OUTLINE: EVIDENCE Tanner v. U.S.

wasted jury Jury got wasted and did drugs during the breaks in the trial. convicted of the crime of mail fraud. o Sentence date set, but before sentencing, a juror tells s counsel about the alcohol and drug use. o s atty then files a motion for continuance and new trial based on the jurors evidence. (He could have hired a priv. investigator as well, but didnt). Rule 606(b) Competency of Juror as Witness Inquiry into validity of verdict or indictment says his jurors were incompetent because of the intoxication/drug use (therefore inquiries into validity of verdict, because of juror information). Rule states juror cant testify as to jury deliberations. What could the s lawyer do then? (that he didnt do) Get the bartender to testify to serving them Bailiff might also be able to testify to it. Skip over that part o Ct. didnt have any of this outside evidence. Another Prob.: s counsel alerted the judge to fact of sleeping jurors (intoxicated), and judge said if it happened again to alert him, and s atty never alerted the judge again of the problem. s atty should have excused the jury (then say it to get on the record) or approached the bench. (Do it outside the juries earshot to avoid prejudice). o Bad record for an appeal (no evid. on record of intoxication/sleeping). o Ct. Discusses 606(b) Discussion of was is internal and what is external (what jurors can testify to). Ct. stated that drugs and alcohol are internal and not external, and therefore cannot be testified about by a jury about a verdict. The ct. decides this even though there is a strong argument that this is external, the ct. stated this was internal behavior and therefore lost. (internal, virus, bad food etc.) Also, strong argument it is internal, they picked the jury and this is just what happened. o What does external mean, what are external factors? Jury tampering (bribery); Reading the Newspaper or seeing a story on the case, this is inadmissible evid. and would be an external prejudice; Or being told external information that is not admissible from other parties. (4) Purposes for allowing Jury verdict deliberations to remain secretive: o 1) We want jurors to deliberate w/out fear of someone second guessing them. (sense of protection). o 2) We dont want to disrupt finality (if every verdict could be investigated you could just keep investigating every jury and appealing). o 3) Allowing this would undermine the legitimacy of jury verdicts (ppl wont trust the jury system). 1

o 4) There could be a perception the lawyers are harassing the jurors. Rule 401: Definition of Relevant Evidence - Relevant Evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. o This rule is very broad and liberal it favors admission of evidence. Prob. 1.1: show me the body said wife This statement shows she knows there is a body, and that it is hidden. o Line of Admissibility: It has some tendency to make the defendants guilt more probable under 401. Chain of Inference: Wife already knew what had happened her statement reflects the guilty knowledge the wife has to the husbands behavior. Prob. 1.2 Lying Gang (about confession sworn to lie) Relevant because Mills and defendant are in a prison gang sworn to lie and kill for each other. This goes to Mills truthfulness, and therefore is relevant. o Relevant because: 1) Mills and defendant are in a gang agreed to lie which makes Mills testimony about what is true or not questionable. 2) Anything else Mills says is also suspect because, he has joined an organization where he has agreed to be a liar (reduces credibility). Prob. 1.3: - Consent to take polygraph in face of high probability it catches liars Pros: no relevance to guilt or innocence o He could have merely taken the test knowing it was not admissible, therefore nothing to fear if it came out that he was lying. o This might have also been privileged info (the defense team got the test) therefore not worried it would ever be introduced into Ct. Def: Admitted because it shows his consciousness of innocence, shows he was not afraid to take the test even though it had a high prob. Of showing when ppl were lying. o Conc.: Relevant enough for 401 possibly (this would be a good essay question). o Admissibility of evidence is a decision by the Ct. (judge) not the jury. (104(a)) (I think) Probative: If probative it goes to making the material fact more probable or less probable. If not then it is not admitted. Material: If it bears on a fact that is of consequence to the determination of the action. **To be admissible evid. must be Probative and Material. ** Prob. 1.4 statute not requiring knowledge to violate it Defendant argued she did not know she had been convicted of a sentence placing her in violation of the law against having a fire-arm (knowledge not an element). o Sustain objection to intro of evid. it is irrelevant and immaterial. The statute does not make knowledge a requisite part of the stat., therefore her knowledge is immaterial to the offense. Doesnt come in. (only conviction must be there, not knowledge of it). 2

Her knowledge isnt probative or material.

Prob. 1.5 - defendant argues voluntary intox., statute specifically says cant do this Does evid. of intoxication come in? o No. Law does not allow vol. intox. Defense, therefore evid. of his intox. Is not relevant and material to the action. Not Material (it is probative to mental state, but not material because you cant bring up vol. intox., not material because it doesnt go to the elements of the crime). Choosing to get drunk is immaterial under the state.

United States v. James Violent man afraid of 14 year old - Defendant feared for her life; caused by her boyfriend (V) telling her stories of him being violent to others (killed someone, cut someone, etc.) After V hit daughters BF, she gave her daughter a gun because of fear for her life, and daughter shot V dead. Theory was self-defense (pros. Charged defendant of aiding and abetting). Do law enforcement documents proving Vs violent stories were true come in as evidence? o Defendant was allowed to testify at the tr. Ct. level, but she was not allowed to produce evid. that proved that V had in fact stabbed and killed ppl in the past. Ct. said inadmissible because she didnt know the documents existed at the time of handing the gun to her daughter, so the docs. Do not corroborate her state of mind. If Docs. Did not exist, could she still testify as to what V told defendant? Yes. Her testimony about what he said could be admitted, it is relevant. If she didnt know Docs. Existed, how do they corroborate her testimony? Strengthens her Credibility, shows what she said was prob. True, because the crimes he bragged about actually occurred. FLiP: What if he brags and the docs. Dont exist? o Yes, this would be admissible to undercut her credibility. o This was important because: Her entire defense rested on her Credibility Her story was unlikely and the docs. Made it conceivable. o The jury, during deliberation, asked if the stories were actually fact. Defense council renewed objection and wanted the records in, Tr. Ct. again didnt allow it to come in. Final Decision: Reversed Conviction saying, the exclusion was prejudicial (the jury asked about the records). They corroborate her testimony that makes it more likely V said these things, because they are true. o What if it were the opposite and the docs. Didnt exist? This is a harder question to reach; the actual truth is irrelevant, as long as she believed it no matter how farfetched. (Ct. could say immaterial). Prob 1.6 raising cash filled violin case The admissibility depends on the perceived relevance of if the evid. actually existed or not. You just have to argue sides (and if relevant if case is empty) Similar to James. Rule 104(b): Conditional Relevance 3

Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the ct. shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. o Standard: Preponderance of the Evidence Prob. 1.7 Threat to tell son Dad wasnt the bio father (death of telling wife) Defense: The inference cannot be made, it is a stretch that the father had the knowledge the wife was going to tell, so he killed her. Prosecution: The inference can be made, he said her son when interviewed. o Conditionally relevant, if in fact she did not tell her husband of her plan to tell the son, it undercuts the motive. But, if she did tell him, then it goes toward the murder. Murder must have occurred after telling husband, before telling son, if it did not, then it is not relevant (because husband wouldnt have requisite knowledge for motive). Cox v. State Killer friends with Inmates Mom (Knowledge of parol denial?) - Shooting, nothing linking defendant to the killing of V (motive) other than defendant is best friends with someone in jail on Vs testimony, and defendant spent time with best friends (Vs) mom the day after a bond hearing for best friend in which Mom was present. So conditional fact that defendant had knowledge of best friends non-bond reduction and this knowledge gave defendant motive to kill V. o Pros. Must prove that defendant knew about the allegations lodged against best friend in Ct., when defendant was not there. The link was that the mother was there. And that defendant saw best friends mom the day of the murder (witness put him at the house). Also evid. that best friends mom told defendant what happened at the hearing. Ct. Said: Because Mom at hearing and defendant and best friend were so close, anyone in best friends circle would know what happened at the hearing (that V testified and best friend denied reduction), and therefore we can infer defendant knew what happened at the hearing. By preponderance of the evid. it is more likely than not that defendant knew what happened at the hearing. o Arguments against: 1) The connection is very weak 2) just because he had knowledge of the bond proceeding, that is not enough to go kill someone. - Conditional Fact Not clear under 104(b) o This is just like an objection to probative and materiality. o You dont traditionally hear conditional fact objections. Know what the conditional fact is If best friends mom says she hasnt seen defendant, then the conditional link cant be made (there would be no possible way defendant would have known of the hearing.) Probative v. Prejudice 403 - Admissiblity of Evid.: 401 (all evid. must be relevant) o But it must also survive 403 balancing test Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. o Evidence subjected to the balancing test has already been judged relevant. o This does not happen every time, just when an objection is raised. - What evid. will be presented against the defendant? o Prejudicial evid., this I the evidence that will convict the defendant. o It is prejudicial, as adverse to their interests (all evid. is prejudicial) Therefore 403 does not bar prejudicial evid., only unfair prejudicial evid. Evid that fails 403 is inadmissible (as unduly prejudicial). State v. Bocharski Old Lady killed, Skull pictures - Man charged with killing old lady with knife. Pros. tried to introduce evid. of pictures of the stab wounds, but death or manner of death was not in dispute. defendant argued these pictures were unduly prejudicial. (mercy killing). Pics of victims skull with brains removed, and other pictures. o Tr. Ct. allowed all of the pics to come in, the defendant objected to this saying they were gruesome, highly inflammatory, and unduly prejudicial. Pros said it showed the angle of the stabbing, etc. and that a knife was used. o App. Ct. defendant argued the pics were minimally probative value, because there was no questioning about what type of knife was used, or angle of the stabbing. Also argues min. probative value because the manner of death was uncontested, the defendants defense was that he didnt kill her (not me). defendant does not contest that she was murdered, all he is saying is that he did not do it. Therefore, [the pics went to uncontested issues in the case]. It was not contested she died, or that she was stabbed in the head. The pros. still has to prove this (it is relevant) but they have no probative value because that evidence is not disputed. o Ct. Said 42-45 were admissible, and even though minimal probative value, it still existed enough to overcome the prejudice. (these showed manner of death etc., how she died). o Ct. found 46 and 47 to be unduly prejudicial, they did establish the angle of stabbing, but there was no testimony elicited about this, so min. probative value. There was no testimony about 46 and 47, did not reveal what type of knife was used, therefore ct. said the photos were inflammatory and the impact is that they needed to punish someone for what happened (the defendant cause he is there. It could also cause the jury to be confused, and emotional and not pay attention to the other evidence. (2 impacts on the jury). Evid. the App. Ct. looked at to make this decision The Tr. Ct. commented on the jurors reactions to the photos, he does this outside the presence of the jury. If something is not said out loud during trial, it is not there for the appeal. Here, this was ERROR, but NOT REVERSABLE ERROR. o It is within the discretion of the tr. Judge to determine whether evid is admissible under 403, and will only be overturned for abuse of discretion. Here there was error, but it was not reversible error. o Judge noted initially the jurors were upset with the first photos, but then took 46 and 47 in stride. - Ways to Limit Unfair Prejudice: 5

You find out about them before you get to the courtroom (pre-trial), so you would file a motion in Limine to exclude the evidence because under 403 they are unduly prejudicial (balance). o If you lose this, you can: Ask for a cautionary instruction to the jury by the judge not to over-react. Re-new objection at trial to preserve it for appeal. Note: Autopsy photos rarely get in (they are not showing what the defendant actually did like the crime scene photos do). You can also ask to not allow them to introduce large photos. You can ask for a limited number of pictures. You can do very well at voir dire, submit questions directed at the photos. You could remove jurors for cause, or pre-emptory because of their adverse reactions. Do this to take away Shock value of the photos. NOTE: Under 401, Evidence does not have to be relevant to a disputed issue, it can still be relevant. Under 403, the jurors must be protected from emotional reactions. Prob. 1.8 Photo of 1 gun, surrounded by lots of other weapons not used in crime Picture of clean outside of rifle, when tested the dirty inside stopped the automatic shots. o Obj. under 401 irrelevant because it doesnt matter what condition the outside of the gun is in, not an issue, only the inside of the gun is. Also the gun is on a table with a lot of other guns, and various weapons, that have nothing to do with the case, and arent owned by defendant. o Pros argues, if gun clean outside, then clean inside, therefore relevant. Obj. 403: Unfairly prejudicial with other guns and weapons that have nothing to do with the crime. Minimally probative of the cleanliness of the inside of the gun, and the prejudice substantially outweighs because of all the other weapons that have nothing to do with the case. * remember that if the evid. is not relevant then you never get to the 403 balancing test* o Solution: Crop photo to only show the 1 gun, not unduly prej. Movie: New Theory Sex Killing o Obj. 401: maybe sperm found on Bill was not relevant, because it could have been Bills, unless it was someone elses, then it could be relevant (like if Delberts). o Obj. 403: Unduly prejudicial because it brings up another crime (incest) and it isnt probative of the murder. If it shows motive it is minimally probative, but unduly prejudicial. They might convict of murder because they feel defendant is a bad person for engaging in incest with his brother. Diff between this and the pictures: Pictures dealt with the actual crime, not another one. Impact on the jury. Here, it would target the defendant, it attacks his character, but the pics just go to punishing someone and the defendant is there. Movie it specifically paints defendant as a bad person. TYCO article Videotape 6

Probative value of the tape allowed the showing of the party as extravagant, cut parts that showed vulgar things. Probative value showed that he stole over $600M and he used it as his expenses toward these extravagant parties. The Ct. did not show the vulgar parts because it would have had unduly prejudicial effect of convicting the defendant for his bad taste or vulgar taste, instead of because of the actual crime of stealing. Common Wealth v. Serge Computer Generated Animation cop killed wife - CGA of defendant shooting his wife, and then moving the body, to show defendant actually did not kill wife in self-defense, and the CGA conformed with the experts testimony. - defendant said the CGA was unduly prejudicial, and did not have the means to create his own CGA to counter the States CGA. - Pros. wanted it because it conformed to their experts testimony and showed their theory. They said the CGA was the same as (demonstrative evid.) drawing it out, in pictures or using diagrams. Said it is ok because it is ALL based on experts testimony, this merely illustrates it. o defendant objects, saying the jury will think the CGA is reality, fact, or it is overly persuasive. o Pros said the Ct. gave a limiting instruction saying it was not real, just that it was based on expert testimony. Ct. also noted there were no faces, sounds, voices, expressions, so no way to think that it was real. o defendants could argue prejudice because the video would be allowed to play over and over again in the jury room after entered into evid., and depicts defendant as cold blooded killer, and therefore overly prejudicial. And that video animation is too overly damaging, it is easier to watch and remember what you have seen than to listen and remember what you heard. o Another Arg: There is no reason to not use new technology, and it conforms to experts testimony, so it is ok. Ct. Ruled that this evid. is admissible under the demonstrative evid. rule, and it must be a fair and accurate representation of the evid. it is portraying. Here it is relevant, and has probative value as demonstrative evid. - Monetary Issue o Indigent defendant did not have a lot of money, therefore claims they do not have the same access to resources as the prosecution, therefore CGA is unfair. Ct. stated that the tr. Ct. can take into account the defendants indigency. Ct. sated if the indigent needs expert assistance they can apply to the ct. for it. o Concurrence: Monetary impairment may be taken into account when deciding prejudicial impact. But the remedy is not to suppress the evid. Because they dont have the funds, but typical remedy is that the ct. may allow some funds to get an expert to examine how the analysis was done and animation was generated to see if the CGA is consistent with the evid. as it was presented, and assist in cross. You can also see if someone will donate their services to assist the defendant for no fee or a reduced rate. States v. James Same trial as above - DISSENT o Said the docs really just showed that the defendant was asking for it. That he was a horrible nasty person. This is not proper, it is unduly prejudicial to the Prosecution (403). It goes both ways, in this case the jurors might have acquitted the defendant because they hate the victim, not because they think she is innocent. o 7

o Smear V so no one cares and jury wont convict. o Either side can object to evid. under 403. State v. Myers Flight evidence consciousness of guilt - Bank robber, who fled FL and Penn, arrested in CA. Issue of whether this was evid. of flight. o defendant says this is not evid. of flight o 2 Flight Events 1) From FL 2) From CA o CA: There was inconsistent testimony by an FBI agent about, 1) how far they were away from the motorcycle, 2) that they even fled at all. In previous Penn trial, agent said they didnt flee, but in a trial for the robbery in FL he said they were 3 ft away, and then 50 ft away attempting to flee. Problems with Flight: Ppl naturally run from ppl pointing guns at them, or ppl running us down with their cars. Did the defendant really try to run away You cant tell what crime he was fleeing from (he committed a crime allegedly in FL, and did commit a crime in Penn, he was arrested after both of these). The 4 inferences you must make for Flight evidence to be admissible (cant do it here). 1) From the defendants behavior to flight; 2) From flight to consciousness of guilt; 3) from consciousness of guilt to consciousness of guilt concerning the crime charged; 4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. o FL: The officers were undercover, and therefore didnt know who he was running from, just running from ppl chasing him. Also, it is a close question of flight because it was 3 weeks after the robbery when he ran in the mall, and also long time after he left FL (might be too remote). o Unduly prejudicial impact of arg. That this is flight, it has minimal probative value because it is not clear he was fleeing from anything, but it has large prejudicial impact because it shows consciousness of guilt, and allows the jury instruction that says evid. of flight shows consciousness of guilt. Prob. 1.9 Felon fleeing crime scene because of prior criminal record Prejudicial because if his consciousness of guilt was for his previous crime (robbery) then this is unduly prejudicial, shows him as a bad person. Consciousness of guilt, but maybe not one concerning this crime. He is not running because he killed her, but scared of police, but saying this would bring up other crimes and therefore this is unduly prejudicial. o Pros would argue that the crimes happened a long long time ago, therefore the jury wont hold this against him. 8

Prob. 1.10 Fleeing, but has marijuana Pros. not prejudicial because a small amount of marijuana will not be unduly prejudicial, they wont make the jump from marijuana to murder. Not unfairly prejudicial because they are unlikely to be confused. Difference between these two problems: One involves a recent crime that is non-violent, and the other involves a violent crime a greater distance in time away, and therefore since violent more likely to convict. Prob. 1.11 Staying Put Consciousness of Innocence Publicity of the murder, and defendant wants to prove that he didnt leave, and therefore a consciousness of innocence. Pros. Unduly prejudicial to the pros, only minimally probative. Def.: Since 403 is liberal, it may be minimally probative, however there is no undue prejudice to the prosecution, therefore it should be allowed in (it is relevant and not unduly prejudicial). People v. Collins- probability - Pros. argued probability, took statistics about all of the evid., ponytail, car, black man with beard, interracial couple, and therefore said because of probability it had to be this couple that did it. Therefore, the case shows that probability evid. has limited admissibility. - Lesson: Where did he get this probability (1/10 blonde woman have ponytails, etc.) he made all of this mathematical evid. up, they were not hard facts. Therefore they are inadmissible, made up probabilities are inadmissible. o DNA evid. is probability evid. (they are tests of exclusion) they limit the # of ppl that could possibly be the one involved in the crime. You can be excluded but not included, you can have this because the probability is based on sound premises of sound mathematical study. U.S. v. Jackson Stipulations (robber, gives false name) - Demonstrates another way to deal with unduly prejudicial evidence. o When you stipulate evidence you admit that it is true o Parties can stipulate to what evid. comes in. The Pros would not allow the evid. in if the defendant would stipulate to certain facts that the evid. proved. o The evid. was unduly prejudicial, when compared to its probative value. Old chief-Stipulations the item of evidence in question could be measured in relation to "the full evidentiary context of the case as the court understands it when the ruling must be made." o a district court abuses its discretion under the Federal Rules of Evidence if it spurns a defendant's offer to concede a prior judgment and admits the full judgment record over the defendant's objection, o when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, o and when the purpose of the evidence is solely to prove the element of prior conviction.

The Specialized Relevancy Rule: 407, 408, 409, 410, 411 (Good charts 91-93) - Evid. must still be relevant, but the evid. is inadmissible because of a pub. policy perspective. 9

Rule 407: Subsequent Remedial Measures - When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct a defect in a product, a defect in a products design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. - Operative word is: SUBSEQUENT! - Policy reason wants society to make changes. - Limited exclusion: Pretty much its not admissible to prove negligence. - Advisory says it applies to products, defects and warnings. - Prof please explain products and controverted - If someone uses this rule against you, just say you want it for another reason. Impeachment is a reason but not the only reason. - Ex: road contractor puts out road side after a negligent action. If there is a dispute as to who controlled the road you can introduce it to show Control but. - Criminal pleas is not a rule of limited exclusion. Prob 2.1: - Wolf Attack (Beagle attacked, owner took action to control, then boy attacked) Is the subsequent chaining of the wolf after first attack admissible? o 1) beagle case 407 bars the intro of evid. of subsequent remedial measure. (the man restrained the wolf after the first attack). Pub Policy reason: 1) we want to encourage ppl to take remedial measures (reduce danger). 2) simply because he chained the wolf up after the attack isnt really strong evid. that he was negligent in controlling Sophie the wolf before the attack. Not relevant of his guilt. o 2) Little Boys case Admissible because it was not a subsequent remedial measure, and therefore this is most likely admissible. We want to introduce this evidence as proof the owner was on notice of the wolfs dangerousness. There is no reason to keep this evidence out. Tuer v. McDonald Stop of Heparin, death, change of protocol after accident - V is deceased husband of . V dies after heart surgery. Widow sues because V was not given Heparin during the surgery (anti-coagulant), a dif administered he could have survived. Not given during because runs risk of bleeding out if artery is knicked. - After death the hospital changed their protocol, to administering Heparin up to and during surgery. (re-evaluated the situation and decided the protocol should be changed because of Vs death. o wants this evidence of subsequent revision of protocol to come into evid. 2 Rationales 1) to impeach the testimony of Dr. McDonald 2) Show administration of Heparin was feasible. o 407 lists why you cant admit it, but also ways you can, and the list of can not exhaustive. - Ct Determines: o Feasibility Feasibility means, could you have done it? 10

Here it is Yes, of course they could havebut this is not the point. (They could have easily done it, but in their professional judgment it was not advisable because of the risk.) Was it something that med. Pract. At the time could have done? Yes, but there was a risk they advised against, it was not advisable, they only determined that maybe they were wrong only after the death of V. Therefore, ct. said she could not introduce the evid. under a feasibility theory. (they didnt say it wasnt feasible). o Impeachment Could not introduce this either Must use to show lying or that Dr. was wrong. However here the protocol was to not use the Heparin, therefore you cant impeach him with this new knowledge, he didnt have it at the time. - NOTE: every Ct. looks at 407 differently, this is not the controlling analysis of feasibility. Prob: 2.2 Wood Chipper I defendant gained a motion in Limine, and now are introducing evidence that the same very machine is being used. (the alteration has been kept out of evidence, they are taking advantage of it, and making it seem that the same exact machine is being used, when in reality, they made a modification after the accident). The will argue that now the Defense is lying, they have now opened the door to allow the evidence to come in. Jury has a right to know now that the machine was modified after the worker was killed. (allowed for impeachment, or correcting the deliberate false impression that the defendant was using to say the equipment was maintained in an un-altered condition). o 407 would not bar the information in this case (impeachment exception). o You cant benefit by a motion in limine and then distort the truth. Prob: 2.3 Woodchipper II Designer says this is the safest length chute you can put on the machine o When the claim isnt just a general denial of negligence, but a claim that this is the best combination of safety and operation yet devised, it falls neatly within classic impeachment. Because this conflicts with the idea that they in fact fixed the length because it was NOT safe, therefore impeachment. (this opened the door up to impeachment). In woodchipper I the defendants atty allowed the inadmissible evid in (opened the door). In Woodchipper II, the witness (defendant) opened the door to the inadmissible evid. Rule 408: Compromise and Offers to Compromise - (a) Prohibited uses: Evidence of the following is not admissible on behalf of any party when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: - (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and 11

(2) Conduct or statements made in compromise negotiations related to a (concerning) claim (not lawsuit) by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. WE WANT TO ENCOURAGE SETTLEMENTS, AND PROBATIVE VALUE MAY BE MINIMAL. - (b) Permitted uses: This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witnesss bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. - FRE 408 compromise offers - FRE 403 still applies. So even if it comes in Rule 409: Payment of Medical and Similar Expenses - Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Bankcard America v. Universal Bankcard Systems Negotiations - BankCard hired Universal as a sub-ISO, and there was a K breakdown, and dispute. Negotiations occurred, and BankCard contends that Universal broke a K provision against Universal giving accounts to Bankcards competitor, which it did. - Judge posner felt there was a basis for exclusion under 408. He was wrong. Rule 408 bars evidence of statements made during settlement negotiations. Unless you are seeking to use the statements for another reason. We know its relevant, but why is it probative. The need to know what Because you could be admitting to things, etc. Pub Policy 1) We want ppl to settle their claims on their own, so encourage settlement. 2) Want to reduce litigation; 3) clean up courts docket. Here Universal wanted to introduce testimony that during their settlement negotiations they reached an agreement that allowed them to give their accounts to BankCards competitors, but Bankcard says negotiations, so cant come in. o Universal argues they are introducing evid of neg. not to show liability, but to explain why the financial transactions went on at this time (why they feel they didnt breach the K, that didnt allow them to sell to BankCards competitors). Ct.: Says BankCard was trying to abuse 408, and trick Universal into breaching the K and then prevent that evid. from coming into court. This abuse of 408 allows the evid to be admissible, it wasnt for purposes of liability, but for why they were behaving the way they were at the time (Why conducting financial transactions). o This is similar to WoodChipper I (you cant use these rules to trick the jury into thinking the state of the evid. is one way, when really it is another, cant abuse it or you open the door to allowing the evid. to come in). o BankCard opens the door here to allow in the evid. of negotiations. Prob 2.4 Hotel Inspection 408 is this report a statement made in compromise negotiations? 12 o

Arguments Under 408 probably in-admissible. It was made during negotiations and therefore not admissible. It would have to be made during negotiations for 408 to bar it. 408 will take into account evid. of negotiations before filing of the lawsuit. Have to be a statement by a party to exclude. Here you would argue architect is a party by agency (hired to make the report). If not a party, under 408, then the evid is admissible. But for Ramada wanting to negotiate would they have hired the architect? NO, and for this reason it is barred under 408. TRUE OR FALSE, 408 bars assume settlement offer, insurance offers to settle bad faith independent legal significance all of the example are in advisory committee comments, rule 408 is inadmissible, is inapplicable. During settlement negotiation, somebody says something, the party says something different then what was said during can you impeach. The policy of the rule would totally evaporate. A prior inconsistent statement may not be used for impeachment, but maybe for other purpose bias, prejudice. APOLOGY If you are advising a doctor, you wouldnt advise your doctor to apologize, even with the rule. Gosh im sorry not admissible let me take care of yout treatment is an evidence of furnishing not admissible to prove liability. Humanitarian impulses, Let me buy you a new car this is not medical or hospital..so this may be admissible. I ran the red light may come in for admission, excited utterance. If I can think of another purpose I can get it in. How much would you pay some purpose other than fault. Rule 411: Liability Insurance - Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. - Not admissible to prove negligence - However, if offered for another purpose like proof, of agency, ownership, or control or bias or prejudice of a witness. 13

Williams v. McCoy abuse of bar of insurance, paint as only wanting $ - Personal injury in car accident. Pre-trial motion in limine and is not allowed to discuss insurance. He has liability insurance for his car. 411 bars evidence of insurance to prove liability of wrongdoing or negligence. o o The Defense tries to abuse the Limine rule, and paints the as just seeking $, saying only went to the doctor after talking to an atty. But really she only hired the atty after the defendants claims adjuster tried to negotiate with her. The Defense is that she went and saw the atty, then the atty told her to see a doctor, and she filed the claim just to profit. This paints her in a very negative light. o says that it was the sleezy insurance agent that tried to take adv. Of her and get her to settle, and that is why she hired an atty. Ct. still said she was not allowed to testify about it, because of 411 not allowing liab. Insurance. Pub Policy: You want juries to find verdicts based on negligence or wrong doing, not on who has the deep pocket and can afford to pay. So kept out completely. appeals Saying she was not offered the insur. Info to prove defendant was liable, she was introducing it to explain why she had hired an atty. (because of how she was treated by the insurance adjuster). App. Ct. Said she was not using the evid. to prove liability (barred under 411). (but the list of why it can come in is not exhaustive). Therefore, this was an exception, offered to prove why she hired an atty because of the Ins. Adjuster, and why she saw the atty before the insurance adjuster. Ct. also talked about the issue of 403 o Here it balances between the prejudice of admitting it and not admitting it. o Probative value here: allows P to counter act that she was just a money grubber, and that she hired an atty after she was tried to take advantage of. o Prejudicial impact: It would alert that defendant had car insurance, but this day in age it is an assumption that everyone has at least liability insurance on their car. Ct. will not allow the defense to give a false impression to the jury. Defense thus opened the door after its win of the motion in Limine. Prob. 2.5 claims adjuster tapes conversation Evidence bias = reduced because of the tape recording by insurance employee, reduces value of impeaching. She also is not denying that she said it, just that she is mistaken. Prob. 2.6 Malpractice Insurer, defendant and expert witness both share same insurer 14

Should this info be excluded from evid? o No, it shows that the witness has a bias in favor of the defense, because he has a financial interest in the outcome. o Yes, there is no bias he doesnt even know how his insurance works. If it is a large insurance co. then there is not much impact on the decision of the case and so it wont matter (have no idea how it impacts). o Bias is always relevant but not always admissible Here you would have to show that there was a bias, DIRECT financial interest witness is aware of, otherwise no risk of bias and 411 applies and bars the evidence. (you can argue both sides here, but here there is no bias). Prob 2.7 Day-care center Failure to report The issue here is guilty knowledge, there is no financial risk. She has insurance; there is no motive at all to not tell of the abuse. Here it is a criminal charge of not notifying the prosecution that a child is being abused, abuser is charged in another case. A defendant has an absolute right in a criminal trial to produce evidence on your own behalf (criminal and that is why it is allowed in) different type of rule. (Know this). Juror Project In 85% of cases, insurance evid. was not introduced and jurors talked about it anyway. They even talked about it when they werent allowed to consider it, and knew they werent supposed to discuss it. They ignored the instructions of the judge. They were extremely interested in whether the was insured (because they were concerned with double recovery). o Of all topics considered, insurance most of all than others came up. Should the jurors continue to be told nothing about insurance, or should we advise jurors of it? Rule 410: Inadmissibility of Please, Offers of Pleas, Plea Discussions, and Related Statements - Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: o (1) a plea of guilty which was later withdrawn o (2) a plea of nolo contendere; o (3) any statement made in the course of any proceedings under Rule 11 of the Fed. Rules of Crim. Pro. Or comparable state procedure regarding either of the foregoing pleas; or o (4) any statement made in the course of plea discussions with an atty for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. - However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. o Pleas in Criminal Cases 15

