Evidence Fall 2011 A.

Characteristics of the Adversary System Role of lawyer as advocate, has responsibility to present the strongest ethical case they can and leave result to the trier of fact US v. Beatty o Judge may call own witnesses and either side may question as if in cross-exam o Rule 614(B): judge may question witnesses, may call witnesses, and attorneys may not object until outside the presence of the jury 1. Judge may allow questions from jury 2. Juries can ask about case during trial o 103(C): discretion of judge to determine when/to what extent proceedings should be conducted in front of the jury, and can be made outside the presence of the jury Crane v. Kentucky o Fed Rule 104(e): Preliminary Questions do not limit the right of a party to introduce before the jury evidence relevant to weight or credibility o Evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility and should be put before the jury o 104 Process 1. The court decides the answer to preliminary questions, upon which the admissibility of the evidence is decided 2. Preliminary questions concerning the qualification of witnesses, existence of a privilege, or the admissibility of evidence are determined by the court for admission 3. The function of the jury is to determine the weight of the admitted evidence 4. Standard of proof for admitting evidence determined by a preponderance of the evidence o If primary evidence is going to be offered by a person claimed to be an expert, the judge will first determine the preliminary question of whether the person is qualified as an expert o Under 104 D, the accused may testify as to a preliminary matter without subject himself to crossexamination as to other issues in the case Huddleston v. US o 104(A): Preliminary questions decided by the court for admissibility o 104(B): When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it, upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition o Judge does not decide whether an act occurred, but rather screens the foundation that is laid and whether there is sufficient evidence for the jury to find the existence of that fact o Conditional relevancy under 104B requires a foundation to be laid from which a jury could find it to be so o 404(B) requires prior acts evidence to be admitted for a proper purpose, here offered to show knowledge of past acts and not character of the accused o The probative value is weighed against the prejudicial effect, and further protection by a 105 limiting instruction to the jury o The party offering the issue predicated on conditional relevancy must lay a foundation, which the judge screens under 104(b) US v. Zolin

o A court may conduct an in camera review to determine whether privileged information is sought to be introduced into evidence under rule 104(A) o Judge must apply the rules of evidence under 104(A) when dealing with privileged testimony but need not apply for other purposes o Here it is applied under the Cal statute for crime-fraud exceptions, and privilege between attorney and client are not privileged Wilson v. Williams o Rule 103: Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected: 1. Objection In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or 2. Offer of Proof In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked o Failure to make objections in a timely manner will waive any right to raise the issue on appeal and evidence becomes part of the record o Objections must be specific, and otherwise will be labeled as a general objection which if overruled, will probably not be preserved on appeal o Judges ruling 1. Conditional if the ruling comes up during trial repeatedly, then you must object and state the reasons for doing so 2. Definitive No need to reassert objection Williams v. State o Procedural and substantive law will be applied the same to all parties in a criminal trial, whether that party is represented by counsel or acting pro se US v. Adams o Once a judge sustains an objection to exclude/admit evidence, the proposing/opposing party is required to make an offer of proof which describes the detail of what was excluded o Without an offer of proof on the record, appellate court cannot review trial court decision of whether the action of the court is harmless error Luce v. US o An accused who had failed to testify could not appeal a pretrial motion in limine decision to permit impeachment under Rule 609 past crimes Ohler v. US o An accused who brought out her prior conviction on direct examination could not challenge the admissibility of that conviction on appeal o Objection was waived once D opened up the door by discussing the prior conviction Carbo v. US o 105: Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly o Multiple admissibility doctrine: when an evidentiary fact is offered for one purpose, it is not admissible because it does not satisfy the rules applicable to it in some other capacity, and because the jury might improperly consider it in the later capacity

