Evidence

• 1. Qualified witness
• 2. Person with knowledge supplied the information
• 3. Activity was in the regular course of business
• 4. It was regular practice to make a record
• 5. The record was made in a timely fashion.
• (foundation should be laid)

• 1. "Fundamental Attribution Error" - jury puts too much weight on character information and it skews their view ignoring present facts
• 2. "Nullification prejudice" the jury might decide to not follow the law and convict the guy because he is evil. "Once a thief, always a thief."
• 3. Wastes time- collateral issues are a waste of time.

• 1. Evidence tells a colorful story
• 2. Leaving things out could distort the evidence and preclude witnesses from testifying naturally
• 3. Juror's expectations must be filled
• 4. Evidence can have unforeseen relevance.

Jury

• 1. Qualification of a person to be a witness
• 2. Existence of a privilege
• 3. Admissibility of evidence

*these are all determined by a preponderance of the evidence standard

Only on cross examination of a character witness, "Did you hear..."

If character was an essential element (to one prong of the crime)

To prove KIPPOMIA

• 1. Protect V from humiliation and double trauma
• 2. There is a fear that the judge and jury will be prejudiced toward the sexually-active victim and overrate the propensity to consent
• 3. Lawmakers want to encourage V's to report these crimes in exchange for protecting them in court

• 1. To explain P's injuries, presence of semen, pregnancy, or disease were caused by someone other than D
• 2. Prior sexual behavior with D
• 3. You can admit evidence if excluding it would violate the constitutional rights of D

• You use a balancing test
• The probative value must substantially outweigh prejudice and harm. (This is stronger than 403. Under 403 if it is 50/50, the evidence would be let in, but here it needs to be more.)

• 1. The prior crime doesn't have to have resulted ina conviction
• 2. There is no special similarity requirement between this act and past acts

1. Some might argue that it is inconsistent with Rule 412. History of victims is excluded for prejudicial reasons but not for the accused. (Park disagrees and says that 412 has OOC policy goals to encourage Vs to report crimes and that Vs have a legit privacy interest and perpetrators don't)

2. This is also inconsistent with the general prohibition against character evidence. There is a danger that a jury will overvalue the evidence and apply a lower standard of proof since they aren't worried about convicting an innocent man. (If D was a prior rapist and murderer, the evidence of the rape would come in but not the murder. That seems inconsistent)

• 1. Allow evidence of prior rape in consent-defense rape cases to show no consent. This is because there is less evidence to go on (he said she said) so it's probative in this type of situation
• 2. He would not allow it in a regular rape case (same as other crimes in that it should be excluded). In a stranger rape situation, police round up usualy suspects so that the prior crime was already taken into consideration.

May be relevant to show a defective or dangerous condition, notice thereof, or causation on the occasion in question.

1. NOT admissible to prove: negligence or culpable conduct, defect in product or product's design, or a need for warning or instruction.

• 1. Ownership/Control
• 2. Feasibility of precautionary measures
• 3. Impeachment

• NO: Liability for or invalidity of the claim or amount.
• YES: bias or prejudice of a witness

NOT ADMISSIBLE.

NO. Not if the doctor, at the time, honestly thought that was the right decision to make?

Settlement offers don't have great probative value and we want to encourage people to try to settle

• 1. Ambiguity: statement may not have been clear
• 2. Insincerity: declarant could be lying
• 3. Memory: declarant may not accurately remember
• 4. Perception: declarant may have misheard what they are describing

• 1. Must survive 403 balancing
• 2. Sufficient proof of other act
• 3. Needs to serve a proper purpose.

feasibility is controverted if the D claims that the measure was impossible or impractical, like if it was too expensive.

The D would have put feasibility in issue by claiming that the action wouldn't work and it wouldn't have prevented the harm.

This approach is too broad. It makes it difficult to defend any personal injury action without raising an issue of feasibility. Probably wasn't intended by the makers of FRE 407

For impeachment or corroboration purposes

• Based on the assumption that lying will bring out physiological responses and that these responses can be measured.
• People may also develop counter measures.
• They cannot be accurately tested.
• Even if the tests were conducted in a double-blind method, there are issues of motivation that might differ in a legal setting. NOT RELIABLE AT ALL.

• TAPES: Testing, Error Rate, Publication and peer review, acceptance, and standards.
• these must be based on specific facts and presented by a qualified witness.
• This applies to non-scientific tests (Kumho Tire)

As long as the field is widely accepted, it doesn't matter if it's valid or not.

• Liable statement (criminal, civil, or if in CA, social too)
• Unavailable declarant
• Contrary to Interest (statement) (OR)
• Invalidates a claim against another
• Personal Knowledge
• (Must be against interest when made)
• A statement exonerating the accused is not OK unless corroborating circumstances support trustworthiness.
• "Reasonable person in declarant's position wouldn't have made the statements unless they were true."

• Need not be against interest when made and NO personal knowledge requirement, but declarant must be an opposing party
• Must be made during the existence of the relationship.
• May be based ons ilence
• OAAA
• -Parties OWN statement in either an individual or representative capacity; OR
• -Adopted or believed to be true by the party (knowingly agreed)
• - Statement by a person Authorized by the party to make a statement concerning the subject; OR
• - Statement made by the parties agent/servant concerning a matter within the scope of agency or employment.

• - held by testifying spouse
• - terminated with divorce
• - includes non verbal acts
• - married person whose spouse is a D in a criminal case may not be called to be a witness by the P, and if the spouse wants to testify he/she can.
• - meant to protect the sanctity of marriage but if someone wants to testify then obviously there isn't much to protect.

• -held by BOTH spouses
• -applies in BOTH criminal and civil cases
• -covers only confidential communications (and only verbal ones) between H&W
• - does NOT terminate by divorce
• - does NOT apply to domestic partnerships
• - excludes statements made in furtherance of future crime/fraid.

Is it material (directed toward a matter in issue) and is it probative (tends to prove or disprove a matter at issue)

If evidence is both material and probative, it is relevant and it is admissible unless some exclusionary rule applies

• specific, routine, and continuous
• must show that the habit was invariable
• can show that D did the act, show the standard of car in negligence cases or to reflect on terms of a K

• - impeach D's witnesses as to the safety of the condition
• - to show ownership or control of the instrumentality causing the injury
• - to show that D was attempting to conceal or destroy evidence
• - to show that precautionary measures were feasible (when D has denied this)

• Under the FRE, nonassertive conduct is not
• treated as hearsay and hence is admissible not only to show the
• declarant’s state of mind but also to prove the truth of the matter
• asserted. Two reasons are given: (i)
• there is no need to worry about the declarant’s veracity b/c the conduct, not
• having been consciously assertive, did not involve veracity; and
• (ii) there is an assurance of trustworthiness—i.e., the
• notion that a person’s actions speak louder than words.

• Prior inconsistent statement of a witness – If the prior
• inconsistent statement was made under oath and in a proceeding, it is not hearsay.
• (Thus, in federal practice, such statements are not longer usable solely for impeachment purposes.)
• A “proceeding” includes a prior trial, a preliminary hearing, a deposition, and grand jury testimony.
• [FRE 801(d)(1)(A)]

• Prior consistent statement of a witness –
• Whether under oath or not, a prior consistent statement, when offered to rebut an express or implied charge of recent fabrication or improper influence of motive on the part of the witness, is not hearsay

A prior identification is not hearsay. [FRE 801(d (1)(C)] The Supreme Court has held that neither the Confrontation Clause nor FRE 802 is violated by the admission of a prior out-of-court identification statement of a witness who, although subject to cross-examination, is unable b/c of memory loss to explain the basis for the identification.