Bars against the defendant Guilty plea later withdrawn Nolo contender plea Statements in plea proceedings Statements in plea talks with prosecutor Prob 2.8: Prosecutors offer and intro of rejection Wants to offer rejection of offer for; o 1) the prosecutor herself perceive weakness in the govs case; and o 2) the defendant displayed a consciousness of innocence in rejecting the govs offer. Here it is introduced for the defendant, not against the defendant o Clearly this could not come in if the pros. tried to do it, it would be barred as against the defendant. o 1) obviously fails as irrelevant. o 2) the reduction was only from 1st to 2nd degree murder, therefore not much difference, so very small as probative to his consciousness of innocence. If capital murder case, then it would probably be a stronger argument. May or may not work, and here it is unlikely to make it through, but it is worth arguing every time. (Pros. can NEVER get this in, but the defendant can get this in). Beware if the defendant gets this in, it might open the door to other evid. getting in (bad). U.S. v. Biaggi Immunity rejection defendant wants to introduce evid. of immunity rejection as consciousness of innocence. o A guilty man would have taken the immunity over prosecution any day. Pros argued that they said defendant shouldnt be allowed to use the evid. because they rejected the offer because he did not have the knowledge they wanted. Difference between an offer to reduce, and an offer of immunity o To reduce not totally offered to get free, just lessened, could still take chance with jury. o Immunity totally let free, anyone would take this. Rule 410 in admissibility of plea offers. o The defendant is offering this evid., and therefore 410 is not implicated, it only prohibits the introduction of these negotiations against the defendant. o Arg.: Denying the offer of the immunity, actually denied the defendant a fair trial, because of the gov. introduced evidence of the defendants consciousness of guilt (withdrawing the money for possible flight), his wife withdrew the money so the gov. could not get to it. Therefore, he should have been allowed to introduce evid. of consciousness of innocence. Prob. 2.9 Comment made after rejection of immunity What is the govs best response after defendant says not to the offer he states, Id rather face you guys at sentencing than face the other guys in the street. o Pros should argue that the defendant opened the door, by making the statement he opens the door to explain the rest of the offer. o He didnt say Im not helping you, but I would rather you prosecute me and I roll the dice with the jury instead of facing my frightening co-defendants. By saying this he opens the door by wanting to show the rejection, they should be allowed to offer this evid. in order to 16

show that he exactly said when offered immunity. This is clearly the gov. allowing the jury to hear exactly what defendant said. So despite Rule 410, it is admissible. o defendants strongest arg. For keeping out the statement is that the language of 410 bars the statement. But even if kept out pre-trial, the defendant opened the door and risked the evid. coming in anyway. - Test: Be able to spot the issue, see which rule applies, and decide how that rule should be invoked Character Evidence: Rule 404: Character Evid. not Admissible to Prove Conduct; Exceptions; Other Crimes - (a) Character evidence generally. Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: People v. Zakowitz Impermissible Character Evidence - Man fixing his car offered defendants wife 2$ to have sex. The defendant encounters the woman twice. After the sex offer, the defendant goes back and shoots the V (Man) in the chest. - defendant argues he did not have a fair trial, because the prosecution offered into evidence guns and a tear gas gun that was not used in the crime (in an attempt to show he was a nasty violent man). o The murder weapon was not in his apt. this was thrown in the river. o They showed the jury his collection of guns apparently to show he went to this apt. selected the best weapon and came back and shot the V). To show premeditated killing. o What does the Ct. talk about here? Case tells us that Character evid. was barred under CoMLaW. It is inadmissible to Prove action in conformity therewith, inadmissible to prove someone acted in pursuant to their bad character just like you would expect them to do. The introduction of the gun evid. was just used to make him seem like a bad person that he had (bad character). Would a stamp collection of been admissible? No, not relevant. The tr. Judge was also in on it, he started questioning the defendant about what type of gun it was, was it an automatic etc. o Obj to this would have been relevance because the other weapons he was questioning about were not relevant, not used in the crime. Ct. determines all this evid. was doing was demonstrating the bad character of the defendant, which is inadmissible under 404. o How could the weapons have been admissible? To show identity (if he had dropped them at the scene). If the weapons were at the scene then identity would be an issue and therefore admissible. Also for preparation or design if it could be shown he bought the weapons so he would be ready to kill the victim. Either of these reasons would have nothing to do with is character, and therefore would have made the evid. admissible. - Ct. is clear that the defendants Character can NEVER be made an issue in a pros unless the defendant decides to introduce his character. o We are talking about the pross case-in-chief (no one can discuss defendants character here) 17

**But if the defendant introduces evid of character, the pros can then introduce it to attack character of defendant in rebuttal).** - NOTE: Funny Cardozo talks about how character should never be used, but then uses the defendants character throughout to make his opinion more persuasive. o DISSENT: Lists the specific exceptions to the rule. If he had multiple guns on him when he shot you would argue: 401 not relevant because he admitted that he shot him and what gun he used. 404 says showing other weapons just shows bad character. Propensity Box: Inside the propensity box = To prove action in conformity therewith (in conformity with his bad character). o Evid. is NOT allowed to go through the propensity box, you cannot introduce evid. that PROVES someone has bad character and therefore act with that bad character and are therefore guilty. Cant go through the box. - You CAN get around it (Lay-up on a par five) o defendant had weapons therefore dangerous character therefore he acted in conformity therewith show someone to prove premeditation (cant do this) BAD o defendant had weapons identity guilty of crime GOOD (this does not go through box). If you find another reason to introduce this same exact evid. then it can be admissible. Whether or not evid. is admissible is based upon your reason for introducing it. However, this evid. for a different purpose still must pass a 403 prob. V. prej. Test. - Prejudice of allowing the evid. of several weapons into evidence o Introduction of the weapons might allow the jury to see the defendant as a bad character, even though we arent introducing the evid. for that purpose. - Probative value o We need the evid. to show his identity, and we have no other way to link the defendant to the scene, then the value is very high. - Court can also turn to 105, and despite the risk of unfair prejudice, they can use a limiting jury instruction to limit the way in which the jury can take the evid. into account. The evid. is only coming in for a very specific reason. o So here the pros. could introduce the weapons for the limited purpose of proving identity, and that they should not introduce it for bad character. - What would have changed in this trial if the weapons were coming in only to prove identity? o It would have changed the way anyone could have referred to the evidence. o They could only say that the evid. shows the weapons belonged to the defendant and therefore that defendant was at the scene. Pg. 46 (jury instructions read at close of trial). - Under 105, the jury instruction must have been made on request. There will only be a jury instruction if you request it, just like evid will be admissible unless you object to it. Rule 404(b) - (b) Other crimes, wrongs, or acts. Evid of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution 18

in a criminal case shall provide reasonable notice in advance of trial, or during trial if the Ct. excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. o Other crimes, wrongs, or acts Other ways around the propensity box Can NEVER introduce as action in conformity therewith. o The ways are Proof of motive, opportunity Etc. Mistake, accident, preparation or plan. Could be admissible, but not for purposes for proving bad character. o So Evid. of acts can be admissible for ANY other ISSUE, that is NOT character. Rule 403 is still used, and so is 401. Essay Analysis: So must get to 401, then 404(b), then you have to survive a 403 analysis, and if still objecting you might want a 105 limiting instruction. o Evidence of other acts, even if offered for identity, are not admissible if they lead through the propensity box. IT CANNOT EVER GO THROUGH THE PROPENSITY BOX (it must go AROUND it). What is wrong with this? o We use this information all the time to make judgments about ppl. o So the evid that you think would be the most persuasive, is actually inadmissible. Note the rule says a personss character doesnt just explicitly say the defendant o 404 prevents us from going through the propensity box to specifically prove the defendant acted in conformity with his character, even though we are trained to do this. Miquel a Mendez study on Conformity - Originally they believed that certain character traits determined certain behavior. o Ex) So if mean violent and nasty, you would always act in that way. - Then Mendez discovered that in specific situations, this is actually not true, it is more complex than this. o This trait so act, also doesnt take into effect that ppl change. o This also undermines the entire criminal justice system Under the view that if they have the behavior then they will act, means they will always act that way, and takes away free will, and rehabilitation. - The ban on character evid. does not say that Mendez is wrong, or that there isnt predisposition, the law just believes that the evid. might be helpful and it might be valid, but we ban it because for this trial we are focusing on the specific crime whether the person committed the specific crime, not the type of person the defendant is and is therefore likely to commit it. o We do not want to distract the jurors from the actual issues of the case, and decide it based off erroneous reasons. o We bar it because they might punish for the defendants bad character, not that he is actually guilty. Every evidence takes the 403 trip, (but rule last time are only used in specific situations). Rule 404 The Propensity Box - Character evid. cannot be used to show the defendant has the propensity to commit the crime. 19

Routes Around the Box Evid. Typically identified as Character Evid. But used for a purpose other than Propensity. (Must still survive 403 analysis). Prob 3.1 Hacker - 2 cases of a Hacker breaking into a computer shippers systems encryption system and placing orders from fictitious schools, essentially getting the computers for free. - Hacker plead guilty to the incident in March, but not to the incident in February. - Pros. wants the incident admitted to into the case of the other shipment as evidence to prove knowledge. - Reasoning: o Admits March order broke into encryption system likely also did it in other case guilty (cant do this, we went through the propensity box). The pros. just wanted to prove he had the knowledge to break into the computer system to commit the crime. Since trying to show that he had knowledge and not just propensity, then this goes around the propensity box, and thus it is ok. This takes us to knowledge, not propensity, and therefore it is ok (pros. would argue this). They would say only a small group of ppl has the knowledge to do this, and the smaller we can make that group, the more probative value it will be to show that the defendant had that knowledge. This is a highly specialized type of evidence. If a small group of ppl have it, it becomes more probative, and therefore admissible under the knowledge prong. Def. would argue, under 403, the evid. is unfairly prejudicial. Jury will get confused and convict him of being a bad person, not under the facts of the trial. Highly prejudicial because it is the same type of crime etc. o What does this type of knowledge tend to prove here? Identity (we know who committed March crime but not Feb. so showing proof of knowledge will be a link to prove the defendants identity). - NOTE: If the Pros. loses this arg., and then during the defendants case in chief the defendant says he has no knowledge even how to turn on a computer, then the evid. could come in because the defendant opened the door. Prob 3.2 Drug Seller (Knowledge is a 404(b) reason for admissibility). - Man arrested for selling drugs, defendant claims they got the wrong man. Pros. wishes to introduce evid. that defendant has previously been convicted of distributing drugs, and therefore evid. of knowledge of the drug trade, and therefore as the identity as to the seller in the transaction. - Reasoning: o Previous drug conviction Propensity to sell drugs Guilty (WRONG cant) - What Pros. is Saying: o Previous drug conviction Knowledge Guilty (trying to go around the box). Def. arg.: there was nothing special about this drug deal, it was just a regular deal, therefore not a small group, and doesnt show knowledge, lots of ppl have the knowledge of how to sell drugs. Standing on a street corner and handing someone drugs for money is not specialized knowledge. Allowing this would be no limit, this isnt specialized knowledge. (not 20

like knowing where the drugs are smuggled through tunnels into the U.S. (if had this it would be ok)). o Since there is no specialized knowledge, you cannot go around the box, and all you are left with is propensity, therefore this wont work. - What if Judge said, Ill let you introduce as proof of knowledge? (You go to 403 then) o Could argue that it is unfairly prejudicial of just showing the defendant as a bad person, not guilty of the crime. Probative value is minimal because everyone has knowledge of how to do a drug deal, it is not specialized. Unduly prejudicial. This is very likely to be suppressed. (Unlike the problem before). Prob 3.3 Train Crash - Wanted to introduce evid. of defendants known propensity to drink alcohol to have an effect on his or his employers liability for the train crash. - Wanted to prove the defendants reputation for being drunk is why neg. in the train crash. o Engineer drunk reputation of being drunk propensity guilty (NOPE) - We have to go around the box: o Engineer drunk Reputation of being drunk knowledge of employer of his drunkness Negligence of Employer The employer knew he was drunk it was well known, and the employer didnt pull him off the job. (therefore knowledge of his drunkenness). o Rule 105 (Limiting instruction) The propensity problem is very bad against the engineer. Kind of there under the Railroad co. but confusing. Prob 3.4 U.S. v. Peltier I - Wanted to introduce evidence of prior attempted murder charge, in trial for the murder of two officers. - Around the box reasoning: o Prior attempted murder charge Motive to kill the agents Guilty The prior outstanding charge gave motive because he knew if he was arrested he would have to go to trial and possibly go to jail. Also fear of being apprehended. So one way to show identity of the killer (defendant fled the area) is to show that the defendant had the motive to kill. We limited the pool of potential ppl who would have a motive to kill these federal agents. Therefore probably going to work and be admissible (Since shows highly probative motive). o From Pros. view, under 403 says that if you take away the prejudicial impact of the actual charge (if defendant stipulates) you take away the probative value of the evid. We want the charge to show that is why he was running because he attempted to kill a cop (this is important to running and therefore motive). o Ct. ruled that this evid. was admissible even though defendant was acquitted of the attempted murder charge. Even though not guilty, the acquittal was after the second crime had occurred, and therefore still showed motive. Prob 3.5 Street Car 21

 was inured when she was thrown from one of the defendants streetcars. wanted to offer evid. that at the 2 previous stops she rang the bell, but the driver would not stop, and that when he stopped finally, he started moving before she got off the car, and she was therefore injured. o Pros. arg. Was to try not to show propensity, but to show that the conductor was in a hurry on this particular day (motive). Saying he is always in a hurry would just clearly be propensity, and therefore inadmissible. This is character evid. coming in to show motive in a Civil Case. 403 analysis: Prob. Value will probably outweigh the prej. Impact. Prob 3.6 Peltier II - Same facts as before, but at the scene of arrest were found the officers guns, a gun that matched the type used, and various other guns and explosives. - defendants weapon was type similar to murder weapon the Vs weapon was found in the home also Mobil home is many states form the murder scene all other weapons defendant is a bad person Guilty (NOPE cant do this). - defendants weapon was type similar to murder weapon Vs weapon found in home defendant pulled over far from the crime prove identity of defendant defendant is guilty. o Since he owned the property of the victim, this is probative of the fact that the defendant could be the killer = identity. o defendants weapon type that was used in the killing, and therefore probative also to identity. 403 analysis: Weapon defendant has is an assault rifle, and that is an uncommon possession. Unfair prejudice he has a scary gun, and that is why we are going to convict him. Likely the Vs weapon is definitely coming in. Likely defendants weapon will come in. The other weapons Could argue plan or preparation in case of running into police officers o But could counter that this is not probative because he was pulled over months later therefore not preparation. Prob 3.7 Lottery Lists - Police found cocaine and lottery # papers in an apartment, and charged the defendant with cocaine possession. defendant claimed it was not his apt. To show defendant was occupying the apt. the pros wished to introduce defendants conviction of illegal gambling, and show the lottery # papers found show that defendant occupied the apt. This was to show identity. o Def. arg.: This just shows propensity o Pros: Possession of the lottery #s is something unique, so this narrows the pool to show identity. We dont want to say he is bad, just that it enhances the chance he was the person at the apt. This is a hard argument to make because it really looks like pure propensity reasoning really just showing propensity. Prob 3.8 Cycling Brochures - Same problem as 3.7, but cycling brochures found not lottery #s o We are here going through the propensity box to show he is a chronic cyclist, 404 is to keep us out of convicting because of character, therefore we dont care about going through the propensity box here. 22

 Here they probably wont convict him because he is a chronic cyclist. - This proves identity by saying that someone who is a hobbyist cyclist is more likely to have cycling brochures than an indv. who does not cycle. - 403 analysis o Probative value: Proving identity o Prej. Impact: The jury will think he is a chronic cyclist (who cares, this is nothing). It will not tempt the jury to convict him. U.S. Trenkler Shays father car bomb- 2 events very similar, MO=identity - defendant admitted to building the 1986 bomb, and pros. wants to use the evid. of that bomb to show defendant also built the 1991 bomb. (Modus Operendi (MO) Signature Crime)). o Wanted evid. of other bomb to show MO in order to show identity of the bomber in the 2nd crime. - App. Ct. finds no abuse of discretion by admitting the prior bomb making event as evid. of MO to prove identity of the bomb maker. - DISSENT: Says the only reason this is a sig. crime is because you only selected the characteristics (when put in the computer program) of the bombings that happened to match each other, but in fact they differ on many levels. o Different explosive charges. If you cant show this is his sig. crime (MO), the probative value goes down, and the prejudice goes up, and this should not have been admitted. - Important Case: Standard is abuse of discretion, so you need to win this at the trial level. (so the defendant needed to have very persuasive evid. to show how these bombs were nothing alike.) o To reduce probative value and show they are not the same, not an MO. - Modus Operendi Signature no one else but the defendant could have committed it (proves identity). - The comparable crime has to be so unusual and distinct to be a signature. 404 (b) - It applies to all litigant. Note: FRE 403 still applies! FRE 405 Governs proofs.

U.S. v. Stevens Reverse 404(b) Evidence, to prove he was mis-identified - 2 white officers robbed, one sexually assaulted (female). They identified defendant. A week later another military officer was also robbed (black) and he said defendant was not his attacker, even though the crimes were very similar. - defendant wanted to introduce reverse 404(b) evid. To show that the white officers identified him by mistake. - His defense was that there was another crime, very similar to the one that he was accused of. In that crime he was found to not be the one to who commited it. Further more the person who said it wasnt him was of the same race which lends more credibility to his testimony. o Ct. looked at the fact that defendant was trying to introduce evid. of the crime for which he was not charged (the 2nd robbery of the black V) to demonstrate that the same person committed both crimes and it was not the defendant. 23

(2) Issues: The identification with the 2 Vs was not good, they were sitting together and were shown pictures before they picked defendant out of the line up. There is no other evid. linking defendant to this crime. o This identification was very suggestive, showing them pictures together. o Also problem with the line up you could say that the earlier showing of pictures to the V, tainted the line-up. (because could have been based on the first identification). o Also weak because of the cross-racial identification of white Vs choosing black defendant, this has been shown to be very less accurate than race identifying race. (which is what happened in the 2nd event). Things linking the crimes. o Proceeds of both crimes were used at Ft. Meade, and the defendant was not there. o They occurred around the same time at night, in same proximity. o Both were attacks on military personnel. So defendant argues crimes so similar that both crimes were committed by one criminal, and therefore he would be able to argue this because it makes the probability it wasnt him stronger. Prosecution argued that really these are separate crimes. o One had a sexual assault and one didnt o defendant then countered that there wasnt a sexual assault in the second one because a man was robbed, just like the man that was with the female victim that was not assaulted. How is this reverse 404(b) evidence? o The defendant is introducing this evid. to prove his innocence. Usually 404(b) is used to introduce evid. of character to prove guilt. Why are we not suppressing this evid.? o Because we are trying to exonerate here, since we are trying to exonerate we are not running the same risk as we would be if the evid. was coming in against the defendant, no one will be unfairly convicted by allowing the defendant to submit this evid. o There is no unfair prej. Against the pros. , because the jury cannot punish the pros. here, all they need to do is determine if the defendant is guilty. No one for the jury to convict unfairly. Could there ever be unfair prejudice to the gov.? If you do a 403 analysis in this case? o Even though the other crime does not match exactly, there is still enough probative value, and the unfair prej. To the gov. here really is non-existent. There is no harm to the gov. if an innocent person is exonerated. o So 403 allows the evid. to come in as having high prob. Value and really no undue prejudice. Rule: Reverse 404(b) evid., is admissible subject to 403, but in cases in which you can demonstrate unfair prejudice to the gov. you would still have to overcome the 403 arg. In stevens the risk of unfair prejudice may be greater for a defendant. Doesnt have to rise to signature crime if defendant wants to use it. The prejudice is more prejudicial to

Prob 3.9 Possession of Firearm 24

defendant is convicted of possessing a firearm by a felon after police discovered the gun in his bedroom. defendant seeks to introduce evid. that another indv. with whom he was arrested, Andre, had previously been convicted of possessing a firearm, to show the gun belonged to Andre, and not defendant. o Really defendant isnt introducing 404(b), he is introducing 404 bad character evid. Introduce evid. of Andres propensity to own guns and therefore he is guilty. You cant do this. o He isnt introducing this based on an evid. of an MO but merely because Andre has a bad character for possessing weapons. In order to prove MO you have to have evid. that takes you around the propensity box. It doesnt matter that he named Andre, but the fact that he was just trying to prove propensity. The Problem is not that Andre was named, it is that the defendant is merely arguing that Andre is a bad guy and therefore he is guilty this time. NOTE: If it was something specific, like illegal shooting of a firearm, and Andre always shot hay stacks, and that was the crime. This is unique and therefore an MO and then defendant could introduce this testimony of the MO for identity and it would be reverse 404(b) evid., to show that defendant is guilty because really it was Andre.

Prob 3.10 Russian Roulette - Gun found in defendants backpack, in his room, but he says it wasnt his gun, but his cousins. defendant wants to prove this gun belongs to his cousin because his cousin put bullets in it and put the gun up to his ex-girlfriends head. This makes him look like a bad person and there is a risk you will convict him of terrifying his ex-gf not because he is the one that owns the gun. o Ct. said she could say she remembered seeing him put bullets in it, spin the chambers, and then pull the trigger. But nothing about holding it up to her head. o Pros. will argue narrative integrity, it shows that she really got a good look at the gun, they want whole story to show how traumatic the event was. o The Def. wants the words Russian Roulette deleted from testimony. We dont want the defendant to be shown as someone that likes to play with guns (Unfair Prej.) o Pros: wants the name of the game in because it increases the gfs ability to identify it, it is a commonly used phrase to explain what was happening, makes sense for the identification. - Is Pros. upset about not allowing to say he pointed the gun at her head and face? o Yes, it shows that GF was really able to see the weapon up close. - Def argue why wants this out o This is more frightening and attacks the defendant for a crime for which he is not being charged in this case. o The evid. is relevant under 401, but how do we go around the propensity box it seems as though we are still going through it. o But you could go around the box for narrative integrity old chief argument it makes the GFs story stronger, and the story enhances her credibility that she could still recognize a gun that she saw a long time ago. o Here the Ct. under 403, tried to limit the evid. By taking out the more shocking and disturbing aspects, while still allowing the story to make sense. NOTE: often words like Russian roulette are objected to as unfair. 25

Significance of the Serial number being missing: The typical way to identify a gun is from the serial number, therefore no way to identify this gun as a unique gun without the number, therefore no way to identify this gun as a unique gun w/out the number, so the Pros. has a harder job and need this evid. to prove that his was the same gun as she has previously seen. Therefore narrative integrity a way around the propensity box. (also inextricably intertwined evid., cant eliminate the story completely and still explain how she knows the identity of the gun).

U.S. v. DeGeorge Boat Scheme Seeks to introduce: lost boats. Pros. wanted to introduce evid. of three other boats, each of these other boats were destroyed, and defendant fortunately had insurance and he was able to collect on these boats. - In this case he had a boat, tried to make it seem like he didnt own it, destroyed it, and was sued for insurance fraud. - Pros. wanted to introduce the evid. of the previous sunken boats to explain why the defendant made all the sham transactions in order for it to seem that he did not own this boat, so he could get insurance over this boat. o This is an around the box reason for introducing this evid. (narrative integrity, Inextricably Intertwined). - defendant argues this is just propensity evid. under 404 o Loses this argument o This was necessary to explain all the sham transactions (the entire scheme of recovery). - defendant then argues under 403 this evid. is unduly prejudicial o defendant says he will be punished for all of the prior insurance frauds, and therefore will be guilty of this one because he is a bad person. o Pros. argues that: The evid. is probative because w/out it their arg. Doesnt make sense. (narrative integrity) must show why all these sham transactions went on, not to show his bad character. This is the same behavior that he is being accused of, however the probative value is also extremely valuable. Relevant to show why he is uninsurable, the jury needs to know why he couldnt get insurance. Inextricably Intertwined Extrinsic to this particular case Res gestae: kitchen sink Subject to 403 o Ct. Determined The pros. could admit it because the standard of review is abuse of discretion, and there was no abuse of discretion here. 26

Prob 3.11 Cleaning his gun accident - Guy who is charged with killing his wife, but he claims accident while cleaning gun. 3 yrs earlier it happened and defendant was not charged because the accident defense worked. o Should evid. of prior get in? Pros. would argue this is proof of not an accident, and therefore not of propensity. And permissible under 404 (b) 2 Defendant would argue that the problem with this evid. is that you are asking the jury to go into the propensity box and say this guy not only shoots his wife, but also claims accident every time. o Why is this NOT propensity You would never accidently shoot two ppl by cleaning a gun two separate times. It is a weird accident, it would not happen twice. Early crime makes it less likely. The pros. could even concede that the first time was an accident, but that this time he is lying because he saw how it worked out the first time. o We are not saying he was bad for purposefully shooting his wife last time, the argument is that he would have learned his lesson, and therefore this time it was not an accident, it would never happen twice. (absence of accident or mistake goes around the propensity box). You could also use this to show knowledge that he knows he can kill someone this way and get away with it. SUBJECTTO 403 - How about a 403 arg. Of exclusion: o defendant: unduly prejudicial, they will punish him for the prior shooting and not this one. The probative value is little, we always repeat accidents, so minimal probative value. o In this case: the pros. is likely going to win and it will be entered under absence of mistake or accident to prove that this time he in fact is lying and shot her purposefully and not by accident. Prob 3.12: Cruelty to Dogs - Charge was that defendant threw a dog into traffic, he said he did it because the dog bite him. Pros. Wanted to introduce evid. of prior offense when in the service that he beat dog to death. o Pros. put up his case, and witnesses said he threw dog into traffic. o defendant indicates that he will say it was an accident, dog accidently thrown into traffic. o So then pros. will then in rebuttal call a rebuttal witness and talk about a diff dog beaten by defendant at a diff. time. Pros. argues that it shows defendant did not commit an accident but purposefully threw the dog into traffic. Dont go to 403 too quickly, it is like conceding that it is relevant. - The Ruling here was incorrect. o The only reason this evid. comes in is to show that defendant has a propensity to harm dogs. This is a diff situation, in the previous offense he purposefully beat the dog to death (mercy), he admitted it, he didnt say it was an accident. o This did not take us around the propensity box, but right into it. This was a bad ruling. Doctrine of Chances: relatively unimportant. - Rex v. Smith 27

defendant charged with killing his wife, she accidently drowned in the bath tub. First appeared to be an accident (but found out he had done this before, married rich wives and stole their money). He married them, they made wills leaving him as beneficiary and they tragically drowned in a bath tub. o Issue, he might have a system where he marries ppl, gets their money, and then kills them. - How do we get around the box? o Doctrine of Chances Odds are is that he killed all three of them, it was not an accident. Astronomical that this is an accident. - Excerpts on this Doctrine o One Scholar says that this is around, other says that it is not. o The routes around the propensity box do not have to be enumerated, the only thing prohibited by 404 is anything that is an attempt to introduce bad character that he acted in conformity therewith. How is this diff from the Previous problem of the accidental shooting From the accidental drowning the husband could not have learned anything from the drowning. In the absence of mistake problems, the husband would have learned from his cleaning mistake and would have fixed his mistake and not done it again. This is saying what are the odds that three wives would have all died accidently. We have not resolved if this doctrine really goes around the propensity box. Lourdes Aboytes video Lets assume this is taking place in non cali court. Can you articulate a non propensity evidence? Party admissions alwsys relevant and always admissible, subject to cros examination In californie: in crim action where accused of doms violence. the commission of other dom violence is not inadmissible. o OJ simpson video Motive to kill her by calling A batterer, wife beater, In a crime of sex assault prior acts are admissible. When it it child molestation toothe federal rules do not take it as far as domestic violence.

Huddleston v. U.S. Stolen Tapes Conditional Relevance - Stolen tapes, defendant arrested for stealing them, defendant claims he did not know they were stolen. Pros. wanted to enter evid. of previously selling Tvs and Appliances to show knowledge that he was aware the tapes were stolen. o Prosecutor seeks to introduce knowledgethat tapes were stolen. o 1st step prelim hearing o Conditional relevancy. o Only relevant to knowledge. o Page 193, 104a prelim questions, 104 a prelim question are things like qualification of person to be a witness judge decides if person is qualified. 28

Existence of a privilege, and howe Matter of fact=for jury not judge Therefore we are trying to prove knowledge this is around the propensity box. NOT: that because he stole appliances therefore in conformity therewith he stole this time. Shows that since previous items were stolen, therefore defendant knew these were stolen. What is the problem? o The pros. has no definitive proof that the TVs were stolen, and therefore is inadmissible unless we can prove the defendant knew they were stolen. Issue: Whether the TV story is admissible, and what the standard is to introduce it. o This is a conditional relevance case (104(b)) Relevancy conditioned on fact. Here the relevancy conditioned on the fact that the TVs were stolen, if they were then this is conditional on whether defendant knew the video tapes were stolen. So what standard does the jury have to make a finding the tapes were stolen and therefore defendant knew it. o Preponderance of the Evidence Standard 104(b) analysis standard is preponderance of the evid. A little more than 50% Defense wanted it above this standard because the pros wouldnt be able to meet this. (he had been found not guilty with the beyond reasonable doubt standard) Standard in Criminal case to find guilt is beyond a reasonable doubt but to find a conditional fact it just must be found by a preponderance of the evidence. Not clear or convincing, not beyond a reas doubt. Judge screens. Judge may strike evidence later. Judge will screen and consider all evidence, in assessing, they may consider given this evidence the jury could have reasonably consider that xyz so the judge was right to allow the jury to hear it. Subject to 403.

o o o o

Prob 313: Acquittal in the Past - Pros wants to introduce evid. of an attack to show the man wore a similar mask, same type of gun, got mask of defendant and identified him. - Pros wants this in to prove identity for this other crime (around the box), because bank robber had same mask, gun, etc., She saw him and fought back. o Problem here however, defendant was acquitted of the crime in which the identifying witness claims she saw her face there. o So defendant claims this is double jeopardy. - Can the gov. since acquitted previously, still introduce the evid. against him here in this robbery trial. o Pros. says that since this standard is just preponderance of the evid. a lower standard than the beyond a reasonable doubt standard in the first trial. Therefore the evid. should be allowed to come in (lower standard). If they find by a preponderance of the evid. that he was the same person you can use it, if not you cant. - Objection to using this: o This seems incredibly unduly prejudicial under 403. - This is admissible because of the lower standard of the conditional fact (104). Propensity Evidence in Sexual Assault Cases: R. 413, 414, 415 True Exceptions: Rational goes right through propensity box, as opposed to around it. Rule 413: Evid. of Similar Crimes in Sexual Assault Cases 29

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evid. of the defendants commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. - (b) In a case in which the Gov. intends to offer evid. under this rule, the atty for the Gov. shall disclose the evid. to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least (15) days before the scheduled date of trial or at such later time as the court may allow for good cause. Surprises are discouraged - (c) This rule shall not be construed to limit the admission or consideration of evid. under any other rule. - (d) For purposes of this rule and Rule 15, offense of sexual assault means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code)that involved o (1) any conduct proscribed by Chapter 109A of title 18 USCode o (2) contact, w/out consent, between any part of the defendants body or an object and the genitals or anus of another person; o (3) contact, w/out consent, between the genitals or anus of the defendant and any part of another persons body; o (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or o (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4). Rule 414: Evidence of Similar Crimes in Child Molestation Cases - (a) In a criminal case in which the defendant is accused of an offense of child molestation, evid. of the defendants commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. - (b) In a case in which the Gov. intends to offer evid. under this rule, the atty for the Gov. shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least (15) fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. - (c) This rule shall not be construed to limit the admission or consideration of evid. under any other rule. - (d) For purposes of this rule and Rule 415, child means a person below the age of 14, and offense of child molestation means a crime under Fed. Law or the law of a State that involved: o (1) Any conduct proscribed by chapter 109A of title 18, USCode that was committed in relation to a child. o (2) any conduct proscribed by chapter 110 of title 18, USCode; o (3) contact between any part of the defendants body or an object and the genitals or anus of a child; o (4) contact between the genitals or anus of the defendant and any part of the body of a child; o (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or o (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5). Rule 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation - (a) In a civil case in which a claim for damages or other relief is predicated on a partys alleged commission of conduct constituting an offense of sexual assault or child molestation, evid. of that partys commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. 30

(b) A party who intends to offer evid. under this Rule shall disclose the evid. to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least (15) days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evid. under any other rule.

Lanan v. State - ComLaw Exceptions before the rule - Prior to enactment of 413, there were exceptions for it, here the exception was called Depraved Sexual Instinct. 20 states had exceptions such as this. - Facts: Jury convicted defendant of molesting a young V. After hearing testimony from another girl who said defendant had molested her in the past an testimony from the V regarding several other instances of molestation which were not charged. - defendant objected to this testimony based on 404(b), and then the pros. wanted it in under the exception. - Another reason: depraved sexual instinct exception. - Can you articulate another purpose? o Def. wants exception over-ruled. Court gives (2) Justifications for the Rule. 1) Recidivist Rationale More likely that sexual offenders will repeat. 2) Bolstering Rationale Gives credibility to the Vs testimony, since these sexual acts are highly unlikely to occur (they dont happen often). Children have less credibility than an adult, and w/out the ability to introduce evid. that there are other examples. You dont want to stifle prosecutors from conviction. - Why Ct. Rejects use of the exception 1) Recidivism: o There is evid. that in fact, there is lower rate of recidivism for sexual offenders, but this could also mean there is a low reporting rate, but we know there is a high rate in drug cases, and we still bar that evid. by 404(b) in those cases, therefore, we should also do it here. (Since recidivism rates are not proven, we should not use this reason to allow the exception to 404(b). - 2) Bolstering Rationale o This day in age, we believe that a person would molest a child, so this rationale no longer needed. So in this case you would just go to 404(b), and this would be prior bad act evid. You would have to go around the propensity box. (must be treated like any other type of evid.). - Can admit Identity: if identity is an issue, it wasnt me is different from it was me but there was consent - CONCURRENCE: Children are vulnerable, and this is a heinous crime, therefore abolishing this rule is a mistake. (Just because of type of crime). State v. Kirsch- Church Leader molesting youth group girls 31

defendant was charged with sexual assaults on three young girls. IN addition to the three Vs, three other young woman testified, pursuant to 404(b), about sexual abuse committed against them by the defendant from the 1970s to 1980s. - All the girls testified to similar occurrences. The defendant hosted church sleepovers, and would drive the girls to and from events, and have events at his house. - Prior to the Trial the State moved to introduce evid. of other uncharged sexual assaults as evid. of the defendants motive, intent and common plant or scheme. o Here they are trying to go around the 404(b) propensity box, but it doesnt work with these stated reasons to go around it. Motive: The motive is just motive to assault little girls (just a propensity argument). Intent: Also just shows propensity, it is not an intent argument. Common Plan or Scheme: He was not sexually molesting these children for an end result, his end result is just molesting them and he does it over and over again. There is no long plan or scheme to separate all of this out. A patter or systematic course of conduct is insufficient to establish plan. To be admissible as evid. showing the defendants plan, other bad acts must be constituent parts of some overall scheme. Therefore, it is not enough to show that each crime was planned in the same way; rather, there must be some overall scheme of which each of the crimes is but a part. - CONCURRING: Would have found common plan or scheme, because he set up this position and then picked the same type of girls to molest over and over again. NOTE: These (2) Previous cases are OVERRULED by rule 413 Prob 3-14: Common Plan and Domestic Violence - Pros. argues that the defendant (who allegedly killed his wife) argues that all prior instances of abuse showed his plan of control, that ultimately lead to her death. The plan culminated with wifes death. o They cannot intro. This evid. to show he was a bad guy who beat his wife, and that is why he killed her. o Pros. wants this in as plan o defendant argues there is no evid. there was an overall plan of controlling his wife, just that he beat his wife. Unless you can show an actual motive of control, you cannot introduce it. - When could you show a common plan or scheme to control the wife? o You could show that he took all of her credit cards, only allowed her to sit in passenger seat of his car, cutting off all her friends. If you show more and more of controlling her, not just beating her, then they wouldnt be evid. of prior beatings but common scheme or plan. (therefore articulating another way to introduce it other than just to show bad character.) o This would be very difficult evid. to get admitted. - NOTE: In order to introduce past acts of domestic violence in the case of murder, you would have to articulate a 404(b) rationale still in order to introduce that evid. o Why do pros. all the time want to introduce prior beatings in these cases: To introduce evid. of actions in conformity therewith, they just do it by going around the propensity box. - Rule 413 has carved out a very narrow area, which allows us to turn our backs on all the yrs. Of CoMLaW propensity prohibition, and allows it in, in order to show propensity of defendants guilt for sexual assault/abuse. o It is admissible for anything that is relevant, including character. - NOTE: If it goes around the propensity box it is something else, it is not character evid. o The only way character evid. can come in is if the defendant opens the door. 32

Rules 413-415 let the s atty intro. Charcter evid. First. - Articles that attack 413 etc. o Baker Theory is that rapists are recidivists. However, the truth is that in other crimes rates of recidivism are much higher than rape, therefore this justification is not supported. (rape is the least often repeated convicted offense). Also, it further discriminates and punishes crim. defendants especially minority and poor defendants because they have more contact with the criminal justice system than other folks. o NOTE: You would argue unfair impact of these new rules, and argue unfair prejudicial impact under 403. US v. GuardiaU.S. v. Guardia Bad Gynecological Exam - Vs allege that defendant sexual abused them in the course of gynecological procedures. o V wants to get inappropriate touching of other patients in as evid. under 413, of evid. of offenses of sexual assault (he is not convicted of these prior offenses). o 404 b exception. o 1. The def is accused with CRIMINAL sexual assault o 2. Evidence (not a conviction ) by preponderance of evidence like in huddleston)of Other acts of sexual nature o 3. relevant o So it is admissible under 414 , but we still must go to 403 which is why its inadmissible: They said it was inadmissible because the probative value is outweighed by the confusion of issues and the misleading of the jury. The evid. would have to of been explained by experts, because they occurred during examinations of the patients, and this expert testimony would have gone to that the evid. was enough to say they were sexual assaults under 413. o In order to see if exam was appropriate, expert testimony would have to be used, (mini-trial on prior offenses). Therefore, those would be more and more confusing. This would be more clear cut if the defendant was convicted of a prior sexual assault. 105 instruction wont help - Lessons: 1) 403 analysis still applies to 413, even though it says evid. is admissible. You still must do the balancing. 609: convictions involving dishonesty shall be admitted. For attacking a witnesses credibility, because by taking the very oath is what puts their credibility in issue. Isnt true you were accused of fraud ? fraud is a crime of dishonesty. And that attacks credibility. What is the pros. standard of proof they must offer in order to enter this evidence under 413 of prior sexual offenses: Preponderance of the Evidence standard from the Huddleston standard 104(b). o Judge rules initially, then the jury makes the decision under 104(b). This lends to the confusion in this case, because you are using a diff standard for the prior acts which are the exact same to this act of which the jury must find beyond a reasonable doubt. Very confusing for the jury. 33

U.S. v. Mound Constitutional challenge by defendant of Rule 413 violation of Due Process defendant claims that allowing 413 evid. is a violation of the Due Process clause of the 5th Amend. o Because allowing this character evid. is not allowing this person to have a fair trial. - Opinion is that what we have done is that we have changed a fundamental part of common law, and therefore maybe the defendants 5th Amend rights have been violated, so maybe we need to see if this does, and consider that en banc o To this day this has not happened, we still have 413-415, Because; 1) 403 still protects unfair prejudice 2) Public Policy, we dont like child molesters or rapists. Concept: defendant has an absolute right to completely leave out character evid., but he also has the absolute right to intro. It, but once he does, he opens the door for the pros. to bring it in. Rule 405: Methods of Proving Character - (a) Reputation or opinion. In all cases in which evid. of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. - (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct. o 405(a) allows inquiries into specific character acts. Witness Questioning in Class: - Allowed as reputation evid. under Rule 405. o What witness would be better than this simple farmer his brothers. - This kind of evid. is character evid to show the defendant acted in conformity therewith to show is not guilty because he is a kind gentle man. o Here you are going around the propensity box, and this is ok. You go through the box in a very artificial counter intuitive manner. o 405 reflects part of the CoMLaW rule but it is broader, you get more evid. in than in states that still follow the CoMLaW, because you can introduce either reputation or opinion evid. - Why do we not typically hear opinion testimony from witnesses? o They are lay witnesses and they are restricted to testify to facts. o Experts can give opinion evid., but under this rule (405), lay ppl can give opinion as well. - After 405 evid. is put up, there is a limiting instruction When a Character Witness is put up: - 1) (Defense do this) The questioning of that witness is to see what type of witness they are (who they are), determining they are credible. (You want high ppl in the community for this (officers, clergy, etc.)). (Show why the jury should believe this person) 2) (Pros. does this) Also, the cross examination tests the witnesses knowledge of the defendants reputation, or of the witness opinion. To make sure they actually knew him. (Specific acts can only be asked in cross-examination, to test the knowledge of the character witness). This is kind of a mini-trial to see how believable the witness is). o The questions about whether or not the witness knew of the mercy killings, didnt matter if the mercy killings actually occurred. (if she says yes and there wasnt, you dont have a side trial to see if they actually occurred or not) this merely looks at reputation. 34

If the witness said no I didnt know he did mercy killings, the pros. could say that you have your answer he was a kind gentle person before you knew this, didnt you? - If the defendant puts up character evid. of his good character, can the pros. intro. Evid. of the defendants bad character, that Delbert is a violent bad scary person? o Yes, the door has been opened by the Defense, and the pros. can call witnesses showing that Delbert has a violent reputation. (this goes into the propensity box, and says he is guilty because of it). o What form can this bad character evid. take what type can they introduce for bad char.? You cant call all of your witnesses to the specific acts of mercy killing. The pros. cannot prove bad character of violence by specific acts, but only as to reputation or opinion, indvs. Testifying to this. You can only go into specific acts when you are cross-examining a character witness, to show they really dont know enough. 405(a). - 405(b) only specific instances of conduct can come in which character or a trait of character of a person is an essential element of the charge, claim, or defense, proof may also be made of specific instances of that persons conduct. Michelson v. U.S. - Convicted of bribing a Fed. Rev. Agent - the defendant in a crim case may offer evidence of a pertinent trait. - Aggravated assault, def offers evidence of pertinent trait. 405, can you introduce specific acts, in my opinion - Prosecutor may rebut in my opinion he wouldnt hurt anyone subject to 403? does this open the door. - If a def claim the vic was the first aggressor, def cannot argue he was evil. - Reason to fear vs bad person. - Isnt it true - Article 6 and 4 IV AND VI - When a character trait is relevant and admissible, if it passes through, so in pros. Case in chief they cannot have I ve known and he is an eagle scout, loves his grandmother - Reputation, opinion, specific acts - If character witness says in my opinion, then prosecution can ask about specific acts to test credibility, isnt it true have you heard in your community that he was arrested? Do you know he was arrested did you hear he beats his wifenot in new jerset - Propensity evidence AT THE DEFS. Option!! you have to prove beyond a reasonable doubt. - If def. chooses to inject character into case, all bad things can happen. Def. dont take the witness stand. If you choose to take the stand you introduce have you heard, do you know? - We saw this earlier, 404a evidence of character can be admitted, 405 is what Michelson speaks to. Exceptions a defendant, the restyled rule. When can you put specific instances o Negligent entrustment of a vehicle (knowledge o Child custody (unfit o Civil rts (municipal o Defamation/slander (defense/prove truth o Employment discrimination (defense to prove imcompetence o Rebuttal (prove entrapement - CIVIL CASE: Habit. 35

defendant was accused of bribing a fed. Agent, his defense was entrapment. defendant was called as his own witness, and talked about one prior conviction of counter-fitting watch dials. defendant also called 5 witnesses who all said he had a good reputation, law abiding. o Under 405(a): law abiding citizen, honest and truthful acted in conformity therewith not guilty (since law abiding, he wouldnt do this). NOTE: the trait of character must be relevant to the case. In Delberts case it wasnt relevant if he was kind and gentle. Here, it wouldnt be relevant that the defendant was a violent man, all we care about is his honesty, therefore it is relevant. o The witnesses were asked if they knew that the defendant was arrested for receiving stolen goods. The defendant objected to this question, saying it was evid. of a specific act. (about 30 yrs. Ago and was arrested, not convicted). This is admissible under 405(a) because you can cross examine about specific acts. defendant actually argues this is not admissible because it is an arrest, and is therefore hearsay. o But this is admissible because under 405(a), (the prior conviction rule is different from Rule 405(a), this tests the knowledge of the defendants reputation, and as part of this you can ask if they had heard of the arrest. And this specific crime would impact upon the reputation they said the defendant had before they asked the question of knowing about the prior charge. (they would want the witness to say that they didnt take the prior arrest into account when they gave the good opinion.) o Michelson agrees that character evid. sees that character evid. should never be introduced at trial, but if the criminal defendant decides to introduce the evid., he opens the door. (if defendant chooses to keep it out, except for 413, 14, 15, then it will be kept out). Once defendant opened the door, he opened up for the pros. to ask about specific acts in cross-examination, and it doesnt matter that it happened a long time in his past this is still relevant. o Michelson is codified in 405(a) if defendant wants to keep it out, it is out, if he opens the door, it gets in. The Pros. had a good faith basis for asking the question also, he had a doc. Showing that defendant was arrested for receiving stolen goods. Is it relevant if the defendant was convicted when we are testing the Witnesses knowledge of the acts? No it is not relevant, to bring in evid. of whether or not this actually turned into a conviction would bring in a mini-trial on that topic and it would be so off subject to be completely confusing to the jury (this is not relevant). The issue is not if he was convicted of it, just that he was arrested for it. You dont bring in evid. to prove the arrest or conviction, you just introduce it on a good faith basis. o The good faith basis goes to whether the pros. actually has information the defendant was arrested, not whether or not the witnesses knew about it. When they know the witnesses dont know, 36

they are still allowed to ask the question the DISSENT does not like this because the defendant cant rebut this, because the evid. holds no other relevance, but to display the witnesses knowledge, that is why we dont attack the truthfulness of the arrest. (found this unfairly admitted). This was an abuse of discretion standard, and the ct. found no abuse of discretion. Therefore they are decided at the tr. Ct. Prob 3.15 I wouldnt shoot anybody - Duress defense, arguing she was forced to shoot someone by another person. o She said, the defendant, I wouldnt shoot anybody o Can Pros say, you have shot at other ppl before havent you? The defendant can testify as to their own character. But does this automatically inject character into the defense by taking the stand? NO, they have to introduce their character to do this. o Here, the defendant opened the door saying I wouldnt shoot anybody Therefore you can now cross-examine as to the prior shootings because 1) she has opened the door to her own character, and therefore it is appropriate for the pros. to ask about specific acts. o Therefore inquiring into her previous acts, and her admissions to officers that she shot at ppl before. o She is saying she is non-violent and wouldnt shoot anyone, so you can contend this by specific acts. (show she has and therefore has a reputation for shooting). o You can also call anyone you want for opinions or reputation of her to be a violent person. 2) This is impeachment, because she just lied. Therefore no credibility. o The officers can come in as witnesses of impeaching her. Prob 3.16 Character of the Victim - The V encounters the defendants brother outside the courtroom, and tells his friends that he wants to remember the defendants face, he tells his friends to remember his face. (The V is threatening the defendants brother). o The defendant wants this evid. in to show that the V was a violent person, to bolster their self-defense. o Should this be kept out? Under 405(a) This is a specific act, and is therefore not opinion or reputation. This is the defense introducing evid. of the Vs character and must be done by opinion or reputation. - Can a defendant introduce evid. of a Vs bad character? 404(a)(2) o Evid. of the Vs character is admissible for the Defense, they can introduce it at any time, as long as pertinent character trait of the V. o Pertinent to the issue to be decided by the jury. Here they would be deciding if the V was the aggressor so that defendant was justified in his actions. o The pros. can then introduce Vs character of peacefulness when the defendant introduces evid. claiming V was the first aggressor. 37

Prob 3.17 Character of the V II - Defense is introducing this evid. Evid of all the scary violent things that Ogden told her. - Should this be admitted? o Even though this appears to be bad character evid. it actually is not, the theory of admissibility is, it goes to the defendants state of mind, and therefore is admissible. This is fact evid. not propensity evid. o This is relevant to prove self-defense, it is state of mind evid. (you must always make sure you know what the theory of admissibility is it isnt always character evid. (bring this up in essay. Prob 3.18 Character of Victim III - V has cocaine, morphine, and beer in their system. Was the tr. Ct. proper in not allowing this evid. of the Vs character? o So should this be excluded as you are just trying to smear the Vs reputation. defendant says he is not introducing it as character evid. but as an essential element of the crime, he is introducing it to show that the V was acting violent at the time of the altercation. Relevance: to show that the Vs intoxication would affect the Vs behavior, which supports the defendants self defense claim. Relevant and not character evid. - What other way could the pros. get this excluded? o Rule 403 you must always go back to this. Probative: low since speculative (only minimally probative) Prejudicial: Unduly high, because jury will think it was ok to kill him because he was a drug user (thank him for killing). - Rule 405(b) o In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct. o We wanted to use this for Problem 3.16 You cannot use this with self-defense. The V does not have to be aggressive for you to raise self-defense. For self-defense you have to have reasonable apprehension of grievace bodily harm, and therefore a V having a character trait of being violent is irrelevant. The V could be peaceful but in that particular instance he was outraged and attacked the defendant. It is only what the defendant reasonably perceived at the time of the incident. You want to use this rule to get prior violent acts into the trial, when otherwise they would not have been able to get this in. But these are not allowed in under this rule because these prior bad acts are not an essential element to the crime. (In Ogden they came in as relevant to her state of mind. - Specific narrow areas where 405(b) will actually work o 1) Rebutting an Entrapment Defense - Predisposition is an element of the crime, and the Gov. may therefore show the defendant had a thievish (or corrupt or drug-dealing) disposition. o 2) Rebutting a Defense of Truth in a Libel or Slander Action If the defendant claims in her defense that her accusation was truthful, the trial will focus on whether the is indeed a thief, a bully, or a liar. In that event, the existence of the character trait is the critical thing. 38

3) Resolving a Parental Custody Dispute Each litigants character as a good or bad parent is the critical thing. All of these circumstances, the litigants aim is to prove the existence of the character trait, not action done in conformity with that trait. (VERY NARROW exception, if this is a test answer, it is usually a WRONG one. o

Rule 406 Habit; Routine Practice - Evid. of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Halloran v. Virginia Chemicals, Inc. Heating up Freon-container exploded - defendant heated up a Freon can to put in a car refrigeration unit for the air conditioner, it blew up injuring him. There was talk that defendant used a heating coil that caused this, not just used the can regularly. defendant wanted to introduce evid. of habit of using the heating coil to show it was s negligence, not the defendants that caused the can to blow up. o defendant wants to prove that s regular routine of heating the Freon with the heating coil in the water, in order to show this probably caused the can to blow up (can warned not to do this.) Wanted to intro. This habit evid. pursuant to 406. o Co-worker was going to testify that he had witnessed defendant heat cans this way hundreds of times, and that the behavior was essentially automatic. o No one was there on the day of the accident, and the can is not available for evid. - Rule 406 allows evid. of habit (if sufficient number of times) or routine practice. o The type of evid. is not what occurred on the day of the accident, but all of the times before the day of the accident. So routine that it is automatic. o 406 allows it in whether corroborated or not, and w/out eye witnesses. - Is one instance enough? o Nope, under 406 it has to be multiple times over a period of time prior to the incident to prove the party had developed this routine and it has become automatic. Prob 3.19 Steroids - Doctor told patient he was giving him antihistamine, but really it was steroids, patient died. 8 other patients had similar problems. The doctor contends patient got steroids from someone else, not him. Is evid. of habit admissible? o Behavior does not have to be identical, but it is insufficient to have a pattern if an individual has certain behavior for a while, changes that behavior, and then may go back there in the future. Has to be fairly consistent. o Here, we know there were 8 other patients, but we dont know when their problems occurred, they could have been very spread out. We also dont know the total number of patients he saw, and therefore he could have seen thousands and only had 8 problems. So at first it looks like we can establish a habit, but looking more closely, you have to look at the fact that there were many other potential patients treated with the same affliction that didnt have any problems. - Contrast: Halloran v. Problem 3.19 39

An auto-mechanic is using the same tools in cars that are all very similar and therefore the steps he takes is automatic. o With doctors not every patient symptoms are the same, sometimes no medication will be prescribed, each patient is different. Here it is not as automatic of a pattern as we had in Halloran. - **406 is also USUALLY a WRONG answer, it has very narrow application** Ward Clip: - Contradiction by Past Inconsistent Statement (Theory of Impeachment) o After this, you are then allowed to argue that the witness has no credibility, and therefore should not be believed he has no credible testimony. o Does it allow you to conclude that the witness has an untruthful character? You do not have to be an untruthful person to be impeached with your prior statement this is not bad character evid. an untruthful statement could merely be a mistake. You are not saying they are purposefully lying, but that they have made a mistake. (Does not take you into the propensity box.). Other Similar Circumstances where this happens Contradiction by Conflicting evid. Evidence of Bias o Since this does not call the witness generally a liar the lawyer usually may impeach a witness by any of these techniques w/out reference to the character evid. rules. Rule 608; Evidence of Character and Conduct of Witness - (a) Opinion and reputation evid. of character. The credibility of a witness maybe attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evid. may refer only to character for truthfulness or untruthfulness, and (2) evid. of truthful character is admissible only after the character of the witness of truthfulness has been attacked by opinion or reputation evid. or otherwise. - (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evid. They may, however, in the discretion of the Ct., if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. - The giving of testimony, whether by the accused or by any other witness, does not operate as a waiver of the accuseds or the witness privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. United States v. Whitmore Attacking Credibility of Officer Soto - defendant charged with possession of a firearm by a felon. Officer chased defendant when he original ran from him, officer stated he saw defendant grab his right side as he ran. Then officer 1 lost defendant in chase and Officer Soto caught up, claimed he saw defendant clutching his right side, then said he saw him throw the gun into a stairwell, and then he was arrested. Subsequently Soto recovered the gun in the stairwell, and he is also the only witness connecting defendant to the gun, defendant wants to attack the credibility of Officer Soto. 40

defendant claims that he didnt have the gun, and wanted to introduce evid. that Officer Soto was not believable. o defendant wanted to introduce evid. of three witnesses. 1) Cherkis newspaper reporter, wrote article on Soto and other officers. Would show how Soto had a bad reputation for truthfulness. (theory of admissibility under 608(a)). Standard of review for whether or not the trial judge should have allowed Cherkis to testify was abuse of discretion, so the Tr. Judge determines if the witness is allowed. Here Tr. Judge ruled the testimony inadmissible, and Cherkis did not testify in front of the jury. Why would you have Cherkis testify outside the presence of the jury, even though the testimony could not be heard by the jury? o Preserve the Record on Appeal o Attempting to ask the Tr. Ct. to reconsider its ruling. App. Ct. agreed that no abuse of discretion because, Cherkiss relation to the Officer was not close, and the evid. was too remote to be of use (2 yrs. Between article and day of the trial). 2) Cooper local crim. Defense atty. Going to testify to officer Sotos reputation in the court community and also has a personal opinion of Soto. (theory of admissibility under 608(a)). Attacking reputation for being un-truthful and opinion he is untruthful. Tr. Ct. excluded this because, being part of the court community is too narrow and limited, you are just talking about the defense bar and only a few defense counsel, therefore it is just the Officers reputation between your small group of friends, not the community at large. App. Ct. says the idea of community means more than just a narrow professional context. Opinion that Soto was untruthful was also not admissible, it was just something he observed wasnt enough to rise to an opinion he was untruthful. (not enough contact). 3) Edmonds was going to offer reputation and opinion evid. Tr. Ct. said that it lacked specific factual information because it was too remote in time because Edmonds had moved away from the neighborhood 5 yrs. Earlier. (Defense argued that it wasnt remote because Edmonds had returned and visited often and still speaks often with ppl who still live there). App. Ct. decided no abuse of discretion. o Other evid.: defendant wanted to admit suspension of Sotos drivers license, his failure to report this to his supervisor, and failure to pay child support under 608(b) in cross examination. defendant argued these are not convictions of a crime in 609 (for which this would be inadmissible because this is not a felony or a crime of deceit). This evid. is offered as 608(b) as impeachment evid. of showing the Officer (witness) is not-truthful (character of being untruthful propensity box). o This is the Pross Case in Chief, they have called officer Soto to testify about defendant throwing the gun, and after he testifies, the defendant can cross-examine. 41

The Tr. Ct. said since the record from the DMV is hearsay, and since they assume Soto will lie and the defendant will have to accept the answer, they do not allow the evid. App. Ct.: Even if the DMV evid. is hearsay, this does not resolve the issue, just not having a reliable way to prove it doesnt mean they cant ask it. They will not assume that Soto will lie, Soto could be charged with perjury for lying, and therefore would most likely actually tell the truth. This all goes to his credibility, which is what 608 goes to. Therefore App. Ct. said that since this was so important, this was an abuse of discretion and a reversible error, by not allowing the cross examination of specific conduct showing untruthfulness. - NOTE: If Soto had lied on the stand the Defense would not have been allowed under 608 to prove by extrinsic evid. that Soto was lying. o Is this rule counter-intuitive? You are asking a witness about prior acts of lying, and hoping that he wont lie this time. (So you are screwed If the defendant who you ask about prior lying, lies and says that those prior instances never happened, you are stuck with the liars lie. NOTICE: Big difference in the result for when the evid is admitted under 608(a) then when admitted under 608(b). Why is there such a diff. result in this case? - It is easier to get in evid. under 608(b) than it is under 608(a), easier to introduce in cross-exam specific instances. - Cant just ask about anything, you have to have a good faith basis the even exists. Ivuller, Credence, Character, and the Rules of Evidence: Seeing Through the Liars Tale - Look at book notes Prob 4.1 Bar Fight - C sued E for injures he claimed E inflicted. At the resulting civil trial, C called D, who testified he saw E strike C with a pool cue. As his next witness C calls one of Rices neighbors, who testifies as follows: o 1) Ds reputation in the neighborhood for peacefulness is good. Inadmissible. C has offered testimony of Ds reputation for Peacefulness. No such evid. is admissible under Rule 404(a)(1) or (a)(2) because, 1) this is a civil case, 2) defendant is neither the accused nor a V. Such evid. is not admissible under Rule 608(a)(1),because it does not concern Ds character for truthfulness or untruthfulness. o 2) Ds reputation in the neighborhood for truthfulness and veracity is good Inadmissible. Rule 608(a)(20 says that evid. of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evid. or otherwise, and defendants character for truthfulness has not been attacked. o During defendants case, E calls long-time coworker of D, who testifies as follows: o 3) When D sold me her car, she told me she had just replaced the brake pads, but she was lying Inadmissible. E has attempted to impeach defendant by asking a coworker about a lie D once told. That is, E is offering evid. of a specific instance of defendants untruthful conduct and he is doing it on direct examination of the coworker. Rule 608(b) permits inquiry about specific instances of conduct, but only on cross42

examination. The rule specifically bars proof of such acts by extrinsic evidence an expression Ill address again later in this chapter. o 4) my opinion, based on all my dealings with D, is that shes a liar. Admissible. Rule 608(a) permits an opponent to attack a witnesss character for truthfulness by opinion or reputation evid. Here the coworker offers her opinion that D is a liar which is just a shorthand way of stating her opinion that D has a bad character for truthfulness. Given their long-time acquaintance, the coworker apparently is competent to offer this opinion. o Assume Ct. permits the coworker to testify as in para. 4. On cross-examination of the coworker, C asks: o 5) isnt it true that you were expelled from college for a semester for trashing your dorm room in a drunken rage? Inadmissible. C has attempted to impeach the coworker by asking on crossexamination about a drunken rage during college. Although Rule 608(b)(1) permits inquiry about specific acts, those acts must be probative of truthfulness or untruthfulness. This incident does not qualify. o 6) Didnt you lie on your med. School application about whether you had any disciplinary offenses in college? Admissible. C now attempts to impeach the coworker by asking on crossexamination about a lie she told in a semi-official context. Although the underlying dormitory incident did not reflect on the coworkers character for truthfulness, her later lie about that same incident does. Rule 608(b)(1) therefore permits the question. Rule 609; Impeachment by Evidence of Conviction of Crime - (a) Gen. Rule. For the purpose of attacking the character for truthfulness of a witness o (1) Evid. that a witness other than the accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evid. that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evid. outweighs its prejudicial effect to the accused; and o (2) Evid. that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. - (b) Time Limit: Not admissible if older than 10 yrs since the date of conviction or release from confinement, whichever is later, unless the Ct. determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circs substantially outweighs its prejudicial effect. Must have sufficient advance written notice of intent to use this type of evid. - (c) Effect of pardon, annulment, or certificate of rehabilitation. (not admissible if) - (d) Juvenile adjudications: generally not admissible. Ct. may, in a crim case allow evid. of juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the ct. is satisfied that admission in evid. is necessary for a fair determination of the issue of guilt or innocence. - (e) Pendency of appeal. Does not render evid. under this rule inadmissible. The Fed. Rules allow a felon to testify, but, in certain instances evid. of your convictions can come in to discredit you (typically on cross-examination). 43

There must therefore be an instruction to the jury that the prior conviction evid. only goes to what witnesss credibility, not to his guilt at crime at hand. For non-defendants it is reason enough of the jury to find the witness incredible and disregard his testimony. (this is the theory behind 609, disregarding of testimony). Prob 4.2 Tyco Trial - Things that Pros. wanted in o That he stole money o Lied to help bosss daughter get into business school o Lying about jury duty - defendant contends he did not know of the wider fraud by the company. o Pros says that if he takes stand they want to enter these things to prove his untruthfulness. (he could keep this all from the jury by just not testifying). - What arguments can the defense make to keep these out? o These things dont go to whether he is truthful or untruthful. o You could also go to a 403 analysis. Say this has a high risk of prejudice because they will convict him because he stole money before, therefore the jury will go through the propensity box. Minimally probative because minimally relevant Pros could also go to 105 for a limiting instruction, it is confusing and does not help them. Remember if the defendant doesnt take the stand, it is irrelevant under 401, the only way it comes in is under 608(b) to determine the credibility of his evid. on that day. U.S. v. Brewer Time limit on Convictions - defendant charged with kidnapping and stealing a vehicle. - defendant moved to suppress the evid of his past convictions, which the pros. wants to use to attack his credibility. (Not to show he is a bad kidnapping sort of guy). o Rule 609 allows this evid. to come in. - The only way these questions can be asked is if the defendant takes the stand. o If a defendant, after this ruling does not wish to be impeached by this evid. what can the defendant do? Not testify, then this evid. does not ever come in. - Ct. Determines if these Convictions come in o Time Limit Requirement 609(b) cannot be introduced if the conviction is over (10) yrs . old. This trial date was in 1978, prior convictions: 3 in 1968, 1 in 1960. Rule: The relevant date is the date the defendant was released from the confinement imposed for each conviction. When you take into account the date of release, you use the date of release. o Here defendant was released in 1967, however he was on parole, he violated it, and was put back into prison. So he was confined w/in 10 yrs. Of the trial date in 1978. The Rape, aggravated assault, and assault with a deadly weapon were also not over 10 yrs old because his release dates for those crimes would have been released within the 10yr period. - Any aspect of your sentence, including probation after you go to prison, if there are any restrictions on you, that is not completion of the sentence, this goes into the 10 yrs. Calculation (this is just some states). (some states say, when released from prison). 44

