Evidence – Pierce – Fall 2011I. In General

i. Proceduresa. Outside the Presence of the Juryb. Examining the Witnessc. Objections

ii. Review of Evidentiary RulingsII. Relevance

i. Logical Relevanceii. Conditional Relevanceiii. Subjective / Explanatory Relevanceiv. Narrative Relevancev. Categorical Exclusions

a. Categorical Relevance Exclusions in Generalb. Subsequent Remedial Measuresc. Payment of Medical Expensesd. Offers to Compromise or Settlee. Offers to Plead Guilty or Nolo Contenderef. Liability Insuranceg. Similar Events / Happenings

III. Physical Evidencei. Authenticationii. Shortcuts for Authenticationiii. Chain of Custodyiv. Original Document Rule

IV. The Propensity Rulei. In Generalii. Habitiii. Exceptions

a. Opinion / Reputation Requirementb. Criminal Defendant’s Good Characterc. Alleged Victim’s Bad Characterd. Character Evidence of a Witnesse. Impeachment by Prior Conviction

iv. Other Common Forms of Impeachmenta. Bias / Interest / Motiveb. Contradictionc. Prior Inconsistent Statement d. Defects in Perception, Memory, Descriptione. Religious Beliefs

v. Sex Crimesa. Victim’s Past Sexual Behavior or Sexual Dispositionb. Prior Crimes Evidence in Cases of Sexual Assaultc. Prior Crimes Evidence in Cases of Child Molestation

vi. Witness Rehabilitation

V. Hearsayi. In Generalii. Definitional Exclusionsiii. Exceptions for Which Availability is Immaterialiv. Exceptions Conditioned on Unavailabilityv. The Residual Exceptionvi. Constitutional Provisions Which Trump Hearsay Prohibition

a. Compulsory Processb. Due Processc. Confrontation Clause

VI. Privilegei. Attorney / Client Privilegeii. Work Product Exemptioniii. Waiver of A/C Privilege and Work Product Exemptioniv. Doctor / Patient Privilegev. Family & Religious Privilegesvi. Government Privileges

a. Relationship Between FOIA & Gov’t Privilegeb. Executive Privilegec. Identity of Informantsd. National Security Privilege

VII. Expert Witnessesi. Selection & Preparation of Expert Witnessesii. Discovery & Expert Witnessesiii. Qualification of Expert Witnessesiv. Admissibility of Expert Testimony

I. In Generali. Procedures

a. Outside the Presence of the Jury Motion in Limine : a pre-trial process to deal with anticipated evidentiary problems

o Does a better job of "hiding the elephant in the room"o Can be either to exclude or admit evidence in the case of an anticipated objection

In the case of trying to get evidence admitted, it might be better to let the jury see the other side trying to hide the evidence with objections

o A preliminary ruling only, judge can change mind later If you want to preserve it for appeal, judge must say ruling is "definitive"

Voir Dire Hearings : A "mini trial" outside the presence of the jury as to the admissibility of evidenceo The witness testifies what he *would* say w/o the jury in the room

b. Examining the Witness FRE 611(a): Courts exercise extreme discretion in the order and presentation of evidence, manner of

questioning the witness FRE 611(b): Cross examination should be limited to the grounds of direct, but a judge may use discretion

to alter this FRE 611(c): Leading questions should not be used on the direct examination of a witness, except as

necessary to develop testimony (i.e. jog memory, help young witnesses)o Exception: When a party calls a hostile witness, adverse party, or witness identified with adverse

party. Ask for "permission to treat as hostile."

c. Objections Timeliness:

o An objection to a question is timely if made before the witness answers the question.o An objection to the admission of any other evidence is timely if the objection is made at the

time the evidence is submitted for admission. Specificity: An objection must state the grounds upon which it is based.

o If a party fails to make a specific objection, it is considered a general objection. A general objection that is sustained (i.e., evidence is not admitted) will be upheld on

appeal if there were any grounds for the objection. If, however, the general objection is not sustained (i.e., evidence is admitted), the objection is not preserved for appeal, unless admission of the evidence constituted plain error.

o A plain error is when the evidence would be inadmissible under any circumstance. Offers of Proof: If an objection is sustained, the proponent must make an offer of proof to preserve the

right to appeal.o The substance of the evidence which would have been admitted ando A statement as to why the question or evidence is valid.

FRE 105: Limiting Instructions - If evidence is admissible for one purpose but not for another, the judge can instruct the jury to consider the evidence only for the permissible purpose and not for any other purpose

o Can brings more attention to the evidence you don’t want to bring attention to

ii. Review of Evidentiary Rulings FRE 103: Rulings on Evidence

o (a) Harmless error standard: a "substantial right" must be affected by the ruling for error to be found

(1) If the error is in one admitting evidence, there must have been a timely and specific objection

(2) If the error is one excluding evidence there must have been an offer of proof The ruling on the admissibility must be "definitive" (as opposed to tentative) to be

preserved. If a tentative ruling is given, the objection must be renewed to preserve it.o (b) The court can add the substance of the evidence to the record in the form of a statement or

question/answero (c) To the extent possible it should be done outside the hearing of the juryo (d) Escape clause: "Nothing in this rule precludes taking notice of plain errors affecting

substantial rights although they were not brought to the attention of the court." The appellate court can (but rarely does) ignore the fact that an objection was waived in

the face of substantial injustice in the outcome

Erroneous evidentiary rulings are rarely the subject of appealo Many evidentiary rules are written for trial judges to exercise discretion, i.e. "should"

Judges are especially given extreme discretion over mode and order of presentation, how witnesses are questioned

o Even where the judge has no discretion and ruled wrongfully, harmless error standard If the erroneous ruling didn't substantially influence the outcome, no overruling

- If the erroneous ruling has constitutional implications, it must be harmless beyond a reasonable doubt to stand

If the erroneous ruling is coupled with a substantively seemingly "unjust" outcome, more likely to get overruled

o Circuit judges often know the rules of evidence less than trial judges = they trust trial judges

Exception: All decisions to admit or exclude scientific evidence on the preliminary question of its reliability (see Expert Witnesses) shall be reviewed for abuse of discretion – General Electric v. Joiner

iii. Preconditions to Testimony FRE 602: Witness must have personal knowledge of the matter on which he/she is testifying

o Exceptions: Admissions Opinion testimony of expert witnesses

FRE 701: Witness opinions must be o Rationally based on perceptionso Helpful to a clear understanding of testimony or the determination of a fact at issueo Not based on technical or other specialized knowledge falling under the scope of expert

testimony FRE 603: Witnesses must take an oath State Requirements: Sometimes witness competency is controlled by state law in cases based on state

law issues under the Erie Doctrineo Example: Dead Man’s Statutes - prohibits a witness who is an interested party from testifying

about communications or transactions with a deceased person unless there is a waiver because the decedent's representative fails to object to the testimony, the decedent's own representative testifies to the communication, or the decedent's testimony is brought before the jury in the form of a deposition or in another form.

II. Relevancei. Logical Relevance

FRE 402: Relevant evidence is presumptively admissible unless one of the many exceptions applies

FRE 401: "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 or less probable than it would be without the evidence

o Two Components to Relevance: Probative To a material fact

Probative Value : a piece of evidence's power to persuade a reasonable person about a fact in issueo There are no "degrees" of relevance. A piece of evidence is either relevant, if it alters the

probability of a fact by even a tiny amount, or it isn't. Probative value is how you measure the quantitative weight of evidence.

Circumstantial Evidence : serves as a basis from which a reasonable trier of fact could make reasonable inferences about a matter in issue

Direct evidence : testimonial evidence which, if believed, resolves the matter at issueo Not necessarily always of higher probative value than circumstantial

Ex: witness providing direct evidence isn't credible at all Reality Hypothesis : some plausible view of "how the world works' that explains why the facts offered in

evidence are linked with facts the party must prove.o Must pass the "straight faced test"o Needs only the slightest inference for it to be relevanto When conflicting views of how the world works are both plausible, the court will admit the

evidence and allow the jury to decide which position appears more likely.

ii. Conditional Relevance Preliminary Facts - When the admissibility is predicated on the existence of a preliminary fact, a voir

dire hearing may occur to determine the existence of that fact, and hence admissibility. FRE 104(a): The court generally determines questions of admissibility, qualifications of witnesses, or the

existence of privilege. FRE 104(b): When relevancy of evidence is conditioned on a fact the judge must determine whether a

reasonable person could believe that the fact exists, and if so, admit the evidence and allow the jury to decide whether or not the fact does actually exist

o This standard applies when whether the witness has personal knowledge is the preliminary fact at issue

Ex: Did witness A actually see the accident she is about to testify about?o This standard also applies when a factual question goes to the ultimate issues of the case

Both jury and judge decide; judge makes a preliminary ruling which he keeps secret from the jury

May result in inconsistent decisions as to the existence of the preliminary fact between judge & jury, except that judge's decision was based on a different burden of proof and access to inadmissible evidence

- I.e. judge thinks fact is extant and admits evidence, jury doesn't believe the fact is extant and acquits

o When the relevance of one item depends on the receipt of another item to place it in context, the first item may be received in evidence over objection with the understanding that later evidence will "connect it up" to matters at issue in the case.