• Rationale: Identifying a human being is a very difficult task and prior identification was made earlier in time and often under less suggestive circumstances (and perhaps there’s been less time for D to try to intimidate the witness).
• Advisory Committee Notes to FRE 801(d)(1)(c) – “The basis is the generally unsatisfactory and inconclusive nature of courtroom identifications as compared w/ those made at an earlier time, under less suggestive conditions.” The Report of the Senate Committee on the Judiciary – In support of creating the exemption set forth in Rule 801(d)(1)(C), the Committee Report noted that the declarant would be present and subject to cross-examination, and also said: “Since these identifications take place reasonable soon after the offense has taken place, the witness’ observations are still fresh in his mind. The identification occurs before his recollection has been dimmed by the passage of time. Equally as important, it takes place before D or some other party has had the opportunity, through bribe or threat, to influence the witness to change his mind.”

• (1) the power of the agent to alter the legal relationships between the principal and third parties and the principal and himself;
• (2) the existence of a fiduciary relationship toward the principal with respect to matters within the scope of the agency; and
• (3) the right of the principal to control the agent’s conduct with respect to matters within the scope of the agency.
• " Cts primarily look at the issue of control in determining whether an agency relationship exists.

• Justification for this exception: Co-conspirators are partners in crime.Explanation: When you have a legitimate business partnership, then whatever one partner says can be used in evidence against the other partner. We want partners to be able to speak for each other and to be bound by each other’s statements. This furthers the business (makes ppl want to enter into business w/ them). We treat conspirators the same as we treat legitimate business partnerships. Counterarguments:Business partners have duties to each other that conspirators don’t have.if the idea behind having this for legitimate partnerships is that we want those partnerships to succeed, why should we have them for criminal partnerships? We don’t want them to succeed! NOTE: This exception makes it easier to convict criminals.
• BUT, if it’s bad evidence, it also makes it easier to convict innocent people.

Req’t of identity of parties

Traditional view – The traditional view is quite narrow and requires complete identity between the parties; i.e., both of the present parties (the proponent of the evidence and the adversary) must have been parties to the former action for the testimony to be admissible.

Modern trend – The modern trend of authority in the states (but not in federal practice) is to reject the “identity of parties” req’t in favor of Wigmore’s looser test of identity of interest and motive. Under this test, a report of testimony given in a prior trial is admissible whenever the adverse party in the prior trial had an opportunity and similar motive to cross-examine the declarant as does the adverse party in the present proceeding.

Federal Rules approach – Under the FRE, a witness’s recorded testimony from some earlier trial, deposition, or proceeding is admissible only if the party against whom it is now being offered (i) was a party to the earlier trial or proceeding (or a predecessor in interest if a civil action); (ii) had an opportunity to examine the witness at that time; and (iii) had a similar motive to develop the witness’s testimony (by direct or cross-examination) as that which he now has.

• Req’t of identity of issues – The issues in both trials do not have to be identical but they must at least by substantially the same; they must relate to the same general subject matter so as to assure the same scope of cross-examination.Comment: Modern statutes do not state this as a separate req’t b/c it is inherent in the req’t that the witness was subject to cross-examination in the prior proceeding by a party whose motive and interest were the same as in the present proceeding.
• [FRE 804(b)(1)]

• Traditional view—inadmissible – Prior to the Federal Rules, most courts did not admit evidence of a person’s out-of-court declarations as to how she felt in the past (e.g., “I was in terrible pain last Thursday”). The rationale is that with the passage of time there is too great a likelihood of inaccuracy, falsification, etc. Declarations to doctors – In most cases, even declarations made by an injured person to her doctor as to how she previously felt are not admissible (whereas present body pains would be).
• Distinguish—expert testimony – Declarations made by a person to a doctor as to past conditions may be admissible to this extent: If the doctor is called to testify as an expert witness, the doctor may, in stating the facts upon which her expert opinion is based, include declarations by the patient as to some past condition.
• Federal Rules – The Medical Diagnosis or Treatment Exception – The Federal Rules have rejected the limitation against declarations of past physical condition and allow such declarations when they are made to a physician or other medical personnel for the purpose of medical diagnosis or treatment. [FRE 803(4)] Furthermore, the Federal Rules allow declarations not only of past symptoms and medical history, but also of the cause or source of the condition insofar as reasonably pertinent to diagnosis or treatment.Comment – This is believed to be the better view. Even though lacking in spontaneity, such declarations are usually reliable b/c it is thought that patients generally tell their doctors the truth about their symptoms—present or past. But note—limitation – The Federal Rules allow declarations of past physical condition to be admitted only when made for the purpose of diagnosis or treatment. For example, a declaration of past physical condition made to a forensic expert (not for diagnosis of treatment) is inadmissible b/c the declarant may have a motive to lie.