o Here, P sought to introduce evidence for a limited purpose to satisfy an element of Ds charge and D sought to exclude because evidence was character related Sherman v. Burke Contracting o The court has no duty to give a limiting instruction except upon request by a party o The court may on its own issue a limiting instruction Clark v. US o The judge is given more latitude on bench trials regarding the admission of evidence o It is likely to be presumed that the judge didnt use inadmissible evidence in making the findings of fact o Will not necessarily require the reversal of a case where a court sits without a jury as the trier of fact B. Allocating the Case Allocation of the Burdens o In every case, the burdens of persuasion and production to one of the parties on every issue in the case o Sometimes the burden of production on self-defense in a criminal case is allocated to the accused, but once that burden is satisfied, the burden of persuasion rests with the prosecution to disprove selfdefense Scott v. Hansen o Will a jury be permitted to believe testimony that is contradicted by physical facts? o No, the P and his witnesss testimony is wholly inconsistent with the undisputed and established physical facts, leading to the inevitable conclusion that P and his witness o In a negligence case, at the outset of the case the P has both the burden of production and persuasion to present evidence support his claim, and in doing so shifts the burdens over to the defendant o If the burdens are not met, Ps case will be dismissed by a directed verdict and will not get to the jury US v. Nelson o Is it proper to infer a fact at issue from other facts which have been established by circumstantial evidence? o Yes, circumstantial evidence is not inherently less probative than direct evidence o The fact here was established to a moral certainty by circumstances proven by uncontradicted and unquestioned testimony o A verdict in a criminal case is sustained only when there is relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt, that the accused is guilty o There is no rule prohibiting the predication of an inference upon a previous inference o Issues similar to those raised in the case arise by attempted predication of a presumption on a presumption, or a presumption upon an inference Smith v. Bell Tel Co of Penn o May a jury be permitted to reach its verdict merely on the basis of speculation or conjecture? o No, there must be evidence which logically upon which logically its conclusion may be based o The evidence must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by the plaintiff, and not that the conclusion must be the only one which logically can be reached o When a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact finder any other evidence and reasonable inferences therefrom which are inconsistent o When a party who has the burden of proof relies, not upon direct evidence, but upon circumstantial eviedence, such evidence, together with all inferences reasonably deducible therefrom, must in order to

prevail, be adequate to establish the conclusion sought and outweigh any other reasonable or possible inference by a preponderance of the evidence Colhurst v. Lake View State Bank of Chicago o Does the credibility of an uncontractidicted and unimpeached witness in all cases present a jury question? o No, if in the evidence there were facts and circumstances from which such a conclusion reasonably could be inferred than a verdict should not have been directed o Here, there were not in evidence any facts or circumstances which would have furnished any basis for such an inference and the right to have the jury decide is lost Delaware Coach v. Savage o Does the burden of proof rest upon the party asserting the affirmative of an issue? o Yes, if an allegation is alleged, the party asserting such fact must prove it by a preponderance of the evidence o The burden of proof of such fact continues through the case, and this burden never shifts o The burden of goin forward with the evidence may shift from time to time during a trial after the establishment of a prima facie case or due to some other development in the case, but the burden of proofof the main fact remains with the party who alleged such main fact o Upon the establishment of a prima facie case, the burden of evidence or the burden of going forward with the evidence shifts to the defensive party to meet the prima facie case which has been established o For this purpose the defensive party need not produce evidence which preponderates or outweighs or surpasses the evidence of his adversary, but it is sufficient if such evidence is coequal, leaving the proof in equilibrium o If the defensive party, either by a preponderance of evidence or evidence sufficient to establish equilibrium, has met and answered the prima facie case, then the burden of foing forward with the evidence returns to the original proponent charged with the burden of proof o The original party must then, by a preponderance or greater weight of evidence, overcome the equilibrium established, or otherwise support his burden of proof by a preponderance of the evidence Riley Hill v. Tandy o Must the standard of proof in a civil action for common law deceit or fraud be clear and convincing, while general or punitive damages arising out of that deceit or fraud need be proved only by a preponderance of the evidence? o Yes, the standard for fraud is clear and convincing, but general punitive damages arising out of that deceit or fraud need be proved only by a preponderance of the evidence o To be clear and convincing, the evidence must be free from confusion, fully intelligible, distinct, and established to the jury that the defendant intended to deceive the plaintiff and did so with a reckless disregard for the truth o To be clear and convincing the truth of the facts asserted must be highly probable o The extent of damages need only be proved by a preponderance of the evidence, which means that, when weighed with that opposed to it, it has more convincing force and is more probably true and accurate In Re Winship o Are juveniles constitutionally entitled to proof beyond a reasonable doubt when they are charged with a crime? o Yes, the DP clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged

o A directed verdict is not possible in criminal cases, as the defense is allowed to put forth its case while a dv would take away the Ds right to a jury trial o Risk of error 1. When you acquit guilty people 2. Convicting an innocent person, more important because life and liberty at stake o C. Burden of Proof Burden of production o Refers to a partys responsibility to introduce evidence at trial, the risk of non-production o If burden not met, case will be dismissed by directed verdict where there is insufficient evidence to permit a jury to find the existence of the elements that the P had the burden of proving o In the case of an affirmative defense, the jury may not be instructed on the defense Burden of persuasion o Refers to the convincing force of the evidence, the risk of nonpersuasion o 3 forms 1. Proof beyond a reasonable doubt 2. Clear and convincing evidence 3. Preponderance of evidence o Burden necessary for convincing the trier of fact to find the existence of the elements that have been assigned to you by whatever standard necessary Direct Evidence o Evidence directly related to facts in a case Scott v. Hansen o A jury will not be permitted to believe testimony that is contradicted by physical facts US v. Nelson o It is proper to infer a fact at issue from other facts which have been established by circumstantial evidence o D was the alleged getaway driver, prosecution has the burden of proving all the elements o Judge looks at the totality of all the evidence, from both or either side, and determines when theres only circumstantial evidence o Where, as a matter of law, any reasonable person would have to find another reasonable hypothesis the court determined that a test that causes the jury to artificially look at the evidence in an unproductive manner o A jury should be instructed that you cant draw an inference upon an inference o No possible to aksk the prosecutor to convince the jury of actual facts, but rather convincing them as to the existence of the facts by a certain probability Smith v. Bell o A jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but there must be evidence upon which logically its conclusion may be based o When a party who has the burden of proof relies upon circumstantial evidence and inferences, such evidence must preponderate in favor of that conclusion as to outweigh in the mind of the fact finder any other evidence and reasonable inferences therefrom which are inconsistent

o If the inference would establish the elemental facts needed to be proved by a preponderance of the evidence, the jury will determine weight and credibility Colthurst v. Lake View Bank o The credibility of an uncontradicted and unimpeached witness does not in all cases present a jury question o Facing the burden of production 1. If you offer insufficient evidence for reasonable minds to be able to find the existence of the elemental facts that you have the burden of proving, then you will face a direct verdict 2. If you offer sufficient evidence for the jury to find either the existence or nonexistence, then goes to jury 3. If offered evidence to meet the burden of production, the opposing party must refute through the burden of persuasion o The burden of production shift throughout trial between both parties

D. Presumptions McNulty v. Cusak o When a prima facie case is made out by proving that the plaintiff was damaged in a rear-end collision, the duty of going forward with evidence of due care falls upon a defendant o If the testimony then shows a question of fact which may be reasonably drawn by ordinary prudent persons, then the question goes to the jury o Presumption is an inference which is recognized as law, by establishing basic facts, you therefore prove a presumed fact o Inferences a presumption is mandatory, In contrast an inference is permissive 1. Establishment of the basic facts permits, but does not compel, a conclusion of negligence Presumptions o A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts o Irrebuttable presumptions are substantive rules of law and therefore beyond the scope of the rules of evidence (ex. Child under x age cannot commit an intentional tort) o Rebuttable presumptions is Rule 301, a procedural rule that defines the relationship between two facts, a basic fact and a presumed fact 1. If the basic fact is proved, the presumed fact must be accepted as established unless and until rebutted o Rationale 1. Fairness (which party has easier access to prove that issue) 2. Probability (looks to whether there is a logical relationship between the basic facts from which the presumption flows; looking for a probative nexus between evidence and presumed fact Shifts the burden to the party thats taking a position that goes against the probability 3. Procedurally (it can act as an expedient for helping the party resolve the dispute o Example, presumption that if you show a person is absent for 7 years, presumed that the person is dead o Apply state substantive law in federal court when presumptions deal with an elemental fact of the case o Do directed verdict in a criminal case, defendant always entitled to have a jury weigh the evidence