FRE 104(e) : Once the judge has admitted the testimony, both parties may still admit evidence that adds to or subtracts from the probative value of the evidence in the jury's perception

Determining Whether A Fact is Conditionally or Logically Relevant:o Degree to which the conditioning fact increases the evidence's probative value

If the preliminary fact will drastically increase the evidence's probative value, the evidence should be considered conditionally relevant

o Whether good evidence of the factual condition is likely to be availableo Precedent - have other judges considered a similar item of evidence's relevance conditional?

iii. Subjective / Explanatory Relevance Subjective Relevance - testimony, such as that of an expert, which does not make a fact more or less

probable, but which aids the jury in understanding the evidence. It affects the appearance of the plausibility of some fact at issue to the fact finder.

o Experts can provide either objectively relevant evidence Ex: DNA expert says he got a match

o Or subjectively relevant evidence Ex: accident reconstruction expert

See “Expert Witnesses”

iv. Balancing Admissibility & Narrative Relevance FRE 403: when evidence that bears some logical relationship to the matter at issue, and thus should be

relevant and admissible, but threatens to confuse the bias jury, be unduly repetitious or time-consuming, or unfairly bias the jury in its evaluation of the case; a judge must weigh the probative value of the evidence and balance it against the possible detrimental effects of its admission.

To be excluded, the risk of unfair prejudice, etc. must substantially outweigh the evidence's probative value.

o Unfair prejudice falls into three general categories: Estimation problems - the judge believes there is a serious risk that lay people will

overestimate the probative value of an item of evidence. Change in regret matrix - the evidence will cause the jury to decide the case based on

factors outside the legal elements- I.e. "I don't care whether or not I think this man robbed this lady, because I

know he committed all these other crimes and so should be off the streets" Limited admissibility AND the probative value of the evidence is low for the permissible

purpose but very high for the impermissible purpose Factors to be Balanced:

o Availability of other evidence on the matter Is there a better way of getting this information to the jury which is less prejudicial?

o Opposing counsel's willingness to stipulate to whatever facts the offending evidence might be legitimately used to prove

It's usually better to say "yeah he's a convicted felon" than allow the prosecution to expound upon the defendant's prior felonies only to prove one count of possession of a firearm by a convicted felon which is collateral to the real story

Ex: Old Chief v. United States - it is an abuse of discretion to admit an item of evidence when objected to over another item offered as an alternative with the same or greater probative value and a substantially lower danger of unfair prejudice

- Where the evidence has no bearing on the actual main story, i.e. it goes only to a collateral legal issue, the less prejudicial option should be chosen if it is equal or greater probative value.

- There is still a lot of latitude to apply this precedent.o The court may give weight to one side's need to tell an effective story

In Old Chief the Supreme Court recognizes narrative relevance.

v. Categorical Exclusionsa. Categorical Relevance Exclusions in General

These types of evidence are not admissible for certain purposes because…o The evidence is normally of relatively low probative value compared to the unfair prejudiceo The evidence is likely to be misestimated by the juryo The admissibility of the evidence would discourage beneficial behavior

b. Subsequent Remedial Measures FRE 407: evidence that a person took remedial measures (i.e. repairing the wobbly staircase) can't be

introduced for the purpose of showing liability (negligence, culpable conduct, defect in a product or product design, or need for a warning or instruction)

o Applies to negligence & strict liability claims Not all states will apply this rule to strict liability, but the federal rules do

o Can be used for other purposes, which might include Showing the person who took remedial measures had control or ownership Showing that safer designs were feasible

- An important element in product liability cases Impeachment, if controverted

o Evidence that a third or non-party took remedial measures is admissible Public policy: a non-party is unlikely to be deterred from taking beneficial action simply

because it might be introduced to prove another's negligence

c. Payment of Medical Expenses FRE 409: Offers to pay or payment in fact of medical expenses are not admissible to show liability

o Can be introduced for other purposeso Promissory estoppel – action taken in reasonable reliance on a representation which caused

material detriment—is usually a good theory to get these offers to pay in on. The proponent of the evidence isn’t offering to try and show that the defendant is liable

for the injury, but that he reasonably relied on the representation that his medical bill would be paid for when he went to the hospital.

d. Offers to Compromise or Settle Policy Considerations:

o This rule encourages people to admit liability (even falsely) in compromise negotiations to encourage settlement. Settlement is many times more likely to be reached if a party admits fault, because people value apologies.

o Low probative value of statements made in negotiations. They are only indicative of one's willingness to "buy peace."

o Substantial risk of misrepresentation out of context in court.

FRE 408: offers to compromise, settle, or plead guilty, as well as statements made during compromise/settlement/plea negotiations are not admissible to:

o Show Liabilityo Show disputed invalidity or amount of a claim

Can be used to show undisputed invalidity of a claim- Ex: “we both know this is a bogus lawsuit, so why don’t you just pay me off?”

o Or to to impeach through prior inconsistent statement Other methods of impeachment are valid, such as impeachment for bias

- Ex: Car accident involving three people. Person 1 and 2 have a settlement agreement, and person 2 testifies against person 3 in favor of person 1. The settlement agreement can be used as evidence of person 2’s bias.

Exception: o FRE 408(a)(2): when statements are offered in a criminal proceeding and the negotiations were

related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Ex: You offer the IRS to settle their civil claim against you for back taxes. Later, a prosecutor brings a criminal claim against you for tax evasion. The discussions with the IRS agent are admissible only in the criminal proceeding.

o Threats can be argued to not fall under the scope of the rule.

What is a "compromise negotiation"? o Different jurisdictions have different rules.o Might depend on who the parties are:

Ex: Statements made to an investigator with no authority to accept a plea bargain are usually not protected

o This applies in both civil and criminal proceedings.

e. Offers to Plead Guilty or Nolo Contendere FRE 410: Pleas of nolo contendere, withdrawn guilty pleas, and statements made during plea bargain

discussions that did not result in a guilty plea are not admissible for any purpose when offered against the defendant

Exceptions: o FRE 410(4)(i): the defense introduces a statement made during plea bargains which opens the

door to another statement which in fairness ought to be considered "contemporaneously"o FRE 410(4)(ii): In trials for perjury when Fed. R. Crim. P. 11 proceedings are the subject of the

trial Waiver: a prosecutor can get a defendant to waive FRE 410 protection as a condition to plea bargaining

process. This is used basically every single time.o U.S. v. Mezzenatto - S.Ct. has upheld the use of this waiver to introduce statements at least for

impeachment purposes (i.e. the defendant has to say something at trial different than what he said in plea bargaining that "opens the door" for prosecutorial rebuttal.)

o It is not clear from Mezzenatto opinion whether the prosecution can introduce the evidence first as part of their case-in-chief as opposed to just for impeachment purposes.

When is a discussion with a prosecutor geared toward plea bargaining (FRE 410 applies) and when is the prosecutor just trying to elicit a confession (FRE 410 does not apply)?

o Two -tiered test: Did the defendant believe he was negotiating a plea? Was the defendant's belief reasonable under the circumstances?

f. Liability Insurance FRE 411: Evidence of having or not having liability insurance is not admissible for the purpose of

showing liability by either…o The plaintiff to show defendant was careless because he either had or didn't have insuranceo The defendant to show that low policy limit or lack of insurance gave him an incentive to be

careful Evidence of other types of insurance (such as “first party” indemnification insurance, or any kind of no-

fault insurance) is admissible.

It is admissible to show agency, ownership, control, or bias or prejudice of a witness.o Especially control: “is this your car? Well do you have insurance on it?”

Indirect ways to get this in:o Asking jurors on voir dire about their connections to the insurance industry to "plant the seed"o Impeaching investigators or expert witnesses by showing they were hired by insurance company

to testify for defendanto "This rule is so easy to circumvent that it accomplishes little or nothing that is not already

achieved by FRE 402 & FRE 403".

g. Similar Events / Happenings There is no specific rule as to this type of evidence, but it is a frequent category under FRE 403. Whether evidence that a similar event happened is admissible is a 403 balancing act:

o What is sufficiently similar to be relevant? Time, place, logical relation

o Would introduction cause unfair prejudice, confusion or misleading the jury, undue delay, waste of time or cumulative evidence?

o Special cases in contracts law are governed by contracts doctrine "Course of dealings"

III. Physical Evidencei. Authentication

FRE 901(a): Authentication or identification is a prerequisite to admission. Offered item must be supported by evidence sufficient to support a finding that the matter in question is what the proponent claims.

o Standard for admissibility = FRE 104(b) The judge should admit the evidence if a reasonable fact-finder could agree that the

evidence is what the party claims. FRE 901(b): Examples/illustrations establishing necessary foundation for common pieces of evidence

o (1) Testimony by a witness with knowledge that a matter is what it’ claimed to beo (2) Lay testimony based on personal familiarity with handwriting not acquired for litigation

purposeso (3) Comparisons between authenticated exhibits may be done only by the trier of fact or by a

qualified experto (4) Distinctive characteristics “taken in conjunction with circumstances”o (5) Voice identification by opinion based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker. Ex: Someone left a threatening record that said “this is Bob” with a gravelly voice.

Defendant Bob has an unusually gravelly voice.o (6) Telephone conversations are authenticated if the number is shown to have been assigned to

the person or business at the time and (A) If a person, circumstances including self-identification show the person answering to

be the one called (B) If a business, the call was made to a place of business and the conversation related

to business reasonably transacted over the telephone.o (7) Evidence that a writing is from a public office where public records/reports of the like are

kept.o (8) Ancient documents or data compilation

(A) In such condition as to create no suspicion as to its authenticity (B) Was in a place where, if authentic, it was likely to be, and (C) In existence for 20 years or more at the time offered

o (9) Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result

o (10) Any method authorized by Congress or the Supreme Court pursuant to statutory authority.

Solicit and reply doctrine: A writing is authenticated if there is evidence that it was written in reply to a communication sent to the alleged author, and that the written reply refers to the initial communication.

o Under this doctrine, you need only authenticate the solicitation and then the reply authenticates by referring to the solicitation.

o Usually covers receipts for payment.

Authentication Procedure: o Marking - ask clerk to number exhibit for identificationo Showing - gives opposing counsel a chance to inspect, and in some courts the judge wants to

see the evidence before the witness as wello Authenticating - two step process

Present evidence and describe it in general terms Then present sufficient evidence to support a finding that the exhibit is what the

proponent claimso Motion to Admito Opportunity to Object & Voir Direo Rulingo Publication - making contents of the exhibit known to jury

ii. Shortcuts for Authentication Procedural Shortcuts for Authentication

o During pretrial conference FRCP 16(c)(2)(C)o Requests for admissions in discovery FRCP 36

"admit the authenticity of X…"o Standing orders by judges to do pretrial exchanges

As to authenticity only, other objections to admissibility are usually preserved

FRE 902: Self-authenticating itemso This is an exclusive list, if it's not on this list, it's not self-authenticating.o See rule for more detail, but in general it includes … public records/documents under seal or

certified, commercial paper & related documents, official publications, trade inscriptions, news papers & periodicals, ancient documents.

Note: trade inscriptions can include company logos on productso Just because it's self authenticating doesn't mean its credibility can't be attacked

iii. Chain of Custody Chain of Custody

o Almost always only applies in criminal caseso Certain evidence, in addition to authentication, must be shown to have been handled with a

certain degree of care to avoid damage, tampering, and mix-up.o This rule is not a specific rule of evidence, but a matter of practice

A five-justice majority Supreme Court opinion once said in a footnote that chain of custody is not a prerequisite to admission. However, many lower courts continue to apply it as a prerequisite.

o Usually applies if the evidence is not unique

Ex: a little baggie of cocaine indistinguishable from any other little baggie of cocaineo Judges have adopted a "reasonable probability/certainty" standard that the evidence was

unaltered/not mistaken for admission.

iv. Original Document Rule There is NO SUCH THING as a common law "best evidence rule" in federal court. Original Document Rule - FRE codify the "best evidence rule" but only for writings and recordings.

o Does not apply when writing is introduced to prove merely its existence for some other purpose; only applies when contents of the writing are at issue

ODR probably doesn’t apply when a transcript of a recording is introduced into evidence because that’s generally to prove what someone said, not the content of the writing.

o Original Document Rule does not apply to show that a document was examined and found to have no reference to the matter at issue

Ex: "Well I looked at the contract and didn't find anything.”

FRE 1001: Definitionso FRE 1001(1): What is a writing or recordingo FRE 1001(2): What is a photographo FRE 1001(3): What is an original

Photographs: any print created from the negative is “an original” Printouts from computers, so long as they reflect the data on screen accurately, qualify

as “originals”o FRE 1001(4): What is a duplicate

FRE 1002: to prove the contents of a writing the original is required FRE 1003: A duplicate is admissible to the same extent as the original unless

o There is a genuine question raised as to the authenticity of the original oro It would be unfair, for example because the duplicate has been tampered with

FRE 1008: Jury determines the preliminary facts of…o Whether the writing existedo Whether another writing which purports to be the original in fact is the originalo Whether other evidence of contents correctly reflects the contentsWhen any of these are at issue.

Exceptions to the Original Document Rule:o FRE 1004:

FRE 1004(1): Lost or destroyed (in good faith!) FRE 1004(2): Unobtainable by any means available in judicial process or procedure FRE 1004(3): Document is in opponent's possession/control FRE 1004(4): Collateral, writing is not closely related to the controlling issue

o FRE 1005: Public documentso FRE 1006: Extremely voluminous documentso FRE 1007: admission, testimony, or written deposition from opposing party which proves the

content of the writing

IV. The Propensity Rulei. In General

FRE 404: "The Propensity Rule"(a) Character evidence may not be used to prove conforming conduct with the exception of….

(1) character evidence offered by an accused in a criminal case and evidence offered by prosecution to rebut the same and/or evidence offered by prosecution to attack character of the accused where accused has opened the door by attacking the character of the victim under FRE 404(a)(2)(2) character evidence of victim offered by accused and evidence offered by prosecution to rebut the same(3) Evidence of the character of a witness to attack credibility only

FRE 608: The evidence must go only to the characteristic of "truthfulness" FRE 405: Credibility must first be attacked by opinion or reputation evidence before

specific instances can be brought up on cross FRE 609: Evidence of a witness' crimes can be introduced to damage credibility (if the

crime goes to truthfulness) subject to many limitations (Impeachment, below)(b) Evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show action in conformity. It may be introduced for many other purposes, some of which are listed in this subsection, with advanced notice upon defendant request.

When the Prosecution May Introduce Specific Instances During Case-in-Chief:o Character itself is at issue - FRE 405(b)

Child custody case Entrapment defense always puts propensity to commit the crime at issue

o Res Gestae – the evidence is necessary for the jury to understand the storyo Identity / Skill / Opportunity

Ex: evidence that an item the defendant acquired by an otherwise unidentified perpetrator was used in committing the charged crime

o Motive Use of prior crimes to show that motive for charged crime arose Use of prior crimes to show that motive carried over from a prior crime

o Common Plan or Scheme Sometimes "absence of mistake or accident"

o Knowledge sometimes evidence of other crimes tends to prove knowledge where knowledge of a

fact is an element at issue in the case at bar Or consciousness of guilt

o Intent evidence of prior acts may show that the defendant took certain actions with the

expectation of certain results seen in the past

ii. Habit FRE 406: Evidence of habit (of a person) or routine practice (of an organization) is relevant to prove

conforming conduct regardless of corroboration.o Habit evidence is presumably admissible because habits tend to be less prejudicial than

character evidence.

Determining whether something is character evidence or habit evidence:o Habit - a person's regular practice of responding to a particular kind of situation with a specific

type of conduct "semiautonomous"

o The stimulus at issue in the case should be “close” to the stimulus which the proponent of the evidence claims results in the habitual behavior

o The more morally blameworthy a certain “habit” is, the more likely it is character evidence.

The more morally blameworthy, the stronger the correlation between the stimulus and the response must be

iii. Exceptionsa. Opinion / Reputation Requirement

FRE 405: When evidence of character is admissible under an exception: o (a) Proof must first be offered by "reputation or opinion" evidence. Inquiry into specific

instances of conduct may then be made on cross-examination.o (b) Specific instances of conduct may be offered on direct only if character or a trait of character

is an essential element of a charge, claim, or defense.

Extrinsic Evidence and Character Evidence Offered under an Exception: The point of asking about the specific instances on cross isn't to prove that the instances occurred, but to make the witness vouching for another person seem like a liar.

o There must be a good faith belief by the cross-examining lawyer that the instances asked about on cross actually occurred.

o In the event of witness denial, the examiner cannot attempt to prove the occurrence of the instance via extrinsic evidence.

b. Criminal Defendant’s Good Character FRE 404(a)(1): Criminal Defendant's Good Character

o Accused may introduce character evidence to show lack of propensity to commit the crime Only applies to pertinent character traits which go to the crime

o Criminal cases only in federal court Some other jurisdictions extend this to civil cases where the defendant's behavior

would/could be punishable by criminal lawo Opens the door for prosecution to rebut by introducing character evidence showing propensity

to commit the crime. Defendants should not introduce their own good character unless they are spotless.

c. Alleged Victim’s Bad Character

FRE 404(a)(2): Alleged Victim's Bad Character o Typically only allowed to bolster a self-defense claim or first aggressor defenseo Opens the door for the prosecution to both:

Bolster the victim's character AND attack the defendant's character

o In homicide cases only, the self-defense claim itself opens the door to bolstering the victim's reputation even if the defense doesn't offer any negative character evidence against the victim because the victim is dead and can't testify.

In all non-homicide cases, some evidence must be introduced to open the door.

d. Character Evidence of a Witness FRE 404(a)(3): Character Evidence of A Witness

o Character evidence of a witness is admissible from either party to impeach - FRE 607 Abrogates the common-law rule that a party couldn’t impeach “its own” witness

o Impeachment by Evidence of Bad Character - FRE 608(a) Reputation or opinion evidence must go to the character trait of truthfulness only Opens the door for attack on both:

- Truthfulness of the person the witness is testifying about AND- Truthfulness of the testifying witness himself

A witness whose character for truthfulness has been attacked may be "rehabilitated" with reputation or opinion testimony from other witnesses who attest to the original witness' good character for truthfulness

- Opens the door to specific instances about original witness on crosso Impeachment by Prior Bad Acts (Non-Criminal) - FRE 608(b)

Once truthfulness has been put at issue via opinion/reputation testimony, on cross, specific instances of dishonest conduct (as opposed to just telling lies) may also be inquired into at the discretion of the court, but may not be proven by extrinsic evidence.

e. Impeachment by Prior Conviction FRE 609: Impeachment by Prior Convictions For purpose of attacking truthfulness of a witness, admissibility of a prior criminal conviction is

dependent on how long ago the crime occurred, how the crime was punishable (a proxy for severity) and whether the crime contains an element or readily showable component of dishonesty.

o Age: Older crimes are presumptively inadmissible, but can be admitted if the probative value

substantially outweighs its prejudicial effect This test weighs against admission.

- More than 10 years from conviction or release date (whichever is later)o Punishment:

If punishable by death or greater than one year…- If offered against a witness other than the accused presumptively admissible

subject to FRE 403.- If evidence of conviction of such a crime is offered against the accused, then an

even balancing test applies which neither favors nor weighs against admission. If the probative value as to veracity (using severity of the crime as a proxy for tendency to lie) outweighs prejudicial effect, the conviction should be admitted.

Note: if the conviction is of the same crime which is at bar, the prejudicial effect almost always outweighs probative value.

o Type of Crime: Admissible subject to 403 regardless of punishment and regardless of whom it is offered

against if readily can be determined that establishing the elements of the crime required proof or admission of dishonesty

- Generally doesn't include armed robbery, murder, assault- Generally does include embezzlement, fraud

The age of the crime still trumps its type. If the conviction for fraud is more than 10 years old, for example, it is presumptively inadmissible.

Extrinsic Evidence & Impeachment by Prior Convictiono In the event of witness denial, can be proven by extrinsic evidence, i.e. criminal record

Luck v. United States - D.C. Cir factors which help judges in exercising discretion under FRE 609

o Whether conviction is for a crime OF dishonesty More admissible if dishonesty is an element rather than if only readily showable

o Similarity between the crime and the prior conviction More similar to the case at bar = more prejudicial because more likely to be used for

propensity purposes. o The relative age of the conviction

9 years? 1 year? Both are less than 10, but have different weights.o The relative seriousness of the crime = proxy for dishonesty

iv. Other Common Forms of Impeachmenta. Bias / Interest / Motive

Bias - Impeachment through bias is generally favored over character evidence.o Less prejudicial and more probative.o Davis v. Alaska - a defendant's right to impeach for bias on cross is encompassed in the Sixth

Amendment United States v. Abel - bias, unlike character, is "not collateral" and therefore may be proven by

extrinsic evidence in the event of witness denial. o Technically witness denial is not a prerequisite to the introduction of extrinsic evidence because

the federal rules don't specifically mention impeachment for bias, but this is a matter of practice.

b. Contradiction Contradictory Evidence - Evidence which tends to prove that something the witness said is false

Extrinsic Evidence & Contradictory Evidence: FRE 403 balancing determines whether extrinsic evidence to prove a contradiction should be admitted in federal court in the event of witness denial.

o Collateral Matter Rule – in state common law jurisdictions, prevents introduction of extrinsic evidence for the sole purpose of contradicting a prior witness where that evidence is not relevant independent of the contradiction.

Even though the collateral matter rule does not apply in federal court, the fact that the evidence is a collateral matter can be used as a basis for a good 403 objection.

- Ex: introduction of the evidence will waste time or confuse

Relationship Between Contradictory Evidence & Character Evidence: Every piece of contradictory evidence is not necessarily an attack on credibility. Depends on…

o the degree of contradiction Massive and material to the case?

o purpose for which it is offered Clearly suggest that another witness is lying, then it can qualify as an implied attack on

character of another witness. If the contradictory testimony could be the product of merely different witnesses

honestly perceiving the same event differently, then the introduction of the contradictory testimony is not necessarily an implied attack on credibility.

c. Prior Inconsistent Statement FRE 613: Prior Inconsistent Statement - Witness said something which contradicts himself

o Testimony before grand juries, at preliminary hearings, at suppression hearings, in pretrial depositions, statements given to the police, investigators, and insurance companies.

o Generally, impeachment by prior inconsistent statements does not depend on the accuracy of the prior statement. The inconsistency itself casts doubt on both statements.

o Inconsistent prior statement doesn't have to be shown to witness, but must be shown to opposing counsel on request.

FRE 801(d)(1): Ordinarily prior statements are not admissible for the truth of the prior statement.o (A) However, a prior inconsistent statement can be offered for the truth of the statement if it

was truly inconsistent, Is asked about on cross to impeach, and was made under oath.

o (B) If the witness made a prior consistent statement and it is offered to rebut a recent charge of fabrication or improper influence or motive (i.e. to rehabilitate), the prior consistent statement can be offered for the truth of the statement.

Need not have been made under oath if consistent

Extrinsic Evidence & Prior Inconsistent Statements:o If the statement only qualifies to be introduced under FRE 613,

In the event of witness denial, extrinsic evidence can be introduced to prove that the prior inconsistent statement was made, as long as…

- the witness is given a chance to explain or deny at some point - the witness is given a chance to be rehabilitated.

o If the statement qualifies to be introduced under FRE 801(d)(1), In the event of witness denial, extrinsic evidence may be introduced to show that the

prior inconsistent statement was made No requirement that the witness be given a chance to explain/deny and be

rehabilitated. o Introduction of extrinsic evidence under either FRE 613 or 801(d)(1) is subject to FRE 403 in

federal court. Collateral Matter Rule - in state common law jurisdictions, prevents introduction of

extrinsic evidence for the sole purpose of showing an inconsistent statement where that evidence is not relevant independent of the inconsistency.

Even though the collateral matter rule does not apply in federal court, the fact that the evidence is a collateral matter can be used as a basis for a good 403 objection.

- Ex: introduction of the evidence will waste time or confuse

Relationship Between Contradictory Evidence & Character Evidence: Not every prior inconsistent statement is necessarily an attack on character. Depends on…

o The probative value of the inconsistencyo The degree of the inconsistency

d. Defects in Perception, Memory, Description Two types:

o General disposition to misperceive, misremember & misdescribe are disfavored Ex: "the witness is an alcoholic"

o Specific defects in perception memory and description are favored for admission Ex: "the witness was drunk at the time"

Extrinsic Evidence & Defects in Perception, Memory, & Description:o If the issue is extremely important to the case, such as an eye witness to the crime, a court may

allow introduction of extrinsic evidence.o Lay testimony is preferred. o If expert testimony is allowed, medical is preferred to psychological.

e. Religious Beliefs FRE 610: Impeachment by Religious Beliefs Religion is not admissible for the purpose of showing impaired or enhanced credibility.

o Might come in indirectly (ex: “I was at church the night of the murder”), but lawyers should in general word questions so as to avoid mentioning the religion of a witness or party.

o Religion should not be used as a roundabout way of showing belief Ex: “Are you a Quaker? And do Quakers believe in non-violence?” should be…

“Do you believe in non-violence?”

v. Sex Crimesa. Victim’s Past Sexual Behavior or Sexual Disposition

FRE 412: o Applies in both civil and criminal proceedingso Applies to all instances involving sexual misconduct, from civil harassment to rape

(a) Not Allowed:o Evidence offered to prove that any alleged victim engaged in other sexual behavior.o Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions:o (1) In criminal cases:o These exceptions are still subject to FRE 403 and other rules, including prohibition on hearsay.

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

o (2) In civil cases: Evidence offered to prove the sexual behavior or sexual predisposition of any alleged

victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

- Weighed in favor of exclusion- Evidence of an alleged victim's reputation is admissible only if it has been placed

in controversy by the alleged victim. (c) Where an exception under (b) applies, special procedures must be followed

o (1)(A) Written motion 14 days before trialo (1)(B) Service on all partieso (2) In camera hearing

b. Prior Crimes Evidence in Cases of Sexual Assault FRE 413: Evidence of Similar Crimes in Sexual Assault Cases (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the

defendant's 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.

o This is the exact opposite of 404 (b) Prosecutor must give defendant 15 days notice of intent to admit (c) This rule shall not be construed to limit the admission or consideration of evidence under any other

rule.o Courts have interpreted it to be subject to FRE 403 to ensure Constitutionality.

(d) “Sexual Assault” =(1) any conduct proscribed by chapter 18 USC 109A;(2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;(3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

c. Prior Crimes Evidence in Cases of Child Molestation FRE 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, evidence of

the defendant's 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) Prosecutor must give defendant 15 days notice of intent to admit (c) This rule shall not be construed to limit the admission or consideration of evidence under any other

rule.o Courts have interpreted it to be subject to FRE 403 to ensure Constitutionality.

(d) o "Child" = <14 yearso "Offense of child molestation" =

(1) 18 USC 109A committed in relation to a child;(2) 18 USC 110(3) contact between any part of the defendant's body or an object and the genitals or anus of a child;(4) contact between the genitals or anus of the defendant and any part of the body of a child;(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).

d. Similar Acts Evidence In Civil Cases Involving Sexual Assault or Child Molestation

FRE 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 party's alleged

commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's 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.

(b) Plaintiff must give 15 days notice. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other

rule.o Constitutionality isn’t an issue in civil cases so 403 balancing should not come into effect.

Only specific instance evidence, as opposed to the usual reputation evidence, allowed.o In this rare instance, specific instance evidence might actually be less prejudicial.

vi. Witness Rehabilitation FRE 608(a): The credibility of a witness may be attacked OR SUPPORTED by evidence in the form of

opinion or reputation evidenceo The evidence must go only to the characteristic of "truthfulness"o Can only be admitted after credibility attacked by "opinion or reputation evidence"

V. Hearsayi. In General

FRE 801:

o (a) A "statement" is an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.

o (b) A "declarant" is a person who makes a statement.o (c) "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.

Out-of-court:o Any statement except those made by the witness during the current proceedingo Absent exception, the witness' own prior statements can count as hearsay, even if they were

made in a different court proceeding

Statement:o There must be either implicitly or explicitly a claim that some fact or circumstance exists

The speaker must intend to communicate the substance of the claimo Questions can contain implied statements.o Assertions from other assertions should probably be excluded, despite that they are not literally

“offered to prove the truth of the matter asserted.”o Hearsay rule does not apply to machine or animal "statements"

Unless the computer is reporting a human statemento Silence as Assertion:

Depends on whether it is a communicative silence General silence is unlikely to be considered an assertion Silence in response to a question is more likely to be considered an assertion

Offered for the Truth of the Matter Asserted:o Verbal Acts - out-of-court statements that are not hearsay because the very fact that they were

spoken or written carries legal consequences Ex: a statement made about a plaintiff in a libel case

o Verbal Parts of Acts - explain the legal significance of an act Ex: "Here, I'm just loaning you this money."

o Statements Manifesting Awareness / State of Mind - where state of mind is an issue, the fact that someone said or heard something is not offered for the truth of the matter asserted, but to show state of mind.

Ex: insanity, reasonableness of fear, knowledge, constructive knowledge

FRE 805: Multiple Hearsay - an assertion which regards another out-of-court statement. o To be admissible, each level of multiple hearsay must fit an exception.

ii. Definitional Exclusions FRE 801(d) Statements which are not hearsay: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-

examination concerning the statement, and the statement is o (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty

of perjury at a trial, hearing, or other proceeding, or in a deposition, or (See impeachment by prior inconsistent statement)

o (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or

o (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent.

o The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or

- Silence As Adoptive Admission: Reasonable probability that declarant heard the statement AND Declarant was capable of denying the statement AND Under the circumstances, a reasonable person would have denied the

statement were it not true (C) a statement by a person

- authorized by the party to make a statement - concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter - within the scope of the agency or employment, - made during the existence of the relationship, or

(E) a statement by a coconspirator of a party - during the course and - in furtherance of the conspiracy.

FRE 104(b): Conditional Relevance o The judge should admit the admission by party-opponent unless no reasonable fact finder could

conclude that the necessary factual condition existed. Ex: that the person was an agent, or that the person was authorized to make a

statemento There must be some corroborating evidence beyond the statement itself to show the existence

of a factual precondition, otherwise by definition there is not enough evidence for any reasonable fact finder to conclude that the condition existed.

Ex: a paystub showing that the person who made the statement was employed as a public relations officer for the company

iii. Exceptions for Which Availability is Immaterial FRE 803. The following are not excluded by the hearsay rule, even though the declarant is available:

o (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Must describe the event, not merely relate to it. Characteristics of the 803(1) Exception:

- The described event or condition need not have caused excitement- The declaration need not directly relate to the principal litigated event- The speaker need not have been a participant in the perceived event- The speaker must have been a percipient witness- The speaker need not be identified- The speaker need not be shown to have been oath-worthy- Subject matter is restricted to a description of the observed event- Minimal time-lapse is permissible- Present sense impressions are not cumulative

a speaker's present sense impression is not inadmissible for being duplicative simply because the speaker is also a witness who testifies to the described event to the stand

- Impressions in opinion form are admissible o (2) Excited utterance. A statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.

Event giving rise to statement must be startling enough- Judge decides himself under FRE 104(a) conditional relevance

Declarant must be under the influence of the event at the time the statement is made Statement only must relate to the event somehow

- Doesn't have to describe it, but an excited utterance which describes the startling event might fit under either 803(1) or (2)

o (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Must be a condition extant at the time of the statement- Ex: "I have a headache" vs. "I had a headache yesterday"

Must be a spontaneous statement, i.e. not a self-serving statement Hillmon – Necessity of corroborating evidence

- Charles: "I'm going to the movies" can be offered to show that Charles went to the movies even absent any corroborating evidence.

- Charles: "I'm going to the movies with John" can only be offered to show that John went to the movies if there is additional corroborating evidence that John actually went to the movies. The corroborating evidence is meant to protect against a person incorrectly expressing another's intent.

o (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Not limited to statements made to a treating physician, can be made to nurses, EMTs The subjective part-- the purpose-- is the most important, because that is what ensures

the reliability of the statement such that it shouldn't be considered hearsay.o (5) Recorded recollection. A memorandum or record concerning a matter about which a witness

once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Must relate to something the witness once knew firsthand (foundation) Memory must have faded to the point that the witness cannot fully and accurately

testify Record made or adopted by witness when memory fresh Record accurately reflects witness' knowledge at the time written Witness must testify that either she remembers making an accurate recording or that

there's no reason she would have written some description unless it was an accurate reflection of her perception

See also, FRE 612, a functional alternative. - Witness must testify that, having refreshed her memory, she now has enough

recollection to testify fully and accurately Might be subject to a more effective cross examination Might be more persuasive than reading a recollection

o (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a

regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Person must be qualified to make the assertion (person with knowledge) Assertion made at or near the time of the event

- Is the statement sought to be introduced in the past tense? Kept in the course of a regularly conducted business activity

- The activity must be regular, not necessarily the record Absence of routine renders records inadmissible only when their non-

routine nature indicates a lack of trustworthiness Don’t want to encourage businesses to cook up books for litigation

- Custodian or other qualified witness - the person knows that this is the kind of thing we regularly record and how it is recorded.

Need only one person, not every person in the chain of command. Johnson v. Lutz - when records are based on the statements of informants, those

records are only admissible if the statements are transmitted as part of regular business activity

Statements in business records which did not originate with someone within the business create a multiple hearsay issue

- Ex: customer says something to manager who writes it down Escape Clause: where circumstances indicated a lack of trustworthiness, the judge may

choose not to admit.o (7) Absence of entry in records kept in accordance with the provisions of paragraph (6).

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

In this case, silence may be offered for the truth of the assertion and is not hearsay.o (8) Public records and reports. Records, reports, statements, or data compilations, in any form,

of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a

duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or

(C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

- Criminal defendants can introduce police reports which otherwise can't be used against them to support a civil claim against the government

Ex: in a Bivens action for civil rights violation Factual findings based in large part on hearsay are not necessarily inadmissible, but the

hearsay within investigatory reports will be redacted (unless another level of hearsay exception applies) and these reports are vulnerable to exclusion under the trustworthiness requirement of the last clause in 803(8).

o (9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

o (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

o (11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

o (12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

o (13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

o (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

Provides evidence that the transaction took placeo (15) Statements in documents affecting an interest in property. A statement contained in a

document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

Provides evidence of the scope of the transaction- Ex: Was it an easement or a fee simple absolute?

o (16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

o (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

o (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

This rule basically covers everything in scholarly literature. Witness must acknowledge that a treatise is a reliable source before statements in it can

be used for/against the expert during direct or cross. Process for Cross:

- Ask the witness if they have heard of the treatise- Ask them if it's a reliable source

Admission of Witness - can include that the witness has cited the treatise in his own article.

- Read a statement to them- Give them an opportunity to embrace or reject the statement, or otherwise

explaino (19) Reputation concerning personal or family history. Reputation among members of a

person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

o (20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

o (21) Reputation as to character. Reputation of a person's character among associates or in the community.

o (22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

o (23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

iv. Exceptions Conditioned on Unavailability FRE 804: Hearsay Exceptions; Declarant Unavailable (a) Definition of unavailability.

o (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

o (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

o (3) testifies to a lack of memory of the subject matter of the declarant's statement; oro (4) is unable to be present or to testify at the hearing because of death or then existing physical

or mental illness or infirmity; oro (5) is absent from the hearing and the proponent of a statement has been unable to procure

the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

o Conditional Relevance: Whether or not proponent caused the unavailability with intent to prevent testimony is a 104(a) conditional relevance issue. There must be a preponderance of the evidence of responsibility.

(b) Hearsay Exceptionso (1) Former testimony. Testimony given as a witness at another hearing of the same or a

different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil

action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Can be from a different proceeding entirely Can be live testimony or a deposition In a civil case, can be against the same defendant or a defendant who is in privity.

- Subrogation in insurance creates privity- Indemnification clauses do not create privity - Joint interest in property creates privity- Estate of a decedent creates privity

In a criminal case, can only be used against the exact same defendant. Party against whom the testimony is now offered must have had similar motive and

opportunity to develop testimony by direct, cross, or redirect examination.- Need only have had an opportunity need not have actually done so.- Substantial identity of issues test - a similar motive exists if the issues of the first

proceeding and hence the purpose for which testimony was offered, were such that the present opponent had adequate motive to cross.

If objections were not made during the prior testimony that should have been made…. - If there should have been merely objections to form they shouldn't be made the

second time around Ex: “leading questions”

- If there should have been objections to the substantive admissibility of the evidence or competency of the witness, they can be made the second time around.

Ex: “no personal knowledge”o (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action

or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Declarant must have subjectively believed own death was imminent Statement must relate to the death.

- Whether the statement concerns the cause or circumstances of the death is decided as a FRE 104(b) conditional relevance question.

o (3) Statement against interest. A statement that: (A) a reasonable person in the declarant’s position would have made only if the person

believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; AND

- Tends to invalidate declarant's own civil claim against another- Or might expose declarant to civil or criminal liability

Must be a statement against one’s formal legal interests Can include pecuniary interest

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

- Corroborating circumstances may include: Whether declarant had an apparent motive to lie General character of the declarant How many and what people heard the statement Whether the declaration was made spontaneously The timing of the declaration

The relationship between the declarant and the witness Whether there is any other evidence other than the statement which

links the declarant to the crime 104(b) Conditional Relevance: The judge should admit unless there is not enough

evidence for any reasonable fact finder to conclude that the statement was in fact against one’s interest.

- It depends on what the statement is introduced to prove, because a statement could be in one's interest for one type of claim, and against for another.

- Where a statement could go either way, courts should probably only admit those parts of a statement which are disserving - Williamson v. United States.

Escape clause: "Made only if person believed it to be true". Can argue it's not so contrary to the person's interest that he wouldn't have made it, even if it’s against his formal legal interest.

If made by one of the parties to the litigation, these statements often also fall under the admissions by party opponent definitional exclusion.

o (4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce,

legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or

(B) a statement concerning the foregoing matters, and death also, of another person, if- the declarant was related to the other by blood, adoption, or marriage or - was so intimately associated with the other's family as to be likely to have

accurate information concerning the matter declared.o (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or

acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

v. The Residual Exception FRE 807: Residual Exception. A statement not specifically covered by Rule 803 or 804 but having

equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that

o (A) the statement is offered as evidence of a material fact;o (B) the statement is more probative on the point for which it is offered than any other

evidence which the proponent can procure through reasonable efforts; and o (C) the general purposes of these rules and the interests of justice will best be served by

admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes

known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Making a "single near-miss" argument that "this item of evidence almost fits into X exception” will not be sufficient to qualify under the residual exception.

o FRE 807 should not be used to circumvent carefully considered categories of evidence

vi. Constitutional Provisions Which Trump Hearsay Prohibitiona. Compulsory Process

Applies in criminal cases only

If a criminal defendant has reason to believe that someone who the gov't is not choosing to present voluntarily as a witness has exculpatory evidence, the defendant can compel the gov't to issue a subpoena that requires that person to appear in court as long as the court has jurisdiction over the individual

o Must show individual would be likely to testify in a manner which would tend to exculpate If the person's presence cannot be obtained...

o How powerfully exculpatory does the judge believe this testimony will be? The more likely the judge will require additional steps by the prosecution

- Such as pressuring a foreign gov'to Has the defendant had some prior opportunity to question this individual?

If there is already a pretrial deposition, prelim hearing, then there is less need for the person on the stand that day

Effectively limits the government's use of hearsay evidence against a criminal defendant.

b. Due Process Applies when the gov't is trying to deprive someone of life, liberty, or property Might apply where the rules of evidence might otherwise exclude a certain kind of evidence which may

be exculpatoryo Ex: evidence that someone else confessed to the crime

A balancing test:o Weight of the defendant's interest in avoiding deprivationo Probability of erroneous deprivationo Likelihood that safeguard will reduce risk of erroro Cost to gov't of providing additional safeguard

Chambers v. Mississippi - "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice."

c. Confrontation Clause Applies in criminal cases only Crawford v. Washington –

o Under the Confrontation Clause, testimonial statements are only admissible under a hearsay exception when

the declarant is unavailable AND- The Confrontation Clause may require more than mere absence as a

precondition to invoking 804 hearsay exceptions. "How much more is required is unclear."

Barber v. Paige and Mancusi v. Stubbs - the Confrontation clause appears to allow a state to establish the unavailability required to introduce prior testimony either…

By failing in a good faith effort to secure speaker's presence - Barber (state must at least subpoena a prisoner witness in an out-of-state penal institution before claiming unavailability).

Or, by showing that the speaker cannot be compelled to be present and that the speaker's prior testimony was thoroughly tested by cross-examination. - Mancusi (Confrontation clause is satisfied where witness was thoroughly cross-examined in prior testimony and has since moved out of the country).

where there was prior opportunity to crosso Where the defendant wrongfully procured witness unavailability with the purpose of

preventing testimony, then the sixth amendment right is forfeited and FRE 804(b)(6) applies.

o The court expresses no opinion as to whether the "dying declaration" exception to the hearsay rule applies even over this holding because it was recognized at the time of the Framers.

Testimonial Statement – the setting in which the statement is made, to whom it is made, and the purpose for which the statement is made determines whether it is “testimonial”

o Testimony given in preliminary hearings is testimonial – Crawford v. Washingtono Statement made to police at home where violence is over is testimonial – Hammon v. Indianao Statements made to 911 operators during ongoing emergency for the purpose of seeking

emergency assistance are not testimonial – Davis v. Washington

VI. Privilegei. Attorney / Client Privilege

FRE 501: Privilege is governed by common law. o "Dynamic" common law, not common law as it was when the federal rules were codified.

PFRE 503: never promulgated; provides a useful template for understanding common law privileges. (a) Definitions. As used in this rule:

o (1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.

o (2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

o (3) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services.

o (4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client,

o (1) between himself or his representative and his lawyer or his lawyer’s representative, or o (2) between his lawyer and the lawyer’s representative, or o (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or o (4) between representatives of the client or between the client and a representative of the

client, or o (5) between lawyers representing the client.

(c) Who may claim privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:o (1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to

enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

o (2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

o (3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or

o (4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

o (5) Joint Clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients

Applies only to confidential communications between an attorney (or agent) and client.o Client:

No $ exchange or retainer necessary Who is a “client” in the case of a corporate client? - Upjohn Co. v. United States

- Control-Group Test - the client in the context of corporations is anyone who can control/direct the corporation's actions in response to legal advice.

- After Upjohn, the control-group is presumptively covered by the attorney client privilege, and there may also be some protection for communication with lower-level employees

- Factors that may go to privilege where employee is not in the control group: To what degree that it was for the purpose of giving legal advice or

gaining information for the formation of legal advice Whether or not the employee knew that the communication was for

this purpose / thought it would be confidential The subject matter of the communication

Within the scope of the employee's duties?o Attorney:

The client must only reasonably believe the person to be a lawyer or lawyer’s agent. Covers those acting on behalf of the lawyer

- Paralegals, interpreters, and other agentso Communications:

Must be for purposes of obtaining legal advice or legal services- Tax preparation is usually considered an accounting function, not a legal service- Companies can't get away with disclosing things to their lawyers just for the

purpose of protecting the information. Dual-purpose communications:

- If the primary purpose is non-legal, privilege is unlikely to apply to any of the information conveyed

- If the primary purpose is legal, the court will attempt to protect those aspects of the conversation pertaining to legal advice and admit those relating to the non-legal purpose.

- Where they are inseparable, courts will construe against the party claiming privilege because of the preference for admitting all relevant evidence.

Usually only what is said and not the underlying information is covered by the privileged Exceptions to the "communications only" rule, in which information can be protected by

the attorney-client privilege: - The identity of a client may be protected:

Bagman cases - the attorney is acting as a go-between Whistleblower cases - the attorney brings a claim on behalf of someone

claiming another's wrongdoing Sugar daddy cases - the attorney defends someone or brings a claim on

behalf of another who pays for the actions of a third party

BUT: “Courts are particularly reluctant to sustain claims of privilege in the sugar daddy situation if there is a suggestion that the third party payment was part of a criminal enterprise."

- When the information is being introduced with the intent to force the holder of the privilege to waive the privilege and disclose confidential communications in order to rebut an improper inference.

Ex: “So, you went to go see a lawyer one day after your husband was killed?” is not a confidential communication, but it is underlying information which should be protected in the spirit of the A/C privilege.

Communication must be made while taking reasonable steps to ensure confidentiality.

ii. Work Product Exemption Work product protection is available only if material is produced in anticipation of litigation.

o Limited by some implied "reasonable prospect" of litigation, can't be too remote. Work product protection is also available for those acting as agents for a lawyer Two different types of work product:

o Ordinary work product - Facts gleaned by lawyer through investigatory work in anticipation of litigation

Should generally not be discoverable unless relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to one's case. – Hickman v. Taylor

- Admissible in evidence- Give clues as to location / existence of facts- Useful for impeachment / corroboration- Where witnesses are no longer available

o Opinion work product - Opinions, legal theories, mental impressions, inferences, conclusions Subject to heightened protection

- Only discoverable under extreme circumstances of need- Rarely if ever achieved

iii. Waiver of A/C Privilege and Work Product Exemption Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (a) Scope of waiver. When the disclosure is made in a Federal proceeding or to a Federal office or

agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:

o (1) the waiver is intentional;o (2) the disclosed and undisclosed communications or information concern the same subject

matter; and o (3) they ought in fairness to be considered together.

(b) Inadvertent disclosure. When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

o (1) the disclosure is inadvertent;o (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and o (3) the holder promptly took reasonable steps to rectify the error, including (if applicable)

following Federal Rule of Civil Procedure 26(b)(5)(B). (c) Disclosure Made in a State Proceeding. When the disclosure is made in a State proceeding and is not

the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:

o (1) would not be a waiver under this rule if it had been made in a Federal proceeding; oro (2) is not a waiver under the law of the State where the disclosure occurred.

(d) Controlling Effect of a Court Order. A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.

o So if the corporation waives in front of an agency proceeding, for example, the judge can agree that the waiver will not apply outside that proceeding.

(e) Controlling effect of a party agreement. An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.

iv. Doctor / Patient Privileges There is no broad doctor-patient privilege in federal court. Doctor-patient privilege exists in state courts, but has many exceptions:

o Health condition is placed at issueo Furtherance of crime or fraudo Actions involving breach of duty arising out of doctor-patient relationshipo Required public reporting of certain medical conditionso California probably has the most exceptions – see page 961

Psychotherapist-patient privilege - created as a federal common-law privilege in Jaffee v. Redmondo Also exists in all state common-law jurisdictionso Extends to licensed social workers engaged in the course of psychotherapy in federal

jurisdictions. Varies amongst state jurisdictions.

- Must be licensed -- what does it take to be "licensed"?- Most jurisdictions require at least a master’s degree.

o Even the existence of the relationship itself is within the scope of the privilege. o May extend to volunteers acting under a licensed psychotherapist supervisor

PFRE 504:

(a) Definitions.o (1) A "patient" is a person who consults or is examined or interviewed by a psychotherapist.o (2) A "psychotherapist" is (A) a person authorized to practice medicine in any state or nation, or

reasonably believed, the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including, drug addiction or (B) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.

o (3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist including members of the patient's family.

(b) General Rule of Privilege. A patient has a privilege refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

(c) Who May Claim the Privilege. The privilege may be claimed by the patient, by his guardian or conservator, or by the personal representative of a deceased patient. The person who was the

psychotherapist may claim the privilege but only on behalf of the patient. His authority so to do is presumed in the absence of evidence to the contrary.

(d) Exceptions.o (1) Proceedings for Hospitalization. There is no privilege under this rule for communications

relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

o (2) Examination by Order of Judge. If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

o (3) Condition an Element of Claim or Defense. There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

v. Family & Religious Privileges Spousal Immunity / Adverse Testimony Privilege

o Applies only in criminal cases in which one of the spouses is accused of a crime. o The non-accused spouse cannot be compelled to testify against the accused. o Applies only during the duration of the marriage. o Trammel - in federal court can be waived by the testifying spouse.

Unlike most privileges, it is held by the testifier and not the person against whom they are testifying.

- If the marriage has reached the point where someone is willing to voluntarily testify, there is not a healthy relationship worthy of protection.

Most states have followed this. A minority of states have rejected the Trammel approach because it is rare that the

testifying spouse's testimony is actually voluntary in all respects. - The prosecutor often threatens the spouse who refuses to testify with charges

of conspiracy or being an accessory if she doesn't waive the privilege.

Marital Communications Privilegeo Closely analogous to the attorney client privilege. o Unlike spousal immunity, it is held and can be waived by the person who makes the

communication.o Scope is like a/c privilege

Applies in all proceedings of any type, civil/criminal/administrative Applies only to communications that take place during the marriage Unlike spousal immunity, it lasts beyond the end of the marriage

o Must make the communication while taking reasonable steps to keep confidentialo General exceptions are like that of a/c privilege

In furtherance of crime or fraud Commitment or similar proceeding Proceeding to establish competence Civil proceedings between spouses Criminal proceedings involving spouses & their children

Parent-Child Privilege

o Exists in a few states and has been applied in two federal district courts. o Almost all states and virtually all federal courts, including all circuit courts, have considered the

parent-child privilege and declined to create it.

Priest-Penitent Privilege – applies to any religion where there is a communication between a person and a religious figure for purposes analogous served traditionally by confessions in the Roman Catholic church.

o Scope is similar to A/C privilege.

vi. Government Privilegesa. Relationship Between FOIA & Gov’t Privilege

Freedom of Information Act (FOIA) – allows full or partial disclosure of previously undisclosed documents under control of the U.S. government.

o Excludes advice given to the president/vice president, not an “agency” for FOIA purposes. There are nine exemptions for information not requestable under FOIA.

o Protected by Executive Order b/c related to nat’l securityo Records relating solely to the internal rules and practices of an agencyo Exempted from disclosure by another statuteo Trade secrets given to the gov't with the understanding that they would not be disclosed.

Ex: documents in competitive negotiation procurement o Intra-agency letters and memoranda not available by law to anyone not engaged in litigationo Personnel and medical files containing personal private informationo "Deliberative process exemption" all pre-decisional documents from any decision maker. o Law enforcement documents which if requestable would impede law enforcemento Financial oversight documentso Geological / geophysical data, including maps, concerning wells

Courts use FOIA as a starting point for deciding questions of gov't privilege.o If the information is available under FOIA, then the government can’t claim a privilege.o But just because a document falls within an exemption from FOIA does not necessarily mean

that it is also privileged.

b. Executive Privilege Executive Privilege - we want the President to be able to receive completely candid advice. For that

reason, we want to keep confidential forever and in all contexts any confidential communication from a presidential advisor to a president.

o If there is any potential that the communication could have made it to the desk of the president, it is covered.

o Courts have also extended this to the vice president.

c. Informant Identity Privilege Informant:

o Can apply in any civil or criminal proceeding in which someone has given information relevant to law enforcement.

o Usually also covers those who provide services for law enforcement Ex: introducing an undercover officer to a dealer and “vouching” for him

Scope of the Privilege: o The privilege belongs to the government, not to the informer.o The privilege extends only to identity, not to the information supplied.

Unless the information supplied tends to give away identity.o Roviaro & McCray - the information must have been supplied with the intent of confidence

Most courts would not protect the identity of an informer who was not concerned about his identity being known

Exceptions:o Government or informer exposes the identity of the informero Informer appears as a witness for the gov’t

No anonymous testimony allowedo Informant’s testimony is necessary for a fair determination of the merits

The greater the informer’s involvement in the crime and the fewer other people who have seen as much of the crime as the informer, the less likely courts are to protect the informer’s identity.

Constitutional Trump:o In a criminal case in which a particular informant might testify in an exculpatory manner

d. State Secrets / National Security Privilege National Security Privilege - When an issue arises in litigation as to whether a document which has been

deemed classified should be admitted into evidence the head of the relevant department must claim national security privilege, because only that person has broad enough knowledge to understand the importance of the document were it to get into the wrong hands.

o U.S. v. Reynolds – formally recognized the state secrets privilegeo Judges tend not to exercise discretion, because an error of commission has such huge

implications. o Applies civil in suits against the government and in suits against third parties involving gov’t

documents Ex: Suit against Lockheed for breach of contract

Constitutional Trump: In a criminal case gov't has Brady obligations to turn over exculpatory evidence.o Gray mail – When an attorney threatens the government not to press a certain charge against a

client because the attorney will request sensitive documents under a plausible argument that they are constitutionally required.

Why the gov't is sometimes reluctant to prosecute in civilian courts.

VII. Expert Witnessesi. Selection & Preparation of Expert Witnesses

An expert need not have any previous contact w/ a case Expert witnesses may be compensated for testimony and time spent preparing to testify. Rarely have to testify by compulsion.

o Unfriendly expert can hurt you more than help youo Impossible to prep correctlyo There's always a substitute expert willing to get paid o Exception: occurrence experts - those who happen to witness significant events in the course of

their professional rules Ex: emergency room doc who treated the plaintiff

Why retain an expert if they aren't testifying?o Non-disclosable conclusion as to exactly what happenedo Helps lawyer understand background materialo Expert shopping; get experts until you find one who says what you want to say, and then use

them at trialo Buying witnesses away from the other side & limiting their access

ii. Discovery & Expert Witnesses FRCP 26(a)(2): requires extensive initial disclosure for expert witnesses who will testify at trial via

expert reports. o Requires expert to set forth in a report everything they'll expect to address on directo Descriptions of all the exhibits relied upono List of all publications going back 10 years written by experto A list of all cases testified in previouslyo A statement as to whether or not witness is being compensated for their testimony

All stuff useful for depositions and cross-examinations FRCP 26(b)(4)(a): A right to depose expert witnesses who will testify at trial.

Experts who have been informally consulted but not retained are virtually undiscoverable secrets.o Informally consult until you find an expert who says what you want them to say and who will be

personable in front of the jury.

Non-Testifying Witness Exemption - Experts and their opinions not to be used at trial are subject to discovery only in exceptional circumstances

o May occur when the field is so limited that other experts are not availableo In-house expert findings may be discoverable if their work was a part of their ordinary duties,

but not if they were specially retained in anticipation of litigation An in-house expert may be specially employed even if not paid any extra, if they don't

usually assist in litigationo Goals of the Non-Testifying Witness Exemption:

A party should not be able to build its case on the diligent preparation of his adversary The purpose of disclosure / deposition of experts who are going to be used at trial is to

aid in preparation of effective cross-examination, which is not necessary if the expert is not going to testify at trial

A party may change their determination of who will testify at trialo Litigation is supposed to be flexible and responsive to development of factso Although it is rare and expensive to change an expert’s designation of “testifying” or “non-

testifying” after formal discovery under FRCP 26(a)(2) and 26(b)(4)(a) has occurred

iii. Qualification of Expert Witnesses Decisions as to qualification are decided by the judge under FRE 104(a) conditional relevance

o Even though the court is supposed to make the finding of qualification itself, in practice courts tend to apply a more lenient standard similar to FRE 104(b) such that there must be "evidence sufficient to support a finding" of expertise.

Purposes of engaging in lengthy qualification process:o Establish foundation for the judge under 104(a)o Bolster the credibility of the witness in front of the jury

Limitations on the use of character evidence generally do not apply to experts as long as the evidence can be arguably related to professional qualifications

o Voir dire may be used to embarrass and discredit the witness in front of the jury

iv. Admissibility of Expert Testimony FRE 702 : If scientific, technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if

o the testimony is based upon sufficient facts or data, o the testimony is the product of reliable principles and methods, and

o the witness has applied the principles and methods reliably to the facts of the case.

Daubert v. Merrel Dow Pharmaceuticals – In order to decide admissibility under FRE 702, a judge must decide two preliminary facts: whether the reasoning/methodology underlying the testimony is scientifically valid and whether the reasoning/methodology can be applied to the facts at issue.

o Factors: (Non-exclusive list, and none is dispositive) Is the theory or technique testable? Has it been tested? Subject to peer review and publication? Is there and what is the known potential rate of error for the technique? Is it “generally” or “widely” accepted? (Incorporates the Frye test superseded by FRE)

o Some circuits have added a post-Daubert the factor of whether the expert is proposing to testify on matters growing naturally from research they have conducted independent of litigation

Based on the idea that the theory or methodology is less likely to be polluted by potential results-based motive if not in anticipation of litigation

o The focus is supposed to be on the methodology, not the conclusion However, an absolutely absurd conclusion can indicate to a judge that the methodology

was not faithfully applied. – Advisory Committee Note to FRE 702

Kumho Tire v. Carmicahel – Daubert’s holding applies to “technical” and other specialized testimony, not just scientific

GE v. Joiner - all decisions to admit or exclude scientific evidence on the preliminary question of its reliability shall be reviewed for abuse of discretion.

FRE 703: Bases for Expert Opinion Evidence:o Experts are not restricted to relying on their own perceptions or reasoning. o Two types of second-hand information on which an expert may permissibly base an opinion:

Generalized body of knowledge constituting the field Other people's observations of the event at issue

Hearsay and Expert Opinions:o Expert witnesses operate under what amounts to a plenary exemption from the hearsay rule

FRE 705: Contemplates that an expert might be asked to explain that upon which he bases his opinion.

- See also FRE 803(18): the contents of learned treatises are not hearsay FRE 703: facts or data upon which an expert's inference are based need not be

admissible for the inferences themselves to be admitted.- BUT facts or data which are otherwise inadmissible shall not be disclosed to the

jury unless their probative value in assisting the jury in evaluation of the expert's opinion substantially outweighs prejudicial effect.

There is a presumption against admissibility when offered on direct The purpose of this rule is to prevent people from using their

own expert witnesses to circumvent the hearsay rule. Where the facts or data relied upon come from a learned

treatise, they are not “otherwise inadmissible” because they are covered by hearsay exception FRE 803(18) and therefore are not subject to this balancing test.

Where the facts relied upon are statements made for the purpose of medical diagnosis or treatment, they are not

“otherwise inadmissible” because they are covered by hearsay exception FRE 803(4) and are not subject to this balancing test.

Under FRE 705 this presumption against admissibility does not apply when the facts relied upon are asked about on cross.

Ultimate Issue Rule - Prior to the federal rules of evidence, courts prevented experts from giving testimony that would effectively resolve one of the "ultimate issues" (ex: “the exposure caused the injury”) because this was seen as invading the province of the jury.

o Today, the ultimate issue rule has been rejected with the exception of FRE 704: Where mental state is an issue in a criminal case, an expert may not testify as to

whether or not the criminal had the requisite mental state- Can testify as to mental state in general

Ex: “he's totally delusional”- May not testify in terms of the jurisdictions' test for insanity, for example

Ex: “he is unable to tell the difference between right and wrong.”o Although the ultimate issue rule does not apply in federal court, opinions which are couched in

legal terms will still be excluded for failing to assist the trier of fact or for being outside the scope of expertise.

Ex: "defendant should be liable"

FRE 706: The court may appoint an expert.o Rarely ever used.