• Requirements for admissibility:
• Victim’s declaration:
• The dying declaration must be that of the victim, not some third person. Thus, the deathbed confession of a third person that she killed the victim is excluded under this exception, although in some jxns it might qualify as a declaration against interest. Sense of impending death: The declaration must have been made by the victim while believing that his death was imminent. Comment: Some courts underscore this req’t by saying that the declarant must have abandoned all hope of recovery, must have been conscious, and must have believed that his death was immediately imminent—i.e., “near and certain.”But note: The death need not take place immediately after the declaration is made.
• Percipient witness:
• The victim must have had the usual capacities of a witness at the time of the declaration—i.e., the capacity to perceive, to relate facts, and to recognize the obligation to tell the truth.Lack of religious belief: The victim’s lack of religious belief goes only to the weight of the declaration—not to its admissibility.
• Facts related to cause of death:
• The declaration must be: (i) as to facts and (ii) related to the cause or circumstances of what the victim believed to be his impending death.
• Opinion: Thus, a declaration that is a mere opinion by the declarant is inadmissible (“I think D poisoned me”).
• Self-serving: However, the fact that the declaration is self-serving is no bar to admissibility (e.g., fatally injured motorist states that other driver ran the red light).
• Death required: In some state jxns, the declarant must have actually died by the time the evidence is offered.
• However, there is no fixed time period within which the death must have taken place, as long as it appears that the declarant had the requisite fear of impending death when he made the declaration. Hence, declarations have been admitted even where death took place months later.

One of the most important req’ts is that the declarant be unavailable. Remember that the FRE do not require that the declarant actually die; it is sufficient that the declarant be unavailable at the time of trial. Another important req’t deals w/ the type of action in which the declaration is offered. Remember that under the FRE, dying declarations are admissible in civil cases and in homicide cases. You should also be familiar with the other req’ts of the exceptions; thus check to see that (i) the victim made a declaration believing his death was imminent, (ii) concerning the facts related to the cause or circumstances of his perceived impending death, and (iii) the victim had his faculties about him when he made the declaration.

Requirements for admissibility:The document was prepared or adopted by the witness;Such preparation or adoption occurred when the matter described was fresh in the witness’s memory; The document correctly reflects what was remembered when it was made; The witness has insufficient recollection to testify fully and accurately about the matter; and The document is the authentic memorandum which has not been tampered with.

The public records exception has no business duty req’t (can be based upon information provided by someone who is under no business duty). The public records exception doesn’t require that the public record be made in the regular course of business.A public record can often come in without a sponsoring witness. This used to be a big different, but since 1997, business records can be admitted by affidavit, so you don’t always need to present a witness for this exception (although you may want to for purposes of persuasion).

• “Trustworthiness” factor – To be admissible under the “catch-all” exception, the hearsay must first of all have “circumstantial guarantees of trustworthiness” that are equivalent to those of the other hearsay exceptions.
• “Necessity” factor – Secondly, the hearsay must: (i) be offered as evidence of a material fact (which probably simple means “important,” “consequential,” or “central”); (ii) by more probative of that fact than any other evidence that the proponent could reasonably produce; and (iii) serve the “interests of justice” by its admission.
• Fairness to adversary – Finally, the proponent must give notice to the adverse party in advance of trial as to the nature of the hearsay (including the name and address of the declarant), to afford the opponent an opportunity o rebut the evidence. But some federal courts have relaxed this rule to permit notice in the midst of trial.

