Introduction to
the Trial Process
FRE 104 – Preliminary Questions – always
in the background
-
FRE 104(a) Questions of Admissibility Generally – trial court makes initial determinations as to
qualifications of person to be a witness, existence of a privilege, or
admissibility of evidence
-
FRE 104(b) Relevancy Conditioned on Fact (conditional
relevance) – in determining whether gov't has introduced sufficient
evidence to meet Rule 104(b), trial court examines all evidence in case and
decides whether jury could reasonably find the conditional fact by a preponderance of the evidence. Huddleston v. United States
FRE 606(b) Competency of Juror as
Witness – Inquiry into Validity of Verdict or Indictment –
juror may not testify as to:
o
any matter or statement occurring during course of
jury deliberations
o
effect of anything upon that or any other juror's mind
or emotions
-
exceptions:
o
whether extraneous prejudicial information was
improperly brought to jury's attention
o
whether any outside influence was improperly brought
to bear upon any juror
-
testimony as to
external influences not withstanding, jury
testimony may not be introduced to impeach a jury verdict. Tanner v. United States
Relevancy
FRE 401 Definition of Relevant Evidence – evidence
having tendency to make existence of any fact of consequence to determination
of action more or less probable than it would be w/o evidence
two categories of evidence:
-
direct evidence
– tends to prove fact in question; sufficient alone; no inference or logical steps required (she got robbed, and that
guy did it); rare
-
indirect evidence – requires inference or logical step to prove fact in question; insufficient alone; more common
Probativeness and Materiality – evidence
must be both probative and material
-
relevance (probative
+ material) à presumption of admissibility
Probativeness – makes fact
more or less probable
FRE 402 Relevant Evidence Generally
Admissible; Irrelevant Evidence Inadmissible
-
not relevant = not admissible; relevant =
presumptively admissible
FRE 403 Exclusion of Evidence on Grounds
of Prejudice, Confusion, or Waste of Time
-
relevant ≠ admissible if probative value is substantially outweighed by:
o
danger of unfair prejudice
o
confusion of issues
o
misleading the jury
o
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence
Materiality – of
consequence to the determination
United States v. James – whether
evidence concerning whether a crime was committed was relevant to whether
Δ believed crime had been committed
-
evidence that
victim had done what he said
o
relevant – tended
to make it more probable that he bragged about doing what he said he did.
o
not relevant –
does not tend to make it more or less probable that Δ believed victim,
since Δ did not know whether victim actually did what he said he did
Conditional Relevance
FRE 104(b) Relevancy Conditioned on Fact
– when relevance depends upon fulfillment of condition of fact, evidence must
be introduced to show fulfillment of condition
Probativeness vs. Risk of Unfair
Prejudice
FRE 403 Exclusion of Relevant
Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Photos and Other Inflammatory Evidence
State v. Bocharski – photos of deceased admitted despite significance
which was marginal at best.[1]
relevant
photographs may be admitted, though they have a tendency to prejudice jury
against person who committed offense:
-
if photograph is
of a nature to incite passion or inflame
the jury, court must determine whether risk of prejudice outweighs
probative value
o
overturning trial
court requires clear abuse of discretion
-
if Δ does not contest fact that is of
consequence, then probative value of evidence is low, and risk of prejudice easily
outweighs.
admissibility
does not suffice to make exclusion an abuse of discretion. United States v. James
-
introduction of
evidence showing that victim had done things that he had told Δ he had
done, though admissible, have high risk of prejudice, low probativity
-
important –
that jury asked questions that evidence
answered may mean jury was asking the wrong questions and are becoming prejudiced
by questions and answers concerning victim's criminal activities
self defense cases – United States v. Driver – whether evidence sought to be introduced tends to show
victim was a bad person who deserved
what he got, or that Δ actually needed to defend himself from victim.
Hearsay
The Basic Rule
FRE 801(a) Statement – an oral or
written assertion or nonverbal conduct of the person if it
is intended as an assertion
FRE 801(b) Declarant – a person who makes a statement
FRE 801(c) Hearsay – a statement offered in evidence to prove the truth of the matter asserted
testimonial capacities – hearsay if concerned with the failure of one or more of the following testimonial capacities:
-
perception – witness saw someone but thought it was someone else
-
memory – witness saw someone, but now remembers it as
someone else
-
narration – witness saw someone, but accidentally says it was
someone else
-
sincerity – witness intends to deceive
hearsay – an out of
court statement offered by a litigant
to prove the truth of the matter
asserted; to decide a statement is hearsay, two questions:
-
whether litigant is
offering statement to prove what it says.
o
is it an
assertion?
o
what is the
statement offered to prove?
critical question – whether litigant is offering evidence of the out of
court statement to prove what the out of court speaker was asserting or merely
to prove that the statement was made and heard.
FRE 802 Hearsay Rule – Hearsay is not
admissible, except as provided by these rules or by other rules prescribed by
Supreme Court pursuant to statutory authority or Act of Congress
Defining Assertions
presence
of an audience in the latter makes
it more likely to be an assertion than the former
-
the issue of audience is telling as to the sincerity of the person making the
assertion
-
important
question – could this assertion be a
lie?
The Exceptions
FRE 801(d)(1) Prior Statements by
Witnesses – a statement is not hearsay if declarant testifies at trial or
hearing and is subject to cross-examination concerning the statement, and the
statement is:
-
FRE 801(d)(1)(A) – inconsistent with declarant's
testimony, and was given under oath at a trial, hearing, or other proceeding,
or in a deposition
-
FRE 801(d)(1)(B) – consistent w/declarant's testimony
and is offered to rebut an express or implied charge against declarant of
recent fabrication or improper influence or motive
-
FRE 801(d)(1)(C) – one of identification of a person
made after perceiving the person
Past Statements of Witnesses and Past
Testimony
-
inconsistent statements – 613 vs. 801(d)(1)(A)
o
FRE 613 Prior Statements of Witnesses - past
inconsistent statements are offered for
impeachment purposes, not for the truth they assert, but rather to show untrustworthiness
o
FRE 801(d)(1)(A) – past inconsistent statements which meet this exception are offered substantively, for the truth they
assert
-
past consistent statements – 612 vs. 803(5)
o
FRE 612 Writing Used to Refresh Memory – once witness' memory has been refreshed, witness
simply testifies from memory
§
past statement
allows testimony to be given
o
FRE 803(5) Recorded Recollection – may be offered as an exhibit if offered by an
adverse party; may only be read into evidence, though not received as an
exhibit where offered by non-adverse party; may be considered for their truth
§
past statement
becomes testimony
FRE 613 Inconsistent Statements Offered
to Impeach
-
silence may be
used to impeach Δ if previous silence is inconsistent with testimony on
the stand. Fletcher v. Weir[2]
-
four
preconditions to using silence as evidence of an adoptive admission. Jenkins v. Anderson
o
statement was
heard and understood by party against whom it was offered
o
party was at
liberty to respond
o
circumstances
naturally called for a response
o
party failed to
respond
FRE 801(d)(1)(A) Inconsistent Statements
Offered Substantively
FRE 801(d)(1)(C) Statements of
Identification
United States v. Owens – that witness has no memory of event, or of making
identification, does not diminish value of his being at trial and available for
cross-examination, under FRE 801(d)(1)(C)
FRE 801(d)(2) Admissions by Party
Opponents – a statement is not hearsay if it
is offered against a party and is
-
FRE 801(d)(2)(A) – party's own statement in either an
individual or a representative capacity
-
FRE 801(d)(2)(B) – a statement of which party has
manifested an adoption or belief in its truth
-
FRE 801(d)(2)(C) – a statement by person authorized by
party to make statement concerning subject
-
FRE 801(d)(2)(D) – statement by party's agent or
servant concerning matter within scope of agency or employment, made during
existence of relationship
-
FRE 801(d)(2)(E) – statement by co-conspirator during
course of and in furtherance of conspiracy
Statements by Party Opponents
FRE 801(d)(2)(A) – The Party's
Own Words[3]
-
one way street – can only be offered by the opposing party; can not
be used by the party that made the statement
-
evidentiary admission is not to be confused with judiciary admission – any pleaded or stipulated fact is binding
o
evidentiary
admission is just another piece of evidence
o
coerced
confession – barred not because it is not an admission, but because the accused
rights have been violated
FRE 801(d)(2)(B) – Adoptive
Admissions[4]
-
theory – person
would have protested had statement been untrue; based on four conditions. Jenkins v.
Anderson
o
he heard it
o
he was capable of
response
o
statement
naturally called for response
o
he failed to
respond in the process of acting in response
FRE 801(d)(2)(C&D) Statements of
Agents
Mahlandt v. Wild Canid Survival &
Research Center – statements need not
be to an outsider to fit 801(d)(2)(C)&(D)
-
statements
against interest made by an employee of a corporation are admissible against
corporation where statements:
o
were made by employee
when he was an agent or servant of corporation, and
o
concerned a
matter within scope of his agency or employment, and
o
were made during existence
of that agency or employment relationship.
-
courts need not
delve into actual trustworthiness of statements made against interest; those
statements made w/o factual basis are still admissible if made voluntarily
FRE 801(d)(2)(E) Co-conspirator's Statements
Bourjaily v. United States
-
preliminary questions presented by FRE 801(d)(2)(E) are decided by trial
judge pursuant to 104(a)
o
whether a conspiracy in fact existed at the time the
statement was made
o
whether the conspiracy included Δ and declarant
-
judge decides
these issues by a preponderance of the
evidence
-
contested hearsay
statement itself may be introduced as evidence to prove existence of conspiracy
and other contested facts.[5]
o
FRE 801(d)(2)(E)
– dismisses the agency theory upon which co-conspirator exception was originally
founded, despite its requirement that statement be made during course of and in furtherance of the conspiracy
-
unanswered question – whether statement could be admitted if it was only evidence of
conspiracy
Hearsay Exceptions Under FRE 804:
Declarant Unavailable
FRE 804(a) Unavailable as a Witness –
situations in which declarant is
-
exempted on the ground of privilege from testifying
concerning the subject matter of statement
-
refuses despite an order of the court to do so
-
testifies to a lack of memory
-
unable to be present because of death, physical or
mental illness, or infirmity
-
proponent is unable to procure declarant's attendance
by process or other reasonable means
FRE 804(b) The Exceptions
FRE 804(b)(1) Former Testimony – party against whom testimony is offered had opportunity
and similar motive to develop testimony by direct, cross, or redirect
examination
-
proper approach
under 804(b)(1) – whether party resisting
testimony had, at a prior proceeding, an interest of substantially similar
intensity to prove the same side of a substantially similar issue. United States v. DiNapoli
-
broad interpretation of predecessor in interest – where party in former suit had like motive to
cross-examine about same matters as present party, and was accorded an adequate
opportunity for such examination, testimony may be received against present
party under predecessor in interest element of 804(b)(1) exception to hearsay rule. Lloyd v. American Export Lines, Inc
-
where nucleus of operative facts is the same in
both proceedings, there is a sufficient community
of interest such that predecessor in interest exception is met. Lloyd v. American Export Lines, Inc.
The Wright
Example
-
suit one – State v. John Wright – prosecution
against Wright for arson
o
witness A
testifies that he torched building for Wright
o
ends in mistrial
-
suit two – Insurance Co. v. Wright and Wright
o
insurance co uses
trial transcript of witness A as evidence of Arson
o
Wright brother
objects because even though his brother had vigorously cross-examined the witness,
he did not have that opportunity
o
court holds that
since interests are identical, and maybe even predecessory, testimony is
admissible
FRE 804(b)(2) Dying Declarations
-
without hope
of recovery and in the shadow of impending death
-
two elements
o
declarant believing his death is imminent
§
almost any
evidence not including actual death itself may be used as evidence of whether
defendant believed the death to be imminent
§
death alone is
not determinative of the issue whether declarant believed death to be imminent. Shepard v. United States
o
statement must
concern cause or circumstances of what
the declarant believes caused his death
§
Cardozo –
declaration is kept out if judge knows or has reason to know that statement is
speculative
FRE 804(b)(3) Statement Against Interest
-
important question - whether statement was sufficiently against declarant's interest that
reasonable person in declarant's position would not have made statement unless
believing it to be true. Williamson v.
United States
o
question can only
be answered in light of all surrounding circumstances.
-
although term statement can mean either extended
declaration or single remark, principle behind rule points clearly to narrower
reading – only remarks within confession which are individually self-inculpatory
count
-
trial court may
not just assume statement is self-inculpatory because it is part of fuller
confession
o
especially true
when statement implicates someone else.
-
statement against
interest does not allow admission of non self-inculpatory statements which are
part of larger self-inculpatory narratives.
Williamson v. United States
FRE 804(b)(6) Forfeiture by Wrongdoing
two points
to keep in mind:
o
witness can not
be unavailable by virtue of having
committed a wrongdoing w/intention of becoming unavailable, and being thus
detained
o
opposite is true
– statement by a declarant made unavailable by the opponent may be introduced
even though it would not otherwise be allowed
-
burden of proof –
preponderance of evidence indicates
that the witness is unavailable by the wrongdoing of the opposing party
o
one argument -
where criminal activity has been charged, burden of proof should be
"beyond a reasonable doubt"
o
answer – no
conviction is being reached, simply a lesser burden that it is most likely that
the witness has been eliminated criminally; a finding that such has occurred
does not lead to conviction
United States v. Houlihan – basis for FRE 804(b)(6) - where Δ 1) causes a
potential witness's unavailability, 2) by a wrongful act, 3) undertaken
w/intention of preventing potential witness from testifying at a future trial,
Δ waives right to object onconfrontation grounds
to admission of unavailable out-of-court statements
-
standard of proof
that Δ procured witness' unavailability – preponderance of evidence
Unrestricted
Hearsay Exceptions
FRE 803 Exceptions in Which the
Availability of the Declarant is Immaterial
FRE 803(1) Present Sense Impression – statement describing event or condition, made at the
time or right after the event occurred
FRE 803(2) Excited Utterances – declarant was under
the stress of excitement caused by event or condition
Present Sense Impressions and Excited
Utterances
-
two common issues in application of this rule
o
whether event
which stimulates statement is sufficient to override possibility of falseness
o
whether statement
was made contemporaneously to the event
-
three kinds of predicate fact
o
external event – usually an accident or crime to
which declarant is a victim or witness
o
statement made during stress
o
statement relates
to the external event (803(1) requires statement describe the event or condition)
-
present sense impressions vs. admission doctrine – may be offered by declarant
to prove whatever he wants
Statements of Then Existing Conditions
FRE 803(3) Then Existing Mental, Emotional,
or Physical Condition – statement of
declarant's then existing state of mind, emotion, sensation or physical
condition is not excluded by hearsay rule
-
does not include
statement of memory or belief to prove the fact remembered or believed unless
it relates to the execution, revocation, identification, or terms of
declarant's will
-
evidence of
intention to do a thing may be admitted to try to prove the doing of the act
intended. Mutual Life Insurance Co. v.
Hillmon
o
this has been
altered by the House Committee on the Judiciary to exclude the statement when
offered to prove the future conduct of another
Statements for Mental Diagnosis
FRE 803(4) Statements for Purposes of
Medical Diagnosis or Treatment – statement made for purpose of diagnosis or
treatment, describing medical history, past or present symptoms, pain,
reasonably pertinent to diagnosis or treatment
United States v. Iron Shell – three types of evidence admissible under rule
o
medical history
o
past or present
sensations
o
cause of disease
or injury
-
8th Circuit two
part test –
o
whether
declarant's motive is consistent with purpose of the rule
o
whether it is
reasonable for physician to rely on information in diagnosis or treatment
Refreshing Memory and Recorded
Recollections
FRE 803(5) Recorded Recollection – memorandum or record concerning a matter about which
declarant once had knowledge, but now does not;
1) witness must have had firsthand knowledge of the
event
2)
written statement must be a memorandum made at or near the time of the event
while the witness had a clear and accurate memory of it
3) witness must lack a present recollection of the
event
4) witness must vouch for the accuracy of the written
memorandum
FRE 612 Writing Used to Refresh Memory – 612 – anything that can remind the witness of what
he/she said is admissible; it need not, on its own, be admissible
Johnson v. State – turncoat
witness
-
witness will not
corroborate this statement, and will only acknowledge that his mind was a lot
more clear then than now, and that the signature is his
-
witness must vouch for the accuracy of the written
memorandum at trial; statement does not vouch for itself
o
if not, 803(5)
does not apply, and the statement is not admissible
-
what could
prosecutor have done?
o
put him before a
grand jury
§
statement would
have been admissible as a prior inconsistent statement under 801
o
provoke some sort
of preliminary hearing, this would pin it down because of 804(b)(1) – prior
testimony subject to cross-examination by defendant at the time it was made
-
bottom line – 803(5)
– not a cure all for the turncoat witness
Business Records
FRE 803(6) Records of Regularly
Conducted Activity
FRE 803(7) Absence of Entry In Records
Kept in Accordance w/Provisions of Paragraph(6)
Palmer v. Hoffman - statement prepared after accident by person
involved in accident and knows that likely to be involved in suit relating to
the accident, and affected by desire to exculpate himself – doesn’t qualify
under the exception
-
this is the
source of language in FRE 803(6) - .
. . unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness
United States v. Vigneau - Business records exception to hearsay rule does not
embrace statements contained within business record that were made by one who
is not part of the business if the embraced statements are offered for their
truth.
-
business records
were not allowed because they give no indication of trustworthiness
general
problem w/ 803(6) – often the document may be prepared within the activity of
the business (accident report), thing that the record concerns may not be part
of the business activity (accident)
two
glosses on the rule to account for this:
1)
Palmer v. Hoffman concern – self
serving reason not to be truthful creates a doubt as to the trustworthiness of
the document
2)
if the source of info is not under a duty to report accurately, then that
statement is not part of the business record
Public Records and Reports
-
Police Reports and Business Records
FRE 803(8) Public Record and Reports – records of public offices or agencies are
admissible, unless sources of information or other circumstances indicate lack
of trustworthiness; includes:
-
activities of
office or agency
-
matter observed
as to which there is a duty to report
o
excluding matters
observed by police officers or other law enforcement personnel in criminal
cases
-
factual findings
resulting from an investigation made pursuant to authority granted by law in
cases involving
o
civil actions and
proceedings
o
against the gov't
in criminal cases
FRE 803(10) Absence of Public Record or
Entry – requires that diligent search
be undertaken to find document
Beech Aircraft v. Rainey - factually based conclusions or opinions are not on
that account excluded from scope of rule which includes public records and
reports containing factual findings among the types of statements that are not
made excludable by the hearsay rule
-
upon
determination that the conclusions were trustworthy, they were admissible under
public records and reports hearsay exceptions
Residual Exception
FRE 807 Residual Exception – statement must be offered as evidence of a material
fact, evidence is more probative to fact in contention than any other evidence
which proponent can reasonably porcure
-
reflects desire
on the part of the advisory committee to allow common law to continue to
develop despite code
Dallas County v. Commercial Union
Assurance – the direct antecedent to catchall philosophy
-
two requisites
for admissibility under FRE 807 – necessity,
and circumstantial guarantee of trustworthiness
United States v. Laster -
-
if a statement is
admissible under one of specific hearsay exceptions, residual exception should
not apply.
-
equivalent circumstantial guarantees of
trustworthiness
o
requires
something other than "its close" for residual exception
-
residual
exception as a near-miss rule
-
State v. Weber
-
Weber was caring
for child when it died of a fractured skull; shaking syndrome
o
injury was a
blunt trauma
-
Weber convicted;
attorneys move for new trial based on discovery of new evidence
o
new evidence –
shortly after death but before indictment, mother of child told customers that
before Weber showed up, child had fallen and hit her head on coffee table
§
said this on two
occasions to a total of five people
o
issue on motion
for new trial – whether new evidence was admissible
§
statements to
customers – arguably statements against interest
·
but, 803(b)(3) –
did not apply because mother was available to testify
o
mother denied
making statements
·
no reason for new
trial if statements not allowed
·
none of the
enumerated exceptions applied
o
Iowa Court –
found numerous reasons for trustworthiness
§
no reason to make
things up after the tragedy
§
pre-indictment,
so no motivation
§
she repeated the
statement
§
witness are
credible and have no axe to grind
§
corroboration –
kind of action in statement was consistent with autopsy reports
Confrontation Clause and Hearsay
Confrontation Clause
Sixth
Amendment - guarantees certain
procedural rights to a Δ
-
amongst others, a
right "to be confronted with the witness against him"
o
certain
limitations are applicable
§
children
physically shielded from Δ
§
rape shield laws
– restrict cross-examination
-
if a hearsay
statement is admitted against the accused, and the accused is unable to
cross-examine the witness
o
has the accused
been denied the right to confront his witness?
§
possible answers:
·
State could not
use hearsay against the accused – unconstitutional
·
No implications
for hearsay – accused has the right to confront a witness who takes the stand, and to cross-examine
o
both of these
possibilities have been overruled
§
Whitmore – as
long as hearsay is admissible under the rule, no confrontation clause
·
problem with
this: FRE dictating constitutional law
o
prior to Crawford, on going debate about the
reason for the confrontation clause
§
hearsay evidence à two levels
·
admissible under
the rule? if not, stop, if so, go on
·
admissible under
the 6th Amendment; does it satisfy the confrontation clause
o
sixth amend is a
floor
o
Crawford v. Washington
CONFRONTATION CLAUSE
California v. Green Ohio
v. Roberts
Opportunity
to cross at time statement made 1.
Witness unavailable at trial (Necessity)
2. Statement falls within firmly rooted exception to
hearsay rule
or or
Opportunity
to cross at trial (no prior opportunity) Statement
has particularized guarantee of trustworthiness"
Crawford
pre-Crawford Crawford
declarant subject to cross examination either at testimonial
statements (affidavits, prior testimony, in camera, police interrogation)
time of statement or
at trial
barred
absent opportunity to cross w/o reference to hearsay exceptions
declarant
not subject to cross
but
O/C statement falls within firmly rooted CL exception non-testimonial – no 6th
Amendment implications; hearsay doctrine
or
only
statement
has particular guarantees of trustworthiness
Crawford – Δ charged with murder
-
defense – he did
it, but it was self-defense
o
he saw an object
in victim's hand which gave him fear
-
Δ 's wife –
story was similar
o
except she didn't
see anything in victim's hand
Scalia
– assumes that common law was a reaction to problems with the use of ex parte
statements as evidence
-
drafters of 6th Amendment
would not have allowed out of court statement if witness was not absent
o
6th Amendment
incorporates those limitations
-
Ohio v. Roberts
– particularized guarantees of trustworthiness – difficult to apply, nebulous
-
refuses to define
the term testimonial
o
inclusive,
though, of affidavits, prior testimony, in camera, police interrogation
o
Sylvia Crawford's
statements are testimonial statements
§
absolutely barred
by Sixth Amendment w/o regard to hearsay exceptions
statements
made under circumstances which would lead a reasonable person to believe the
statements would be used in later trials
statements
made by a witness which could be viewed as evidentiary in nature would qualify
as testimonial
6th
Amendment does not bar use of statements which were made for any reason other
than establishing truth of the matter asserted (non-hearsay)
what
are the outer limits?
-
we don’t know; he
doesn't answer
what
application does the 6th Amendment have with respect to non-testimonial
statements?
-
we don't know
o
Scalia and Thomas
think there is none, but rest of court doesn't agree
-
Ohio v. Roberts standards apply?
o
Without
overturning it, Scalia rips Roberts
apart
puts
an end to using residual exception as a means of getting grand jury testimony
in
product
of police investigations – testimony
testimonial
statements barred absent opportunity to cross w/o regard to hearsay exceptions
-
what is clear is
that this includes all statements given to police
-
some argue that
if not given to police, automatically barred
-
what about statements
made to law enforcement personnel not resulting from interrogation
post-Crawford decision
911
calls have been very important
People v. Moscat (discussed page 437)
-
911 calls should
not treated as testimony
People v. Jimenez
-
victim calls
police, police arrive
-
call comes in
that suspects have been apprehended, police take victim with them
o
victim identifies
suspects
-
California admits
statement under residual exception
o
says the
statement was not testimonial and thus not subject to 6th Amendment
o
he didn't want to
testify, so his statement was not testimony
In re Rolandis
-
9 yr old boy
sexually assaulted
-
statements made
to police
o
both social
worker and police were asking questions, so statements were testimonial
-
statements made
to mother
o
non-testimonial
Character
Evidence
The Character Propensity Rule
FRE 404 Character Evidence Not
Admissible to Prove Conduct; Exceptions; Other Crimes –
FRE 404(a) evidence of a person's
character not admissible for purpose
of proving action in conformity therewith on a particular occasion;
exceptions
-
404(a)(1) character of the accused – evidence of character introduced by defendant
o
character is
never an issue in a criminal prosecution unless the defendant chooses to make it one. People v. Zachowitz
-
404(a)(2) character of the victim – introduced by defendant, or evidence of peacefulness
introduced by prosecution by character of victim is relevant.
-
404(a)(3) character of witness – FRE 607, 608,
609
Six Exceptions to 404(a)
-
FRE 404(a)(1) character of the accused – evidence of character introduced by defendant
-
FRE 404(a)(2) character of the victim – introduced by defendant, or evidence of peacefulness
introduced by prosecution
-
FRE 404(a)(3) character of witness – FRE 607, 608, 609
-
FRE 413 Evidence of Similar Crimes in Sexual Assault
Cases
-
FRE 414 Evidence of Similar Crimes in Child
Molestation Cases
-
FRE 415 Evidence of Similar Acts in Civil Cases
Concerning Sexual Assault of Child Molestation
two forms of unfair prejudice which
404(a) attempts to prevent:
-
improper weighing of evidence – jury will give weight to character trait rather than
crime charged
-
conviction in the absence of guilt
o
character conviction – jury may punish defendant for being a "bad person," even
if he is not guilty
o
preventative conviction – Souter – jury considers conviction justified despite
momentary innocence
Proof of Defendant's and Victim's
Character in Civil Cases
FRE 404(a)(1)
– specifically deals with criminal action, or quasi-criminal, civil proceeding
-
relevant
404(a) concerns are not present in civil trial context. Securities
and Exchange Commission v Towers
o
no life or liberty being threatened
o
stigma of civil finding not as strong
o
reputation harm not enough
-
character evidence typically has little probative
power – so little use to litigant with substantial burden of proof
-
when central
issue to civil case is of criminal nature, Δ may invoke exceptions to FRE 404(a). Perrin v. Anderson
FRE 404(b) evidence of
past crimes, wrongs, or acts not admissible for purpose of proving action in conformity therewith; may be admissible, upon reasonable notice by prosecution, to show:
o
motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity of person
charged with commission of crime on trial,
absence of mistake or accident
FRE 404(b) Other Purposes
key
inquiry – whether evidence is probative
of a material issue other than character.
o
other crimes, wrongs, or acts – evidence need not solely be of a crime
o
other purposes
– list of other purposes is not exclusive of other possible purposes
o
may be admitted
– evidence not required to be admitted; court performed FRE 403 weighing test
o
FRE 105 court instructs jury as to proper
purpose of evidence
o
FRE 403 court
decides whether probative value is substantially outweighed by other concerns
-
test for admission of other acts evidence under Rule
404(b)
o
whether
evidence is probative of a material issue other than character.
§
evidence must be
introduced for a proper other purpose
§
offered evidence
must be relevant to an issue in the case pursuant to Rule 402, as enforced
through Rule 104(b)
§
evidence must
satisfy the probative-prejudice balancing test of Rule 403
§
district court
must, if requested, provide a limiting instruction for the jury under Rule 105
§
standard of proof
under Rule 404(b) is whether the jury could reasonably conclude that the act
occurred and that the defendant was the actor; preponderance of the evidence
o
a ruling
involving similar act evidence will be overturned only for a clear abuse of discretion
Michelson v. United States – common law character evidence rule
-
character
evidence may only be introduced by Δ, not prosecution; once Δ
introduces character evidence, prosecution may present rebuttal witnesses in
response to Δ witnesses, to contradict evidence provided by defense
witnesses. Michelson v. United States
o
introduction of
character witness – not necessarily a great move because of possibility of
cross examination
FRE 405 Methods of Proving Character
-
FRE 405 (a) reputation or opinion – proof may be made by testimony as to reputation or by
testimony in the form of an opinion; inquiry into relevant specific instances
of conduct is allowed on cross-examination
-
FRE 405 (b) specific instances of conduct – proof may be made of specific instances of that
person's conduct only where character
or trait of character is essential element of a charge, claim, or defense
o
When does 405(b) Apply?
§
rebutting an
entrapment defense
§
rebutting a
defense of truth in a libel or slander action
§
resolving a
parental custody dispute
o
FRE 405(a) vs. FRE 413, 414, 415
§
FRE 413, 414, 415
– opposite of FRE 405(a) – require
proof of specific facts
Evidence of Habit
FRE 406 Habit; Routine Practice – habit of
person, or of routine practice of organization, relevant to prove conduct
of person or organization on particular occasion was in conformity w/practice
or routine
-
requires no
corroboration or presence of eyewitnesses
-
party should be
able, by introducing evidence of such habit or regular usage, to allow
inference of its persistence, and hence negligence on a particular occasion. Halloran v. Virginia
Chemicals
-
evidence of past conduct vs. evidence of habit
o
evidence of habit
or regular usage if properly defined and therefore circumscribed, involved more
than un-patterned occasional conduce, it involved a repetitive pattern of
conduct and therefore predictable and predictive conduct
FRE 406, 407, 408, 409, 410, 411 – Dealt
with Later On
Sexual Assault
Cases
FRE 412 Sex Offense Cases; Relevance of
Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
FRE 412(a) Evidence Generally
Inadmissible (Civil or Criminal)
FRE 412(b) Exceptions
Applying FRE 412
Past Sexual Behavior with the Accused
-
Δ – evidence of sexual behavior w/accused is
allowed under FRE 412(b)(1) or (2)
-
prosecutor –
evidence does not pass FRE 403 test
Explaining the Source of Physical
Evidence
-
Δ – evidence
of previous sexual encounter admissible under FRE 412(b)(1)(B)
-
prosecutor – evidence not introduced to show consent; evidence introduced to
explain existence of fingerprints, and its probative value is outweighed by its
prejudicial value under FRE 403
Past Allegedly False Accusations
-
evidence
of false claims of sexual misconduct is not controlled by FRE 412; such
evidence is impeachment evidence under FRE 404(b), used to attack credibility
rather than evidence of a previous sexual conduct. State v. Smith
o
Huddleston – whether there is sufficient evidence
such that a reasonable jury could conclude that victim had made prior false
accusations
FRE 404(b) – Style Uses of
Evidence of Past Sexual Behavior
-
proof of bias
o
Olden v. Kentucky – a defendant's right of confrontation
trumps a non-constitutional exclusion rule
o
Boggs v. Collins – a specific act of a piece of evidence
is distinguishable from general attacks on credibility
-
defendant's state of mind
o
United States v. Knox – three
possible Constitutional violations to satisfy 412(b)(1)(C)
§
5th
Amendment Due Process
§
6th
Amendment Compulsory Process
§
right
to testify in one's own defense
o
Chambers v. Mississippi – Δ may have right to offer evidence critical to defense in violation of FRE
Propensity to Commit Sexual Assault Cases
FRE 413 Evidence of Similar Crimes in
Sexual Assault Cases
FRE 414 Evidence of Similar Crimes in
Child Molestation Cases
FRE 415 Evidence of Similar Acts in
Civil Cases Concerning Sexual Assault or Child Molestation
pre-Sexual Assault Statute
-
abandonment
of statutory exception to bar on previous specific acts – leads to adoption of
FRE 404(b) to allow evidence to establish identity, intent, etc. Lannan v. State
-
evidence
of previous sexual behaviors simply do not fit FRE 404(b) mold: motive, intent,
opportunity, preparation, plan, knowledge, identity, absence of mistake or
accident. State v. Kirsch
two bases for exception in
sexual assault cases:
-
recidivist rationale - behavior is so abnormal that engaging
in such conduct is predictive of recidivism
o
The
Recidivism Rationale
§
any
one who commits any felony is more likely than other people to commit another
crime
§
question
– whether sex offenders are more or less likely than other criminals to repeat
their offense
·
Baker
– conviction figures say less likely
·
it
makes no sense to single out sex offenders for special treatment when
recidivism rate is actually lower
-
lend credence to accusations which would seem improbable standing
alone
three threshold requirements
under FRE 413. United States v. Guardia
o
Δ
must be charged with sexual assault
o
evidence
must be introduced to show Δ committed sexual crimes in the past
o
evidence
must be relevant
§
evidence
meets threshold requirements; now, what about the 403 balancing test
·
normally
– presumption that probativeness of propensity evidence is outweighed by its
potential for prejudice
·
FRE
413 – presumption should be in favor of admission
·
district
court holds that the probative value is greatly outweighed by the possibility
of prejudice
LeCompte vs. Mound
-
United States v. LeCompte – Δ accused of molesting
girlfriend's daughter; eight years earlier had been accused of molesting his
wife's niece;
o
LeCompte court found that propensity evidence in sexual assault
cases is never too prejudicial or
confusing and generally should be admitted
o
Congress
essentially dictates presumption in favor of admission of evidence of previous
sexual crimes
-
United States v. Mound – Arnold dissenting – potential for
prejudice is so great that court should consider whether there is a due process
clause violation
Character for
Truthfulness[7]
FRE 608(a) – support or discredit of witness may be done by
testimony to character or reputation
-
opinion
and reputation evidence of character
-
specific
instances of past conduct can be inquired into as a reflection on witness'
character, except as where provided by extrinsic evidence
FRE 404(a)(3) – Evidence of character of
witness is admissible for purpose of proving action in conformity therewith on
a particular occasion as provided in FRE 607, 608, and 609
Character of Witness Ping Pong Game
-
witness – offers testimony
-
opponent – may now use character evidence to attack
witness credibility
-
witness sponsor – may then use character evidence to
support witness' credibility
FRE 607 Who May Impeach – credibility of
a witness may be attacked by any party, including party calling the witness
-
opponent of
witness – evidence of character for truthfulness to show witness is lying now.
-
proponent of
witness – evidence of character for truthfulness
to show witness is telling the truth now.
non-character modes of impeachment – most attacks on a witness's testimony do not attack
witness' character for truthfulness, but rather only attack validity of
witness' testimony
-
three forms
of non-character modes of impeachment –
o
evidence of witness bias
o
contradiction in
the form of a past inconsistent
statement made by the witness
o
contradiction in
the form of other evidence which may
expose the testimony as implausible, such as
§
physical evidence
§
testimony of
another witness
§
common
experiences of life
FRE 608 Evidence of Character and Conduct
of Witness
-
FRE 608(a) Reputation & Opinion – evidence in form of opinion or reputation[8]
admissible which attacks or supports credibility of witness, subject to two
limitations:
o
evidence may only
refer to character for truthfulness
o
support evidence
admissible only after character of witness for truthfulness has been attacked
-
FRE 608(b) Specific Instances of Past Conduct – on
cross, party may ask about specific instances of conduct of a witness in two contexts: may, if probative of truthfulness[9] be
inquired into on cross-examination of witness
o
cross-examination
of principle witness on specific incident which relates to principle witness'
character for truthfulness
o
cross-examination
of witness testifying to character for truthfulness of principle witness on
specific incident . . .
§
limitations on
FRE 608(b)
·
inquiry must be probative of truthfulness
·
may not be proved
by extrinsic evidence
·
must survive FRE
403
·
requires lawyer's
good faith belief that specific instances of past conduct took place
·
FRE 611(a)(3) –
trial exercises reasonable control to protect witnesses from harassment or
undue embarrassment
·
may not be
"of a type covered" but prohibited by FRE 609
-
FRE 608(b) vs. FRE 405(a)
o
608(b) permits
inquiry into specific instances of conduct on cross-examination of principle
witness and witness testifying to
character for truthfulness of principle witness
o
405(a) permits
inquiry into specific instances of conduct on cross-examination of character
witness only.
FRE 609 Impeachment by Evidence of
Conviction of Crime[10]
-
FRE 609(b) – underlying
concern with all 609 evidence – 10 year time limit
-
FRE 609(a)(1) Felony Convictions
o
presumption that accused will be unfairly prejudiced; prosecutor must show that probative value of felony conviction on the issue outweighs the risk of prejudice
-
FRE 609(a)(2) Convictions Involving Dishonesty or
False Statements (no felony requirement)
FRE 609 – litigant may impeach a witness w/evidence that
witness has been convicted previously of
a crime
-
discussion of
underlying details generally not permitted
o
some judges allow
witness to explain circumstances behind crime or conviction
FRE 609(a)(1) two different standards
-
witness other than the accused – crime admissible if punishable by death or imprisonment in excess of one year (felony language,
though crime need not be a felony)
o
must pass FRE 403 weighing
-
an accused –
probative value must outweigh possibility
of prejudice
o
Five Elements Which Factor Into Weighing Test Under
609(a). United States v. Brewer
1.
nature of the
crime – violent crimes bear little probative value w/resp. to impeachment
2.
time of
conviction and witness' subsequent history – though much time passed since
conviction, subsequent history involved more run-ins
3.
similarity b/t
past crime and charged crime – more similar the crime, more likely the
prejudice
4.
importance of
defendant's testimony – favored non-admission
5.
centrality of
credibility issue – favors admission
a.
last two factors
counterbalance one another
FRE 609(a)(2)
-
evidence of
conviction admissible against any witness if crime involved dishonesty or false statement
o
no FRE 403 balancing required
o
crime involving dishonesty requires crimes
involving deceit. United States v. Brackeen
o
robbery and other
theft crimes generally do not qualify – Mueller
and Fitzpatrick; Advisory Committee
§
generally, courts
look to underlying facts of the crime
FRE 609(b) – time limit
-
crime older than
ten years not admissible unless probative
value substantially outweighs
prejudicial effect
o
presumption that
evidence of old convictions is not admissible
Appellate Review of FRE 609 Violations
-
Whether to
testify is often determined by whether something harmful (felony conviction)
will be brought out on cross.
o
if trial judge
wrongly admits evidence in violation of 609 safeguards, Δ may appeal only
if:
§
Δ in fact
testified at trial. Luce v. United States
§
impossible for
reviewing courts to measure harm done to Δ by admission of evidence; and
§
prosecutor
introduced evidence of contested conviction. Ohler v. United States
·
where Δ
introduces evidence of own conviction, no right to complain
Rehabilitation – support a witness' character for truthfulness
FRE 608(a)(2) – rehabilitation can only come after an attack
-
key question – what
constitutes an attack on a witness' character for truthfulness
o
opinion or reputation testimony of witness' bad character for truthfulness FRE 608(a)
o
evidence of specific acts of the witness that are
probative of untruthful character FRE
608(b)
o
evidence of
witness' past conviction FRE 609
Use of Extrinsic Evidence – extrinsic evidence will not be admitted on a
collateral matter
-
two contexts in which extrinsic evidence is barred
o
FRE 405(a) – litigant
asks character witness of X about specific act committed by X; no evidence
regarding act is admissible
o
FRE 608(a) –
litigant cross-examines witness about specific instances which bear on
character for truthfulness; specific instances not provable by extrinsic
evidence
§
no restriction on
extrinsic evidence offered to show witness lied in this case
-
what if extrinsic evidence tends to prove collateral
matter and something else
o
United States v. Abel – let it in – evidence
arguably admissible under two rationales:
§
specific instance
of conduct to show general character for untruthfulness (608(b))
§
evidence showed
Witness' bias towards Δ
§
Court admits
evidence under second rationale despite first rationale
o
United States v. Pisari – don't let it
in – again, two arguable rationales for admittance:
§
specific instance
of conduct tending to show character for truthfulness (608(b))
§
evidence of
previous act so similar tended to show identity (404(b))
§
Court rules
evidence fails second test, thus inadmissible because of 608(b) bar
Categorical Rules of Exclusion
Analysis under 407, 408, 409, 411
-
these rules recognize
drafters' desire to take a specific kind of evidence which they view as
creating a danger of prejudice, and create a special rule for it
o
whether evidence
offered for proper purpose – purpose other than liability
o
relevant for that
purpose – FRE 401, FRE 402
o
403 Analysis –
whether probative value is substantially outweighed by potential for unfair
prejudice
FRE 407 Subsequent Remedial Measures – actions taken after an event occurs inadmissible to
prove fault or causation
-
fear that jury
will give subsequent measure more weight than it deserves
-
do not want to
create disincentives to make things better
-
FRE 407 –
allows evidence of Subsequent Remedial Measure if the feasibility of such a measure is controverted. Tuer v. McDonald
o
constructions of
feasibility:
§
narrow – feasible
means economically possible
§
broad – feasible
means reasonable
o
court adopts more
narrow approach – McDonald not claiming unfeasibility of procedure; rather,
simply claiming judgment call
-
FRE 407 in strict liability cases
o
manufacturers should
not be dissuaded from making changes in their practices because of this rule
o
many state courts
hold FRE 407 not applicable in
strict liability
o
redrafting of FRE 407 – clearly indicates
applicability in federal courts
Compromise Offers and Payment of Medical
Expenses
FRE 408 Compromise and Offers to
Compromise – evidence of compromise
of a claim or offer to compromise claim is not admissible to prove the validity
of the claim or its amount – bars a kind
of evidence when introduced to show a certain thing; not excluded when evidence
is introduced to show another thing – like FRE 407
o
social policy –
encouraging the settlement of claims
-
Bankcard America v. Universal Bancard
Systems – contract dispute
o
compromise if
being offered to show something other than validity of the claim
FRE 409 Payment of Medical and Similar
Expenses – evidence of promising to
pay hospital bills, etc., not admissible to show liability
Liability Insurance
FRE 411 Liability Insurance – evidence of insurance or lack thereof not admissible
to show that party acted negligently or wrongly
-
no probative value almost whatsoever
-
deep pockets problem
-
kind of
irrelevant in a direct action state – go straight to insurance company,
skipping the tort-feasor
-
Williams v. McCoy – how much prejudice could be created by introducing evidence of what
is already known?
Pleas In Criminal Cases
FRE 410 Inadmissibility of Pleas, Offers
of Pleas, Plea Discussions, and Related Statements
-
evidence which is
not admissible for any purpose, against
defendant who made the plea or
was a participant in plea
discussions, except for two narrow
exceptions
o
another statement
during same plea or discussions is introduced, and the statement sought to be
included ought to considered contemporaneously
o
in a criminal
proceeding for perjury or false statement if statement was made by Δ under
oath, on the record, and in presence of counsel
-
allows waiver as
long as it is knowledgeably and voluntarily waived
United States v. Biaggi –
-
Δ argues
that his rejection of offer of immunity indicates that he did not know any
information about others
o
trial court holds
inadmissible; appeals court reverses, holding that probative value of rejected
deal for immunity is strong
Foundational Evidence
Authentication and Identification
FRE 901 Requirement of Authentication or
Identification
-
general provision – requirement satisfied by evidence sufficient to support a finding
that matter in question is what a proponent claims
two questions when dealing with physical
evidence
-
whether at time
object came into proponent's possession, it was what he claimed it to be
-
whether it has
remained as such
o
chain of custody
need not be perfect, just sufficient to support a finding of authenticity
o
marijuana case – absent some evidence (Huddleston) that there was tampering, there is enough
evidence that a jury could determine that this is authentic (preponderance of
the evidence).
Documents
United States v. Stelmokas
Phone Calls
-
most common kind
of authentication – voice identification
o
not always
possible
-
liability
insurance – phone call authentication important w/resp. to claims reporting
o
question for
judge – whether testimony as to what person on other end of phone said should
be admitted
§
not hearsay – not
being offered to prove matter assrted
§
key inquiry –
whether person on other side of phone was acting on behalf of insurer
-
Problem 10.3 Star 69 – Pounds v. State
o
star 69 reveals
phone call from robber came from another pizza hut – police go to other store,
find man who matches description, and who has in his car information
considering stores, cash, and gun.
o
at trial –
manager asked to repeat words robber said over phone
§
objection – words
can not be identified conclusively as those of the robber, b/c she didn't know
his voice
§
Huddleston –
whether there is enough evidence such that jury could determine phone call came
from person who robbed the store
o
relevance of
evidence – identity? – his concern reflects probable concern of fellow pizza
hut employee
-
self-identification
is not enough to authenticate. People v. Lynes
Photographs
-
authentication of photographs – admissibility of photographs simply requires that photographs
be identified by witness as a portrayal of certain facts relevant to issue, and
verified by such a witness on personal knowledge as a correct representation of
facts. Simms v. Dixon
-
Problem 10.4 Staged Photograph
o
if photographer
was in room w/victim, it is okay for photographer to authenticate photo as
representation of what happened
o
if photographer
was not there, he can not authenticate photograph as representative of what
happened
§
victim could
testify as to representation of where he was when shot, but it would be
difficult to authenticate w/resp. to shooter's position
-
key inquiry – for
what purpose is photo being authenticated.
-
Wagner v. State
-
witness who
watched tape authenticates by saying that the person on the tape is the Δ
-
usually, person
on tape authenticates their own presence on tape
FRE 902 Self-Authentication – items
which do not require proof by extrinsic evidence
Best Evidence Rule
FRE 1001
Definitions
o
Writings and Recordings
o
Photographs
o
Original
o
Duplicate
FRE 1002
Requirement of Original – to prove content of writing, recording, or
photograph, original writing, recording, or photograph is required, except as
otherwise provided in these rules or by Act of Congress
FRE 1003
Admissibility of Duplicates
FRE 1004
Admissibility of Other Evidence
Problem 10.5 Perjury
Trial – Meyers v. United States
-
not hearsay – not proving truth of matter
of asserted
-
important point – best evidence rule does not require proof of testimony by most
reliable evidence
o
contrast – if witness had not been
there, but has seen a transcript, and witness is called upon to relate what he
read, a transcript may be necessary
Problem 10.6 Alice's
Restaurant II
-
no best evidence problem where witness testifies from memory
-
fact that witness wrote down license plate number does not require
introduction of that writing
Seiler v. Lucasfilm
FRE 1008
Functions of Court and Jury -
-
Opinions and Expert Testimony
Lay Opinions
FRE 701
Opinion Testimony by Lay Witnesses
a) rationally
based on perception of witness
b) helpful to
a clear understanding of witness' testimony or determination of a fact at issue
United States
v. Figueroa-Lopez
FRE 702
Testimony by Experts – witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in form of an opinion
or otherwise, if
1) if
testimony is based on sufficient facts or data.
2) if
testimony is the product of reliable principles and methods.
3) witness has
applied principles and methods reliably to facts of case.
witness w/experience smoking marijuana allowed to
testify that drug came from Colombia, not home grown. United States v. Johnson
-
whether witness qualification as an expert is necessary
o
FRE 701 – more of a helpfulness standard rather than an expertise
standard like FRE 702
two reasons to
exercise care w/resp. to expert witnesses. Jinro America
v. Secure Investments
-
entitles witness to introduce hearsay information, to couch his
observations as opinions rather than first hand knowledge of fact
-
opinion of expert is likely to carry special weight w/jury
-
out
Bases for Expert Testimony
FRE 703 Bases
of Opinion Testimony by Experts – facts or data upon which expert bases an
opinion or inference may be those perceived by or made known to the expert at
or before the hearing[11]
-
underlying facts upon which opinion relies are not admissible by
default
o
unless – probative value in assisting jury to evaluate expert's opinion
substantially outweighs their prejudicial effect[12]
FRE 704
Opinion on Ultimate Issue
FRE 705
Disclosure of Facts or Data Underlying Expert Opinion
FRE 706 Court
Appointed Experts
Appropriate Topics of Expert Testimony
FRE 702
FRE 704
Hugh v. Jacobs
State v. Batangan
United States
v. Hines
[1] importantly, the Arizona
Supreme Court holds that the fact and cause of death are always relevant
to a murder case; thus, photos of the deceased will always be relevant,
even though photos will not have any
tendency to make existence of fact that is of consequence to determination of
action more or less probable than w/o the evidence. Photos of deceased in a
murder case have no tendency to make fact of deceased's death more or less
probable than w/o the photos
[2] example – where Δ on stand claims self-defense, evidence of failure to claim self-defense at any point prior to trial may be used to impeach, i.e., show that Δ is lying.
[3] ask whether statement is being offered against person who made it.
[4] ask whether by silence in response to assertion, party has adopted
assertion as its own.
[5] a seemingly circular result here – evidence is used to determine whether the same evidence is admissible
[6] under these rules –
probably, as of State v. Smith,
refers to FRE 403, FRE 404, and FRE 608
[7] at common law – one vouched for their witness; proponent of witness could not question
their credibility; this has long since been
abandoned in most jurisdictions; calling a witness these days
establishes nothing about proponent's opinion of witness; FRE 611 – if
proponent calls a witness whom they intend to discredit, permission of the
court must be granted
[8] I know the
person and have a good opinion for person's reputation for truthfulness
[9] relevant to person's propensity for truthfulness
[10] common law background to FRE 609 – originally – convicted felons not allowed to testify; later – could testify, but not under
oath; later – convicted felons can
take the stand, under oath, but be confronted with their past criminal record
[11]common law –
could only testify to opinion based
on first hand knowledge or facts in the record
[12] prejudicial effect – underlying fact may be used
substantively