Probation, is that at the time of the sentence part of it is suspended (before you go to prison) and when you come out you meet with a probation officer etc. - Next part of the inquiry: Balancing test still must be done for 609 evid. (it is in the rule). o Does the probative value of the convictions outweigh their prejudicial effect? Five (5) Factor Test (not exclusive): 1) The nature of the crime o Violent crimes are less probative of truthfulness, and therefore they have a small probative value under this factor. o If it was a conviction for deceit, the probative value would be very high. 2) The time of condition and the witness subsequent history; o defendant obviously has not been rehabilitated, and even though old, the convictions show that his conduct is not of a rehabilitated indv. defendants continued conflict with the law, even while on parole, is a factor supporting admission of the convictions for impeachment evid. 3) Similarity between the past crime and the charged crime; o The kidnapping charge is very similar to that for which he is on trial, and the jury is more likely to use this improperly and go through the propensity box, convicting the defendant of being a bad person. So this weighs heavily against. There are other offenses to show his uncredibleness. When you have multiple felonies to choose from, the ones that are less similar to the crime the defendant is charged with, are more likely to get in. 4) Importance of defendants testimony; and o If it is really important to the case, prob. Wont get admitted. 5) the centrality of the credibility issue. o Counter-balance each other. While defendants testimony may be of some importance, a factor favoring non-admission, at the same time his credibility may be a central issue in the case, a factor favoring admission. Final Result: Ct. suppressed the kidnapping conviction,, as I was too similar, under the prob. V. prej. Of Rule 609, it was kept out. Other 3 were admitted as probative of the truthfulness shall defendant take the stand. o NOTE: if defendant did not like this ruling, he could choose NOT to take the stand, then evid kept out Prob 4.4 Cocaine Sale - Ct. ruled in case in chief of Pros. under 403, that under 404(b) pros could not introduce evid. of previous conviction of possession for sale and purchase of a controlled substance. - Now, when the defendant takes the stand, the pros. wants to introduce this to impeach defendant. o Then the Ct. admits the evid. under 609, is this correct? defendant argues that since the ct. determined under 403 that the knowledge evid. was inadmissible, does it therefore mean that it is inadmissible under a 609 theory? No, there are alternative theories of admissibility, this theory of inadmissibility is wrong. The defendant kept it out under the 403 arg. Under 45

the Pross case in chief, but the defendant then chose to take the stand, so you go to a diff analysis, which is for truthfulness to attack credibility. However, under balancing of 609 Used to show bad character for truthfulness, but the prejudicial impact is that it is a very similar crime (propensity box). So here the Appellant is NOT right with his original reasoning, there is a whole new balancing test under 609 (When defendant opens the door), but it is true this evid. prob. Would not get in under the 5 factor test. Pros. would argue that since he is a prior felon, he is less credible, therefore dont believe them. (not truthful). - NOTE: a 403 weighing test, has no bearing on 609, 609 has its OWN weighing test. o If you lose on a 609 arg., you would then ask for a limiting instruction to the jury about that evid. - Prob 4.5 Meter Fixing o 609(a)(2) If you are a deceitful criminal, there is no time limit, if it is a dishonest crime, then there is no limitation. Crimes of previous dishonesty are far more probative to whether the witness is telling the truth than other crimes. But under 609(a)(2) there will not be a little mini-trial to see if this crime involves dishonesty. You will just look at the statutory elements of the crime, the indictment or statement of facts. o In this case we can look at the statute defining theft, and the statement of facts, plea agreement. Under this rule, it applies only if it can be readily determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. You could have a strong argument that this was a crime involving dishonesty, and it is not a felony, so it could come in under this rule, since it cant under the other one. As long as no mini-trial you are ok. o These crimes of deceit dont have to meet the requirements of the other 609 rule if the probative value outweighs the prejudicial effect. Crimes showing dishonesty are more probative for impeachment than is any other type of crime. Luce v. United States - defendant chose not to testify after unfavorable 609 ruling - Judge ruled in limine pre-trial that the convictions of defendant could come in. Therefore, the defendant did not testify, and appealed to conviction, saying he was prevented from testifying because of the cts ruling that he would be impeached if he took the stand. o Ct. Stated: That by not taking the stand, and the evid., not coming in, you have waived your right to appeal this issue. Because, what might have happened is pure speculation, there is no way of knowing if the prosecution would have even used those prior convictions. Ohler v. United States - defendant chose to testify pre-emptive strike, then appealed intro of evid - Ct. says the prior convictions are admissible, and defendant chooses to testify, and in HER testimony introduced the convictions pre-emptively. She was convicted and appealed, saying those convictions should have been suppressed. 46

Ct. said: by admitting this evid. herself, she waived her right to later challenge the evid. as inadmissible. (When you admit if you waive the objection to the admission of the evid.). (this would be a huge tactical advantage, you are really forcing the defendant to look deceitful to the jury, or you are making her waive her right to appeal by pre-emptively striking.) - Remember 608(b) specific instances of bad conduct to prove untruthfulness, whereas in 609 we are just talking about previous convictions (record of it). o 609 evid. of prior convictions also means we have a beyond a reasonable doubt standard for introducing the evid whereas the only basis for an atty to introduce under 608 is a good faith basis. So you can get more wide ranging questions under 608 (more flexible standard). o Also under 609 you will know of the prior convictions, by asking your client, and pros has to let you know when they intend to use them under 609. Rehabilitating a Witness - Prob 4.7 Bolstering a Witness o When pros. witness takes the stand, they ask her about the advantages she got from the gov., and they are imply that she is lying for the gov. o Pros then calls two more witnesses to bolster or rehabilitate her testimony after being attacked by defendants lawyer for her testimony. This is actually NOT attacking her truthful character. GO TO BOOK NOTES pg. 296-297 to define this The lawyer is not attacking her character for truthfulness by asking these questions, just saying that she had a very powerful motive to testify in accordance with the prosecutors testimony. - You have to look at the theory have the cross examination o They are not generally attacking her untruthfulness, therefore other witnesss testimony should not have been allowed, her character for honesty has not been attacked by cross. (this was only about how she benefits from testifying, only bias or motive not an attack for untruthfulness, so cant bolster). (here is not calling her an overall liar, just that she has motive to lie in this instance, which does not work.) - Prob 4.8 Use of Extrinsic Evidence o In 609 you can introduce extrinsic evid. of a prior conviction, if the defendant denies they were convicted and actually were. You are not stuck with the defendants answer. o 1) No, under 608(b) you have to take the answer on its face, you cannot introduce extrinsic evid. to prove the answer was a lie, you are stuck with it. (this is an alibi witness, so she is just testifying supporting the defendants alibi). Another reason this cant come in (it is irrelevant, to the case which is now at trial). You are stuck with the liars answer. (counter-intuitive because it assumes the liar will take the stand and tell the truth). o 2) This shows bias, that they have a motive in the outcome of the trial. And evid. of bias and motive is never a collateral issue, and is a primary interest in undermining the witnesses testimony, and therefore is admissible. - Prob 4.9 Selfish Lies o This is a specific instance evid. So we have to look at 608(b) but this must happen in crossexamination. This is not cross examination, and therefore not admissible. 47

You can cross examine Shriner about the incidents with the two witnesses, but it bars extrinsic evid. to prove this (under 608(b)), so stuck with answers. Cant bring in other two witnesss for specific acts because it was not cross examination. - NOTE: Also Parkers testimony this would be barred by 404(b) because it shows propensity (barred by 404(b). Rule 412 Sex Offense Cases; Relevance of Alleged Vs Past Sexual Behavior Or Alleged Sexual Predisposition - (a) Evid. generally inadmissible. The following evid. is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c) o (1) Evid. offered to prove that any alleged V engaged in other sexual behavior. o (2) Evid. offered to prove any alleged Vs sexual predisposition. - (b) Exceptions o (1) In a criminal case, the following evid. is admissible, if otherwise admissible under these rules: (A) evid. of specific instances of sexual behavior by the alleged V offered to prove that a person other than the accused was the source of semen, injury or other physical evid. (B) evid. of specific instances of sexual behavior by the alleged V with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) evid. the exclusion of which would violate the constitutional rights of the defendant. o (2) In a civil case, evid. offered to prove the sexual predisposition of any alleged V is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any V and of unfair prejudice to any party. Evid. of an alleged Vs reputation is admissible only if it has been placed in controversy by the alleged V. - (c) Procedure to determine admissibility. o (1) A party intending to offer evid. under subdivision (b) must (A) file a written motion at least 14 days before trial specifically describing the evid. and stating the purpose for which it is offered unless the ct., for good cause requires a diff. time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged V or, when appropriate, the alleged Vs guardian or representative. o (2) Before admitting evid. under this rule the ct. must conduct a hearing in camera and afford the V and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. - Sexual predisposition is generally barred. This rule is more strict than Rule 404. - Even if meets 404 exceptions, still barred. History: Sexual predisposition was generally use to show consent, or that because the V had bad character she was no believable, not truthful, because of prior sexual behavior. - If 412 didnt exist we would use 404(a)(2) and argue the character of the alleged V is admissible, pertinent trait would be that she was consenting to the sexual conduct. This is not the case now! - Also would use 608(b) as a justification 48

Probative of truthfulness to argue her character for truthfulness was bad because of her other unrelated sexual activities, means she was not believable. - How could you ask about the divorce, etc. under CoMLaW? o 608(b) specific incidents to show untruthfulness (her sexual conduct outside marriage reflected badly for her character for truthfulness). What more could defense counsel do under 608(b)? Nothing, they would be stuck with the answer. Before 608 extrinsic evid. was often used to prove they were lying. - Also, in the CoMLaW, the evid. of predisposition for sexual unchastity was really never used against men. - Lawyer trying to demonstrate the wife was routinely having extramarital affairs o Admissible before 412, so what would objection be? Asking about specific bad acts of her prior behavior, and is demonstrating she has done these prior sexual behavior? Have to introduce it as reputation or opinion. - Note difference between 608 and 405 People v. Abbot Before 412 - Prior sexual experience should have been admitted. - That her prior sexual encounter with the indv. and others, should have been admitted. o So since we dont have 412, how would we get this in? 404(a)(2) pertinent character trait of alleged V, and you would have to introduce this by 405 reputation or opinion. What about 608(b) If she answers no you cant do anything. So even if we had 412, you could not call witnesses to prove V was a prostitute you have to accept the answer under a 608(b) question. - State v. Sibley Cant prove mans untruthfulness by unchastity o defendant got 12-13 yr. old pregnant. They allowed evid. of his unchastity, in order to show it was more likely to act in conformity therewith. o This case overturns that, and it can only be introduced against women, but not men. Ct. said the Mans bad character for his previous sexual unchastity does not reflect on this truthfulness only womens. o DISSENT: says the same rule should be applied to both. - Wigmore o Vs of sexual assault should get psychological evaluations (old thought). - Estrich Real Rape o Argues why we should have rape shield laws o 2 rationales for rape shield laws 1) To protect Vs privacy against unwarranted violations of their sexual history. 2) goal to encourage Vs of sexual violence to report attacks to police. o All 50 states have statutory rape shield provisions even though they might not adopt 412. 412 is strongly exclusionary. Bars all evid. of Vs previous sexual behavior except for previous enumerated exceptions. (A)(B)(C). o Except from these it excludes all prior instances of sexual behavior. o What do you do to introduce this evid. of prior sexual behavior? 49

You have to give 14 days notice and state the purpose for which it is offered. Court has to hold a hearing in camera. Very specific notice requirements you have to follow. This is different from the other rules rare incident of when you have to notify other side of what you intend to produce? o Also limiting instruction to tell the jury they can only use the evid. for the purpose for which it is offered. Definition of sexual conduct is in the advisory notes VERY BROAD definition in order to protect the V - All activities that involve actual physical conduct, sexual intercourse or sexual contact. (use of contraceptives; birth or an illegitimate child inadmissible; evid. of venereal disease inadmissible; also includes activities of the mind, such as fantasies or dreams. - NOTE: The three (3) exceptions apply to CRIMINAL cases, not CIVIL cases o Can only allow in civil cases when she puts her character up (she opens the door). Therefore exceptions under 412 only apply in CRIMINAL cases, and only to SPECIFIC INSTANCES of sexual behavior. Therefore you cannot put something up to testify that someone has a reputation of bad character. Still not allowed to say they have a reputation for being sexually promiscuous. It must be specific incident evid., not reputation. - Sherry F. Colb- Says past consensual acts have no probative value. - Galivin o Says that Rule 412 goes too far, and results in bad evid. law because it bars too much. Says 412 should work like 404(b), because there are still limitations on this evid. (403 weighing test). This would allow for more consistent rules. - Prob 5.1 Crazy Sodomization E-mails 412(b)(1)(B) o defendant Tied girl up, bit her, and raped her o Defense theory: This is the girls fetish, consent. To support the theory wanted to introduce e-mail exchanges between the two. 1) eMail from V talking about acts similar with another man 2) e-mail saying how she liked it that way. Pros: argues barred by 412 because it is prior sexual behavior with other ppl. Def: argues sexual behavior is to be broadly constructed, and therefore the stories about sexual behavior with other ppl at the club is not what we are introducing. But e-mails back and forth (could be sexual behavior). o What if she was sending this to her mother, and not this man whom she is about to go on a date with. o w/out these e-mails the defense is completely undercut, because what happens on the dinner date is so extreme. The only reasonable explanation the defense has is to introduce the e-mails. So the difference is that this is critical to the defense, to their claim of consent because of the fact that the evid. so much would be interpreted that she was interested in sodomastistic sex. We are not talking about her prior sexual behavior with other ppl so she acted in conformity therewith, but that she acted 50

in conformity with her expressed interests in the e-mail (we dont care if the club actually existed). How do we resolve the issue as to whether or not this is a prospective sexual partner? o Conditional Relevance Huddleston Standard Does e-mal evid. automatically come in is there is a determination that the V and defendant were potential sexual partners at the time of the e-mal exchange. NO, we have to go to 403 balancing test. Pros. would argue: Unfair prej. Is that jury doesnt care what happened, but that V deserved what she got because she is an immoral person. Prob. Value: That she likes this odd behavior and therefore she consented, whether the defendant believed that she had consented. o App. Ct. held the evid. of e-mails should have come in. Are these conclusive evid. of her consent No, but doesnt need to be to come in. How would a defendant get this stuff in 412(c) procedures. NOTE: In jurisdictions where the defendants state of mind is not relevant (believing she consented) then the evid. would be completely inadmissible if the theory of admissibility would be a state of mind consent admission. Prob 5.2 Fingerprints o defendant (an accountant ) charged with raping his accountant. V said when defendant dropped documents off he raped her . Proved by fingerprint, and she says defendant had never been there on a prior occasion. Defendant says he wants to bring in evid. of previous sexual encounter of a consensual sexual encounter a month earlier. And that he was not there on the night of her claim. o Defense: defendant wants to show why his fingerprints were there. This would not be admissible under a theory of consent, this is an introducing of the fingerprint to prove why his fingerprints are in her bedroom. Theory: 412 would be irrelevant if he was just in there one day talking with her, no sex. The prior sexual encounter is irrelevant, the relevant part is the fact of how his fingerprint got there. (the prior sexual behavior makes this an issue). Pros: Would argue that this evid. does not fit under any exceptions to 412. Def: even though it doesnt fit squarely under one of the exceptions, it draws on concepts from both. Say it rises to a Due Process violation to keep this evid. out because we arent going through the propensity box because we are not arguing consent. So denial is a due process violation, even though it does not fit under the exceptions to 412. The pros. would go to 403: Say unfair prejudice to V. o Not that strong of an arg. here because, sex with the accountant isnt that big of a deal (not like previous example). o How could we solve this problem:

51

V could stipulate to having sex with him in the past, and then not reveal why he was in the room just that he was, and still get a limiting instruction for this. (just stipulate he was in the room). - Resolution of all of these problems: The Tr. Judge decides all of these in pre-trial, so you will know before hand if the evid. is admitted or not. o NOTE: there is no correct answer to either of these problems, you just have to know how to analyze them. State v. Smith Allegations of prior false molestations - 12 yr. old girl that accused her G-pa of molesting her. She had made accusations in the past of molestation, and then recanted them. The judge didnt allow the defendant to introduce this evid. of past false sexual accusations. - defendant wanted to intro the evid. of V claiming her cousin molested her, and then subsequently said she made it up. o Ct. says that prior false accusations is not in 412, it is a credibility issue. False accusations do not fall w/in the term sexual behavior, there is no sexual behavior at all. - So how do you get this in. When defendant testifies, then under 608(b) you can ask about this previous instance. o But if she says no, then you have to accept the answer, you cannot introduce the cousins testimony to prove this prior instance. - Where would you go when it is time to introduce your evid? o You could go to 608(a) and introduce reputation evid. o If you have a 404(b) evid. exception you could use, Motive motive to lie, she has done it before. This allows you to do more with the evid. whereas under 608(b) you are stuck with their answer. - Ct. also addressed, who should decide whether the Vs false accusations were false or not? o This would be Conditional Relevance, and therefore the judge would decide this and would use a preponderance of the evid. standard 104(b) Huddelston. That the V has made prior false accusations. o If huddle doesnt Prob 5.3 Smith on Remand - Would the defendants proposed inquires survive scrutiny under 403,404 and 608? o Theory of admissibility is not rebutting any of the pros. evid., and talks about a completely unrelated issue. - If comes in under 608(b) it is barred if V says she did not lie (cant use extrinsic evid.) Prob 5.4 Old Accusation - V met defendant in a bar, went to his home to meet his daughter. defendant stopped car in secluded spot and allegedly raped her. defendant wanted to offer evid. that in 1984 V stated she had been raped after engaging in sexual intercourse (witness would testify in college went in room with boy, had sex, then ran out saying he raped her, but all her friends just laughed.) - 1) Is this admissible o defendant cant put up a 608(b) unless testifies to opinion or reputation, so can only ask about this on cross examination. - 2) Assume the defendant, proposed merely to cross examine the complainant about it, instead of having a witness testify. 52

This falls under 412 (this is different from the false accusation case), and therefore would not come in. Olden v. Kentucky Lies to Save Relationship - V claims defendant raped her, defendant claims the only reason she is claiming this is to protect her extra-marital relationship with another man. - V was out with defendant, and he raped her, and then defendant drove V to her extra-marital affair (Russels) house. - defendant wanted to intro evid. of her living arrangements with Russell in order to prove she was lying to protect her relationship with Russell. (Motive to lie) o defendant claimed right by his 6th Amendment right to confront his witnesses. - 412 barred because this was evid. of Vs past sexual behavior (living with and sleeping with Russel.) o defendants Theory of admissibility: This explains the V making up a false claim (motive to lie) V is lying because she is living with Russell. (defendant claims it was consensual). - Arg.: We wanted to demonstrate her bias & her motive to lie. Not prove that she consents all the time, therefore she consented now. - defendant claims 6th Amend rights his right to confront his witnesses (conduct his defense). o This does not always happen this is a very specific situation. o This was critical to his case. During Vs direct examination, she said she was living with her mother, but before the trial it was already known that she was living with Russell and that that is not admissible. She abused this not using of the evid. that she was living with Russell (she lied and said she was living with her mom). The defendants confrontation rights are violated when you do not allow him to cross examine a witness under appropriate bias related cross-examination. (motive to lie). And 412 cannot prohibit this. Therefore under 412 the defendant should have argued under 412 (b)(1)(C) exception, violation of his constitutional rights. - They Reversed and Remanded this case to allow defendant to introduce the evid. o If we didnt have 412, this evid. could come in under 404 as motive to lie. Prob 5.5 Kobe Bryant - Kobes lawyer wants to bring in evid. of the Vs past relationship. o 1) Vs sexual acts with other men to show her common plan, pattern and MO with respect to whether she consented to having sex with Bryant. How should judge rule?: Inadmissible under 412(this would be prosecutors arg.) When you have 412 evid. you dont have to go any further, 412 is an absolute bar. Here the defendant has brought up 404 rationale but here 412 applies because it is prior sexual activity. 404(b) is not relevant here. These are only 404(b) rationales not 412, inadmissible. o 2) defendant wants to show the 2 prosecution witnesses had a sexual history with V. defendant will argue, admissible to show witnesses bias in favor of V, and denial would violate 412(b)(1)(C). Right to cross-examine to show bias. Pros. will argue that (distinguish Olden) . In Olden she was lying to continue a current relationship with the witness. Here, defendants defense is consent also, but the value of cross-examining indv. that were previously involved with V sexually, and having a prior relationship does not mean you have a bias in favor of their testimony. 53

In Olden the situation was crying rape to protect current relationship, here there is no claim she is protect current relationship. defendant would respond that there is bias Remembered if you are a close friend of someone (other than sexual relationship) this is bias information you can ask about in cross-examination. Here, can defendant still show bias w/out violating 412? o If the judge limits the cross and doesnt allow in the sexual history, or cross is allowed to show prior sexual relationship what would you do? You would ask for a limiting instruction (105). Saying you can only use the evid. to show the witnesses credibility, but you cannot use that evid. that she has a prior sexual history to determine whether or not she consented to the sex. o 3) show she had sex with other men that night to rebut a claim of post-traumatic stress disorder? Courts wont allow post traumatic stress disorder claims after rape (not on test). The Shield that Failed, Lithwick - How rape shield laws dont work in high profile cases. Info widely disseminated by a variety of sources. Also, transcripts of in-camera hearing was released to the press. - SO says 412 is ineffective because we want to protect the V, but Here V isnt protected. - 412 addresses the trial not the press (Prob with her argument). Stephens v. Miller Trailer Park Rape - defendant is charged with attempted rape. - There were 2 conflicting stories of what happened (V and defendant) o defendants Defense is consent. o V claims no consent. defendant claims she is lying because he said something during intercourse that she like it doggy fashion, that is what Tim Hall said you did so she cried rape (because she was offended.) o Implicates 412 because his defense implicates her prior sex with someone else. He was not discussing a prior time they had sex, but sex with someone else. - The only way to let this be admissible is 412(b)(1)(C) violation of Constitutional rights (CONST. trumps the Fed. Rules). Right to testify in his own defense. o Ct. says that this right is not unlimited, it is limited by 412. So Ct. allows him to say that he said something to anger her, but not exactly what it was. o Majority is also pissed about the Res Gestae argument. (Dont ever use this). - The narrative integrity arg. was weak and did not work. - DISSENT: Says this was imperative to his narrative integrity (inextricably intertwined). - NOTE: What if defendant instead of testifying himself as to what he said, if he had cross-examined V about what he said? o He could ask her about it to try and show her truthfulness. Just challenging her evid. o So could he ask the questions? He might under Olden right to present defense under the confrontation clause. This would have been a stronger arg. it would have successfully made it a constitutional arg. before it was not, and therefore likely he can testify. 54

This is not cross - examination based on her prior bad acts (608(b)). Therefore we are not stuck with her answer. (not the same as impeachment under 608. Knox v. U.S. Cadet case prior acts of V to show defendants state of mind consent - defendant (Knox) and V (Theresa) and Lou (Vs BF) - defendant is charged with rape, and defendants defense is consent. - Issue: Wanted to show her prior acts to prove his state of mind to prove she gave him consent. o This prior various are all protected by 412. (Even though the acts dont involve having sex with other ppl). o He alleges consent because when he leaves his apt., and comes back in she looked at him very provocatively and he felt he was invited to join in to the sex with her and her BF. (She says this doesnt happen, that she just wakes up and defendant is having sex with her). - In the defendants state of mind, he is going through the propensity box. He isnt saying that she consented, but that he thought she consented because he knew all of this information about her. o In jurisdictions where reasonable belief of the defendant doesnt matter, this wouldnt matter. o The ct. just admits some of this evid. And excluded refs to individual acts specific acts. - They said this falls under 412, but under (b)(1)(C) but we also have a 403 balancing test. prej. = reputation for being promiscuous vs. prob value = to prove the defense (support this explanation). o Ct. was correct in leaving most of this evid. out. o Notice: specific acts, offer of proof. Middle of third paragraph, of Prob 5.6 Jones v. Clinton - if Paula Jones insists on having her day in Ct. and her trial, and she really wants to put her reputation at issue, as we hear, we are prepared to do that. o 412 applies here because it is a sexual offense case, and is being introduce to show her sexual past. o 412 does NOT allow any of its exceptions into a civil case, therefore this evid. is barred. If she puts her reputation up, And the evid. survives 403 it is admissible. o Remember that exceptions dont apply in civil cases (Point of this problem).

Competency of Witnesses 601, 602, 603, & 610 1st unit relevance, underlies everything. 2nd reliabilityin a perfect world, every witness would come in, subject to cross-examination In a perfect world 3rd IF IT IS NOT HEARSAY!!! YOU DONT GET EXCEPTIONS. Hearsay by def not subject to cross-examination.. Criminal case vs civil case for competency, ask prof.question. Evidence of religios belief= cant attack or support 602- very important we have made ref to this if you go on to litigation. The need for person knowledge, a witness may testify only if suff evidence. 55

direct examination, personal knowledge, something they saw . Personal knowledge, experts dont have to have personal knowledge Opinion is allowes under 703. Two: expert, party in the party opponent??? LINK BETWEEN HERSAY AND COMPETENCY: EACH ARE CONCERNED WITH CROSSEXAMINATION.

Usually only implicated when the witnesses are children. State v. Swan 3 yr. old o The Defense and Pros. are allowed to ask questions to the witness to see whether or not the young child understands the importance of telling the truth. That they have the ability to recall from their memory, (not facts of case, but questions about other things) o This is done outside the presence of the jury, and ct. makes a determination of competency. If competent then testifies to facts at trial.

Hearsay: Rule 801: b) Declarant A declarant is a person who makes a statement. C) Hearsay hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. - What it is depends on what the statement is being used for. o Statement: Verbal or non-verbal; can be written as well => if intended as an assertion o Declarant: A declarant is a person who makes a statement. Whos words you want to introduce. (Not the witness, these are two different things). o Assertion: a communication intended to convey content that can be believed or disbelieved NOTHING IS AN ASSERTION UNLESS THE PERSON MAKING IT INTENDS IT TO BE AN ASSERTION A murder case: no evidence vs some hearsay? If it comes within exception and is still valid under us constitution than it may come in. - Statement: Does the declarant intend to assert something - Nonverbal Conduct of a person: - Someone says ouch: its a reflex. No need to cross examine. The floor is slippery, nobody complained. silence: is absence of complaint when offered is that hearsay. Dog bark: not a person. - if they are not intending to communicate something - Who has the burden to prove whether or not something is intended to communicate or not - An out of court which court? - Hearsay: A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evid. to prove the truth of the matter asserted. - If it is ambiguous, 401(a) burden is on person trying to exclude evidence. 56

Quiz at home at your leisure. After reading. I told the police officer, the truck was redits an out of court statement. And technically that is hearsay.

DECOUX: Hearsay is A statement made out of court offered at trial to prove the truth of what it asserts o If you can prove a statement isnt hearsay, then it can come in. o There are also exceptions to what is hearsay and even if it is hearsay, it can come in if excepted. o KEY: When out of court statement is offered for any relevant purpose other than the truth it is not hearsay. Prob 7.1 - SUV roll-over, civil case. Chief witnesss testimony was filled out in an affidavit saying he saw them conduct cases to see if there was a rollover hazard and said there was. The pros. wants to intro the affidavit (the actual witness has passed away now). o Hearsay? o Way back, asbestos litigation. One guy got mesothelomia. You have to show exposure tho he was a dentist, the only exposure was in dental school he worked with some asbestosy products. He was under 50there is a latency period. We had to prove it.when he was diagnosed he waited.a bit long. Videotape deposition, the rules require that he is available for crossexam. So we had him fill out affidavitsand they were not admissible. Whoa So the day we didnt have time for deposition. Uh so to prove the exposure, we never got to trial we went therew hs yearbook. And talked to them and we proved it by the other students.. I worked with doctor so and so and so we used 602, to tie it together. The bottome line an affidavit, classic hearsay. In my case, product identification. Prob 7.1 Rule 801: Statement: Written assertion: an affidavit is hearsay. We Purpose: to show that Declarant: Dead Guy This would be a violation of the right to cross-examine, and therefore this is Hearsay. Also allowing this affidavit would not allow the jury to judge the credibility of the witness, (prevents unreliable testimony). (Also a problem of forgery here.) No exceptions o Written statements treated same as oral.

Prob 7.2 Gesture - A asked, why dont you get a new bicycle? B held his hand out and rubbed fingers together (showing he had no money). o This is a statement by a declarant (B) made out of court introduced by someone other than the declarant to prove the truth of the matter asserted. o When ambiguous: person who is trying to exclude it has to prove it is intended to communicate. 57

o This is Inadmissible Hearsay Prob 7.3 Quoting herself - Asked the witness (Alice) at trial, what did you say to the detective. Ans: I said, he is number three. - Here Alice is talking about a past statement, introduced to prove that she identified defendant in the line up. This was exactly what the evid. was used to introduce, to prove she picked out number 3. The Atty would also call the detective. - This is not a statement she made at trial, she is testifying about what she said before. o If you are saying what you said in the past, this is hearsay. If you say what you did in the past, this is not hearsay. o Here she identified!!! - However, Under 801(d)(1)(C) this would not be hearsay as to an exception. Therefore not hearsay because of an exception. o But normally a witness cannot testify to what they said in the past, but can as to what they did. Prob 7.4 Blood Test - Wanted to introduce evid. of a form by the expert proving levels of alcohol and pcp. Is print out hearsay? o Most states say that these print-outs are not hearsay, so they get around this. o Here the Declarant is the machine, but really it is the technicians that encoded the data and evid. into the machine. o It is being introduced to prove the truth of the matter asserted, that at 1.a.m. he had alcohol and pcp in his blood. The date and time is critically important to prove that he was intoxicated at that time (so log at this time was critical, test might be made days later). o So if she was defense counsel she would argue strong against the introduction of the date and time on the form. They must prove date and time to prove DWI. Therefore a lot of states say that evid. in these types of machines are exempt from hearsay rules. (just have to show machines are correctly calibrated.) But they could still bring in technician to testify what time they took the blood tec., and you get around the date and time hearsay objection by the machines form. Pros. was offering evid. here. Prob 7.5- Boasts - Ogden Case boasts, that he has killed before etc. - Was defendants testimony about his lies admissible? o It was not hearsay, it was not introduced to prove the truth of the matter asserted, just what effect the statement had on her state of mind. Not Hearsay. - How would you like this phrased? Prob 7.6 Horse Theft - defendant asked to introduce she didnt know the horses were stolen (charged with felony theft). defendant wanted to testify that Patton told her he had purchased the two paint horses and that he asked her help in selling the horses.

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Not hearsay, introduced to see what she believed, not the truth of the mater asserted. Just introduced to prove he said it, and she believed and relied on that, because based on what he said she thought he had the right to sell the horses. - Not hearsay because the reason it is being introduced is to prove state of mind, not that the guy really owned the horses. Prob 7.7 Ineffective Assistance - Worth Atty for defendant. Kornberg Atty for Volpe who pled guilty. defendant is claiming ineffective assistance of counsel of Worth because Worth did not call Volpe to the stand to prove that Volpes client would testify that defendant was not in the bathroom and therefore was not guilty of his crime. - Is this Hearsay? o What was said was that, Volpe said, My client can exonerate your client, that he said this to Worth. o So do we have to prove that Volpes client really could have exonerated defendant, or just that he said the statement to get ineffective assistance of counsel? o Used to prove he actually said it, not whether or not the information was true. o Ineffective Assistance claim: Knowing that Volpe made this statement, my atty never called Volpe to the stand. (introducing he had notice of this exonerating witness, and should have followed up about it). o We are not proving the truth of Volpes statement just that he said it. (Not Hearsay). NOTE: If this was coming in to prove that defendant was prejudiced by his lawyer not calling Volpe, then this would be hearsay. (Truth of the matter, failure to call exonerating witness). and in this case it would be double hearsay. Prob 7.8 Declarations - Didnt declare weapon magazines that he had at customs, only chocolate and beer. o 1) gov. offered evid. that White bought the firearm magazines while in Europe. Was the officers testimony that White denied having acquired other items abroad hearsay if offered by the gov. to prove White lied to the officers? This is not hearsay, because it is a lie. The pros. wants to introduce that he asserted he didnt buy anything else. The statement is not introduced to prove the truth of the matter asserted, but that he lied. (Trick Question). o 2) What about his friends testimony that White stated to customs, I White have some more items to declare. He is not introducing to prove he had more items to declare, just that he did declare it. This is a verbal act, what he did do (he was charged with not declaring items, his defense is that he did declare). The words had legally operative force of declaring the other items, so admissible. Because it is non-hearsay. Legally Operative Word (very narrow area). Falknore, Hear-say Article - If you dont have an audience it is not an assertion, because you do not lie to yourself. (dont intend for anyone to draw conclusions from your actions). - If there is an audience then you could be lying thus hearsay. Prob 7.9 Ship Captain - Evid. of a deceased captain on the question of seaworthiness of a particular vessel be hearsay if the captain, after examining every part of the vessel, embarked in it with his family? 59

He was not asserting to anyone that the boat was safe, he wasnt expecting anyone to draw conclusions from his actions, he was merely inspecting the boat for himself. Not hearsay and therefore admissible. Prob 7.10 Amchitka Holiday - Question was whether Gov. took adequate safety measures to make sure the testing area was safe after the tests. Schlesinger then chairman of the Atomic Energy Commission, told reports at an Air Force base that he was taking his wife and daughters with him to the testing site. o Is this hearsay if offered to prove the blast site was safe? Schlesinger had an audience, he was trying to assert by taking his family there and announcing it to the pres. corp. that the area was safe. Therefore this is hearsay. More Problems on pg. 386 - Answers in Book and in Notes Exceptions to the Hearsay Rule: An Introduction pg. 392 Prob 7.11 Billables - Lawyer got hurt on airline, she sues to get lost wages. Wants to introduce that lawyer has been billing her clients by billing statements (to prove she really wasnt hurt and unable to work). - Are the records admissible over the hearsay objection? o 801(d)(2)(A) This is an admission by a party-opponent. A party to a lawsuit or criminal case and introduced by the opponent. This billable worksheet is a statement admitting she worked, when she contended she could not, it is admissible. o Admissions by Party-Opponent always come in. Prob 7.12 take my blood - Being admitted by defendant for purposes to prove consciousness of innocence (not guilty because willing to submit to a blood test. He said, Take my blood). - There was no assertion here, O.J. was merely complying. If you can successfully argue this is nonassertive conduct, then it can come in as not hearsay. - But pros. would argue you are introducing this because O.J. is asserting his innocence. - This isnt being introduced against him, but by his atty, and so if you successfully argue this is an assertive conduct, then you could say this is hearsay. (not introduced by a party-opponent). o Who decides why this evid. is coming in (the Judge under 1.4(a). The judge will decide if this was assertive conduct, and if it was assertive conduct, it would be inadmissible. o The party claiming the declarant had an intention (assertion) has the burden to prove that. (advisory notes). o There is a preference towards admissibility of evid. (we will probably determine this is nonassertive conduct and we will let it in.) Prob 7.13 Buddies - Crack deal, she says I dont have any more, but my buddy does. The Buddy gets up to sell to the undercover officer, and is arrested. - Adoptive Admission 801(d)(2)(B) o Adoption by Silence: 4 Pre-conditions 1) Believe that defendant heard and understood what the other party said 2) That defendant was free to respond, doing so freely o

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3) The circumstances naturally called for a response (if in this transaction the officer and Monroe (seller) were silent, then natural response is not to offer more, there would be no manifestations of wanting more). 4) Response was to act in accord with the statement (adopt it). - Can we argue he heard and knew what was said? o Yes, he got up and offered more drugs. o You could say he was not dealing the crack, but just taking it out to use himself. (because distribution is a higher crime than possession). - What about premise for naturally called for response? o There was an affirmative movement of going and getting the bags of drugs, so he did respond and is an adoption by silence. - Likely here defendant is screwed admissible. Prob 7.14 Jailhouse Meeting - Daughter who tells his dad she is going to tell the truth (she claims she saw him kill someone) after she says this he points to the sign saying that conversations are under surveillance. - Pros. argues that an innocent person would have said, I didnt do it. o Theory of admission 801(d)(2)(B) The none verbal conduct is that this was an assertion that he knew there was surveillance so couldnt tell her the truth. Therefore he adopted her statement by silence, by pointing to the sign. Because she didnt object to her accusation, he is adopting her story. - Def. Atty Arg: o 1) Did he understand the statement and hear it? Yes o 2) was he at liberty to respond? Defense would argue no, because of the surveillance, and he had been instructed by his counsel to not talk about the case. Also Miranda Rights, doesnt feel at liberty to talk. (so doesnt fit within this because he was not at liberty to respond). Other side: If you are innocent you would deny it, who cares who hears a denial, there would be no repercussions for a denial, it wont hurt his case. - Judge will make final decision on whether or not this is admissible o He will look at 104(a) Mahlandt v. Wild Canid Survival nature center wolf allegedly injures boy - Alleged that a 3 yr. old attacked by wolf. There is a question of whether attacked, or the fence he climbed under caused the inures. (wolf had gotten out night before and attacked a beagle). o Statements made by Mr. Poos (who wasnt there when the events occurred) oral statement, note, and meeting minutes about the attack are what are being considered for admission. - Statements In Issue: o 1) Note Mr. Poos left on door of Owens office, someone who also works at Canid, saying the wolf (Sophie) bit a child. o 2) Statement by Mr. Poos to Owen that Sophie bit a child. o 3) Canid held a meeting, Mr. Poos was not there, they talked about all the legal aspects of the incident, and wanted to introduce these minutes. Discussion that wolf bit child. wants to introduce these statements, because it makes it look like the wolf attacked the kid. defendant wants these out because these events took place where he could not see it. He had no first-hand knowledge of the attack. 61

 Tr. Ct. said since there was no personal knowledge, this evid. was suppressed. - Here we are talking about 801(d)(2)(C) - but the court says this isnt a (C) situation but a (D) situation. (C) is a statement made by a party authorized to he was not authorized to make the statement, not the case here he made it on his own volition. (D) statement made by an agent. o Mr. Poos is a party opponent 801(d)(2)(A) it could also come in under this. o This is also admissible under the agency theory (against Canid) These are the same for the first 2 statements. - However when we get to the minutes of the meeting o The center is the party opponent here so this cannot come in under 801(d)(2)(A) against Mr. Poos. Also the Center is not the agent of Mr. Poos so cant come in under (D). o They do come in under the Center because of this rule (A) however. But not admissible against Mr. Poos. So since this third assertion is coming in against Center but not Mr. Poos, you want a limiting instruction saying that evid. can only be used against the Center. - Why was this so controversial? o Because no one actually knew what actually happened. No one had firsthand knowledge of what actually happened. o This is silly: They have no idea what happened, but statements are coming in about what happened. (counter-intuitive) Prob 7.15 Shovel and Bucket - Man with shovel says, the other employees were supposed to shovel the salt, he is admitting negligence on the part of the condo. (after a resident called complaining walk was covered and someone fell). - Should the ct. enter evid. of this statement as against the Condo Co. (that the guy said this)? o Should be admitted under (D) statement by a parties agent. - Object and say it is hearsay o We dont know who the man was, so we dont know if he was an employee. - You would have to argue this was an agent, you said you were going to send someone, and someone showed up with the appropriate tools, therefore that must have been your employee (agent) and thus admissible. o Bootstrapping the statement the person said combined with the conversation with Condo complex, points to him being an agent. You look at the very evid. you are trying to admit. - Defense will argue hard not agency, Pros. will argue it is. Bourjaily v. U.S. undercover drug deal - FBI agent set it up to sell the drug to Lonardo. Lonardo stated he had a friend who wanted to buy and distribute the cocaine. The meeting was arranged, and at the exchange of the drugs, Lonardo and friend were arrested. Pros. wants to introduce evid. of Lonardos recorded statement about the friend. o defendant charged with conspiring to distribute cocaine and possession with intent to distribute. - ISS: Whether the statements were admissible about the distribution of the cocaine under the conspiracy exception of 801. (Statements between FBI and Lonardo). - Pros. argues these statements are admissible under the co-conspirator exception (E). o This would otherwise be inadmissible hearsay. Statement being introduced to prove the truth of the matter asserted. - Is there a conspiracy? 62

Show there is by showing that everything Lonardo did that Bourjaily really did it there was a conspiracy. Here ct. looked at 104(a) to analyze this issue. o Difference between 104(a) and 104(b) 104(b) Conditional Relevancy Huddleston Standard By preponderance of evid. jury could find existed, it could come in. 104(a)- All other evidence. By preponderance whether or not the conspiracy actually exists. If judge determines conspiracy exists judge can let them in o This is what happened here, judge found conspiracy existed so let it in. They looked at all the other confirmation of what Lonardo said, and took totality of the circumstances a conspiracy existed and statements admissible. (and said you could use evid. you want to admit in order to evaluate if there actually was a conspiracy (can use actually evid. in dispute)).

Substantive vs. impeachment: This rule says you dont have to do that way , the best practice is to show it. Same case, no other test. Th elight was green after accident. At end if critical piece or direct verdci the fact that on impech she said diff color. The main issue is if it came in subs or impeachment. The court will not have to direct verdict. Party opponent come in for the truth. Not just to impeach The jury with a prior inconsistent may choose not to believe but they can if they want to. The 2nd piece is that extrinsic is admissible. I have the statement, we may redact if there is other stuff. Evidenc of prior is admissible only if there was an opp to explain or deny. In trial ad. The diff between substantive and impeachment is imporat Not hearsay if declarant testifies. We have critical subject to cross. We have prob later as to subject to cross mean. When witness say I dont remember can they be subject to cross. For incons to come in substa. It was given under oath. You want to come in not just for impeach, it was subject to cross, in advisory you will see what a proceeding is. It is not an affidavit. 3 prior in Under the rule or impeachement. Most are impechement, red light green. We have a heightend rule, it has to come in within the letter of the rule. 1948 This is when the declarant is also a witness, however it is still hearsay if the prior statement is not subject to cross examination. Bottom of page 419.

Prob 7.16 Translation - Undercover agent was trying to talk to Y, but N was the translator, Y didnt speak English (drug deal). 63

Want in Y statements, as told by N (translator) that the drugs were very strong, in order to show the guilty knowledge of Y. - Cant talk to N because he is dead. o Y and the Police Officer could not understand each other, so it is possible that N was not an honest interpreter, and the translation was not correct, he has no idea what N was saying he doesnt understand English. o Pros would argue N was an honest interpreter. - You are trying to use 801(d)(2)(A) o When you have someone who has said something in a foreign language, the testimony should be in the foreign language, not in English, an official translator should translate it. o So even if N survived, his testimony would have come in Arabic, and then a translator would say what it says in English, but N is dead. o Here the officer did not speak Arabic, so how do you get it into evidence? How do we get Ns statements in? - 801(d)(2)(E) conspiracy, ct. would look at 104(a) and see if the circumstances by a preponderance of the evid show there was a conspiracy, then the statement can come in under 801(d)(2)(E). o Things that show conspiracy: Took drugs to the U.S. Photograph shown to him, and he handed over luggage - Def would argue this does not show enough under 104(a) and therefore should not be admissible under 801(d)(2)(E). - Pros. could also argue that under 801(d)(2)(C) N is Ys spokesperson (you would want to argue this as an alternative theory of admissibility. United States v. Barret Stolen Stamps - Adam is at a restaurant and is talking to Delaney, says, that it is a shame that defendant is charged with a crime, he is innocent (Waitress also overheard this). - defendant (Barrett) is on trial, and Adams testifies at trial, that defendant is the one that did it (had knowledge, and that defendant told Adams of his involvement) that he is guilty. - defendant tries to admit Adams prior statements in the restaurant (to Delaney and the Waitress) to show that he is innocent, prior inconsistent statement by Adams. o At trial level the Ct. did not allow these statements by Delaney and the Waitress, because it was inadmissible hearsay. o - App. Ct. o Determines that this should have been admitted. It was admissible, and this was reversible error (should have let in this inconsistent statement evid.) o The defs chief argument is that buzz is lying to protect himself. They excluded - Rule 613: o The technical foundation requirement is relaxed, 613(b) o 613 is more relaxed than the ComLaw rule, so Adams does not have to be confronted with the fact he made the statement to the waitress and Delaney. This is extrinsic evid. but is admissible under 613. We can call Delaney and the waitress and have them testify about what they heard Adams say. o Why does Def. want this in?

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Because Adams fingered defendant, and you want to prove that Adams is lying, not credible, prior crim. Record, got a deal, and this inconsistent statement shows he said defendant was in fact innocent. o Def. could just cross-examine Adams about this, but doesnt have to tell them about what the testimony will be, but can just call them and have them testify. o Prior inconsistent statement coming in for impeachment purposes only, to show Adams testimony is not believable. Prob 7.17 Retraction - Witness first says she saw defendant shoot, at trial she denies this. Officer testifies that Witness said that she did see defendant shoot the V. pros. now rests w/out producing any other evid. and if defendant moves for acquittal, how should the judge rule? o The statement by the officer is only admissible for impeachment purposes it is not substantive evid., just to show the witness is not credible. Only to show Witness said different things at different times. o So the only evid. before the judge is that witness was not there and didnt see anything, and then a statement that the witness is not believable. Therefore the Judge must give an acquittal, all the evid. in the trial is that witness didnt see anything, and she is not believable anyway. o (There is no substantive evid. linking defendant to the shooting, the police officers testimony only came in for impeachment purposes, not for substantive linking defendant to the crime). o United States v. Ince Rap concert shots fired witness recants - Shooting. Neuman said that defendant confessed to her that he took the shots. Neumann told police about defendants confession. At trial when called Neumann said she didnt remember anything. - Officer called by gov. to show Neumann previously stated that defendant confessed to her. Deadlocked jury (mistrial) no double jeopardy. - Second trial gov. called Neuman, she said she didnt remember the unsworn Statement, even after gov. tried to refresh it. Then gov. called officer who said Neuman told him of defendants confession, and defendant was convicted. o defendant claims that the pros. impeached their own witness and this was only used to get inadmissible hearsay admitted into the case. (They knew she would say she had no memory, so there was no good faith calling of Neuman to the stand). o Ct. States: 607 overrules the CoMLaW rule that you could not impeach your own witness. Some states still follow common law, but fed. Rules do not. Now, either party can impeach a witness, you can attack the credibility of your own witness. - Ct. says however, that there is a limitation for the gov. under rule 607. This is because it is the gov.s duty to serve and satisfy justice. One of these limitations is that there is a limitation on their power to impeach their own witness. You have to in this case, apply the 403 probative v. prejudice test. o Here Ct. says there is no probative value of Stevens impeachment testimony, because Neumann essentially said nothing. (Probative value is not that it helps prove defendants guilt this is only entered for impeachment). Pros. would have to say that the impeachment value is high, but this is nil here, she has impeached herself by saying she has no memory. o Prejudice there is a high risk the jury will accept the evidence not for impeachment purposes, but substantively that the defendant confessed the crime to Neumann. Unfairly 65

prejudicial on its face, because it comes in as a confession to the crime, and there has been no other evid. of a confession. - Here pros. was in no way surprised that Neumann had no memory (previous trial) this was merely admitted to get otherwise inadmissible evid. in as admissible evid. - While 607 allows a party to impeach its own witness, the Ct. looks at this unfavorably when the gov. does this by impeaching with otherwise inadmissible evid. o This is not a pro defense circuit, and still said it was inadmissible hearsay. - (in closing argument the gov. also referred to the evid. for substantive purposes.) o This was also reversible error. - Is there another theory for the prosecutor to have used to introduce this statement 803(5). o Why did they not argue this (didnt think of it). Prob 7.18 Why such Excitement - F and G arrested for suspicion of involvement in a drug-running operation. G said to F why so much excitement, if they caught us with the goods? F said nothing. o Can this statement come in as 1) substantive evid. of Fs guilt?

Yes, through adoption by silence. 801(d)(2)(B) He had not heard his Miranda rights yet (GO to factor test). But this has to naturally call out for a response, F had the ability to respond, and failed to respond, but here we dont have the naturally called out for response, and the ct. could come out either way. Also ct. could come out either way that F was free to respond as well. You would argue under 801(d)(2)(A) if the 4 preconditions are met, and under 104(a) the judge will determine if admissible (by preponderance of the evid). o 2) To impeach F if he testifies and denies all knowledge of the drug operation? 801(d)(2)(B) again and you would have to do preconditions, an go to 104(a). 801(d)(2)(E) conspirator statement Why isnt it this o He did not make this in furtherance of the conspiracy, he was arrested and thus the conspiracy is over. The conspiracy ends. Fletcher v. Weir Stabbing outside a club - Fight in night club parking lot, V pinned defendant to the ground, then V said he had been stabbed. defendant fled the scene, and was later arrested. He was not read his Miranda warnings and stayed silent and didnt say a thing. Then at trial he asserted that he did kill V, but it was in self defense. o Pros. then tries to admit evid. that defendant was silent and did not explain anything to police after defendant killed V. (didnt ever assert self-defense until that day). He was not Mirandized. (a lot of ppl think that when you are arrested they must read our Miranda rights, but they only read them when they question you, not at time of arrest). There is no Miranda issue here, their rights were never read. - Rule: Unless the defendant was warned of his right to remain silent (Miranda) then we can comment on his silence. If defendant had been Mirandized and then he didnt say anything, he could not be impeached by his silence at trial. (but here he wasnt, so silence was allowed.) Prob 7.19 Domestic Violence 66

At grandjury said boyfriend hit her, at trial said door hit her and did her injuries. o Under 801(d)(1)(A) The pros. can introduce the transcript of the grand jury proceeding, that the boyfriend hit her. And is coming in substantively (not as impeachment purposes) as not hearsay. So even though this testimony was not subject to cross-examination at the grand jury hearing, it is still admissible substantively under this rule, because it was given under oath subject to the penalty of perjury. And declarant is subject to cross examination now. o So after this defendant moves for acquittal, what should happen? Denied, pros. survives this, because the pros. just has to produce some evid. of guilt, and he has done this here. Under 801(d)(1)(A) this is substantive evid. This is coming in for the truth of the matter asserted and comes in to prove defendants guilt. How is this different from 803(5) is not automatically admissible, but only comes in if you have no memory of the event. (here she is lying).

Prob 7.20 Domestic Violence 2 - Now she claims she has no idea how the injury occurred. - Under 104(a) will decide if the loss of memory today is different from the previous statement. - If so comes in under 801(d)(1)(A) - Use 803(5) problem with using this rule is that we routinely have Vs who claim they dont have memory of it because they are lying. So you have to see if she truly has no memory. o But if under 104(a) not telling truth, introduce as inconsistent statement for substantive purposes under (d)(1)(A). Tome v. United States - sexual abuse of his own daughter (fabrication) - defendant accused of abusing his daughter - Defense: Is that he did not do it. o Child testified and it is very weak testimony. o Defense claims that defendant did not do it, and attacks the evid. saying that the accusation is invented because the Mother wants the child to stay with her (child custody suit). o Pros. then brings in 6 witnesses to corroborate what the child said to them. Note: How are these hearsay child made these out of court to other people. o Pros. said offered to rebut the claim brought out in cross-examination that the witness is just making this up to go and live with her mother. 801(d)(1)(B). Tr. Ct. allows this to come in, and defendant is convicted. - Ct. says o In order for them to be admissible under this 801(d)(1)(B) to prove this was not recent fabrication, the statement would have had to be made prior to the existence of the motive (to go live with mom). And the motive came to be before this because the custody battle had begun before the accusations were made. Motive had to pre-date the motive of the dispute, they did not. - Pros. argued that the evid. should be admitted as bolstering the childs testimony, but ct. said this was improper. - Ct. said this was a fairly weak claim of weak fabrication, and you were introducing this testimony not to rebut this, but to corroborate her testimony because she was a bad witness. 67

Ct. ruled that this evid. should not have been admitted.

- Rule 801 (d). Prior Statement By Witness - (D) statements which are not hearsay. A statement is not hearsay if: - The declarant testifies and is subject to cross-examination and statement is CommonWealth v. Weichell shooting in park weak I.D. - Whether a composite drawing made by a witness is admissible under 801(d)(1)(C). o This rule allows one of identification of a person made after perceiving the person; - Ct. says composite sketches are admissible under 801(d)(1)(C). There is no logical reason to permit the introduction of a witnesss out of court identification and to exclude statements identifying the various physical characteristics of a person perceived by the witness, or the composite of all those physical characteristics, which is no more than the sum of the parts perceived. - Def objects: should not come in hearsay, not a statement - DISSENT: Says this isnt really his identification, not his assertion, but the police artist is drawing it, and may already know what the suspect looks like, and could conform drawing to that. Hearsay United States v. Owens officer attacked, no recollection in court - V (correctional officer) beaten by defendant and had a head injury. FBI agent visited him in the hospital (memory loss of V) but he identified defendant as one of his attackers from photos the FBI showed him. - At trial he testified he remembered identifying defendant as his attacker at the hospital, but did not remember who attacked him. (this is the difference here, the defendant cannot identify his attacker at trial). - ISS: whether the testimony of the identification of defendant in the hosp. could be entered into evid, under 801(d)(1)(C)? o Def argues they could not allow this in because they couldnt effectively cross examine him so cant come in. o Pros. wanted this entered under 801(d)(1)(C). Saying V. is testifying at trial right now; he is subject to cross-examination. Def. argues no because they werent allowed effective cross-examination so this rule does not work. o Ct. says that no cross-examination is going to be perfect, you are not guaranteed cross examination where the witness will be guaranteed to have perfect recall of what happened in the past. They do a bright line test. ct. says they will not examine the testimony to see how good it is, if the witness takes the stand and is subject to cross, then that is all it takes. Despite the fact of no memory of it. - DISSENT: Says there needs to be meaningful cross. Also points out that if the V had died, then this testimony would have been completely inadmissible. (he would not have been able to testify at trial.) o How else could this be introduce dif dying 801(b)(2) have to be on his death bed to get this in (dont know here he didnt die). - This decision just really shows we have a bright line test in 801(d)(1)(C) we will not allow defendants to say this was no effective cross-examination due to memory loss. Still comes in if took stand. Prob 7.21 Domestic Violence III 68

V dismissed injury as an accident, and pros. wanted to introduce testimony from the nurse that she told her it wasnt an accident when she went to seek treatment. - Nurses testimony that wife said her husband came over and caused her injury. Should nurses testimony come in? o If we are only looking for this for identification, then only that aspect of the statement should come in. o Why do we allow this 801(d)(1)(C) evidence? Because out-of-court identifications are more powerful than in court identifications. Easier to make in court I.D. they are right here. Your memory is better closer to the event. - In this case what is another justification for admitting testimony? Right after the incident she could be more willing to identify him, but when he gets back around her she is terrified of him again, or has reconciled with him and does not want him to go to jail. o So the only thing that will come in is that she I.D.ed Robinson at the time she went to the hospital. o Close call but does not extend oocsa of an offeder is well known to th declarant. Rule 804 Hearsay Exceptions Unavailability of a witness Prob 7.22 Same Scenario - Grand jury hearing where V testified that Robinson hit her in the eye. - At trial she refused to testify despite contempt, pros wants to introduce grand jury testimony testimony. o 804(b)(1) She is unavailable under 804(a)(2) But what about 804(b)(1) This is being offered against Robinson. But did he have the opportunity to direct cross, or redirect examination there? No, the defendant had no right to be present at a grand jury proceeding (Crim. Pro) NO defendant was present, no defendant counsel was present, therefore this does not fit under 804(b)(1) rule. There was no cross. o Could try 801(d)(1)(C) But cannot, because she does not testify at all at trial, so cannot use (not subject to cross examination, same failure). Prob 7.23 Roadway Incident - Civil Suit, A v. B, against B for injuries from drunk accident. - Then from other injuries A cant remember anything after that trial. - At criminal trial, A cant testify so they seek to introduce her testimony from first trial. o 804(a)(4) makes her unavailable o 804(b)(1) B had the opportunity to cross-examine A in the first trial. For similar motive, both trials were focused on Bs negligence. But burden of proof was different, however there was a similar motive to develop testimony in both trials both trying to prove B was drunk and therefore at fault in the accident. We have to look at Bs motive, in each case, they have to have the similar motive in both cases. 69

Could argue these trials were completely different, one is for culpability, the other for liability. One is monetary, one is punitive. Def. would argue this to keep As testimony out. - Who determines if this comes in? The judge under 104(a) o Judge will have to determine whether or not B had the same opportunity to develop the testimony at the former trial. o This will depend on what the judge rules. U.S. v. Denapoli Concrete Scheme - (6) defendants charged with violations of RICO for a bid fixing scheme. - Here the 2 witnesses are testifying at pre-trial. The witnesses were granted immunity to testify at the Grand Jury, and asks them about the bid rigging scheme, DeMattis denies he was involved, and was un-aware of the wire tapping. Bruno also denied. o This testimony doesnt really help the pros. but does not matter here because the Grand Jury is an investigatory tool. (they also had immunity, and would not be prosecuted with these other defendants). o The Pros. did not trust them and had their phones wiretapped, where he learned they were actually bid rigging. - At trial, the defendants tried to call DeMattis and Bruno, who invoked the 5th. And wanted their testimony introduced under 804(b)(1). To show they did not inculpate the defendants on trial. - ISS: Whether the pros. had a similar motive to develop under 804(b)(1). o Tr. Ct. did not allow the evidence. - defendants want this in under 804(b)(1), and the ct. addresses if this is former testimony or not. o 1) First under 804(a) you have to determine if they are unavailable Here defendants are. They fit 804(a)(1) unavailable. 804(b)(1) Former testimony Does this work? o Def. argues that the pros. had similar motive to produce this testimony. Did the pros. have the similar motive to develop this testimony at the Grand Jury trial and this trial? At first we would say yes. It is a pros., he clearly wants to get these ppl to give testimony the defendants are guilty, however not so here. Ct. finds the pros. did not have the similar motive because at the Grand jury stage the trial was to investigate the crimes to determine whether to indict. And when he found out the witnesses were not going to implicate the other (6), the pros. didnt keep questioning them he stopped. Because they are not incriminating defendants even though the pros. has other information unknown to the witnesses that does further implicate defendant. The pros. didnt bring up this other info, because he does not want to tell them they are liars. The motivation behind this is that the pros. did not want to tip off to the witnesses the fact that they were wiretapping ppl. They didnt want this out in the public, (even though GJ is closed) didnt want witnesses to tell the defendants. So in order to keep developing the evid. against defendants they didnt want to tip off the fact to the witnesses. So not same motive, in fact they had motive to shut down testimony at grand jury trial. 70

At a preliminary stage of a jury investigation, he might not have a one sided motive (to convict the defendant) which is the motive at trial. The pros. motive is to find out whether or not there is enough evid. for a crime to have occurred, not that the defendant is guilty. o The burden of proof here is also very low (probable cause), as opposed to beyond a reasonable doubt at a criminal trial. - Under 801(b)(1) they found no similar motive, thus this testimony was inadmissible. And their testimony will not come in, it is not admissible. o Will this always be the case that grand jury testimony will never come in against the prosecutor? No, you have to examine the motives of ascertaining the testimony in both cases to see if it is similar. - NOTE: you are looking at the party against whom the evid is being offered and if their motive in both trials was the same. Lloyd v. American Export Lines, Inc. Coast Guard Civil Case, Lloyd is suing Export for a fight with Alvarez. Export joined Alvarez as a third party defendant saying that he was also responsible for Lloyds injuries. Alvarez counter-claimed against export, claiming they were negligent because they didnt provide protection against Lloyd. At trial, Lloyd does not show up, he is gone and we are left just with the counter-claim. Lloyds atty tried to contact him, and others tried to contact him, but could not find him. Before we get to this trial however, there is a coast guard hearing, that is wholly and completely separate proceeding. Lloyds testimony in the trial from the previous Coast Guard trial. Under 804(b)(1) Issue o 804(a) is Lloyd unavailable Yes, both counsels tried to get a hold of him, but could not get a hold of him (5). He failed to show up at a trial that he himself started in the first place. o 804(b)(1) former testimony Here this is a Civil action. And it surrounds the definition of predecessor in interest Here Alvarez was not there, he is arguing that he did not have a chance to cross-examine Lloyd, so it should not be allowed in. Export is saying that the Coast Guard Investigator was a predecessor in interest. (Alvarez contends this.) Alvarez this is odd because the Coast Guard purpose was a license hearing, and he was not a present party in interest at the hearing. However the court finds him a predecessor in interest. o Court looks at with motive and interest similar At the Coast Guard hearing it was about Lloyd being intoxicated and violent. At this hearing it is their objective to prove Lloyd was intoxicated and violent. They were both trying to prove the same facts, even though the result of the matter is completely different. Similar community of interest. CONCURRENCE: Said we should stick to the privity requirement of the CoMLaW o Also says investigator and Alverezs interest in the case are different. o They want a narrow definition of predecessor in interest. 71

Under this case the judge must make the determination under 104(a) whether there is actually a predecessor in interests. If the judge determines that there is not, then this evid. will not come in. This is different from the CoMLaW rule which is much more narrow.

Prob 7.24 Ask Magnolia 804(b)(3) - Mom says, did you rob that truck, dont lie to me He then says, ask magnolia, it was her idea. (cop overhears). o Wants to admit the evid. under 804(b)(3). - Comes in under 804(b)(3) not co-conspirator - Note under 801 Bartons statement can come in as party opponent. o He is unavailable. Fifth Amendment 804(a) - Defense arg: Cant come in against Magnolia o If Barton just said I was involved it would come in also against Magnolia, but not a statement that directly said Magnolia did it. o The statement can only admit Bartons involvement. The problem here is that it admits his involvement and Magnolias involvement. - Here he is admitting involvement, so how do we get this in? o Bifurcate the trial only admit against Barton. - How get in to trial of both of them? o You would try to get the statement in as saying that in the response Mr. Barton implicated himself in the involvement. NOT the exact statement, but Bartons admission of being in involved in the crime. o The defendant does not have to be the declarant in a statement against interest. Under 804(d)(3) this has to come in against the declarant refer to rule. - HYPO: Bob says this (above that he helped rob the truck ), but then before trial he dies, will this statement come in? Yes, it is admissible as against Sharp and Barton. (third conspirator). o He would be unavailable because of death 804(a)(4) So under 804(b)(3) it still comes in as a statement against the declarants interest. And still comes in against Barton and Sharp???? - In this case, either the case will be severed, or come in as stated before, that Barton just said he was involved. Williamson v. United States suitcase of Coke found - Harris arrested. At first trial said he was delivering drugs for defendant in a dumpster, but later find out this is a lie. Then Harris said he and defendant were taking drugs somewhere, but when Harris got pulled over, defendant got spooked and took off. Then at trial, Harris refused to testify because he was afraid of defendant, and despite contempt didnt testify. The ct. allowed the investigating officer to testify as to what Harris told him about defendants involvement. On appeal, defendant claims the evid. was not admissible under 804(b)(3), and they implicated him and not just Harris. Harris was unavailable under 804(a)(1). o Here the Agent is testifying, agent who talked to Harris. Harris is the declarant Williamson is the defendant. o Pros. argued the declarant Harriss statement were all against Harris interests, therefore admissible. So allowed as against defendant. - The S.C. took error with this admission.

72

Harriss statements inculpated himself, but also inculpated the defendant, and blame shifting is a form of lying to get a lower sentence. Here this is not trustworthy statement the only trustworthiness is Harris statements against himself, but not against defendant. o But you could admit the part that only self-inculpates Harris. These are the parts that are most likely true. It all comes in that Harris was involved in the criminal scheme etc. but not the part where Harris claims that defendant was also involved in the scheme. - So what is the value of this, because Harris is not on trial here? Why allow this? o Because there is going to be other evid. that they are going to introduce that connects Harris and defendant. So it helps their theory of the case, that defendant was the drug dealer. Prob 7.25 Alices restaurant - Restaurant set on fire. Arrested Aker who said the owner told him to burn the restaurant down. This is a civil lawsuit against the Owner. o Aker is the Declarant, defendant is Ramsey. The witness is the officer. Assume presented other evid. linking Aker and Ramsey. - If Ramsey is found liable but then appeals saying Akers statement was inadmissible hearsay, what would happen? o Officer gave the testimony he is the witness. We have to look specifically at what the statement is. - Parts of this statement are minimizing his capability (reduces his guilt), so does this still get in? o Parts minimize his culpability, and he infers that a third party was involved. And so this takes away from the statement being against his interest. (this is not completely and thoroughly against his interest). o So therefore only the parts that only inculpate him are going to be the parts that are admissible. - Remember that anything that makes the declarant look better is not a statement against his interests. Prob 7.26 Accomplices - 2 men commit robbery, security guard got shot twice, and cop shot as well. defendant Barone charged with robbery, Limoli was killed before trial. Limolis sister wants to testify to things that Limoli told her about the robbery, including that Limoli was involved in it. Is this evid. admissible? o Not a conspiracy statement, because not in furtherance of the conspiracy, because he is revealing to other ppl that the conspiracy occurred. So wont come in under 801(d)(2)(E). o What about the excited utterance 803(2) Here this is not that, not simultaneous with the event, this is after, in the safety of his sisters house. - Limoli is dead, and therefore unavailable as a witness, so we go to 804(b)(3) to get admissible the statement against his interest. o Lemon comment is purely against his own interest. o But not the same statement about Barone being involved, have to enter it just that Limoli was involved. (Cant even enter the part about Limoli firing a shot in the foot, because this doesnt take into account the rest of the shots fired and causes the inference that defendant did the rest of the shooting, lessening Limolis guilt, so cant admit this.) (He could have lied about only shooting one shot was to minimize his guilt, or minimize what his sister could testify etc.). Prob 7.27 Bucky Wasnt Involved o 73

defendant wants Melvin to testify that Tilley said that Bucky was not involved, it was Buzzy in order to exculpate defendant (Bucky). o Here this is a statement against Tilleys interest because he said he was involved in the stamp threat. o This isnt blame shifting to Buzzy, but just exculpating defendant while saying Buzzy was also involved. So can this come in? - Second part of 804(b)(3) o For exculpatory statements under this rule, there must also be corroborating circumstances. Here, this does expose Tilley (declarant) to criminal liability. It is offered to exculpate defendant, and yes it is the defense offering it. o This is an issue of preliminary admissibility to be decided by the judge under rule 104(a).rc Have to determine whether or not there are corroborating circumstances that clearly indicate the trustworthiness of this statement, judge decides this. Is there evid. of corroborating circumstances here? So could come in if there is corroboration, by anything (remember the judge cn look at inadmissible evid. to decide on this under 104(a). Prob 7.28 Clyde Mattox - After told he would die, he told defendants mother. Your son did not shoot me, I saw who shot me, and your son was not one of them. - Rule 804(b)(2) is ONLY admissible in a HOMICIDE case or in a CIVIL case, and must be made by declarant believing his death was imminent. o Arg. against: He didnt believe he was going to die, he was perfectly conscious. Judge will make determination here under 104(a) and make a finding by the preponderance of the evid Unavail. 804 purposes . Shepard v. United States Man poisoning his wife - Mrs. Shepard (V) is the declarant, witness is Nurse Brown, Dr. Shepard is being tried. - Have to look to 804(a) to see if she is unavailable, and she is, she is dead. - So now we look to 804(b)(2) - and it must be a homicide case, this is, so it could come in under this. o Second Issue Statement my husband poisoned me o Is this a dying declaration? Tr. Ct. said yes S.C. says this was not impending death, she gets sick on the 20th, makes statement on May 22nd, but then does not die until June 15th. She was also not in bad shape on 22nd, as she was the day before. She actually got better, and her physicians were hopeful. So they said in order for there to be a dying declaration there must be a consciousness of a swift doom. You must believe you are about to die. (here she was not). o Other problem with the evidence: Here statement was just accusatory or speculation, not personal knowledge. She had no personal knowledge her husband did this, just that she suspected him of it. The statement will only come in when the witness has personal knowledge. - How do you make the determination of whether she has first-hand knowledge that he was poisoning her? 74

This would be conditional relevance under 104(b) and only determines if the jury could decide by a preponderance of the evid. whether she had first hand knowledge of her husband poisoning her. Bryand Liang points out that ppl making death declarations right before they die, are made when there is not a clear state of mind, and therefore they should not be admitted. Unavailability: 1 privelege, 2 refuses, testifies, lack of memory, death, illness, absent, United States v. Gray 804(b)(6) Forfeiture by wrongdoing - Woman accused of murdering several of her husbands. The pros. wanted to bring in one of the statements made by a former husband that the defendant tried to use violence to keep the husband from testifying in another trial. The declarant is dead, and statement is about his wife trying to kill him. Wife (defendant) objects saying it is hearsay. - 804(b)(6) you forfeit your hearsay objection, when you kill the declarant. Because otherwise the declarant would be around and able to testify. - The defense is that defendant was trying to remove him from the other trial, not this one for his death. Ct. said this rule applies to him being a witness in ANY trial, not just this one, therefore the rule still applies. o So this comes in, she has forfeited her right to object, because she was the cause of the unavailability of the declarant. Prob 7.29 Dog Mauling - V gave statements to others after a dog mauling attack. o Right after on the phone to whipple she said that Dog just bit me o In same phone call Whipple told Smith that she told the owner you need to control your dog o Later at home, Smith said as I was walking by, the dog lunged at me. I put my hand out, and the dog bit me. o Also said thank god I had my sports watch on Declarant: Whipple The first statement would be an excited utterance under 803(2) Second statement would also get in 803(2) she was agitated at the time of this phone call, so still excited utterance. Third and fourth statements: Probably would not get in because too far in time after. (stress of excitement is lessened some time later). inadmissible hearsay. - NOTE: Smith could always testify to what she saw (the cuts etc.). 602 personal injury. Prob 7.30 - 911 Call about the attack, made by a person hearing it but not seeing it can come in under 803(1) present sense impression. o Problem: perso knowledge She doesnt have first-hand knowledge about the owner trying to control the dog, she is just guessing based on what she hears. So most judges wont allow this in for what it is being offered for, the witness never saw the owner struggle with the dogs. - Typically 911 tapes will come in under 803(1) but they still must perceive the action that it is offered for. 75

o Problem here is that she is just hearing it so her conclusions are inadmissible hearsay. Prob 7.31 Domestic Violence V - Domestic dispute, officer interviews V at the scene where she tells him the defendant knocked her down etc., then at trial she denies this, and officer is called to say what V told him at the scene. - What about 801(d)(1)(A) o Statement is inconsistent with her prior statement to the police officer. Does not work because earlier statement was not made under oath. So cannot use this to get it in. (if at depo or grand jury would have been ok). - 803(1) o Nope not present - 803(2) o It was right after, so still under the stress of the incident. (she was still crying and upset, under stress or excitement because of the event), o Judge will look to 104(a) and see if she was still under the stress of the event when she made the statement, and determine by a preponderance of the evid if this was an excited utterance. What would this come in for? If it comes in under this rule, It comes in substantively, and it would help the prosecution survive the motion for a directed verdict. This would be a controversial use of excited utterance evid. it raises confrontation clause concerns. o 803(2) evidence is NOT impeachment evid. it is substantive evid. so the pros can argue that the V was hit by her husband. - NOTE: for 803(2) time isnt as important. You could still be freaking out from an incident and hour later and make an excited utterance, so it could still get in this long time after. Prob 7.32 Joe Puleio - Heard a shot, ran outside, and someone said joe shot the gun. Can this statement come in? o The person who heard that statement is: Witness. The declarant is Bonny: the one who uttered the statement. o We dont know if Bonny saw who shot the gun, the declarant has to have first-hand knowledge, and we dont know if she did here, so not admissible by 803(2). Mutual Life Insurance Co. v. Hillmon life insurance false death. - Wife suing the insurance Cos to get life insurance policies on her husband. Ins. Co. says that her husband is not actually dead, but he is just in hiding, that Hillmon killed Walters with Brown to collect on the insurance money. - There was evid. that Walters had written a letter to his family that he was intending to leave KS and start a sheep farm with Hillmon. After these letters were sent, no one heard from Walters again. o There is no other link between the two men except for these letters. - Tr. Ct. found for the wife, but the S.C. reversed. The Tr. Ct. did not allow the letters in, but the S.C. did. o The S.C. let it in as equivalent to todays 803(3) to show his then existing mental condition to show his intent to go off with Hillmon to start a business. o This is used to show that Walters disappeared after his intention to go with Hillmon. Which supports the Ins. Cos defense that the body is Walters and not Hillmons. Introduced letters to show that his intent was not to disappear, but to go off with Hillmon to start a new business, so admissible. 76

Would this still work under 803(3) today? o The part in which he talks about Hillmon would not come in, just the part about his intent to go off and farm. But the parties talking about how he met Hillmon and made a plan with him would not be admissible. So it would be harder for the Ins. Co. to prove their case (that Walters met up with Hillmon.) Prob 7.33 Kidnapper - Guy goes out of the restaurant and never comes back in. (says he was going outside to get weed from Sandejas and he would be right back). - (a) Should the tr. Judge have admitted the testimony of Gomes and Sandejas, over the defendants objection, to prove that Larry Adell did not disappear voluntarily? o Admissible under 803(3) that he went out but would come right back. - (b) Should the Ct. have admitted their testimony to prove that Angelo was among those who kidnapped Larry from the Parking Lot? o Do the Sup. Cts Hillmon doctrine and 803(3) answer this question the same way? This is not admissible under 803(3). Because this shows a past meeting between V and Angelo (Similar to Hillmon) so you cannot introduce. So can come in under (a) but have to leave out that defendant was among the ppl that V went to see in the parking lot. I (walters am going to CC with Hillman) Shepard v. United States poisoning case II - Poisoning case of Mrs. Shepard by her husband again. - Trying to get in evidence under 803(3) as mental state. The part that showed she had hope of life, to rebut the defense claim that she had made statements of suicide. o Pros. says they want it in to show that she was not suicidal, but ct. says they are not really doing it for this, but just to admit the evid. against the defendant that was previously not allowed in. - Said the jury could not have relied on the evid. for the narrow purpose they offered it for, and that they really were offering it for the truth that the defendant was trying to poison her. - Tr. Ct. Let in to rebut suicide claim. o Here they say that the statement was really about things that happened in the past, not a future intent. (she should have said I cant wait till my daughters wedding not my husband tried to kill me, not of a future act, so does not get in. Prob 7.34 Elder Abuse - Testimony by man in Elder abuse trial, cant testify now because confused and incoherent. Statements: (803(4)). o (1) the lawyers testimony that V said he had fallen and hit his head Not admissible. o (2) the doctors testimony that V said he had fallen and hit his head Admissible made for the purpose of medical diagnosis or treatment 803(4). o (3) the doctors testimony that V said Maples had pushed him. The doctor would need to know he fell down because someone pushed him, not because he was just dizzy, that he was pushed is pertinent. But that Maples did it is not admissible, because we just need to know that someone pushed him. Argument it is admissible? Maples is the caretaker, and so this should be admissible because it was not the neighbor but someone who was in charge of taking care of him. People get sent to the doctor on purpose. 77

U.S. v. Iron Shell Indian Rape - Indian Girl case, she was assaulted and attempted raped. - Went to doctor, and doctor asked her questions about what occurred, that she was chocked, clothes taken off, that she was dragged into the bushes etc. - At trial she could not recall what happened, so then the doctor was called. - defendant argues the doctors statements should not be admitted under 803(4) because they were not related to the medical treatment. - NOTE: If a trial and she had testified, clearly she could have said what happened. o Ct. says that her statements to the doctor were necessary for him to treat her medically. o that statements were more truthful since given to the doctor for her treatment (likely to tell truth to get the correct treatment). Patients have a strong interest in telling the truth to get correct treatment. - Controversial part what else comes in through the doctors statements? o The statements about what happened to her is admissible, but not about who committed the offense against her. (Similar to problem before). Prob 7.35 Child Abuse I - Child is hit by his father, at doctors office tells the doctor he played with his dads records and then was hit. - What is admissible and what is not? o The statement about his arm was twisted etc. would be able to come in, but not about who did it, because that would not be necessary for treatment. So the child playing with one of the records is irrelevant to his medical treatment. o Excited utterance o Another argument: What about the fact the child is 4? We have this exception because (2 rationales) one is strong motive to tell the truth when you go to the doctor the 4 yr old might not know the importance of telling the doctor the truth. - You could argue that since his father and caretaker the doctor might need to know this to treat the child, so maybe this part could come in. Prob 7.36 Child Abuse II - TOME CASE: When did the motive to fabricate come. - This is based off a case we already did, involving Tome where childs story was fabricated so mom could get custody. - Here they are cross examining the doctor trying the show that the doctor didnt inform the patient (little kid) of the importance to tell the truth. o This is arguable, not a bright line test, just argue that the child did not have the capacity to understand the importance of telling the truth. Herbst, Young Childrens Understanding of the Physicians Role and the Medical Hearsay Exception - Shows that some ages dont understand the importance of telling doctors the truth (young children). - The younger the child the less capacity they have for telling the truth. - The whole purp if they Prob 7.37 Food Poisoning - Husband told wife that he was sick after eating at a restaurant. Claim is that the wife is suing the deli claiming negligence in supervising disgruntled employee who put arsenic in the food. - (1) Admissible/not admissible (Wifes testimony about her husbands statements and gesture offered to prove that he had eaten food from the Downtown Deli. 78

Not allowed under 804(1) or (2) this is not first-hand knowledge but an opinion, so will not work. o 803(4) this does not require that you say this to a doctor, so if made to get treatment it might be admissible under this rule. - (2) Nurse testifying as to what the wife said the husband told her (805) hearsay include w/in hearsay is not excluded if each part . . . o First layer can come in, because of the problem before, it is admissible under 803(4). o Second layer also admissible under 803(4) because it still pertains to medical treatment. The fact he named the restaurant doesnt really matter because since it wasnt just normal food poisoning but arsenic poisoning, might need to link it. (Judge will decide if this is admissible under 803(4) by suing 104(a). - (3) Admissible under 804(4), doesnt have to be patient that states it. And experts dont need personal knowledge. Prob 7.38 License Plate 803(5) never remembers and 612 if they do remember eventually *you can use anything to refresh a witnesses memory! - (1) double hearsay so have to look at person who yelled out the license plate number. (Not admissible?) - (2) this is refresh recollection, and to do this it can be refreshed with anything. He then testifies from his memory and not from the object refreshing his memory. - (3) Envelope offered as evidence? o Not allow it, he did not create the document. The only use was to refresh recollection, and the item used to refresh is not otherwise admissible. This will not come in. Johnson v. State recanted statement - defendant originally gave a statement, but now he is threatened and is not acknowledging the prior written statement given to police, saying he doesnt remember. o They get him to acknowledge that it was his signature, but that he doesnt remember giving the statement, doesnt remember what happened, cant verify he wrote it. o the statement cannot verify itself. The part that is written down on the statement does not satisfy 803(5). The witness must testify that it was their statement and they wrote it. So whether or not the statement at the time says that it is the truth, that is selfverifying language, and isnt enough to get it into court. So what do you need? o Mr. Taylor would have had to have some memory of making the statement, and that at the time he would not have written and signed it if it was not true. (that he wrote it and it was true). Here, however, not admissible He would not even give his name or say he remembered writing the statement, or the events of that night. In what other situations would recorded evidence be important? Not just hostile witnesses, but witnesses that have a lack of memory, So what could the prosecutor have done, before trial? Could have called Taylor to the Grand Jury (804)(b)(1) Could have also called to Preliminary hearing 804(b)(1). (prior testimony). - 803(5) 79

Prior statement must be shown to show the witnesses assertion correctly, and cannot be self-verifiable, the witness must take the stand at trial and testify to its correctness (true and accurate recording of what occurred at that time). (trustworthiness). Keep this rule separate from refreshing someones memory. - If it is admissible under 803(5) how does the evid. come in? o Substantive evid. comes in as truth of the matter asserted. (read into evid, unless introduced by an adverse party then it can be received as an exhibit (but here just read into evid.). Palmer v. Hoffman Railroad Accident - Couple hit by train. The contested issue was whether or not the warning lights on the train were on. Defense claims contributory negligence. They want to admit an accident report, created by them after the accident, based on the engineers recollection. Want this admitted because the engineer has now died. Seek admission under 803(6). - defendant argues not a business record because it is standard practice for the Co. to make these reports after accidents. o Ct. says this is made in anticipation for litigation, not just a business record, and therefore not admissible. o The regular conducted business of the RR was RR activities, not what they are doing here, so it does not fit under 803(6). - What is the reason for having the business records exception under 803(6)? o The reliability of them, it is important for those in your business to be telling the truth, you rely upon them. Important ticket for train includes the time you leave, etc. And so you can efficiently and effectively get ppl on and off trains. So records made to keep business going. - Another Rationale? o Necessity it is very difficult to find out who has the firsthand knowledge, multiple ppl have access to the document. Hard to show who was responsible for any particular step in the doc. Formation. - Bottom Line these were made for litigation purposes, not for regularly conducted business. Prob 7.39 Lawnmower Problem - wants to introduce forms she got from home depot with receipts for why other ppl returned the same mower that injured her (the pull cord broke on it). She wants to get these docs in against the manufacturer to show there is a defect in the mower. - To get records in, you have to call the records custodian, who can testify to how they are kept etc. o Clerk here makes these forms when items are returned (write down what is wrong with it. (and they write it down.) First, the manager is a qualified witness, he can demonstrate the records were made at time of their return. And Garden Depot is a regularly conducted business. (If this would have been a yard sale prob. Not) Accuracy was important for Garden Depot. - Problem with these records: o We really have 2 layers of hearsay here. She is writing down what the customers are saying. So, the first part, the business records is admissible, but the second part, what clerk is writing down, is hearsay, and the news record exception will not allow in the fact that the cord came loose. The record can show other ppl returned the merchandise, but the explanation is not admissible. Because the customers are not part of the regularly conducted enterprise, they are not employed by it. 80

A customer of a business does not have the same motivation to tell the truth that an employee does. o So if recorder gets info from non-employee of the business, then very likely it will not come in under 803(6). - Question 2: (using s form against her, when she stated returning because grass chute gets clogged, not mentioning cord problem.) o The defendant does not have to admit their own business records, they can call witnesses to enter their business records. o This could be an admission by a party opponent. Admission by Mrs. Donahoe (admitting that the cord was not the problem, but something else). So ct. can allow this in to come in against the witness (under Party-opponent). Introduce it to undermine her theory of product liability. 801(d)(2)(A). (bus. Records exception not even needed here). United States v. Vigneau western union - defendant was wring money through western Union to get money to buddy to buy drugs and ship them to him. Pros. wanted to introduce evid of the transaction of sending money in order to prove the defendant was laundering money through western union to his friend. The customer fills out the forms and puts their names on the forms etc. Can these com in against the defendant under 803(6)? - Ct. said that the dist. Ct. entered these to prove defendants identity, and this was improper, because the western Union agent didnt verify the identity of the person making the records. (the customer fills out the form and hand it to the employee). So you can introduce the records to show that money went to these ppl, but not who they were sent by (their identity of the sender, was not verified. (A drug dealer would even want to lie on these forms, so they would not get caught). (the person who filled out the form is not an employee of western union, and there is no guarantee that the form was filled out accurately). o However, 3 of the 221 forms, there was other independent evidence, linking defendant to the forms as the sender (found in his van). But since the rest were entered as well, they had to reverse and remand (but 3 on remand are potentially admissible). o But the rest, where no independent evid. to show who filled them out, are not admissible. o Why is this not an admission by a party opponent? We have no idea who filled the forms out. - The Human being has to come in, have to subpoena person, have to testify how the forms are kept in the regular course of business. Beech Aircraft Corp. v. Rainey Aircraft crash investigators report - Aircraft crashed, could not tell if pilot error or plane defect. There was a report by the navy that included fact, and opinions concluding the cause of the crash. Whether or not this report can get in under 803(8). (The report concluded it was pilot error that caused the crash, she wants to get it admitted). o objected saying the report contained opinions not just facts, so should not come in. - defendant wanted it in under 803(8)(C) o Tr. Ct. let it in, but left out certain parts. o Sup. Ct. said that everything should come in under 803(8)(C). This is a very narrow exception, in the report is fact and opinion, but this is all allowed. (here gov. investigation). So S.C. lets the evidence in (both fact and opinion). Liberal interpretation of admitting evid. 81

Rule: Portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rules trustworthiness requirement, it should be admissible along with other portions of the report. Police Reports and Business Records: - U.S. v. Oates o Want to introduce chemist report showing the contents of the samples to show they are drugs. o Adversarial trial, and therefore witness has right to confront individual who made the report, and the maker of the report is not there to be cross-examined. o NOTE: in most jurisdictions now, they allow these chemist reports in. But here cant come in because criminal defendant, and defendant has a right to confrontation. - U.S. v. Hayes o Pros. wants tax return admitted because shows he did not file taxes (IRS report). o Said the maker of the return can testify as to making the form, and therefore it is admissible. (confrontation is not implicated). Tr. Ct. allowed this evid. in. Criminal case. - U.S. v. Weiland o penitentiary packet Pros. wanted to introduce these in order to prove that the defendant is a convicted felon. Cir. Ct. allowed the evid. in because some of it was allowed in under 803(22) and 803(6) and 803(8). o Ct. admitted all under 803(8) because these are not like police reports, these are non adversarial, unlike police reports. ***She will not test us on 803(9) etc. only about stuff we talked about *** Residual Exception: - Rule 807 Statement not specifically covered by 803 or 804. o Exceptions that we have not gone over, but for which are also not listed at all. o Elements are in the rule. - Is this a common exception? o Nope. There is lots of other admissible evid. so we dont usually fall back on it, so 807 is fairly rarely used. You have to have an exceptional situation. (you kind of use this as a last ditch effort, extremely rare and unusual circumstance.) Dallas County v. Commercial Union Assurance Co. church tower collapse - Here clock tower collapses. County suing insurance Co. because they are refusing to pay the claim. They are saying that we insured you for lightening strikes, but not faulty construction. County concludes tower collapsed because of lightening, insurance engineers say collapsed from faulty construction (and on previously burnt wood) not a lightning strike. o There was conflicting evid. s Say it was a lightning strike, but the defense say it is not, the char was an indication of a previous fire. Want to introduce newspaper article of the previous fire, which is the contended evid. o Wanted to prove there was a previous fire, and you rebuilt the tower using faulty wood (fire damaged wood from previous fire). o Problem: The article is hearsay it happened 50 yrs ago, and they dont have anyone to testify. So they try to enter the evid. under 807. 82

First problem with this article: We have no idea who wrote it, and the author may or may not have even seen the fire, no clued if the reporter was a witness to the event. (lots of layers of hearsay). - Why not enter this as a business record? o Ct. said they didnt want to look at it under this. Said we dont know who wrote the article or even if they saw the article (why it doesnt fit under business records). - Ct. said that a contemporaneously written article has more reliability than a person who saw it 60 yrs ago. o They said here that human memory is not totally reliable, and we have a contemporaneous description and it is more reliable, especially because it would be absurd for the author of the article to make it up. (small town, everyone would know he was lying, and there was no motivation for him to make it up). o So they could not fit it under any of the other exceptions to the hearsay rule. - They will fit it under the residual exception: o They use Necessity and Trustworthiness We looked at this under other exceptions to hearsay o Necessity there are no known witnesses o Trustworthy and Reliable the writer had a strong motivation to tell the truth (small town no reason to lie written contemporaneously). United States v. Laster Meth - Detective in drug task force Co. contacted him that one of their employees were ordering substances from a Company using their account, that are used to make meth. defendant pulled over in car with materials in back of car. Argues Ct. should not have entered the order records of the ingredients that he ordered. (to demonstrate that defendant is a meth manufacturer). - Why not entered under the business records? o In this business the person who is the owner or operator and who has created all of these documents has died, and the detective has no personal knowledge of the event. Therefore, detective cannot testify to records because he was not familiar with the businesses day to day operations. - Tr. Ct. admitted them under 803(6) but appellate Ct. said this was wrong, they are not admissible under business records, because the detective had not examined the Cos books, and was not a qualified witness to testify as to their authenticity. So said should not be admitted as business records. - So what does the residual rule allow in? 2 conflicting arguments here. o Whether 807 covers a near miss (outside) or evidence that almost qualifies? So should it be used for almost qualifying but not quite, or for evid. that clearly does not qualify under one of the other exceptions. Here, they allow the documents in under 807, if a statement is admissible under one of the other exceptions, the exception should be relied on instead of 807, not here so you use 807. This was very very close to the rule (business records) but not admissible under that, however they let it be admissible under 807. This is an unsettled question. - So when looking at whether or not admissible under 807 we need to examine o The necessity of the evidence o The trustworthiness of the evid. o Whether we should go with the close enough use or the near miss use. 83

The residual exception is a very rare exception, use this every sparingly, it is very narrow. Usually this is a losing argument. Confrontation Clause: 6th Amendment - Comes from the 6th Amendment the criminal defendant has a right to confront the accusers against him. - Therefore, if wanted to, Congress could abolish this right in civil cases, but not criminal. - Hearsay Rule and Confrontation Clause are Exclusionary Principles therefore, something must be admissible under both the Confrontation Clause and the Hearsay rules MUST have BOTH. o Even if admissible under Confrontation, but inadmissible under Hearsay, still inadmissible (alternative theories of excluding evid.) - When object based on Hearsay, also object based on Confrontation you have two issues for appeal, and because Confrontation is Const. so in state cases it will federalize your claim. You want to federalize where you can, so after you exhaust your state claims you can go to the Fed. Ct. (So raise as many objections as possible). o Thirdly, because these two objections cover similar issues, they often overlap. Mattox v. U.S. - Charged with murder. When re-trial comes up the defendant objects to prior transcripts coming in, cause cant confront witnesses. But ct. said nope, you had the chance to do this before. They are unavailable so the transcripts can be used instead. California v. Greene - If the declarant testifies at trial and is subject to cross, admission of out of Ct. statement will not violate the confrontation clause. Crawford v. Washington Testimonial v. Non-testimonial overruled what previous cases said - defendant stabbed V for allegedly raping his wife. defendant charged with assault and attempted murder. - defendant claims self-defense however from the facts it looks like defendant and wife were the aggressors. - The two are interviewed separately, but when defendant is interviewed he says V had a weapon on his hands, but when wife is interviewed she tells the police she didnt see anything in Vs hands until after defendant had stabbed him. therefore wife is no help to the self-defense claim. Makes defendant look like the aggressor. o At Tr. defendant claimed marital privilege (So wife cannot testify) therefore state cannot call her to the stand. State wanted to introduce the tape recorded statement Wife made to police when she was interrogated about the events; Ct. let statements in. o defendant appeals. State claims since defendant asserted marital privilege (his actions caused wife to be unavailable) therefore he waived any const. objections. NOTE: We must know Crawford, Davis, Giles, and Bruton this is the law we will be tested on. The State Cts. tested the evid. differently: o Tr. Ct. allowed evid. in o Ct. of App. Reversed o WA Sup. Ct. affirmed Tr. Ct. All applying Roberts reliability and all came out differently. So U.S. S. C. takes it. 84

S.C. decides whether or not this evidence violates defendants 6th Amendment rights (he federalized his claim way down at the state level). o S.C. looked at historical background and made a final conclusion: Found a difference between testimonial and non-testimonial statements. And found that 6th Amend requires confrontation when testimonial evid. is being introduced against the defendant (w/out the right to confront the person accusing them.) o We have to determine what is testimonial and what is not testimonial in order to find out if there is a violation of the confrontation clause. Not just that you have the right to see the written evidence, but you have the right to face to face challenge of their testimony. - They reject Roberts and say it is too difficult, over reaching and under reaching: o Historical point the Ct. makes: The reliability shall be assessed by cross-examination. You have to call the witnesses in and actually cross examine the witness. The Old system where the judges, pre-trial, were determining whether or not reliable resulted in what happened in the procedural history here, uncertainty, no consensus on what was reliable and what was not reliable (so now must give in court by a person talking (if testimonial). - Did Ct. give us a definition of what is testimonial and what is non-testimonial? - Is the statement testi. If def forf right. o No, they give examples but do not give a hard definition. Leaves the def. of this for another day. o Remember Crawford came up with Testimonial v. Non-testimonial, but this is a very prodefense strong issuing of the Confrontation Clause they make it stronger. o Only testimonial can raise issue to - Ct. Reverses the case here, and overrules Roberts and remand the case. For the Pros to get it in, the pros. will have to assert this evid. is non-testimonial, but here it is likely it will not come in. o Here, Emergency was over, the defendant was nowhere to be found, the police were gathering evid. in order to prosecute whoever stabbed V. So since testimonial, it will NOT be admissible on remand. defendant will like the fact that his wifes testimony will not undermine the theory of the case. (and it will look like V was asking for it). (so she is unavailable through the marital privilege, and this evid. will not get in because of the 6th Amend.) DISSENT: Says we dont have to overrule Roberts we could just find this not admissible under Roberts , this is as far as we need to go. Urges the Ct. to be more cautious in its decision here. - 2nd Point: That the ct. does not define exactly what is and what is not testimonial and therefore creates uncertainty. o Also, we cannot wait for a definition, because cases are being tried every day. And you claim Roberts was not certain enough, but now you give us a system you dont define at all. For Exam: You need to articulate the reasoning on why it is testimonial and why it is non-testimonial. - Here, it was testimonial because it was developed for the purpose of prosecution. Davis v. Washington more definitions What is primary purpose? Is someone bearing witness? - V called 911 connection lost, but then got back present situation that BF (defendant) was beating her etc., and operator said she was going to send officers. Then V says that defendant had left, but the 85

operator pressed for more information. Then the police arrived and asked her questions and defendant was charged. (V didnt testify at trial). o Lower Ct. admitted 911 tape, but not entire tape. For o On 598 its admitted to prove identity, battery affidavit is easy. o - In Hammon o Police responded to a residence for a call of domestic abuse. V (while husband defendant was there) filed a police report to police and signed it. defendant was charged. V would not testify at trial unavailable and the Ct. admitted the police report and the police testimony of what she said. - Problem with Crawford it looks like the Crawford case was not domestic violence, but it seems to impact domestic violence cases because often in domestic violence cases the women will not testify or testify that they have no memory or it was an accident. o So now under Crawford we have to decide if this was testimonial or non-testimonial. - Ct. Looks At: o Come up with a Primary Purpose Test: Whether the primary purpose of the questioning was testimonial or non-testimonial. - In Davis: o There is an emergency going on so the 911 call was not really for the purpose of testimony at trial, but to tell the operator there was an emergency. o The operators purpose was to get help for the V and to identify who was causing the problem. o Primary purpose here was to protect the V, identify the attacker, and get help. Why is this non-testimonial? One part of protecting the V is identifying the defendant to protect her. Also the police might need to be protected make sure the defendant is not going to harm the police or is a threat. Only purpose here was to respond to the current emergency. o However, the Ct. finds that something changed here during the 911 call. That when V mentioned that defendant had left the scene, the emergency is over, therefore the rest of the conversation was testimonial, because it was more like an investigation, a structured investigation for prosecutorial purposes. So when he left, and when the operator told the V to be quiet and answer her questions. This is the beginning of testimonial evid. o So in David it was non-testimonial because it was an emergency and not an investigation, but then later after emergency was over, then it turned into testimonial. Here they do a fine line, but when you hear the tape, you cant really tell at what point the emergency is over. (especially the fact she had her children, which was left out of the case.). - Pros would argue this was all an ongoing emergency. - Defense would say that when defendant left, the emergency was over. NOTE: 104(a) this is an issue of preliminary admissibility, the judge decides if this evid. is admissible. For Primary Purpose test, do you look at the interrogator, or the unavailable witnesss purpose? o Here you could argue that you need to look at all the evid. The purpose of both under all the circumstances whether or not this was testimonial or non-testimonial. 86

But Davis does not completely give us a determination as to this. So you look at both. This is a preliminary admissibility issue as to whether this was testimonial developed as testimony for trial, or non-testimonial as an ongoing emergency. It is up to the attys to either argue this under Crawford is testimonial and should stay out, or non-testimonial and should stay in. o At least up and to the point where they ask about the restraining order, it seems this was an ongoing emergency. - Hammon part of Davis o What happened here? Officers showed up in person here (this is not a 911 call). Officers interview the defendant and V separately and V signs a statement. o S.C. says this is very similar to Crawford o 911 red flag. The dec is amy Said officers intent was investigatory, there was no longer an ongoing emergency, the V and defendant were separated, V said she was fine, the interview was not about what is happening but about what did happen. All of these under the S.C.s analysis is that all of the statements here were developed for purposes of prosecution, and therefore it was testimonial. So here, to get this testimony in, we would have needed Vs live testimony it cannot come in under the hearsay exceptions, because this violated the Confrontation Clause. - In Davis the part that was non-testimonial was an excited utterance, or present sense impression, so can come in, AND is ok under the Confrontation Clause. (the beginning of the 911 tape). o There are two hurdles. In Hammon fit under hearsay exceptions, but not Confrontation Clause. - Make sure you look at the purpose of the interrogation (purpose for the conversation, to be used in later prosecution or not). o None of it will come in Hammond. Ongoing emergency, l DISSENT: Thomas - All we have done is made a new mess. And has made it more unpredictable. o Especially the fact that police officers have 2 jobs investigation and protection, so now this will be impossible to find out which was the primary purpose and which was the lesser purpose. o And we are looking at largely unverifiable motives of police officers. So now pros. will always say it was an emergency, and it was ongoing etc. o He says what is testimonial is what it means (Formalized) affidavits confessions etc. Standard is Preliminary Admissibility and prove by preponderance of the evid under 104(a). Look at graph on 609 explains how works. Review: - Crawford Nontestimonial hearsay does not violate the confrontation clause, testimonial hearsay does. - Davis case what is testimonial and what is not testimonial 87

Primary purpose test: What was the primary purpose of the conversation? Even parts of police questioning can be non-testimonial. If non-testimonial, it does not violate the confrontation clause. - Testimonial statements produced with an eye for trial (grand jury testimony, etc). Prob 8.1 Deliver after death - Woman gives letter to neighbor and says give this to the police if anything happens to me. She was afraid her husband was going to poison her, and wrote this on the letter. (that she though he was going to poison her). o Assume no hearsay violation, is this testimonial or non-testimonial? Primary Purpose Test (Davis) Test Both Arg. for Non-Testimonial have to look at what Scalia says in Crawford and these are more like casual conversations with a friend, there is nothing the police did to get this information. She was just really confiding in her friend. Arg. for Testimonial probably this is, the purpose was to develop this letter and give it to the police. So can still be testimonial if you have no government or police action. (she is intending to create evidence to be used against her husband at trial). Ongoing emergency? No not really, she wasnt doing this to get help, but just for use in the future. o This will be testimonial. Prob 8.2 Confession in Blood - V-Lover - D-Rivera - W-Corabolla, Julio - Glanville third party (Julios uncle) o Julio is going to testify that one day Glanville told him he was at the robbery, and he saw V and saw D strangle V. Glanville does not testify, his statement is being introduced through Julio. Is Ds confrontation right being violated? o D cant cross-examine Glanville, because of the 5th Amendment (he is unavailable). This evid. is admissible under the hearsay rule (statement against penal interest. What about the 6th Amend. Is this testimonial or non-testimonial? Non-testimonial, just a casual conversation w/in acquaintances (they were just taking a drive down by the lake). o It would have been testimonial if Glanville had gone to the police or if on probation and to a probation officer etc. o Since this evid. here is non-testimonial, then it gets in if fits under a hearsay exception. o If testimonial it is barred by 6th Amendment. - Argument this is testimonial: Could be purposely telling Julio this evid. to help him at trial (get information out there that could get him a lesser sentence at trial not make him look as bad). o If a statement against penal interest (remember you have to redact the other parties name that it inculpates, you can only self-inculpate). Prob 8.3 DOVE interview - V was raped, and went to the health care facility, and part of the procedure is to gather information about the attack etc. - V died before trial, of reasons unrelated to the rape. - Pros. wants to admit into evid. statements made to the nurse during her evaluation. o defendant filed motion to prohibit statements arguing a 6th Amendment violation. 88

o o

What are defendants best arguments/: You argue this is not an ongoing emergency, it is after the rape, and help has already arrived. Could also argue that she was transported to the hospital by the police, and the police were present at the exam, and she signed a consent form allowing the examination to be collected for evidence etc. So even if this facility is not run by police, they have set up an agreement to where they follow rape kit protocol and gather evid. to be used at trial, and this is testimonial so inadmissible under the confrontation clause. And that the facility in cooperation with the police developed the release documents that V signed. So not evidence to use to make her better, but evid gathered for prosecution. - Pros. argue that not-testimonial because you are responding to an on-going emergency, it does not end after the rape is over, you still must treat the person (she could have bad terrible injuries). Goes from time of incident to when she receives treatment. o The fact that she had epilepsy shows that her medical history and all this information was necessary for treatment. This was the primary purpose medical. - How can we solve this? o Do what they did in Davis maybe have a divider line on what was testimonial and what was non-testimonial (only admitting some of it). If not necessary for treatment it was testimonial, and therefore it should be excluded. (like his name, that was not used for anything to do with Med. Treatment). Prob 8.4 Childs Statements - Child who was sexually assaulted. Babysitter saw defendant leave the room. Little girl told babysitter what happened. Then Mom asked girl about what happened. Then police are called and the police ask the little girl about what happened. Then at the hospital the doc. And nurse question the little girl about what happened. o At trial the girl had emotional difficulty so she was not called, and was never found unavailable, she never testified. o defendant objects to admission of all statements coming in through any of these witnesses as violating defendants 6th Amendment. - Babysitter: Right after defendant left, and so kind of was an emergency so non-testimonial. - Mom: Arg: Non-testimonial, just a conversation between Mom and Daughter, and still kind of an ongoing emergency since it was a person that had access to the house, and was a friend of someone. This was not a stranger invasion. So Non-testimonial just trying to make the child safe. o Also, if 4 yr. old their language might not be clear, and family member can understand them better. (primary purpose was to resolve an ongoing emergency). o What about that she named her attacker the identity is needed because this person has access to the child, so to make the child safe, the identity is important so non-testimonial. - Police Officer o Primary purpose: Is it the police officers intent on gathering info, or the childs purpose in giving information? This test will look at both, and the judge will decide under 104(a). o Look to what the police officer is trying to do: Non-testimonial he is responding to an ongoing emergency, and he finds out the defendant is still loose and has still not been apprehended. So not aim at prosecuting, but identifying defendant so we can stop him from hurting anyone else. Testimonial it is given to the police, child is safe, and into only given for trial prep. o 89

 This will be a close call if testimonial or Non-testimonial. - Nurse and Doctor o Primary Purpose: For nurse and doctor it was for treatment, to provide medical care to the child. ER doctor and nurse are going to come up with a plan to protect the child, and all the information gathered could be gathered for the purpose of protecting and treating the child not for preparation or trial. Giles v. California Third case in Confrontation Clause analysis - defendant (Giles) murdered V(GF), and therefore she could not testify at trial. So the evidence coming in at trial is through a police officer testifying about a prior domestic abuse that happened between the two, where V implicated defendant as the prior attacker. So this was a different event that predated this trial. - Pros. argument: Witness is unavailable because of forfeiture by wrongdoing. o 804(b)(6) therefore since he killed her, he cannot complain that she is not in the court room to testify against her. - Scalia said that: 804(b)(6) means you have to prove that defendant engaged in conduct to be designed (intent) to prevent the witness from testifying. o You have to prove the INTENT, the defendants actions INTENDED to make the V unavailable as a witness. Here, they did not prove intent just used a circular argument. - The judge will make a determination if the defendant intended to not allow the V to testify at trial (by preventing their testimony) by a preponderance of the evid. Can no longer just be an assumption, have to prove intent. (preliminary admissibility 104(a)). (Forfeiture by wrongdoing). o If Judge decides defendant had the intent to prevent her from testifying (he must intend to prevent her from testifying). Prob 8.5 Forfeiture Motion - First Q Do we have a witness not available for trial? o She says she will not testify at trial, and if she is made to, she will say she fabricated everything before (but the trial has not even started yet). She is threatening to recant. o So this is inappropriate at this time (pre-trial) to say the witness is not available, she has testified before, and therefore is available, she is just saying she will lie. o So we cannot do a pre-trial ruling that the defendant has forfeited by wrongdoing to her testimony: We dont know if she will testify or not We should also have pre-trial rulings that encourage live testimony and not out of court statements. - So is she unavailable? o Available witness means you can come to ct. and testify, not that you will lie if you do, so pros has not showed her as unavailable. - What if she does not show up is there a forfeiture by wrongdoing? o Possibly. But the judge will rule under 140(a) and will rule if by a preponderance of the evid. is she was unavailable due to the defendant. (has to look at what the defendant did here that prevented the witness from testifying against defendant. Look at witnesses conduct, not defendants. o What evid. of this do we have here? 90

Probably some expert testimony, about the phases of Battered Womans Syndrome, and why these phases are relevant. Why the Vs behavior fits into cycle and is why she did not show up. - We will only reach this question if she does not show up to testify but we must look at his actions to see if he intended to prevent her from testifying only issue if witness does not testify. - Problem shows forfeiture by wrongdoing might be really nice, but, can only be used if unavailable, and could be forfeiture by wrongdoing even though he is acting nice. Bruton: Last case in the analysis - Bruton and Evans, tried jointly. Evans confesses and implicates Bruton (in a oral statement to a postal inspector). Same jury hearing all evid. against both of them. (JOINT TRIAL). - Def. is mad because the confession by Evans was admissible only against Evans, and not Bruton, however it still came in and told the jury to disregard the confession as to against Bruton and only hold it against Evans. o So told them Evans confession could only be used against Evans and not Bruton. - U.S. S.C. said this is a violation of the confrontation clause and not fair because Bruton cannot cross examine Evans because of the fifth Amendment, so violation. - Ct. said the jury instruction was not enough to substitute for cross-examination. So therefore yes you told them to ignore it, but they are not going to ignore it. o Therefore the statement is not admissible against Evans or Bruton in this trial If you want to introduce this statement against Evans, it would have to be separate trials (you cannot introduce it in this trial) must have separate trials. You could also have separate juries. What else could you do to conform this to the Confrontation Clause? Redact part of it, so that it only implicates Evans. (however, you can argue that redaction would still implicate Bruton so still should not be allowed.) o This is the current state of the Law. DISSENT: - Said there was nothing saying the jury did not follow the instruction. That juries should be trusted, etc. - W/out showing the jury violated the instruction we dont know if the 6th Amend was violated they might not have even looked at the confession. Rules: 701, 702, 703, 704 - Lay Witnesses are generally not allowed to give opinions. - If you see a witness not qualified as an expert, giving an opinion, you have to look at 701. Prob 9.1: Insurance Claims investigator. - Testified that he asked defendant a question, and defendant responded, the investigator accused him of setting his own truck on fire.. The investigator said he (defendant) responded and, sounded depressed. o Clearly, here, the investigator is not an expert. o Look at 701: (a) rationally based on the perception of the witness Here the witness asked the question, he was there, he heard the defendant, and someone being depressed is something we always determine about other people. However, if he said something that was not related to the perception, then this would not be something under (a). 91

(b) helpful to a clear understanding of the witnesses testimony or the determination of a fact in issue, and Helpful for the jury to get this lay opinion, because otherwise they dont know how he responded (in what way). (c) No specialized knowledge needed, this was just a mere perception of the situation (not clinical definition or explanation given (Scientific)). ****Must meet all qualifications of 701****. Prob 9.2: How Old? - defendant charged with selling cigarettes to minors. Statute allows aff. Defense the defendant reasonably believed the buyer to be of age. defendant seeks to offer testimony of other witnesses familiar with the minor buyer and would testify she appeared to them around the time of the charged cigarette sale to be 20 or 21 yrs. Old. o Got to 701 (a) It is rationally based on their perception, they were there. (b) helpful to understand what she looked like (others perception at the time is helpful to what his perception was. (c) this is not technical knowledge about her age, not an invasion of the experts realm. Prob 9.3: White Powder Tasting, then saying tasted like cocaine - 21 yr. old girl found a bag in one of her fathers shoes containing a white powder. She tasted the substance. She testified that she used to have a Coke problem, and that when she tested the substance, it tasted like Cocaine. o 701 (a) witnesses perception yes, it was her taste. (b) it is helpful to seeing if the drug was cocaine. (c) however, it seems to be based on specialized knowledge (violates (c) of 701). Invading the province of the expert. Who will determine if this is testimony that should only come from an expert? 104(a) w/in the tr. Ct.s sound discretion. o Here, Her testimony is not that she tested it in a lab, this problem gets across that, what is this was sugar in the bag? Could she testify to that that it tasted like sugar? Maybe??? o She is recognizing something by taste, which is something that is not reserved to experts, so it comes down to what the judge thinks. This is going to be a judgment call, but the federal rules will lean toward admission under 701. (you might ah veto just argue unjust result to keep this out.) United States v. Ganier Computer file deletion, forensic software - Convicted of destroying evidence. He instituted a program for his company where e-mails were deleted every 6 months, and he also deleted files from his other computer. He wanted to give an expert that they were really just placed in the recycle bin (defendant charged with obstruction of justice, impeding an investigation, for destroying). The Gov. wanted to introduce evid. that an officer who ran forensic software on the computer to see that he actually went to the recycle bin and permanently deleted things (gave a print out of his searches.). - Gov. says this was not an expert witness, just saying how the files were moved around etc. - Gov. did not notice as an expert, but wanted to come in as a lay opinion. 92

o Issue: Whether this witness was an expert, and should have been noticed as such? - Ct. Said: Yes, the records from the program was not a simple word document (a home thermometer) but was more like a doctor running diagnostic tests and finding a medical problem. Therefore this is not a lay opinion. - This was specialized technical knowledge and is outside the realm of lay witness testimony. o This is w/in 702 and therefore the Gov. should have noticed up defendant that their witness would be giving expert testimony. This violated 701, because it was really 702 evid. They violated the procedural rule in Crim Pro, but not noticing defendant that the testimony that would be entered would be expert. - The remedy: Said when Crim. Pro has been violated the least restrictive rule should be applied. The ct. below excluded the testimony, therefore this was not least restrictive rule, so it is remanded for a better remedy. o So on remand, the judge will have to find under 702 that the witness is an expert, and can testify as such. - NOTE: For test, know the rules, and use the tests. Prob 9.4: Hieroglyphics - Phone book found in drug dealers house. The phonebook had symbols next to names, and an officer (detective) deciphered the symbols. defendant objects they are not an expert, and trial ct. allows the testimony as a layperson of how he deciphered and what his conclusions were. Should he have been admitted as a lay witness or an expert? o This is just really a simple code, that he just assigned a number to each symbol, and used this to find out the numbers, so really simple and you dont need a cryptographer to break the code. o If this were more complicated, then you might need expert knowledge, but it seems here that the individual just sat around trying to figure this out. This was just based on the witnesses ability to figure out which numbers applied to each symbol. Lack of sophistication keeps them w/in the lay witnesses realm. o Specialized Knowledge yes, but it just came from him sitting around trying to figure out what the code was. - B. Expert Testimony remember after qualified (need to still go to 403 weighing test). o (5) Demands the Law Places on Expert Opinions 1) Proper Qualifications the witness must be qualified as an expert by knowledge, skill, experience, training, or education. (702). 2) Proper Topic: In general, the experts testimony must concern a topic that is beyond the ken of jurors. Moreover, the expert may not simply tell the jurors what result to reach in the case and may not intrude on the judges role as legal expert. That is, the experts opinion must assist the jurors by supplying information or insights they otherwise would lack. (702 and 704). 3) Sufficient Basis: The expert must have an adequate factual basis for her opinions (702, 703). 4) Relevant and Reliable Methods: The experts testimony must be the product of reliable principles and methods . . . reliably [applied] to the facts of the case. (702) 5) Rule 403 Challenge: the evidence, if challenged, must survive a 403 weighing test. 93

Prob 9.5: Horticulturist - Guy that does lots of weed, and has experience being able to tell whether the weed is Colombian or not, and therefore question of whether he is an expert under the meaning of 702? o Based on personal knowledge (like cocaine problem) but he is saying where the marijuana is from, not just what it is. ((he had smoked the marijuana each time he helped unload it to make sure it was Colombian)? - Should he be qualified as an expert as to being able to tell where the marijuana came from? o He can give his lay opinion it is marijuana, but what about its origin. o Is his testimony based upon sufficient facts or data, or reliable principles and methods? He clearly has enough to give a lay opinion, but does it move into an expert opinion? If you objected what would you do? If you are smoking it, then these are not reliable principles and methods. You would say he is not qualified as an expert by virtue of the evid. in this problem. This will also come down to whether or not the witness has the area of expertise, or he is merely relying on just taste as a lay witness would (cocaine). United States v. Johnson- Weed Guy - Witness smoked lots of weed, so qualified as a witness, prosecutions witness. FL State biologist is on the defendants side. So Defense calls the professor to say that there is no way that the drug dealer could know where the weed was from (Colombia) by smoking it/looking at it. o Jury actually goes with the drug dealer, finds guilty based on drug dealers expertise. - We learn here that, a jury can completely reject an experts opinion (like they did to the professor here). Even though expert said you cannot identify where the marijuana came from, they believed the drug dealer who said you can. o Juries resolve these battles of the experts all the time. Jinro America Inc v. Secure Investments, Inc Bad Korean Business - Bad deal between a Korean and U.S. Co. alleged broke down because U.S. Co. alleges it was a sham. Offered a private investigators testimony that the deal was a sham, because of the way Korean businessmen behave in general. The witness had managed a Detective Agency in Korea, and he claimed to have familiarized himself with Korean business as a hobby. He had no formal education or training in business or as a cultural expert. He was merely a private investigator who had been providing commercial security for over 4 yrs for various non-Korean Corps. Doing business in Korea. - Go to 702 o The ct. said he did not have the qualifications here to be an expert here, contracts with Korean companies. o You have to be an expert in the field, and qualified to give the opinion on these facts. o Said his expertise was completely unrelated to the opinions that he gave. Other problems with his testimony? He really is just saying Koreans as a whole are just untrustworthy, this is propensity evidence. They said to give this type of evid. would need to be a culturelist, anthropologist, and they would have had to have objective studies on it. o His was just based on living there, and reading newspapers. 94

Concurrence: Said that just because he does not have academic credentials, doesnt mean he does not have the knowledge to be an expert. He finds this testimony is however, irrelevant as bad character testimony, but does think if not that witness could be deemed an expert. Take Away: You have to be an expert in an area. And you have to give an opinion w/in that area, not outside of it. He was an investigator so could give expert testimony w/in that, not Korean culture.

Prob 9.6 Drug Argot - Officers expertise in narcotics trafficking communications. Giving testimony where he tells what the code they are speaking in, and what the statement actually means in the drug dealers conversation. (statements like how hungry is Panchito? Would he like to have breakfast? which means that Pancho could meet in the morning to be loaded with cocaine.). - Allowed? o Under 702 Seems his knowledge is more than that of an avg. lay person or officer. So seems he is an expert. She would have challenged him a little more to see that he had more knowledge about other lingo, and to make sure he didnt just get lucky this time on these phrases. o When she practiced she would object to Amounts of drugs, if they testified that the amount was more than you would personally use an therefore they were selling. She would object and say they are experts to catching drug dealers, but not what they are doing with it. So only experts with catching those not good at selling because they are arrested, not at the amount that are good at it. Also would say that buying amount of drugs is no different than going to Costco, some ppl for personal use buy in bulk. Sometimes she would win. a. Matters of Common Knowledge Prob 9.7 Fading Memory - Conversations where Libby said things, and then later said that he did not say them. So then Libbys defense is that his memory was just innocently confused, and therefore he did not lie. - Testimony from Dr. Bjork who is an expert as to the science of memory. - Should we allow this evid. to come in from the Dr. explaining why this memory loss could exist? o Here, the issue is whether or not Libby lied. o The expert is saying that everyone has a bad memory. Do you need an expert to tell you this? No, everyone knows this. o This is really something that is w/in the area of knowledge of every juror, this is a very unsophisticated example, and inappropriate for expert testimony. This is just something that we all know. Prob 9.8 Confusion - 2 Companies coming out with similar product line names. Dispute when they both wanted to keep their names and not change them. One Co. produced an English Professor that the words were confusingly similar because their spelling was close (to prove they were too close and confusing). o Is 702 Satisfied Nope 95

Very similar to the problem above. We dont really need an expert to tell us that the words are spelled and sound similarly. You really dont need an expert to do this. Will this assist the trier of fact any more than just pointing it out to the jury? o Other side would argue that it would help the jury. Prob 9.9 Housing Aids - Experts testifying that advertising targets an audience and sends a message to that audience. Is this specialized knowledge that will aid the jury? o There is not a right or wrong answer (you would not want to identify any other rule but 702) Whichever way you come out does not matter just that you apply the rule. b. Opinions on law and Opinions on Ultimate Issues Prob 9.10 - defendants intent - 2 ppl purchasing those items that when combined can be used to make meth. - Expert wants to testify that (forensic chemist) says the items were possessed with the intent to manufacture Meth. o Here the expert is testifying to the defendants intent to make meth, and is telling the jury to reject the defense. o If all the testimony was that the items combined could produce meth, but when he goes further in his testimony and says that he has the opinion the material is possessed with the intent to manufacture meth, this goes too far. o intent is part of the elements required to prove the crime.. So problem with testimony is that it goes too far, (should have just stuck to the facts of what was possessed and what that could make). - Here, he cannot testify the items were possessed with intent to manufacture meth. Hygh v. Jacobs excessive force - Officer is in a fight with , struggling with him. Officer strikes and Ps check bone breaks, and has nerve damages. Issue is whether officer was acting in self-defense, or if the force was excessive. - Issue: Whether or not the statements by the expert witness (Cox professor and expert concerning law enforcement) was admissible when he formed legal conclusions in his testimony? o Ct. says that it crosses the line between being admissible opinion and just telling the jury what it should decide. o The expert here could explain what types of force is allowed in the system, and then the jury could have decided what was appropriate, and what was not. o Here he went too far and made legal conclusions, basically telling the jury what to decide. (he said using the baton or flashlight to strike someone in the head was deadly physical force that would not be justified under the circumstances. And also accepting s story, there was no real legitimate reason for use of any force by defendant. And that the force used was deadly physical force totally improper and not warranted under the circumstances. Prob 9.11 Officers truthfulness - Asked about technical stuff about the shooting, this was ok. But then asked the expert if he thought the officers were lying, this clearly went too far. - This is instructing the jury as to what they should conclude, rather than giving them information where the jury could make their own conclusions. o Here the jury is supposed to decide if the officer was credible and truthful, therefore having an expert say this is basically telling the jury to make that conclusion steps over the line. 96

True or false, relying on inadmissible does not make it, the judge has to determine that the impermissible reverse 403

State v. Bantangan - defendant accused of having sexual contact with daughter - defendant convicted of sexual assault of daughter. She first said physically abused, then said sexually abused, then said nothing happened. Then at trial said she was sexually abused. - Pros. called expert in clinical psychology with sexually abused children, and he explained how abused children have erratic weird behavior after the alleged abuse. He also basically says she told the truth. - Testimony admitted to explain why the child acted erratic the way she did (because her behavior seemed to be against someone who was abused, but in fact it was normal (erratic). - That she was following the pattern was perfectly fine, this works. To explain her behavior. (consistent with studies). o But the expert went too far, and strongly implied that she was in fact abused by the defendant (this is inadmissible). This goes to the credibility of the witness (v) and this is something the jury will decide. (expert cant say, the witness is telling the truth). o Expert cannot say the child was telling the truth but can say that based on scientific research, her behavior conforms to other sexually abused children. - Found that all of this testimony invaded the province of the jury, and not appropriate for expert testimony. Cannot come in and say a witness is believable because of my expert information. (expert said that V was believable, and that she though defendant abused hertoo far). United States v. Hines eyewitness expert - defendant (black) robs bank, teller (white woman) is the only witness to the crime. defendant calls Dr, Kassin to testify to the cross-racial error in identification, and all of these other problems with identifications (memory) etc. 97

Ct. says here, unlike the memory case where we all know we have bad memories, in witness identification you over emphasis that a witness i.d. is correct. Scientific studies have determined that ppl are terrible at identifying others, and this is particularly troublesome when the i.d. is cross-racial. o The expert did not say, dont believe this witness, they said the expert had not even had any contact with the witness, and was not making a judgment call on that witness, but just what studies had shown. o Just showed that identification is very flawed, especially at cross-racial etc. o So because there is a common misunderstanding that identifications are good (heightened reliability) this is allowed to show the I.D.s are actually unreliable. Also, allows jury to make their own decision. Expert Testimony: - What can experts Base their opinions on?: o Rule 703 1) Personal Observations Blood test on a blood sample, and the expert can say they tested it and found a blood alcohol content of 1. 2) They can base their opinion on everything that is given in trial. 3) They can rely on those facts made known to them before the hearing Issue: They might be hearsay o So what do you do? The fact or data need not be admissible in evid. in order for the opinion or inference to be admitted. If the defendant calls expert to the stand, the expert can give their opinion, but cannot say they have it because of the conversations they had with witness out of court, and said the defendant was schizophrenic because of incidents told to him. He can say his evaluation shows schizophrenia, but not all these out of court statements. Prob 9.12: Stashing Guns - Gun concealed in defendants dash compartment. - Issue: Whether the defendant actually knew the gun was there, because this was possession of a firearm (and for this you have to knowingly possess it). - Expert in where criminals hide their guns, and qualifications were conversations he had with inmates while he worked in the county jail. (50 or 60 inmates a day). o They probably said where they concealed weapons, and where others hid their weapons. - Did he have a proper basis for the testimony he gave? o Persons he spoke to were inmates, so the prisoners had no incentive to tell the truth, (he was an officer in the prison). o You would want to know if what ppl tell them in jail is what officers rely on when searching for guns. o Problem here, it doesnt seem like he catalogued this, wasnt keeping track of those he talked to at all. (only says 50-60). o It seems really far removed from who is actually hiding the guns. We have no idea to know if he was using a systematic approach, the ppl he interviewed could have been relying on movies etc. 98

No question that these statements are inadmissible hearsay, however can the expert rely on this information? o Yes, Rule 703 allows him to. As long as type reasonably relied upon by experts in the particular field. (so if officers reasonably rely on this, then ok). He is saying that it is typical for ppl to conceal weapons in the engines of the car. Not whether defendant knew it was there, but if ppl generally do it. - There would be a better basis for the evid., if the expert searched 50-60 cars per day searching for evidence, and he recovered guns in the engines routinely. o Because then he is not relying on hearsay, but information that was personally gathered. - Other issue: How could they have otherwise gathered this information (if you object the expert has no personal knowledge) Could you have this study? o Probably not, you would have to have defendants confess to where they hide their weapons, no one will tell you this. o No way to systematically study this unless you rely on hearsay Can rely on hearsay, as long as it is information reasonably relied on by the particular field (here that field is law enforcement). Prob 9.13 Doctors Note - Replacement of aortic valve. Something happens in surgery, and his catheter comes out. Resident wrote a note (Dr. Nirmel) of the aortic anulla (the accidental episode). This neurologist was not involved in the operations (note was placed in the records). - is suing the hospital, and using this note to prove negligence, that is because of negligence of this thing coming out, the problem happened. - Expert witness: Dr. Kay, relies on Nirmels note as true, then negligence is the cause of the neurological damages. If this happened, it would have caused neurological damage. - Other Dr. Bresnan testified that he relied on Dr. Nirmels note was true. o So here the note had to be admissible, in order to allow the expert to testify, why? In the problem before, we did not need to know how the officer became an expert, it didnt need to be admitted, only needed to be admitted to go to his qualifications. The hearsay was just why he could testify, inadmissible hearsay qualifies you to be an expert. Why do we need this note into evid. here? The note must be substantively admissible to prove D. Kays opinion that this caused the injury. This must be admitted or you have no case at all, you would just have an expert opinion that the hospital was liable w/out knowing why. o Under what theory is this admissible: The note Under 703 Might not be relied on by experts in this field, the doctors stated that the note was unusual and not usually within charts that is what Dr. Kay said. But other Dr. said they would have relied on it. Under 803(4) Note was for medical treatment or diagnosis. Arg. against: Since made after, it might not have been for treatment or diagnosis. Because of testimony before. 801 Could be admission of a party opponent: 801(d)(2)(D) 99

These will be facts or data made before the hearing. And do not need to be admissible as long as reasonably relied on by experts in the field. Here the problem is that the note is not something that is reasonably relied on by experts in this field. Can this come in under 803(5) recorded recollection Probably not, because you have to demonstrate that you once had personal knowledge. What about 803(6) records of regularly conducted activity Testified this note was bizarre so probably not. Also has to be entered by a hospital employee, and we have no idea where this came from. (judge will determine this under 104(a), by preponderance of the evid.) o Another Problem Dr. Brensans testimony that he did not doubt what was written, and said what the other Dr. Wrote was the truth of what is stated. We had no one testifying that this note was one reasonably relied on by experts in the field, we actually have testimony to the opposite. Dr. Kay said he had never seen one like it before. o But it will all turn on 803 exception and if on 104(a) if allowed as substantive evidence. Do not need to know this for the final. In Re Melton The Start of Expert testimony - Civil commitment against defendant, involuntary commitment against his will. Have to prove that he is a danger to himself and to others. - The only information the psychiatrist relied on to determine defendant was a danger to others, was the mothers testimony that defendant punched her. o The hearsay on which an expert relies is inadmissible substantively, and is only admissible if its probative value outweighs its prejudicial effect. And only comes in to assist the jury in evaluating the experts opinion. Have to have a limiting instruction telling of such. o This was inadmissible substantively (this is not the mom testifying). There it is very difficult to put this hearsay toward the expert and ignore it as to defendants dangerousness, they are close, and this potential prejudice to defendant is great and therefore the probative value does not significantly outweigh the prejudicial effect. (so should not have been disclosed). The expert could testify that yes he is a danger but not to how he thinks this (could not disclose the hearsay) To solve this you get the mother to testify to it, then it is no longer hearsay. o How could a medical record come in that you wrote. 803(5) recorded recollection. If the individual comes in, but they have no memory of it, it can come in of they said they wrote it, even though they dont remember what they wrote. So moms statement will come in to prove not that defendant attacked her, but that the expert relied on it. Ct. said could not come in. - Rule: Under 703, the gov. may not disclose the mothers hearsay accusation to the jury unless the ct. determines that its probative value in assisting the jury to evaluate the experts opinion substantially outweighs its prejudicial effect. And if this evidence comes in, the judge must enter a limiting instruction, upon request, informing the jury that the underlying information must not be used for substantive purposes. 100

Frye V. United states Accuracy of Expert testimony - defendant wants to intro the blood pressure test that defendant took and passed (lie detector). Wants an expert to testify to it. Ct. says no. - Establish a Test. Rule: While cts. will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. o Old Rule: But FL still uses this general acceptance test. (know for bar) - We need to know Daubert o When does Frye Apply? NEW JERSEY IS A FRYE CASE We do not do it every single time a witness is called (expert), typically applies when there is new info that has not been tested in a ct. room before. (like in this case). The Frye test made polygraphs inadmissible for many years, and now Daubert has the issue re-visited. Daubert v. Merrell Dow whether the Frye test survived the adoption of the Fed. Rules - 2 Children alleged that Bendectine caused their birth defects. o defendant had experts that there was no link. o had experts that said there was a link. - Said under 702 the trial judge must ensure that any and all scientific testimony or evid. admitted is not only relevant, but reliable. o Determined that Frye did not survive the adoption of 702. Because the Fed. Rules favor admission of evid., and therefore the Frye decision was against this, because it wanted general acceptance that takes too long. The Daubert Test: - The Tr. Judge must determine at the outset to 104(a), whether the expert is proposing to testify to 1) scientific knowledge that 2) will assist the trier of fact to understand or determine a fact in issue . (must be relevant and reliable). o (5) Factor Test: (1) Whether or not the theory or technique can be (and has been tested) (2) Whether the theory or technique has been subjected to peer review and publication. (3) Consider the known or potential rate of error and (4) The existence and maintenance of standards controlling the techniques operation. (5) If the scientific community has given it general acceptance So they should use these to determine if the scientific evid. is admissible. o When do judges make this? Pre-trial Hearing preliminary finding under 104(a) So the proponents will show the reliability of the testimony. - Merely because the evid. does not meet the Frye test, we should challenge this evid. in the ct. room. By vigorous cross-examination, contrary evidence, and an instruction on the burden of proof. o Daubert allows more in. Once the judge determines if the evid. is admitted, the jury then determines if it is reliable. So even if admissible, you have the opportunity to test the evid. against in front of the jury. Relevance (in the two prong test is still just the 401 standard) If it fails any prong it is inadmissible. - Even if medicine is not generally accepted you could have an expert come in and testify to its effectiveness (under Frye). 101

Daubert v. Merrel Dow II Looking at the evidence (appellate level) - Remanded case to re-assess the expert testimony in light of the above decision (before based on Frye). o They analyzed it under Frye and found it inadmissible. Hey now re-analyze it under Daubert and find it inadmissible again. 2 Part Test: (5) General Observations o They didnt really go through them, they mentioned them and moved on to what they thought. That is because in Daubert those factors were NOT to be all inclusive, but just give suggestive. (Just examples). Why is this entertaining the Sup. Ct. said the 5 factors were important to assessing the testimony in this exact case (and they did not follow it). o They first look at 1) if their research occurred before the litigation. Ct. said none of the s experts did this research before the litigation, but in fact after. (might show made in anticipation of litigation, and therefore biased). Then says only place it has been published is in the ct. reporters no peer review and therefore basically says that only created for litigation. Dr. Palmer his research was too circular, he concluded that the Bendenctine caused the defect, but gave no justification for why other than the circular argument. Then Ct. looks at the CA law had burden of proof, and had to show more likely than not that Bendectin caused the abnormalities. o To prove this had to prove that the rate of birth defects was doubled from what they would normally be (more likely than not). Said they could not prove this, they could not meet their burden, and therefore the testimony was inadmissible. And since could not demonstrate this, the evidence was not relevant, because it could not meet the standard of admissibility. Not relevant to prove causation because cannot meet the burden of proof for it. So inadmissible. So relevancy here is not only relevant to issue in dispute, but what the evidence will prove (causation). - Daubert introduction of expert question. o What issue was left open after Daubert whether it only applied to scientific, or if under 702, if it also applies to technical or other specialized knowledge. - Under 702 there are 3 additional considerations added, which were added to the 2000 Amendment to the Fed. Rule, and 702(2000 Amendment) codifies the Daubert Rule. Kuhmo Tire Co. v. Carmichael Technical knowledge - Whether or not Daubert applies to technical knowledge 102

Looking at the rule now, it appears Daubert does apply to all, however then it seemed to only apply to scientific evid. - Did Frye apply to all? - Carmichaels in a minivan and tire blew out, one person died. Carlson, expert witness wanted to testify that the tire had a manufacturing design defect. (using his own method). He was an expert in tire failure analysis. o To figure out if there was a defect he: Visually examined the tire, and he had 4 characteristics he looked for, and if he found 2 or more then it showed overdeflection and thus not a defect. But if it did not, then it was defect. Why is this not scientific it was not based on a scientific theory, just his training in a technical field. (he did not come up with scientific tests and come up with conclusion). o Lower Ct. applied Daubert and said his method was unreliable, and dismissed the case. o Ct. of Appeals said Daubert only applied to scientific evid. and allowed it. This was a common controversy among the circuits. - Supreme Ct. said that Dauberts holdings apply to non-scientific expert testimony as well. The (4) Point analysis to determine if Daubert standards are applicable: - 1) Whether a theory or techniquecan be (and has been) tested; - 2) Whether it has been subjected to peer review and publication; - 3) Whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the techniques operation ; and - 4) whether the theory or technique enjoys general acceptance within a relevant scientific community. o 702 does not distinguish between the areas in the rule o It does not matter what category the evid. falls under, daubert will apply o Cts are flexible with the factors they use in the Daubert analysis. - Purpose of Expert Testimony: Help juries understand things. - What is the Concern with Daubert standards applying across the board? o Concern is the jury not being able to tell the difference between what is real technical knowledge or ridiculous credentials and bad science, and dont want them to find for or defendant based on bad science (because it would appear the expert knows what they are talking about). - The GateKeeper is the Trial judge, and they are reviewed with an abuse of discretion standard. o How do we test the validity of evidence? Cross-examination and introduction of contrary evid. What does the ct. hold in this case: They re-analyze under Daubert factors: - Found no abuse of discretion on the tr. Ct. that the evid. was not reliable under Daubert, therefore on remand, the evid. will not come in on remand, and the orig. holding stands. - Here tr. Ct. applied the appropriate analysis and determined that this evid. was inadmissible. Does this allow technical evid to be easier to admit or harder to admit? - With Daubert it allows it to be more limiting, there is a more stringent standard for admittance. They are trying to favor admissibility, however now Daubert keeps out evidence that we thought would be admissible. Prob 3.15 Hedonics 103

Evaluation of a life to determine damages in a wrongful death suit. (Son shot dead, Mom sues for wrongful death of her son.) Expert wrote a book entitled The Practice Book for Plaintiff and Defense Attys Told how to measure a life based on Hedonic damages. o Give the formula and also say experts have used this analysis before. Is this person allowed to expertly testified that Dead guys damages are? o Would this assist the jury? Yes, because we have no idea what hedonics is, so the expert can help them understand what it means. They are also going to need some help with lost earnings capacity. o Does Prof Smiths opinion, rest upon the kind of data in 703? Reasonably relied upon by other experts in that field? Yes. In the field of economists, so probably meets the 703 for bases of opinion given by experts. (not just based on dead guys life). o So now must analyze under Daubert factors reliability and relevancy (702 codifies Daubert). Reliability It has been published and peer reviewed. Is it testable? You can do the math, but he is not talking about earning capacity here, so even at the end of your life, you cant really tell if the hedonic value was correct. Might fail this (she votes no). Potential rate of error we dont know what the right answer is, so there is no way for us to know what the error rate could be. o If we cant test for error rate, then no. Whether there are standards controlling the techniques operation o Yes, there is a cost-benefit analysis, which other economists rely upon. Whether there is general acceptance w/in a relevant scientific community o If define it as hedonics (only experts in hedonics) then maybe, since a number of articles written about it. But if they said this was a bad way to determine someones life, then no acceptance. Here we have 2 factors that the Hedonics expert testimony fails, is it admissible or inadmissible? o Because under Daubert it fails 2 of the 5 considerations not admissible. Thinks there is a strong argument this is not reliable under Daubert. Counter Since 702 codifies Daubert and Fed. R. favor admissibility, it should come in. o What if we find that this evid. is reliable then must find out if it is relevant. Does this fit their task of finding the value of the dead guys life? This is just the value of an avg. life, so it probably doesnt help us tell the hedonic value of Ayers life. But could say admissible because applied his life after telling avg. 104

Must still go to 403 o The probative might substantially outweigh the prejudicial effect. In the actual case, the evid. did not come in. Michael J. Saks, The aftermath of Daubert - If we didnt have Kuhmo but only Daubert, and scientific was separate from all other types, then everyone would say they were not testifying to science to more easily get their testimony into evidence. False Dichotomy of Rape Trauma Syndrome - How a V of rape does not react in a way that they are expected to act if they had been raped. - They will act in bizarre ways in which the jury will not think they were raped. o So how can the State use this: Offensively: Show they are suffering from RTS so they have been raped. Defensively: If attacked credibility, can introduce to explain that RTS explains the bizarre behavior, but not that they were raped. o Could you if you represented the defendant, introduce that the V doesnt suffer from RTS and therefore not raped? The more controversial here is the offensive use (by the pros.) If the defense attacks the V, then this is ok to use, defendant opened the door. She thinks that if Pros. can use this offensively, then so can the Defense. State v. Kinney Rape explanation - D convicted of kidnapping and rape. V and defendant had conflicting testimony; defendant said it was consensual, V claimed she was raped and did not willingly do any of this. Here you have facts that to the Defense look at if the witness is not every credible (she drank and smoked with the defendant throughout the evening) and she is saying she was never willingly with him. After the rape she fell asleep and D called a friend to drive her home. (She never cried out, never asked his friends to take her away, etc.) o State called Dr. Tyler to testify about Rape Trauma Syndrome. Because her behavior sort of was not what the jury would think a typical rape V would act. o Expert is not coming in to say that V was definitely raped, but that her behavior is consistent with being raped (because of RTS). Explained away the weak parts of the prosecutions case, that she slept, delayed reporting, said all of this was consistent with RTS. - Ct. compared the Catsom case child sexual abuse where children act different than what would expect them to after the abuse. And now that that has been established in most child sexual abuse cases, they dont have to do a Daubert test. (still allowed after Daubert). - Say they dont necessarily have to have a Daubert hearing, but can just look to other jurisdictions and if it is admitted there, we can admit it here. o But they said you can still object under the Daubert hearing, but can just look to other jurisdictions and if it is admitted there, we can admit it here. - Ct. approved this testimony about RTS and behaviors associated with this syndrome. o Was error here however, because the Dr. testified that the false reporting of rape was very very low, and therefore for a majority of the cases of rape, they are true. Ct. said this goes over the line of the Catsom case, and the expert was basically telling the jury that no woman would lie about this. However, defendant did not object to this at trial, and since he did not, the case is upheld (didnt preserve objections for appeal). ***you have to object and 105

specifically as to what to preserve for appeal*** here it would have probably been overturned. If you testify that a witness is telling the truth, you are invading the province of the jury, and you cannot do this. Protecting the Integrity of the Legal System: - Talks about the DSM we look at behaviors and find those behaviors in the DSM and see if the behaviors fit the label (listing). - Really just a dictionary limited to psychological evaluation. o Says just because they are in there doesnt mean they are generally accepted, they are there for therapeutic reasons. o It was not developed to use it forensically. Even though there are two different things here, cts often mix this up and admit the testimony because it is put into the DSM. - Problem: In the DSM they list serious testable problems (which are agreed upon) but it also lists things that we think are sort of silly. o He doesnt blame the ct. system but the psychologists should not be running into court to testify about things in the DSM that do not meet the 702 requirements. - So when given these things we need to evaluate if only in DSM to give it a label, or if it actually meets 702 and therefore Daubert. State v. Alberico - Says that if it is in the DSM it is sound as to PTSD, but that RTS is inadmissible because it is not in the DSM. State v. Chavin - Says that in the DSM they are being listed for therapeutic and research reasons, not for forensic reasons in a ct. - In the Ct. room we are trying to find justice, truth, and fact finding, whether or not sexual abuse actually occurred. o So Ct. says that PTSD is not a reliable indicator that sexual abuse has occurred or even that trauma occurred. - Could not be used to prove that a rape actually occurred. Prob 9.16 Separation Violence - Husband allegedly killed wife. Expert was going to testify that the behavior was consistent with Battered wife syndrome. - Explains how the husband tried to control her etc. and that during BWS separation violence is the most dangerous time in the cycle. o That separation is a logical extension - Should this come in? IS it just like Kinney? o Says is just like Kinney, but the gun evidence might go too far. o However, here it used against the defendant, and not for the V. So might be character evid. In Kinney we were explaining the unusual behavior of the V. But here we are showing the behavior of the defendant. o Here we are introducing that he acted in conformity therewith (of killing his wife) and cloaking it in this separation violence issue. Do we need this evid. to prove what has to be proven? 106

No it is sort of irrelevant here. It doesnt matter what phase he shoots her in, if he shoots her at anytime it is still a crime. This was extraneous and not necessary, and just improper character propensity evidence. (that he was acting in conformity therewith, violent phase and shot her). We are just dressing up run of the mill bad character evidence. o Difference is between having this sort of evid. to explain Vs behavior and having it to explain Ds behavior. Authentication: 901-902 - The evidence is what it purports to be. (to make sure the item seized at the scene of the crime, and the item analyzed are the same). Prob 10.2: To Send Money - Proving the Western Union things the defendant filled out in the prior case are authentic. o 901(b)(2) non-expert testimony as to handwriting Witness comes in and describes how they have previously seen the individuals handwriting (business, sits next to them in class etc.) then witness can say, that yes he filled out the forms, this is his handwriting. Even though this is disconcerting then you attack weight and reliability. It will come in, but you can always attack the weight. o 901(b)(3) Compare known forms from the ones found in defendants house, or order him to write something and then compare to the forms in dispute. This rule is not against the 5th Amend you can force him to write something. So you can force him to write something and allow jury to compare it to documents in dispute, to see if they feel he wrote it. o We could also use circumstantial evidence That by a preponderance of the evid. You could find that these forms were filled out by him, by liking them to the forms in his house. (circumstantial part was the place in which they were found, and that his phone number and address on them was actually correct, and to his real ones). (when you put all the circumstances together, then they are enough to subject to the jury.) Prob 10.2: Handwriting Opinion - Bring in witness involved in the investigation to show that the documents were written by defendant. o Is this admissible State will argue 901(b)(2) as a non-expert could testify to his signature. Defense will argue that she was involved in the investigation and thus knowledge acquired for the purposes of litigation. Therefore, she spent 3 yrs on this investigation, so she was acquired for the purposes of litigation. - Pros. argument: She could not be an expert here no education in that field etc. o not acquired for purposes of the investigation could say it was for the investigation before the litigation, for the litigation. So therefore they are separate things, and the ct. did here, said they were different. o Actual Ct. determined the Agent was able to testify. U.S. v. Stelmokas Nazi Bastard 107

He lied about his background when he was trying to become a citizen of the U.S. he had become a citizen in 45, and this case was in 97. - He said he did not join the Nazis or the army created by them in Lithuania. - Documents in Lithuania, and Russian showed that he was involved with the Nazis. - Pros. gets expert witnesses in these documents to authenticate these foreign documents. o Ct. Sees if under 901(b)(8) (c) They have been in existence for 20 yrs or more. (a) said the docs, expert said, these were authentic. (b) they were also in a place where it, if authentic, would likely be. They were in a place where the Soviets had kept secret. Ct. said the theory of the defendant was completely incredible. o He basically said someone was framing him, and the ct. said no one would care about you enough to do this (not a prominent figure) and unlikely someone would scatter documents across Europe to frame him. And that if they would have framed him, they wouldnt hide the documents in places that remained closed, not accessible to the public. Prob 10.3: Anonymous Note - Bank Robbery, and police found the switch car with anonymous note of the license plate of the car the robbers switched to. Police found the car and arrested defendant (he had a large amount of cash on him.) o To prove authentication, you just have to prove the note is what they say it is. (this is the note found in the car) and you can prove this, the officers can testify that this note was the one found in the car. o The proper objection here is hearsay. The pros. is introducing this note for the truth of the matter asserted. - This is two different issues, authentication is different than hearsay. If you object under authentication here, it will come in, you must also object based on hearsay. Prob 10.4: Star 69 - Pizza hut robbery, then robber calls pizza hut later to make sure no one got fired. - The call was made, and they thought it was the robber, because no one else would have known the store was robbed. o Did a lineup and no one could identify the defendant. - So how do you get the call in? o 901(b)(5) voice identification Manager can say she recognized the man speak, and it was the same voice on the phone. o 901(b0(6) Someone could come in and explain *69, and that the number is one that is assigned to the defendant. (in facts dialed 69 to see who called). o 901(b)(4) Circumstantial evidence you can take into account: he called after and knew of robbery before anyone else would know, he had list of stores and managers and applications in his vehicle when found. o What is missing?: If on the other side he is a manager so of course he has these items. He also does not have a beard, on him or in his car. If no beard then why would he not just throw this away and not the other evid. of the apps and the gun etc. State v. Small Debt owed - defendants wife testified that defendant called himself Dominique and had a Jamaican accent. 108

Elloss friend owed money to Dominique, and died shortly after the call. Ellos called the number Ellos called an hear a Jamaican accent, and called himself Dominique. - Can this come in? o Ct. cant use 901(b)(6) the records dont indicate the defendant was the one assigned to the defendant. o 901(b)(4) distinctive characteristics Given fact defendant had a Jamaican accent, that he called himself Dominique, that his wife stated he had these, and that Dominique knew of Vs debt, then this all points to him. o NOTE: Even if he says Dominique this would not be enough to authenticate the testimony. Mere assertion is not enough, but when looking at surrounding factors, it may be enough to authenticate. The mere fact that the caller identified himself as the defendant is insufficient, rather, the contents of the conversation, the characteristics of the speech itself, or the circumstances of the call, must render it improbable that the caller could be anyone other than the person the proponent claims to be. Simpson Trial Outrage: - Heard calls from 911 and said they were just like the calls to her at the BWS hotline. (battered women). He said she could recognize the voice, and thus could testify to this. (previous caller said her name was Nicole. o 901(b)(5) They are outraged because this feels very shaky as a voice identification. She was a complete stranger that only spoke to her once. This just seems incredibly weak (there are a lot of ppl in CA named Nicole that could have called). o This will be admissible under 901(b)(5) but you could object under 403. 403 Argument Probative value: It shows that Nicole was scared of him. Probative value is so weak is because she just said Nicole but not her full name. Prejudicial impact: that some girl named Nicole called in and now he is on trial with a wife named Nicole so prejudicial. o A 403 analysis weighs in favor of keeping it out. Simms v. Dixon Car Crash photographs - She takes issue with this, and this is really important. - What should your objection to a photograph never be that the photographer did not testify to taking the picture. - Pictures taken because of car accident photographer not available to authenticate. o Rule: NEVER NEED PHOTOGRAPHER to authenticate the photograph as long as you have a witness to testify that it is a fair and accurate depiction of what happened. Prob 10.5: Staged Photo - Pictures not taken at time of shooting. Pictures created to depict what happened at the shooting (where V was sitting when shot, and the view to the window from where the shot came from.) - If picture offered to prove Vs position when shot, and the view of the shooter is this admissible? o First Argument, he could not possibly re-create the view from outside the house, because he does not know where the shooter was standing. (he was inside). 109

Counter there was a witness who saw what the V was doing, so it is a fair and accurate depiction of what the V was doing. What this problem shows is that you do not need the photographer to come in the courtroom, and the photo does not need to be taken simultaneously with the crime. Witness who saw shooting can describe the scene and testify that it fairly depicts what he saw during the event. But defendant will argue that it is not a fair and accurate representation. Prob 10.6 Serge Animation - Whos testimony is this CGA showing? o The two experts So first we have to lay the factual basis what happened according to their expertise. Note if a witness can testify as to what happened, a picture that shows it is also relevant and admissible. Second, they have to testify that this is a fair and accurate depiction of their findings. o The CGA maker must also testify, to explain the process of turning their opinion into what was produced. So you would want to use both of these things to authenticate this. - Clearly this evid. has relevancy. o This will still be assessed the same way as other evid. (prob. Admissible). Wagner v. State Drug Purchase - Drug Purchase with the CI rigged camera to record the deal. - defendant argued the tape was not properly authenticated because officer could not testify to seeing it made???? pictorial theory - Whether or not the video tape could be admitted under silent witness theory o 5 Factors 1) how it had been produced, operating condition and capability of the equipment. 2) establishing time and date to fit. 3) no evid. of editing or tampering (unchanged) must be as the video camera has seen it. (only relevant part will be showed to the jury). 4) procedure employed 5) testimony identifying the relevant participants depicted in the photographic evidence. - Here it was allowed. The Best Evidence Rule - If what is in a document in evidence is in dispute, that is what must be introduced. This does not come up very often, and is used very rarely. - Where is this rule relevant, and where is it not relevant. Prob 10.7: Perjury Trial - Pros. calls Rogers to the stand to relate Lamars earlier testimony at another trial, and to testify to describe the earlier testimony. - How should the ct. have ruled as to the objection by the Best Evid. Rule? o Here the objection should be overruled he is not trying to prove the accuracy of the transcript, just what the witness had heard the defendant say at trial. o The transcript is not at issue, what is at issue is what the witness said on the stand, and that does not have to be proven by the transcript. o 110

best evidence rule is irrelevant here it does not prohibit the use of live testimony vs. the transcript testimony we are not trying to prove what the transcript says, just what the witness says. There was no attempt here to prove the content of the writing. (not hearsay because he was lying so not introduced for the truth of the matter asserted). The objection here was just wrong it was irrelevant, and does not apply to this scenario at all. Prob 10.8: Alices Restaurant II - We just want to prove what the witness saw the license number. The recording of the writing is not the best evidence, but what she saw, we are not proving the truth of the writing, but what she perceived. Therefore best evidence rule is irrelevant and does not apply here. Seiler v. Lucas film - Went to Lucass Movie and saw the Scoutwalkers, and says they infringed on his copyrights of his drawings of his Sprinters. - claims that the best evid. rule does not apply to his recreations of the pictures, because artwork is not a writing under the rule. o Ct. says that these are the equivalent to writings, because they have found other material to be their equivalent such as photographs; so it extends to drawings. - Say since Fall under 1001 he should bring in the originals o However, he cannot bring in the originals because he does not have them anymore (he destroyed them) so he wants to introduce the pictures of them after he copyrighted them recreations which were made after the movie. Cts issue: Since he cannot produce the originals, or duplicates of the originals so not admissible because of the best evid. rules. These recreations are not duplicates because it is not an impression of the original or photograph or Xerox copy. This was subsequently made manually and are not within the definition of duplicate (him viewing the movie could have tainted his memory). He could not show the reconstructions were created before the movie came out (he could have just drawn it after seeing the movie to just go after a deep pocket). - Yes, Best Evid. applies, we are applying it to keep the evid. out. o Diff between this and the transcript case, we are concerned with the actual document here. IT is in dispute. Prob 10.9: GPS Data GPS tracking device- introduced to show where the route was into Mexico (of the drug boat). o When the witness sees the GPS he sees on the GPS that the boat had been to Mexico. When he is looking out all he sees is water, not where he actually is (or where the border is). o So there is no independent way of knowing exactly where you are, the only way to know is based on what the GPS told him. The location is imperative for the charge. (that he brought the drugs from outside of the U.S., this is an element of the crime). o What the GPS says, is an issue in dispute in this case. So this testimony by the witness is inadmissible under the best evidence rule. So to get this in you would have to: 111

Have a person testify as to how the equipment works, and that it was in proper working order at the time. Then certify the reading, and bring it in, and explain and prove to the satisfaction of the jury that this print out was reliable. You could also photograph what the GPS says it can be used as a duplicate of that information. You dont have to have the best just the original or the duplicate, when the issue in dispute is that drawing or information, then the rule requires that information to be produced in the courtroom. In other situations you are not trying to prove what was written but what the witness saw or heard. Here the only thing giving us the information is the electronic device. (a) 1004 you would say that Chandler intentionally did not preserve the information. In actual case the ct. found there was bad faith here, and there was not a showing that the GPS data could not be downloaded. (this is not a small piece of evid. but a major part of the case). If you intentionally fail to preserve evid., then it is bad faith. (b) What If accomplice testifies, when he destroys the evid. in bad faith? Intention to get rid of it was not to present it in ct. at the time of destruction of evid. (it was to save himself from arrest) In (a) the coastal office deleted the information when he was going to use it in court. (b) the suspect deleted the information because he was a potential defendant, he does not want to be prosecuted. Then here at trial he changes roles and becomes a cooperating witness, and will now testify to the information he deleted. The gov. is not the one responsible for the purging of the information, it was the witness, and the gov. is not responsible for this. So the gov. is not held to have a role in deleting the information, and this witness can testify. (the best evidence rule applies, but under 1004 he can testify because the information was deleted, but not by the gov. o The bad faith, if the person who is introducing the evid. had something to do with the destruction, you analyze if intentional or not intentional, and if intentional then cant introduce, but if not, then can. In (a) the gov. just didnt take steps to make sure the evid. was properly preserved (so bad faith according to the case).

United States v. Jackson Child Sex Chat Case where defendant had conversations with an agent, who posed as a 14 yr. old boy, and the agent recorded these conversations (by cutting and pasting them into another document, and then saving it, he also edited it a bit). Expert by defendant who found errors in the cutting and pasting. And also said there was a better way to get these conversations in. defendant objects under the best evidence rule, to his charge of trying to attempt to persuade a minor to engage in sexual activity. o Therefore, these conversations are part of the crime, it is an element of the crime.

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There is nothing left of the original exchange between defendant and the agent, just the cutting and pasting of the conversation by the agent. He put the conversations on a disc, we dont even have the original computer the conversations were on. o There was an intentional act by the prosecution to not prosecute this case, and just let the information sit on the desk for 2 yrs., and all of these bad decisions (in the brief) the ct. found these in bad faith. The bad faith here was simply a failure of the individuals responsible for investigating this case from keeping the evidence in a form that would be admissible in court. (same as GPS problem) must preserve in a way to make it admissible. o They did not have the original, and the original was destroyed in bad faith. o This was not considered a duplicate either, under 1004(1) because it was altered when I was saved, not saved in the exact condition as the original.

Privileges: Jafee v. Redmond- Social worker counseling Counseling by a social worker, by a cop who killed V (represented by his executor). defendant (officer) is charged with using excessive force, when he killed V. The officer, is talking to the social worker in order to get help because of the incident. Issue: whether these conversations are discoverable, or protected by the Psychotherapist privilege. o The Executor is hoping that the officer told the social worker that she used excessive force, because this is the issue at trial. If the officer would have told her neighbor, obviously this would not be protected, and would be admissible under admission by party opponent. 801 o Here by balance if there should be a privilege here. They see if there is a public interest in having this privilege (if it will be a public good). If these had been made to anyone else, they are clearly admissible, but here given to social worker, this is not a privilege at common law, because social workers did not exist. They then get away from this and say that almost all states have adopted some sort of psychologistpatient privilege, and that reason tells us this is a good idea. o They say that in this context, the social worker is essentially functioning as a psychologist. o They do discern doctor-patient privilege from psycho-patient privilege. There is no federal doctor-patient privilege under the Fed. Rules. But there is one for psycho patient privilege. They do say social worker is like a psychologist o Because they have education and are trained (do different than just your neighbor).

Scalias dissent: They just decided on this privilege extending to the social worker is very conclusory. o He also downgrades the social workers education and training, and says they are not like psychotherapists. o Thinks this is a huge break from the common law, and this is not something that is indispensible for something the fed. Ct. should recognize.

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defendant relays threats to his psychiatrist, and these are relayed to the ppl, so they know and can protect themselves. Are these threats allowed in to evidence (when they have been relayed to others because of the threat against them). He was aware his treats were conveyed to others after he made them (to the ppl he threatened.). o First Point: There is an intent based definition meaning when you are conveying the information you have to intend to keep that confidential (this is why it worked in the last case). Here, there was no intent this was confidential, his intent was that he would convey the threat to the psychiatrist, with the intention the psychiatrist will go warn everyone so he will not get fired(so Co. wont fire him). This takes away this intention of confidentiality. o Footnote 19 on pg. 850 there are situations where the privilege in Jaffee where the information must be conveyed if there is a serious threat of harm to the patient or to others, that can be averted by the psychotherapist by disclosing the information, they must do so. Like in atty if they tell about future plans to commit crimes, you can divulge this. There would be no atty client privilege. If using the services in order to commit a crime then you cannot claim privilege. You could argue here, like atty client privilege, he was using the therapist as a means to commit a crime (extortion) then you cannot extend the privilege to it. Not going to be able to keep these confidential here. defendant would argue that he makes lots of threats and never acts on them, so should not disclose to the threatened party, and should have been protected. o Also, if there is a third party involved, the privilege has been waived.

In re: Grand Jury Subpoena, Judith Miller Scooter Libby case the reporters would not divulge their sources Holding: The 1st Amendment does not allow reporters to keep confidential their sources from a grand jury. When you are held in contempt it is indefinitely. It is indefinite because you control the keys to your incarceration, you just have to give up the information.

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