The first prong, the unavailability prong, of the Roberts test requires that the prosecution produce the hearsay declarant or demonstrate that the declarant is unavailable. The second prong, the reliability prong, requires that the hearsay possess sufficient indicia of trustworthiness. Both prongs have to be satisfied before hearsay can be admitted over a Confrontation Clause challenge.

• In Crawford v. Washington, the Court stated that the test of Roberts fails to comport with the intent underlying the Confrontation Clause. The Court held that when prior testimonial evidence is at issue, the evidence is inadmissible unless (i) the declarant is unavailable, and (ii) D had an opportunity to cross-examine the declarant at the time the statement was made. The Court did not comment on whether the Roberts case was still good law as it applies to other types of hearsay.Crawford shifted the focus from whether the hearsay was trustworthy (see Roberts) to whether it was testimonial. Crawford said that if the hearsay was testimonial, then it violates the 6th Am. unless the accused has the chance to cross-examine (or had a prior chance to cross-examine is the declarant is now unavailable).
• Basically, if something is testimonial, it must be cross-examined. It doesn’t matter whether it is highly trustworthy.

ACN wanted to limit the risk that a party will evade the requirements of Rule 702 by proffering an expert in lay clothing.

• Business records are:
• 1. Systematically checked by regularity and continuity which produce habits of precision
• 2. Businesses rely on them, which gives incentive to keep accurate notes
• 3. There is a duty to make an accurate record as part of a continuing job or occupation

• Provides that a party forfeits the right to object on hearsay grounds when the party's deliberate wrongdoing procured the unavailability of the declarant as a witness.
• It applies to actions taken after the event to prevent a witness from testifying

Yes, but with a limiting instruction because you can't positively identify someone. You have to say that a known percentage of the population would also match.

• Differences and similarities aren ot conclusive.
• Expert can still identify through experience, including viewing photos of coincidental overlap of features in bullets fired through different guns

• Fingerprint identification is not perfect (Mayfield train bombing case)
• The context in which the prints are provided to an expert might influence the expert's determination.
• Authentication experts usually don't know the random match frequency, but they still testify "It's a match"

• Difficult to determine the prior probability
• Juries do not ordinarily quantify
• You have to make a number of assumptions- believing the prior odds are true
• Juries might be mesmerized by the math and overlook other important evidence

• As long as the declarant testifies at trial or a hearing and is subject to XE concerning the statement and the statement is one of identification of a person made after perceiving the person it's admissible.
• Since these identifications take place reasonably soon after an offense has been committed, the witness' observations are still fresh in his mind and before the recollection has been dimmed by time. It's better than courtroom identifications and are made before the opportunities arise for bribes and threats.

• Here, you can testify to things other people recorded.
• As long as you're familiar with the habits of the business and can lay the foundation for the business records exemption, you can testify.

• As long as they are done in the regular course of business right after an accident and is required by law.
• They still need to be completed by someone not personally involved in the accident to ensure trustworthiness.

• Records, reports, etc. setting forth:
• 1) the activities of the office or agency OR
• 2) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by the police and other law enforcement OR
• 3) in civil actions and proceedings and against the govt in criminal cases, factual findings resulting from an investigations made pursuant to authority granted by law unless the sources of information or other circumstances indicate lack of trustworthiness

• No requirement that the declarant also have a business duty
• the public records/report doesn't have to be routine
• (Though they have to be in writing)

• When made in the course of police interrogation and the primary purpose is to enable police assistance to meet an ongoing emergency. (Like a 911 call)
• Some statements are not "testimonial" even if the declarant could foresee prosecutorial use (when the primary purpose is to get use in an emergency)

• When made in the course of police interrogation and the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.
• Not much formality is required for a statement to be testimonial.

• The due process clause
• The compulsory process
• The confrontation clause
• Under Holmes, a rule that excludes relevant evidence offered by an accused is unconstitutional unless it serves legitimate state interests and is neither arbitrary nor disproportionate.

• FUNDD
• Forfeiture
• Unavailable and prior opportunity to cross
• Not offered for the TOMA
• Declarant testifies
• Dying declarations

• Opening the door to otherwise inadmissible evidence by in court misconduct (putting in inadmissible evidence)
• Consider how great the prejudice is before allowing the other side to respond...

• Opinion based on facts personally observed (including facts communicated to her by others)
• Opinion based on evidence adduced during trial
• Opinion based on hypothetical question
• Opinion based on data conveyed by counsel or others
• (The data presented need not be independently admissible in evidence if it is of a type reasonably relied on by the expert in the particular field in forming opinions or inferences upon the subject.)
• Unless the expert witness can be shown to have personally observed the pertinent facts, many state courts require the expert to disclose the data relied upon in forming the opinion before stating that opinion.

• The expert witness can testify only to matters embraced by her field of expertise and about which people lacking the witness's specialized knowledge are uninformed.
• Traditional rule: experts can't render an opinion on the "ultimate issue" like deciding mental competence because this would "invade the province of the jury"
• Modern trend: Testimony in the form of an expert opinion is not objectionable because it embraces the ultimate issues to be decided by the trier of fact. (But it can still be inadmissible through 403 or 702 is it is not helpful and is a waste of time)
• Ultimate issue about understanding a will or committing suicide is usually admissiblem but mental state of the accused is NOT.

• Testimony on an ultimate issue will be excluded if it embraces a conclusion of law, or is unhelpful, prejudicial, or a waste of time.
• Opinions going directly to innocence or guilt are likely to be excluded in criminal cases.

• Expert testimony should be framed in hypothetical terms only.
• Also, the expert should not use the precise statutory terminology regarding elements of the offense.

• Substantially similar conditions (when experimental evidence is offered, it must always be shown that the experiment was conducted under conditions 'substantially similar' to those existing at the time of the actual being litigated.)
• Expert testimony (if the experiment was complicated, it must have been conducted by qualified experts in the field and those experts must testify as to the conduct of the test and the reliability of the testing procedures) - See Frye and Daubert

• Frye was correct in instructing judges to defer to the scientific community instead of attempting to become amateur scientists.
• Judges do not know enough science to make the required judgments of validity, and acquiring knowledge of scientific methodology is not the best use of their time.

• Frye discriminates against science that is valid but that hasn't had the time (or funds) to achieve "general acceptance"
• Frye's concept of "general acceptance" in a "field" is vague and subject to manipulation.
• Daubert sends a good message to forensic scientists by telling them to test their conclusions using the scientific method.

• It's more like the "original writing rule"
• To prove the contents of a writing, the original writing itself must be produced, unless it is shown to be unavailable.

• Slight difference in written words or symbols may make a vast difference in meaning.
• Production of the original prevents fraud and mistakes that might occur if oral testimony or copies were allowed.

• To official public records. (Only applies to private writings)
• when it is impossible or impractical to produce the original writing because it is lost/destroyed, unobtainable, too voluminous, or in the opponent's possession and he doesn't produce it.
• When contents of writing are only collateral.
• When party admits its contents
• When proof is of oral conversation rather than a record thereof.
• If you can get from the testimony to the conclusion without going through the contents, then the best evidence rule is not implicated.

• When the genuiness of the document is admitted in the pleadings or by other evidence
• Or if the adverse party fails to raise a timely objection to lack of foundation.

• When the statement is admissible only if said by a particular person (like admissions by a party or prior inconsistent statements.)
• Not all oral statements need to be authenticated because sometimes the identity of the speaker doesn't matter.

• Stricter than FRE.
• Requires the same (unavailability, under oath, and XE) but also the issues must be the same and the parties must be the same

• The witness is unavailable so the hearsay is needed
• The testimony is credible because hearsay was under oath and there was XE
• (But the motivations and issues may have been different in the two trials)

• Mental condition
• bias
• bad character
• perception
• inconsistent statements
• Contradiction by bringing in another witness

• at the direction of management
• confidential
• concerns legal advice
• is within the scope of employmeny of the employees

• Once the preliminary showing has been made, the judge has discretion in deciding whether to review the materials in camera. Factors to consider include:
• the volume of materials the district court has been asked to review, the relevant importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply.