un)written statement: need not show statement to witness/disclose contents at that time
  • FRE 613(b): Extrinsic evidence of Prior Inconsistent Statement: not admissible unless:
  • Witness afforded opportunity to explain/deny AND
  • Opposite party afforded opportunity to interrogate witness on OR
  • Interests of justice otherwise require
  • DOES NOT APPLY TO PARTY ADMISSIONS
  • N.B. You can introduce the extrinsic evidence without first asking witness about it but other side must have opportunity to recall/question about it
  • Webster: R: impeachment by prior inconsistent statement not permitted when employed as mere subterfuge to get inadmissible evidence before jury (but ok here)
  • Harris: Majority allows impeachment by use of un-Mirandized post-arrest statements that he was selling heroin that are inadmissible for substantive purposes
  • Jenkins: Use of prearrest silence to impeach accused’s credibility when he takes the stand is acceptable
  • E.g. D stabbed victim, did not wait for police/report, claimed self-defense, and was impeached by failure to report

ARTICLE VII: OPINIONS AND EXPERT TESTIMONY:

  • FRE 701: Lay Opinion: Limited to opinions/inferences:
  • (a): Rationally based on perception of witness AND
  • (b): Helpful to a clear understanding of witness’ testimony or determination of fact in issue AND
  • (c) Not based on scientific, technical, or other specialized knowledge
  • FRE 702: Expert Testimony: If scientific, technical, or other specialized knowledge will assist trier of fact to understand evidence/determine fact in issue, witness qualified as expert by:
  • Knowledge
  • Skill
  • Experience
  • Training OR
  • Education
  • May testify in form of opinion or otherwise IF:
  • (1) test. based upon sufficient facts or data
  • (2) test. product of reliable principles and methods AND
  • (3) witness has applied principles and methods reliably to facts of case*
  • Daubert: Key factors in court’s determination of whether scientific evidence is reliable
  • Can it be tested?/Has it been tested?
  • Has it been subjected to peer review and publication?
  • What is the known or potential rate of error?
  • Is it generally accepted in the field?
  • Kumho Tire: Court MAY consider Daubert factors in determining whether expert testimony in a field other than science is reliable (ct. has considerable leeway in deciding how to determine reliability of expert test.)
  • FRE 703: Bases of Opinion Test. by Experts: May be perceived by/made known to expert at or before hearing
  • Need not be admissible for opinion to be admissible if of type rxably reliable upon by experts in field
  • Otherwise inadmissible facts/data shall not be disclosed to jury by proponent of opinion
  • Unless Reverse 403
  • FRE 704: Opinion on Ultimate Issue:
  • FRE 704(a): OK except:
  • FRE 704(b): in crim case, NOT as to whether D did/did not have mental state/condition constituting element of crime charged or of defense thereto
  • FRE 705: Disclosure of Facts/Data Underlying Expert Opinion: Can give opinion/inference without first testifying to facts/data, unless court requires otherwise
  • May be required to disclose underlying facts/data on cross
  • FRE 706: Court Appointed Experts

ARTICLE VIII: HEARSAY:

  • FRE 801: Definitions
  • FRE 801(a): Statement:
  • (1) an oral or written statement OR
  • (2) non-verbal conduct of a person, if it is intended by the person as an assertion
  • FRE 801(b): Declarant: Person who makes a statement
  • Animals not HS declarants
  • Machines not HS declarants
  • FRE 801(c): Hearsay is:
  • A statement
  • Made out of court
  • Offered into evidence
  • To prove the truth of the matter asserted
  • Pacelli: Cannot admit HS statements that imply TOMA, even if they do not state it directly e.g. “The murder was bungled by leaving the body where it could be found.”
  • FRE 801(d): Statements which are NOT HEARSAY (HS Exclusions): A statement is NOT HS if:
  • FRE 801(d)(1): Prior statement by witness: Declarant testifies at trial AND
  • Is subject to cross concerning the statement AND
  • The statement is:
  • FRE 801(d)(1)(A): Inconsistent with the declarant’s testimony AND was given under oath subject to a penalty of perjury at a trial/hearing/other proceeding*/depo OR
  • *Smith: Sworn affidavit signed by hooker at station naming pimp as attacker was made in other proceeding (minority rule) (see p. 20 for specifics)
  • N.B. Forgetfulness/Evasive Answers/Silence: If court believes you are feigning, prior inconsistent statement will come in under FRE 801(d)(1)(A)
  • If court believes you have a genuine medical reason to forget, prior inconsistent statement will not come in under this rule
  • FRE 801(d)(1)(B): Consistent with the declarant’s testimony ANDoffered to rebut express/implied charge against declarant of recent fabrication/improper influence or motive OR
  • Tome: Prior consistent statements of abused child to six witnesses naming father as abuser admitted in error because not made before recent fabrication/improper influence or motive came into being
  • FRE 801(d)(1)(c): One of Identification of person made after perceiving person
  • Motta: Composite sketch of robbery suspect based on witness’ description admissible under this exception
  • Res gestae: ID should be done close in time to perception (no express limit)
  • FRE 801(d)(2): Admission by party-opponent: Statement offered against a party* AND is
  • FRE 801(d)(2)(A): Party’s own statement
  • *Victim is party represented by state, so her admissions come in against prosecution
  • Bruton: Joint Ds. Error to admit Evans’ statement, “Bruton and I committed the robbery.”
  • FRE 801(d)(2)(B): Adoptive admission: party manifested adoption/belief in truth
  • Hoosier: Tacit admission because did not deny girlfriend’s statement in situation in which person would be expected to deny that statement if untrue (see p. 21-22 for reqs of tacit admission)
  • See p. 22 for silence/statements/Miranda
  • FRE 801(d)(2)(C): Speaking Agent: statement by person authorized by party to make statement concerning subject
  • FRE 801(d)(2)(D): Agent in SOE: statement by agent re: matter in SOE, during existence of agency relationship
  • Mahlandt: “Sophie bit a child”
  • FRE 801(d)(2)(E): Coconspirator: of party during and in furtherance of conspiracy
  • Bourjaily: Existence of conspiracy and D’s participation in it are preliminary questions of fact under FRE 104(a) (see p.23)
  • CL HS Exclusions (NOT HEARSAY):
  • Imperatives: no TOMA
  • But cannot use “Look at the red barn” to prove there was a red barn.
  • Interrogatives:no TOMA
  • Impeachment by prior inconsistent statement: not offered to prove TOMA
  • Verbal Act: Words of independent legal significance, offered to prove the act
  • Effect on the Hearer: Hearer’s reaction must be at issue
  • Verbal Object/Chattel: Words on object that are integral part of object itself; not separate statements
  • Generally affixed in the course of business
  • But see Duffy
  • Circumstantial Evidence of State of Mind: Offered to support inference re: person’s state of mind when at issue
  • Circumstantial Evidence of Memory: Offered to support inference re: person’s memory of event/place, which could not exist unless they actually saw event/place
  • Non-complaint/non-reporting: Cain v. George: Not complaining about heater is act/omission, not HS statement
  • FRE 803: HS EXCEPTIONS, AVAILABILITY IMMATERIAL:
  • FRE 803(1): Present sense impression: Describing/explaining event/condition while perceiving or immediately thereafter
  • Nuttall: Admissible: statements on phone and immediately after “I am sick/I will have to go in” to prove was forced to go in
  • FRE 803(2): Excited utterance: Re: startling event/condition while declarant under stress of excitement caused by event/condition
  • FRE 803(3): Then existing, mental, emotional, physical condition:
  • State of mind
  • Victims’ statement of fear not admissible because victim’s state of mind not at issue
  • But see: The Hillmon Doctrine: present intention admissible to prove subsequent conduct of declarant
  • Pheaster: MAJORITY RULE: present intention of declarant INADMISSIBLE to prove conduct of someone other than declarant (Pheaster ruled contrary)
  • Emotion
  • Sensation
  • Physical condition
  • Intent
  • Plan
  • Motive
  • Design
  • Mental feeling
  • Pain
  • Bodily health
  • Not including statement of memory/belief to prove fact remembered/believed unless about declarant’s will
  • FRE 803(4): Statements for purpose of medical diagnosis/treatment:
  • AND describing medical history OR
  • Past/present symptoms, pain, or sensation OR
  • Inception or general character of cause/external source thereof
  • Insofar as rxably pertinent to diagnosis or treatment
  • Backward-looking ok
  • Fault statements usually not ok
  • But see Blake: special case of child sexual abuse
  • FRE 803(5): Recorded recollection/Past recollection recorded:
  • Memo re: matter about which witness once had knowledge but now has insufficient recollection to testify fully and accurately
  • Ohio v. Scott: Witness gave handwritten, signed statement to police day after arrest re: convo with D who told her he wrecked car and shot guy, but on stand could not remember D’s statement.
  • FRE 803(6): Records of regularly conducted (business) activity: p.26-27
  • FRE 803(7): Absence of entry in (business) records: p.27
  • FRE 803(8): Public records and reports: p. 27-28
  • See others p. 28-30.

ARTICLE IX: AUTHENTICATION AND IDENTIFICATION: