Evidence Outline West Video

Rule 402 to organizing all of evidence --- admissible unless kept out by specific rule

Relevancy –

Evidence is inadmissible for only three reasons: irrelevant , incompetence something else

Federal Rule 401- Relevant means have any tendency to make existence of any fact that is of consequence to the action more probable than not see rule

To be relevant under 401 any piece of evidence must meet two tests:

1. Must help in some minimum way to establish the fact or proposition the evidence the is introduced to establish

2. The fact evidence is established it with substantive law have something to do with outcome in the case

If plaintiff wanted to prove X was drunk and introduced that X was a catholic from Maine, that has not to do with anything --- so it is irrelevant

But what if had evidence that bartender served him 20 drinks and watched him stagger out of bar – but if drunkenness had nothing to do with cause then again irrelevant

MI and Federal 401 are identical

Terminology – at common and in every jurisdiction --- evidence that did not help in establishing a fact that was not established is deemed irrelevant

Evidence that helps establish a fact that has nothing to do with outcome of case is called immaterial evidence

Now immaterial evidence is called irrelevant evidence under the federal rules

A scintilla of horseshit is enough to meet the standard of relevance

To prove X committed battery on Y --- offers W to say saw X running from battery, relevant yes, but does prove beyond reasonable doubt, but does not have to meet basic definition of relevancy

The word proposition is used to denote a fact or as synonym with the word fact – or elements of a cause of action

Any piece of relevant information can be excluded if judge makes the 403 (the unduly prejudicial rule) determinations

Test for relevance by a judge: the one who decides relevancy: Does this offered piece of evidence help a little to prove something in the light of my life experiences

Rule 403 – any pieces of evidence can be excluded any one or any combination of the counter weights listed in 403: any piece of relevant evidence

3 Goozers -

1. Evidence is relevant if helps decide an issue in dispute

2. All relevant evidence is admissible unless a specific rule keeps it out 402

3. Relevant evidence maybe excluded if trial judge finds if prejudicial

Relevancy rules of Exclusion ---- Rules that limit the admissibility of evidence –

Liability insurance cannot be used to prove negligence --- this is a basic idea under this topic

If evidence is used to prove some other proposition, this rule will not keep the evidence out – must help establish the other proposition

Seven relevancy rules of exclusions –

1. Liability insurance (r. 411)

2. Subsequent repairs (r. 407)

3. Settlement offers (r. 408)

4. Payment of medical expenses (r. 409)

5. Character evidence in criminal case (r. 404)

6. Character evidence is civil case

7. Prior similar occurrences

Rule 411 – Evidence person was or was not insurance for liability is inadmissible to prove some acted wrongfully – Plaintiff trying to show

Have to show ownership or control – could be admissible to use insurance to prove ownership and control, people do not generally insure another property

Goozer - Evidence of insurance is inadmissible to prove negligence but maybe admissible to prove ownership

Rule 407 – When after an event measures are taken, which are taken previously would have made event less likely to occur this evidence would not be admissible – this would be a subsequent repair

Strict liability law suits --- what if introduce repair in this type of cause of action – some courts say this rule does apply to s/l cases, other say no – split of authority

MI rule here is identical

Rule 408 – Settlement offers and factual statement made during negotiations is not admissible if offered to prove liability

Excluded for public policy – to encourage settlement of disputes; say what you want at settlement meetings and words will no come back to haunt you if negotiations break down

Goozer – Settlement negotiations and factual statements made in conjunction with them are inadmissible

Rule 409 – Payment of medical expenses or offer to pay for medical expenses is inadmissible to prove liability --- this is to encourage this kind of activity – pay someone’s medical bill and will not haunt you at trial – this rule does not include factual statements made while paying or offering to pay bill --- meaning if says I will pay bill because ran red light then this is statement is admissible

#1 rule of exclusion – Rule that deals with character evidence in both criminal and civil cases

General observations – Dealing with evidence of person’s character or more specifically a person’s character traits; who is this person; character traits can be inapposite; can be reckless, but honest, shift yet law abiding

What is the P, what can we not establish with character evidence

• Cannot try to prove of someone acted in conformity because has a particular character trait

• You can admit a piece of evidence to prove some other than this, even if excluded by the above statement

Three methods for can use this type of evidence to prove a character trait –

1. Reputation Evidence

2. Opinion Evidence; have seen him drive, drives carefully

3. Specific past conduct

Rule 404 is the criminal and civil:

Seven Rules for criminal rule 404 to remember --

1. Evidence of defendant’s bad character is not admissible if using to prove acted in conformity with his character unless defendant introduces evidence of his good character

2. The defendant is allowed to present evidence of relevant good character to try to establish he did not act the way prosecutor claims, meaning he did not commit the crime charged; evidence of innocence – want to give defendant every opportunity to prove innocence, and here do not worry about prejudicial value to jury

3. Rule 405 limits type of evidence defendant can use to establish good character- can call witness to prove good guy (testify for good community reputation, or what every good trait trying to establish) or any character trait that is good – but cannot introduce evidence specific good acts (was in church choir, helped old lady across the street etc.) --- all this must be relevant to charge or defense – if defendant embezzler, have a peaceful character trait is not relevant

4. After defendant has place character in issue – he has opened door and prosecutor can introduce bad character evidence --- prosecution limited here also – can use reputation witness, and opinion witness, same as above so far, but cannot present own independent evidence of specific bad acts of defendant, too prejudicial under rule 405 – may cross examine defendant’s reputation or opinion witness on whether they have heard of particular bad acts in the past – can ask was in jail, convicted of murder, can even ask, do you know he beats his wife – if witness said never heard, then witness knowledge comes into question --- good faith basis must be present on prosecutor for “have you heard” questions

5. When defendant testifies he automatically places his character trait of truthfulness at issue – prosecution can introduce character evidence to prove not truthful person

6. If prosecutor has some other purpose for bad character evidence, not for acting in conformity of something, some other purpose --- rule 404 will not keep evidence out, 403 might keep this out, too much prejudice --- these are things you can use bad evidence to establish, so rule 404 will not keep the evidence out for this out, but 403 might, prejudice specific bad acts can be introduced for another legitimate purpose– can use prior crimes to establish a MIMIC proposition if prosecutor can get over rule 403, 404 will not exclude this type of evidence - [MIMIC proposition] motive, identity, absence of mistake, intent, common scheme --- if prosecutor is trying to introduce to show criminal propensity discuss rule 404, if there is another legitimate purpose [MIMIC], then 404 will not exclude, and second thing discuss is rule 403, may be prejudicial, third thing discuss is if defendant testified discuss rules regarding impeaching witness ---- basic idea 404 will keep out evidence if trying to show propensity other purpose 404 will not keep it out, need to get over 403 though – if D testified will have to consider the impeachment of credibility of the witness (D) in this case

Goosers ---

1. State cannot show bad character until defendant raises the issue

2. The defendant can always show relevant good character through reputation or opinion testimony

3. When state can show bad character it can use reputation, opinion or cross of defendant witness, the “have you heard questions”

4. Prior crimes are always inadmissible to prove bad character in general, maybe admissible for a MIMIC proposition

Character evidence in civil cases:

1. Cannot introduce evidence of character trait of parity if purpose is to show party acted in conformity with that character

2. In all civil cases character evidence can be introduced to impeach a witness who has testified --- if take witness stand automatically place truthfulness at issue

3. If there is another legitimate purpose for evidence, other conformity with a character trait -- rule 404 will not keep ----

Character evidence is generally not admissible in a civil case

7. (From list above) Prior similar occurrences:

Some courts reject this type of evidence, evidence of prior negligent act by D, or prior torts by defendant, on ground character evidence prohibited under 404; asking court to infer that D is negligent fellow because of prior acts --- probative value can be low, prejudice very high so may reject under a 403 theory; other courts reject this type of evidence under 401, prior torts not helpful – some courts reject under a 403 balancing analysis

Three operating rules here to keep this evidence out so look at this carefully

Prior behavior or similar occurrence evidence admissible if offered to establish another proposition --- maybe existence of dangerous condition; that glass door has caused injuries in the past, those steps have caused prior injuries, not character ability of object to cause harm, prior tort admissible to show knowledge of defect or can be admissible to show cause – ate at one place finally got sick, but not his fault ate some place else and look others got sick also, so admissible to show defendant is at fault or not

In a criminal case cannot introduce evidence of prior crimes to show committed this crime but maybe under MIMIC can introduce

Generally summary: In civil case cannot introduce prior tort, but may introduce prior tort to show knowledge of condition, cause or dangerousness of an object

Habit evidence – rule 406 – admissibility of piece of evidence – very similar to character or prior occurrence evidence, do not confuse --- habit evidence is admissible to show someone acted in conformity with habit – universally defined as: habit is a repeated response to a particular set of circumstances – always locks gates with dog before leaving for wok – always read K before sign – two ways to prove habit:

1. Witness has observed the party over and over again do this act

2. Party themselves take witness stand and testify act same way all time

Habit evidence is admissible to show acted that way one more time --- why: it takes a number of repeated similar acts before habit established, twice no habit, everyday last 2 years habit, 20 times for last 2 months not sure – line hard to draw --- have to argue the position between habit and character evidence, based on facts presented, fact driven determination on the part of the court

Goozer –

Habits of a business routine are admissible to prove a business routine (still r. 406) – concept of habit applied to a business entity

Two additional relevancy rules of exclusion to look at –

• Sexual history of a victim in a rape case (r. 412)

• Criminal negotiations (r. 410)

Real Proofs Issues ---

Real proof means physical things exhibited to one of the senses of jury – look, smell and taste

------ All evidence other than testimony of witnesses ------

Admissibility – must establish with other evidence to prove that this it purports to be – preliminary evidence – this is also called authentication – or laying foundation for intro of real proof --- no one way to do this – controlling rule is rule 901

Authentication is satisfied by evidence sufficient to support finding of claimant; that is enough evidence to prove it is what proponent claims it is – see rule

Enough evidence to what your showing is it --- no magic way to meet authentication requirement-----

Two authentications techniques most times –

1. If object is unique or marked in some way that it can positively be identified later, authentication can be established by putting a person on witness stand that can testify (first hand knowledge) under oath that this it what claim to be

2. Authentication can also be established by chain of custody, tracing item from the real world event into the court room – common way to authenticate any item that is not unique

Law of evidence does not require any particular authentication technique – the above are simply time-honored way to meet authentication requirement

And remember that probative value cannot be outweighed by a 403 objection – any piece of evidence no matter what it is, can be excluded under 403 if too prejudicial

Never forget 403 – very important

When have real proofs, must write about two issues: Must write about proper authentication (r. 901), second, whether the probative value is outweighed under r. 403

Documents –

Jury look at this writing either as direct or circumstantial evidence (love letters in murder case) – writing must also be authenticated --- of course writing must meet a 401 and 403 analysis --- sometimes writing raise a best evidence rule issue --- or a hearsay problem --- is there an exception to hearsay to get it in – of document may be kept out by one of relevancy rule of exclusion, see part one above, as part of a settlement offer, or an insurance of could be a subsequent repair or conviction, maybe not admissible under r. 404

Checklist when dealing with a document:

1. Authentication

2. Best evidence

3. Hearsay

4. The seven relevancy rules of exclusion

Tape 2 ---------------

Authentication of documents; how do you authenticate a document –

Anyway you want to, controlled under 901 --- there are some traditional ways that are used:

Example trying to authenticate a K --- piece of real proof has to meet 901 –eight ways to do this – Assume you want to introduce a K at trial, its a piece of real proof and need to meet the 901 requirement:

1. In court admission – X is that you signature, yes, then documents authenticated

2. Out of court admission --- can produce evidence that X at some time in past has admitted, to the authenticity of the documents, this was his signature

3. Eye witness, anyone who saw X sign, including the opposite party

4. Proof of handwriting, anyone familiar with X’s signature can testify as to his or in my opinion it is his signature, has to have some familiarity with X signature, only seen signature a few times years ago that is good enough – will allow the opinion of a witness that it is X’s signature – but X can put on evidence that this is a forgery – but this comes later once the documents has been admitted – we do not put a high barrier on admitting this type of real proof

5. Expert opinion --- expert by comparing to another document with authenticate X signature

6. Comparison by the jury --- they do the comparing between the offered document and another document bearing X’s signature

7. Reply letter doctrine – X testifies mailed this letter to A for offer, and that this letter came by return mail as a response, X’s acceptance, highly unlikely that someone else would send an acceptance to a particular offer bearing X’s signature (circumstantial evidence of response is high and meets standard for 901)

8. Anything else that will reasonable establish genuineness of signature

Some documents are self-authenticating – no extra showing needed to get them in (see r. 902) --- 5 examples of self-authenticating documents, many more though; see rule ---

1. Commercial paper

2. Acknowledge documents, those that are notarized

3. Documents that bear a trade inscription or trade label – Coke, Giant brand peas, or something else; put forth by that particular company and may try to rebut later to prove forgery

4. Newspapers

5. Periodicals

CAT-NAP – can take a cat nap on this evidence

Best evidence rule (r. 1002) ----

Original documents rule called sometimes ---- if trying to prove contents of a writing try to produce the original document or account for its absence

If trying to prove contents of recordings and photo or writing, Original writing required then see exceptions --- original recordings and photos are also included here (see rule)

3 sub issues for best evidence rule –

1. When is a party trying to prove contents of writing, recording or photo (this is what triggers best evidence rule, if not trying to prove contents of one of the medium no best evidence rule issue)

2. What are exceptions to the rule

3. What is meant by an original document (does a copy of document count)

When is party attempting to prove contents of writing –

1. When witness is on stand and wants to testify what he read in a document – best evidence rule problem, how much paid for car, well looked at account book according to bank book, objection

• Best evidence rule does not apply if witness testifies to first hand knowledge of a particular event if a document that exist about that even – if attempting to prove contents of document then produce the documents or tell us why you can’t

D on trial for murder, her best witness lies, she is convicted and, then lying witness now on trial of lying, Defense get witness from court that day, objection, best evidence will be the transcript of that day

Witness testify to payment of debt, w/o producing the receipt – can we allow this – if witness has first hand knowledge of event, the witness can testify w/o producing that signed piece of paper

Witness attempts to testify about rights that are controlled by substantive law with a written instrument

• Testifying about conveying land, need to have deed under property law or a K that is covered by s/f --- don’t tell us about rights produce the writing or finally a will – when substantive law requires a writing need it -

The witness learned the information right from a document; the letter said, that account book said --- attempting to prove contents of a writing --- or a witness refers to a document – or the witness refers to K the refers to s/f

2. Exceptions to the best evidence rule --- the two biggest exceptions --- The collateral documents exception --- even if are trying to prove documents of a writing -- you do not have to produce document is deemed court document as collateral – some courts hold that all documents that central to case are collateral; other courts define it as minor unimportant points – if document collateral then best evidence rule does not apply --- points to remember: if court concludes collateral then best evidence rule does not apply, next, if docuemtn deals with minor umimportant point that all courts consider it collateral and do not need original document

Or if reasonable excuse can be given for not producing (r. 1004) --- Document in hands of opposing party will not give, lost in fire, its simply lost, I destroyed it this morning – that is not reasonable

What is meant by an original document ---

Under federal rules can produce a machine copy, provided no genuine issue in this case as to authenticity of the case

If object to copy, judge will ask why, if not good reason then will take the copy; but if object and say no original ever existed, because this is a phony case, judge will make produce original or bring self with in one of exceptions; diligent effort, simply lost etc.

Goozer -

Once in a while to prove what is found in some writings, you must produce writing unless you cannot

Witnesses -----

Witness competency – all are competent unless specific that disqualifies (r. 610)

3. Evidence rules that apply when witness takes witness stand –

Four disqualifications to witnesses --

Witness not allowed to testify unless declares cannot do so truthfully (r. 603 identical in MI)

Before testifying every witness shall be required to declare will testify truthfully, by oath or affirmation – no magic formula have to follow; can ring the neck of chicken if that is the way you affirm, provided the judge agrees

Next requirement - Observations – witness cannot to testify that they have not observed through one of their senses; seeing, hearing etc. (r. 602 requires personal knowledge; if witness does not have 1^st knowledge then incompetent to testify to those facts) – must have seen red car his blue car – what if witness talked to someone who observed the accident, witness can testify to what other person said, provided it is a recognized to the hearsay rule; or witness said saw a little, glasses not on, the amount of observation will go to the weight jury decides to give it

Ability to refresh the recollection – do not remember witness says, may try to refresh – but if witness cannot remember after trying to refresh that witness becomes incompetent; must have some independent recollection

A little recall is enough to testify, no recall cannot testify

Witness must have ability to communicate with judge about the facts originally observed; otherwise cannot testify – interpreter is okay, and interpreter (r. 604 identical in MI) must take the oath also

Dead man’s statute no longer valid – a witness incompetent to testify to transaction with a person that is dead at time person is testifying --- disqualifies this person – this is no longer an acceptable principle

Competence of witness to testify --- some rules put an age limit – federal rules do not have a magic age for testimony – if trial judge determines this 5 year old have ability to recall and communication and appreciate obligation to tell truth then can testify

4 things that disqualify a witness – recap – Goozer ROTC

No recollection

No observation (r. 602 personal knowledge, identical in MI)

Lack of appreciation for truthfulness

No communication ability

Form of examining a witness ---

Require a question and answer format for the most part

One rule need to know --- rule that prohibits leading questions on direct – a question that suggest answer to witness, usually but not always will require a yes or no answer

Exceptions to this rule – leading questions allowed –

1. Have a hostile witness – anyone who has demonstrated hostility from witness stand

2. Or when they are necessary to elicit the testimony – to refresh memory, or when very young witness cannot testify any other way- don’t like but if best can do will take it

3. Or for minor unimportant things, background information

Goozer --

Leading questions not allowed unless, unfriendly witness or necessary to develop testimony

Witness on witness stand that cannot remember his name --- can start with some leading question to get ball rolling, what is your name, where you live etc, then have to find another way to refresh recollection

Present recollection and past recollection recorded –

Essence of this theory – present recollection refreshed – D tried for transporting stolen goods, W for government Victim --- had to establish that goods were above $5,000; calls victim to stand and ask value and she could not remember – newspaper printed items in paper with value, can use that to refresh --- rule anything can be used to refresh recollection --- the writing can be hearsay, can be prepared by someone other than witness, does not matter --- can use anything to refresh (this limited person) – documents used to refresh, do not have to meet best evidence rule, or hearsay, or even be authenticated

But prosecutor can, have to show to opposing counsel cross exam on it, and she can put it into evidence if wants to and you cannot object (r. 612 MI has an additional line)

Anything can be used to refresh the recollection, memory

Past recollection recorded --- have honest witness, read writing really do not have any independent recollection – witness incompetent, no recollection --- writing may still come in under past recollection recorded rule --- to introduce writing must conform to four things:

1. He has insufficient recollection of event

2. He wants had full knowledge of the event

3. That writing was made or adopted by him at a time had full knowledge – courts are very liberal this requirement

4. Believed statement was true at time wrote or adopted it

These four things will qualify the document as past recollection recorded; hearsay will not keep this out

If document is done under this doctrine, this document does not go to jury; instead the witness on stand sits there and reads it aloud

Insufficient recollection to testify cannot testify

701 – Objected to as an opinion of a conclusion – is the statement is based on observation of witness, if yes then admissible

Opinion by lay witness -

r. 701 (MI is identical) – if witness is not testifying as an expert his opinion is limited to see rule

Two conditions must be present:

1. Opinion must be based on the perception of the witness

2. Opinion must be helpful to understand the testimony or determine the fact in issue (trial judges discretion here)

Goozer – for lay testimony - assuming perception the opinion can be given if it is help

Expert Opinion –

Subject matter – what type of subjects or topics are appropriate for expert testimony; second issue is what is the factual basis the expert must have to render that opinion

Rule 702 – Majority rule – it will allow expert testimony in form of opinion when scientific technical or other specialized knowledge will help the jury

Goozer – Specialized knowledge that will help the jury (a hooker has specialized knowledge that will assist a jury)

Under Frye rule --- this is what use in MI – help the judge make determination if the scientific principles are generally accepted or valid; when is something is generally accepted – what was the scientific community we looked to

Frye provides direction to trial judge, Frye not used by the Federal Rules – under Fed rules must determine that knowledge will help jury and then under 403 will not be outweighed by confusion --- discuss whether of assistance under 702 and any potential for a 403 issue that may keep it out if get an essay on expert testimony

Federal Rule on this point – may make opinions made from any source provided it is from a source reasonably relied upon by the field – Federal rules authorize expert testimony based on information received on any source provided it is information reasonably relied upon by experts in that field – it can be completely inadmissible evidence

Goozer – Expert opinion can be based on facts or data reasonably relied upon experts in the field even if these facts are completely inadmissible evidence

Rules of Bolstering credibility of witness –

Cannot bolster credibility of your witness until he has been impeached

This can be somewhat misleading --- think of rule like this; if evidence if being offered for sole purpose of bolster credibility before impeachment, it is inadmissible, but if there is some other legitimate use for evidence the fact that it does bolster creditability will not keep it out

For example D is charged with embezzlement --- D has reputation for being honest, if that evidence is offered to bolster creditability then it would be rejected --- but if introduced to show has a character trait of admissibility and not the sort of person that would commit the crime then would be admissible

After the witness impeached than there can be some bolstering – rehabilitation

Can you impeach your own witness ---- yes (r. 607)

Goozer – 607 provides the creditability of a witness may be attacked by any party – can impeach own witness

Impeaching witness that testified for opposing party – include the other side them self ---

Intersection collision – you can call an eye witness to testify to what they saw even if it contradicts another eye witnesses testimony --- or another way to show not credible to prove did not show that much, it was raining, or talking to someone – or does not remember, it was five years ago, does not remember all that clearly

Five classic impeachment attacks

1. Prior inconsistent statements

2. Bias

3. Convictions of a crime

4. Prior bad acts

5. Reputation for untruthfulness

Two important sub rules with respect to each of attacks:

1. When using one of these impeachment techniques, can we introduce extrinsic evidence, or must we settle for answer of witness under attack on cross – can grill D on one of above, but can I intro other evidence to drive that point home

2. If extrinsic evidence is allowed do I have to lay foundation laid before introduce that evidence

Prior inconsistent – can be impeached on basis made a inconsistent statement at any point – said green light, other night in bar said light was red; talks out of both sides of his mouth, should not believe, or he has told lie on this issue at least once, has given two inconsistent statements do not know which to believe

Can be asked on prior inconsistent on cross on any testimony that was given in this case

Can D bring in extrinsic evidence, yes as long as inconsistency is not deemed minor or unimportant by the court – must X be given opportunity to explain the inconsistent statement be extrinsic evidence is allowed – r. 613 still requires giving X an opportunity to comment but does not have to be before the extrinsic evidence is presented

Second under 613 judge can dispense with comment completely if interest of justice will be served by dispensing with the comment

Evidentiary use the jury is allowed to make of the prior statement – can jury also use as substantive evidence the statements of X, as evidence to prove the plaintiff went through red light – under traditional view followed by most --- prior inconsistent view is hearsay if offered to prove the prior inconsistent statement to prove case, hearsay --- can only be used for limited purpose of casting doubt on credibility of witness – but if qualifies to an exception hearsay, excited utterance, this can be used both to impeach and as substantive evidence in the case, hearsay would not keep it out

Every prior inconsistent statement can be used to impeach some can be used for substantive evidence to prove light was red --- federal rules alter traditional a little, prior inconsistent statement to be considered non-hearsay substantive evidence if given under oath subject to penalty of perjury, at trial hearing or other proceeding

Under the rules all prior inconsistent statement can be used to impeach, some as substance evidence if other reason than to impeach or if given under oath under penalty of perjury

Prior inconsistent statement admissible to impeach and be done on cross and bring out extrinsic evidence

Second impeachment technique –

Bias, if witness has any reason to testify for side testified for, jury allowed to hear that to better weigh credibility of that witness – doctor got 10,000 to testify, cut a deal with prosecution, witness has criminal charges pending in another matter and so forth

Rule – does that piece of evidence supply any reason why that witness might be inclined to favor side witness has testified for, if yes can be impeached under theory of bias

Even being part of a secret prison organization that had as its basic tenant that you would lie for each other and deny its existence – shows a reason to favor side he testified for

Can you present extrinsic evidence about bias --- yes

Must you lay a foundation before introducing evidence; split of authority; majority rule, require foundation, minority rule foundation not required and the, Federal rules are silent here

Goozer on bias – evidence that supplies nay reason that witness may favor side testified is admissalbe on cross or through other extrinsic evidence under theory of bias

Prior convictions – 3 categories: r. 609

1. Any criminal conviction, felony or misdemeanor, involving dishonesty or false statement can be used for impeachment – stole a pig, lied on income tax return

2. If D, or W is the D in a criminal case, any other felony, other than those talked about in rule 1, as long as probative value higher than prejudice

3. If witness is not accused in criminal case, any other felony can be used to impeach, subject to rule 403

Evidence will almost always be a certified copy of certificate of conviction from court where the conviction took place – must you lay a foundation before introducing this, no

Prosecutor is attempting to intro evidence of prior crime of D – must determine the purpose of the evidence, what is prosecutor attempting to establish – if attempting to show criminal propensity, it is inadmissible character evidence under 404 – but if establishing some other proposition, MIMIC then 404 will not keep it out, 403 might, if crime offered to impeach evidence witness testified to, have to work through the above stuff

Goozer’s –

1. Prior crimes involving dishonesty can always be used to impeach

2. Other crimes, if they are felonies, can be used to impeach unless to prejudicial

3. Prior crimes can be asked about on cross or proven with extrinsic evidence, no foundation required

4. If witness is criminal defendant also check the character evidence rules found in 404

Prior Bad acts –

Specific bad acts by D that did not result in a conviction but reflect on his character

X stole a car a year ago and no conviction; or whatever the problem was (r. 608)

If the prior bad act did result in a conviction then use r. 609

The rules place 4 major limitations on the use of prior bad acts;

1. Discretion of judge as to whether to allow to impeach through prior bad acts; he can stop you at any time; and will not let you spend a lot of time on this

2. Prior bad acts can be asked about on cross, but extrinsic evidence will not be allowed on prior bad acts – even if witness lies and says did not commit the crime, have to take the answer, and rule is will not have any other evidence on that point

3. Prior bad act ask about on cross, has to do with truthfulness cannot simply as about anything, like punching boss in nose

4. All courts require that lawyer have a good faith basis before the lawyer asks a prior bad act question

Goozer –

A prior bad act that indicates a lack of truthfulness may be asked about on cross provided that counsel has a good basis, regardless of witness’s response, no extrinsic evidence will be allowed

Reputation for untruthfulness –

Can put into evidence that D has bad reputation for truthfulness – Bob can tell you D has bad reputation for untruthfulness and in my opinion he ought not be believed

Goozer -

Evidence of bad reputation for truthfulness can be used to impeach

Now if witness is impeached can now rehabilitate ---

Will be dealing with one of the following categories for rehabilitation –

Evidence of prior specific instances of party that was impeached, that demonstrate truthfulness may be introduced

Evidence of prior statements that are consistent with testimony may be introduced; prior consistent statements

Good reputation –

If witness has been impeached with evidence of untruthfulness r. 608 allows testimony for truthful information

r. 608 evidence of good reputation for truthfulness can used to rehabilitate

But if witness was impeached for bias; 608 is ambiguous as to whether you can use truthfulness reputation testimony to rehabilitate

Prior consistent statements to rehabilitate – no specific rule that addresses this but majority operating under r. 403 will not allow this to rehabilitate a witness even if witness impeached with prior inconsistent statement --- all really saying talking out of one side of mouth more than the other

One major exception that will allow a prior consistent statement --- if witness impeached with evidence to show that a motive to falsify has arisen since event then evidence of prior consistent statement give before that motive to falsify may be given --- now work for D at a high salary, a motive to falsify now has arisen

Goozer –

Evidence for reputation truthfulness generally allowed, evidence of prior truthful conduct and prior consistent conduct and statement generally not allowed

Begin tape 3 ----

Hearsay –

General considerations of hearsay-

All relevant evidence is admissible unless a rule keeps it out

r. 802 – inadmissible unless allowed by r. 803, 804

Any object admissible if does meet definition of

r. 801 definition of hearsay --- 801(c) --- a statement other than the one made by a witness while testifying at trial offered into evidence to prove the truth of the matter asserted

Now which are covered by this definition and which are not – if does not meet this definition not hearsay and 802 will not keep out

801(d) identifies categories of out of court statements but are removed from definition of hearsay, these are not hearsay;

1. Prior inconsistent statement of witness under oath

2. Admissions

3. Prior identification of a defendant by a witnesses on the witness stand who has testified

The above are not hearsay and not kept out by 802 –

Assuming items qualifies under 801(c) and not removed by 801(d) – let say it is hears excluded by 802 unless exception under 803 or 804

803 applies whether person who made out of court statement is availed or not; dead or not

24 exceptions only cover 6 favorites –

1. Present sense impression

2. Excited Utterance

3. Existing mental or physical condition

4. Recorded recollection

5. Statements for purposes of medical diagnosis or treatment

6. Business records

r. 804 exceptions can only be used when person made out of court statement is not available- they must be unavailable

1. Former testimony

2. Statements against interest

3. Statements made under impending death, dying declaration

When a question that deal with an out of court statement – tested on knowledge of hearsay

Need to determine –

1. Does it meet 801c definition

2. Whether statement removed from definition by 801d

3. Whether the statement qualifies as exception under 803 or 804

Issue one – core definition of hearsay – above – of out of court statement does not meet that definition it is not hearsay and excluded by 802

Statement offered to “truth of matter asserted” --- talking about what was said, declarant’s out of court statement, not witness testimony – this refers to declarant out of court statement – W testifies about what D said, not hearsay yet; if the purpose of testimony was to prove the facts of the matter actually happened then have hearsay

To prove it rained in Jan 1 – W says on Jan 3, M said it rained on Jan 1 – hearsay

But if called W to prove that M could speak that day, W called to testify said it rained that day then not hearsay, being offered did not have laryngitis not that it rained

Many other purposes for out of court statement – it is only hearsay if offered to prove facts declared – are you asking jury to accept as true the facts declared by out of court declarant

Test – Will the offered statement (statement from declarant) help a little to decide the proposition it is offered or asserted to prove even if the facts asserted in the statement are false – if answer yes; statement is not a hearsay statement

4 situations where courts hold not hearsay because not offered for matter asserted –

1. Where D statement has what is know as an independent legal effect, statement changes legal rights --- situation where out of court statement has independent legal effect even if true or false, changes legal rights – Legally operative statement – A K case, B says to offeror I accept your offer, when accepts legal rights change assuming verbal K will do the job --- those words, I accept, change rights, W can testify heard these words because changes legal rights

2. Defamation case – B says S thief and killer – B says never say that, issue did he say those words, if did those words have independent legal effect – so witness can testify he heard B say those word – if out of court statement changes legal rights simply because words were spoken then it is not hearsay

1. Where statement if offered for purpose of showing knowledge on the part of someone who heard the statement – proving knowledge on part where knowledge on part of listener is a relevant issue in the case – my brakes are bad but did not know – to prove D calls W to prove he heard D say to Defendant knew – attempting to show knowledge on part of person --- admitted brakes bad showing knowledge

3. Out of court statements that show that state of mind of person who made statement When that state of mind of speaker is relevant to the particular law suit – fear, mistake, intent, knowledge I am Napoleon – anything that tells us about his state of mind of speaker at time is not hearsay

4. Prior inconsistent of witness statements offered to impeach – purpose of statement is to prove guy speaks out of both sides of mouth and do not know when to believe him – purpose is not to prove what was said in prior statement, just prove he is double talker

The commonality between all of the above, very fact the statement was made true or false will help somewhat in resolving the dispute – so not hearsay under 801c

Goozer approach to this to determining hearsay –

Use the test and then remember the 4 textbook examples of things not asserted to prove matter asserted

Out of court statements that meet hearsay definition but removed by 801d ----

Prior inconsistent statement of witness given under oath at trial or other proceedings – the prior inconsistent statement can always be used to impeach --- but if use the statement to prove fact of matter asserted – if using only to impeach it requires a limiting instruction, otherwise jury will take as truth

801d also removes admission – if out of court statement qualifies as admission will not be kept out as hearsay – what is an admission, an admission is a relevant statement by party to action, plaintiff or defendant in civil, or a defendant in criminal, government is not a party to action, words or conduct qualify, made at any previous time and offered into evidence by opposing party ----- can be self servicing, based on personal knowledge – admission means “I am sorry the goods were late” this is an admission that can be offered – but cannot offer this on your own behalf

• Two categories of admissions – those made by the party and those made on behalf of one of the parties – if relevant it is an admission by either party

Always make sure the question is not an admission – test for admission –

1. Was the out of court statement by party

2. Is it being offered into evidence by the opposing party

3. Is it relevant

If answer to all three above, yes, than you have admission

An admission will be excluded if it falls within one of the 7 relevancy rules of exclusion talked about hour 1 and 2 --- maybe settlement offer, medical expenses, statements at settlement – these trump admissions

Example – right after accident D says my light was read, yours green this was an admission – or, I was negligent, or my dog bit you – even if did not have first hand knowledge still can be an admission

Adoptive admission – this is when a party hears accusation and fails to protest when a reasonable person would have answered the accusation when it was untrue – admission by silence if judge determines would have protested that statement --- S says to B why no stop for red, and B says nothing this can be admission by silence – B can take the stand and explain why said nothing but it is admissible

Admission by someone on behalf of party – employee against employer --- major accident between you and truck and truck owned by company – truck driver says, I told boss brakes were bad, and never repaired, and he works for boss at the time ---- employee no longer available but want to admit into evidence – boss say I never said so no admission but under rules the employee is able to make an admission for boss --- 801d --- a statement made by employee is admissible against employer if authorized or if it concerns any matter within the scope of employment made during employment

Goozer on admission –

1. Any relevant previous statement by a party is admissible against him as an admission- they are never kept out by the hearsay rule

2. Statements by employees are considered admissions by the employer if made during the scope of employment

801d also excludes from hearsay a previous out of court identification made of the defendant by a witness who has testified – W in court says that person sitting there is crook; in order to buttress this prosecutor wants to show W picked guy out of line up – the out of court identification meets hearsay definition but 801d excludes

Goozeer –

Three items are not hearsay because 801d says not hearsay --- Prior inconsistent statements previously made under oath, admissions, and prior id’s made by witness who has testified

Exceptions to hearsay rules:

These do not depends on whether declarant or not – declarant can or cannot be available –does not matter ----

May meet definition of hearsay and may not be excluded by 801d but still in if met by one of these exceptions ---

1. Present sense impression – a statement describing or explaining and event or condition made while declarant was perceiving the event or condition or immediately thereafter --- rule is goozer here --- W testifies declarant said or that he himself said; look at how fast that car is going, look at guy with gun – statement must relate to statement perceived, look at car, look at that guy; and statement must be made contemporaneously with impression or immediately there after --- no requirement that person heard declarant statement was also looking at the event --- person can on the phone

2. Excited utterance – a statement relating to startling event or condition made while declarant was under the stress or excitement caused by the startling event or condition --- rule here is Goozer --- if this applies the statement does not have to come right after the event, just must be made while under stress of startling event – that could be a day or week later as long as under the stress of that event, not another event though --- look for hints in the question, opening of the out of court declarant’s statement, usually some indication of excitement “MY GOD, car almost hit me” --- look for the verb that describes the out of court statement to be verb of excitement --- scream, shouted not observed or said and look for exclamation point

3. Exception to hearsay rule, then existing mental, emotion, or physical condition of the declarant, statements describing these at the time the statement was made; my back hurts, I have a headache, I’m depressed, I think I will live in MI rest of my life --- declarant is referring to own state; statement for intentions for future admissible to show he might have carried out that intention – intent is a current state of mind --- S claimed hus dead at cr creek, insurance company whipped letter our that W was at cr creek not hus, the letter showed intention to go to cr creek – letter is hearsay but exception to state of mind --- Hillman Doctrine – when get out of court statement for plans for future, think about state of mind exception to hearsay, and make sure it is relevant, could be 5 minutes to future

4. Statements for purposes of medical diagnosis or treatment – people do not usually lie to doctor’s, stakes are too high – if statement made for purposes of medical diagnosis or treatment the statement can go back in time --- I was in pain, I was depressed last week etc. --- this statement must be made for medical purposes or treatment/diagnosis --- the statement must be germane to diagnosis or treatment, not all things qualify

5. Recorded recollection – relates to writings – to fit within this exception, the witness whose statement is recorded in the writing must testify to four things ----- 1. that he has insufficient recollection of the event to enable him to testify, a.k.a I can’t remember that he once had full knowledge of event, 2. recorded statement was recorded or adopted by him at time he had full knowledge, 3. courts are very liberal with adoption requirement, if looked and say true, good enough for an adoption 4. that the recording did accurately reflect his knowledge at the time he recorded or adopted it --- documents that qualify here do not go to jury, the witness on stand reads it on the

6. Business records --- people usually keep accurate business records – this includes business, institution, association, profession calling of every king, for profit or not – any thing other than a purely private matter – must person that made entry have first hand knowledge of recorded facts, no, sometimes may not necessary, can do it on basis from information from one who has personal knowledge – before the records can be introduced there must be testimony that he records were kept in the ordinary course of business

3 exceptions in rule 804 – can only be used when declarant is not available to testify ----

Definition of unavailability – if for any legitimate reason you cannot get witness testimony including the witness on stand refusing to answer the witness is unavailable for purposes of this rule

If for any reason cannot get live witness testimony then will settle for one of these exceptions – but if suddenly realize witness available cannot use 804 exception –

1. Previous testimony --- testimony given at a previous trial by an unavailable witness is admissible ---- at 2^nd trial W dead, may use former testimony to bring her testimony in again --- former testimony has to cover the exact same testimony in same suit --- after S wins and B wants to introduce in his trial the testimony of W who testified in S trial but W now dead --- the former testimony exception will apply when the party against whom the evidence is offered was the party was a party to first case – but if W otherwise available must testify no previous testimony --- if she testify different the second time, prior testimony will be admitted, but not as former testimony, but comes in as prior inconsistent statement as impeachment and substantive evidence because made under oath at last trial --- goozer – if witness is unavailable the former testimony is admissible, can be used provided the party against whom testimony is offered was a party when the witness testified

2. Declaration against interest – at common law any statement made against financial interest or propriety interest --- people do not make statements against these unless truthful --- federal rules allow any statement made by a declarant against his financial, propriety, or his penal interest at time statement made ---- B on trial for stealing a pig, he want to put S on stand to say heard can statement against penal interest--- a declaration against penal interest can be used but if being offered by a defendant in a criminal case to try to avoid criminal liability there must be some corroboration of the truthfulness of out of court statement – what amount to enough corroboration, courts differ

3. Statement under belief of impending death; dying declarations --- rarely get in, many limitations that are hard to meet, any statement made when person dying should be the truth so admissible --- under fed rule to qualify statement as dying declaration three things– 1. the declarant has to be unavailable 2. declarant must be certain death imminent at time he made statement, declarant must hear wings of angel of death, must have a settled and hopeless exception of meeting of death at time declaration was made 3. statement had to relate to cause of death or if declarant did not die had to relate to cause of what he believed to be his impending death (so if save still in, but still have to unavailable) – I know I am about to die, X owes me $10,000; no, has to do with death, X just shot me ---- once those three requirement are met, can be used in all civil case, and once these three met in criminal cases the dying declaration can only be used in homicide case where defendant is charged with the killing of person who made dying declaration --- goozer – if the witness is unavailable his statement when he believed was going to die about cause of death is admissible in civil case and criminal homicide cases

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