Obrien v. Equitable Life Assur. Socy o The presumption of accidental death, while accomplishing the function of evidence is so far as the plaintiffs initial burden of going forward is concerned, nevertheless is not evidence of the fact presumed and is merely a rule of procedure or rebuttable legal presumption o It casts upon the defendant the burden of going forward with substantial evidence to the contrary, which, if adduced, destroys the procedural presumption on which the plaintiff has relied as an evidentiary substitute o When a plaintiffs prima facie case vitally depends on a rebuttable presumption which is destroyed, the prima facie case collapses with the presumption thereby placing upon the plaintiff the burden of going forward with evidence sufficient to avoid a directed verdict o If the basis for a given presumption is based upon probability, then there may be an inference imbedded in the presumption 2 schools of view o Morgan a presumption shifts the burden of persuasion as well as the burden of production o Thayer Rule 301, the presumptions would disappear if rebutted, and the evidence would be considered for its worth by the jury, the burden of production switches, and must go forward with the production but the burden of persuasions remains with the party on whom it first rests Criminal Cases o The prosecution has the burdens of production and persuasion with respect to all elements of the crime, whereas the defendant always has the burden of production, and the burden of persuasion with respect to an affirmative defense o Affirmative Defense a defendants assertion raising new facts and arguments that, if true, will defeat the plaintiffs or prosecutions claim, even if all allegations in the complaint are true 1. Examples: duress, contributory negligence, insanity, self-defense o If the state has made a factor an element of the crime, the state must bear both the burden of production and persuasion with respect to that element o The state may impose on the defendant the burden of production on any affirmative defense o The state has the burden to prove every fact necessary which constitutes the crime beyond a reasonable doubt State of Maryland v. Baltimore Transit Co. o A presumption survives even (death) after conflicting evidence has been offered o The presumption involved may be invoked only where the injured person is unavailable because of the injuries suffered or because of death County Court of Ulster County v. Allen o For a permissible presumption to be constitutional, there must be a rational connection between the basic facts that the prosecution proved and the ultimate fact presumed o The ultimate fact presumed must be more likely than not to flow from the facts proved o Cant shift the burden in a criminal case o Presumption here is that all occupants were in possession o No mention by the prosecution that the inference that not all were in possession of gun o Here, it is permissible that a young girl with multiple guns in purse did not possess the guns but may belong to someone else o Determine whether the presumption is mandatory or permissive 1. If the presumption shifts the burden of persuasion to the defendant, it will normally be unconstitutional if the presumed fact is an element of the crime

2. The reason for the rule is that such a presumption runs afoul of the constitutional principle that the prosecution must prove each element of the crime beyond a reasonable doubt 3. You have to make sure that the presumed fact flows beyond a reasonable doubt upon the proof of the basic fact, and then it comports with due process o Michigan Rule 302 can only instruct a jury on a permissive presumption E. Order of Proof Liptak v. Security Benefit Association o Party with the burden of proof has the right to make opening statement first, to prove its case in chief first, and in MI, after the rebuttal, you can make a rebuttal to the other parties closing o The defendant in a civil action will acquire the right to open and close only where the plaintiff has nothing to prove in order to secure a judgment Seguin v. Berg o A party must put in all his evidence before he rests o They must exhaust all of their testimony in support of the issue on their side before the proof of his adversary is heard Duran v. Neff o A trial judge must be given broad latitude in the control of cases before him, particularly jury cases o Court has discretion to accommodate and let witnesses testify out of order Boller v. Cofrances o An opposing party may cross-examine a witness on any matter in issue o Scope of cross-exam is limited by the subject matter that was covered on direct o MI 611(B) cross-exam should be limited to the subject matter of the direct exam and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination US v. Lara o Cross-examination may inquire into issues not mentioned on direct exam, but related to and made relevant by that exam or bear on the witnesss credibility o At the discretion of the trial court to permit inquiry into addition matters as if on direct Bommer v. Stedelin o The trial court may, in its discretion, permit reopening of the evidence after both parties have rested o D moved for DV alleging that P failed to establish that D owned parking structure. P asked for one hour to produce such evidence but court said no and granted DV o Abuse of discretion, there was no showing of surprise to counsel, or jury, or that the adverse party would have been deceived or prejudiced in any manner by granting the leave

F. Relevancy Rule 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 probable or less probable than it would be without the evidence Rule 402 All relevant evidence is admissible, except as otherwise provided by the constitution, by these rules, or by other rules prescribed by the SC pursuant to the statutory authority. Evidence which is not relevant is not admissible

Rule 403 although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence When evidence is relevant, the evidence is also said to have probative value on the issue to which its addressed Is there a logical connection where x helps to alter the existence of the factual proposition, not whether it proves it but just whether it alters the probability by any degree Logical Relevancy using common sense, does that piece of evidence alter the probability as to the finding; does it help to prove or disprove? Because if it serves no purpose at all theres no reason to let it in If offering direct evidence, it obviously alters the probability If circumstantial, check to see whether it increases or decreases the probability that D had the opportunity Logical relevancy does it have any tendency (low threshold) to make the existence of a fact more or less probable that it would be without the piece of evidence City of Cleveland v. Peter Kiewit Sons Co. o Evidence of the poverty or wealth of a party to an action is inadmissible in a negligence action o Only used in such actions as fedamation or injury to reputation, where the position or wealth of the parties is necessarily involved in determining the damages sustained o No limiting instruction would cure the comments made by P o Unfairly prejudiced under 403 o Rule 411 evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness o Could make argument that he wasnt that careful since he had insurance OR a responsible person would have insuance o Insurance infor for purpose of proving negligence or other wrongful conduct is inadmissible; but may be offered for another purpose Plumb v. Curtis o Unless excluded by some rule of law, any fact may be proved which logically tends to aid the trier of fact in the determination of the issue o If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury o Logical relevancy v. sufficiency 1. Evidence to be relevant must render the fact sought to be proved more probable than not 2. Evidence to be relevant must help to render the fact sought to be proved more probable than would be so in the absence of the evidence State v. Mathis o A Ds lack of money may not be introduced to prove the probability that the D committed the crime in order to obtain money o May have probative value in a theft crime but prejudicial value substantially outweighs; must be something more than poverty Hall v. Montgomery

o Evidence of a Ds pecuniary condition is admissible where a P seeks exemplary damages o The Ds ability to pay is relevant and admissible when punitive or exemplary damages are awarded Old Chief v. US o Rule 403: authorizes the exclusion of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by concerns of undue delay, waste of time, or needless presentation of cumulative evidence o D charged with felon in possession of a firearm o One of the elements to meet the charge is being convicted of a previous felony charge o D had a previous conviction for felony assaulted, and offered to stipulate to the element of a prior felony conviction 1. Will impose improper character evidence to say he has the propensity to act in a violent way and more likely that he is now acting that he is now acting in conformity with his character o P says just to give a curative instruction o D argues that the prejudicial effects substantially outweigh the probative value under 403 o The court decides whether a particular item of evidence raised a danger of unfair prejudice 1. If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for a ny actually available substitutes as well 2. If an alternative were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk 3. Determine which evidentiary alternative is less prejudicial o Evidence may be probative but may cause too much confusioin so as to outweigh the probative value and the jury may be likely to give it more weight than it deserves o Expenditure of time and money could outweigh and confuse the jury G. Formalized Applications of Relevancy City of Bloomington v. Legg o Evidence of occurrences similar to the one sued upon in a negligence action may be admitted to show dangerousness of a condition if the agency or instrumentality is demonstrated to be in substantially the same condition o What is the evidence of other happenings trying to Prove 1. Must tie in other accidents to a factual proposition in the case o D argues that every prior accident happened under different circumstances and would be too confusing because jurors would be deterred from only looking at the facts surrounding the case o D could argue that P did not lay the proper foundation to get the evidence in 1. Foundation requires P to show that the prior acts accidents happened under substantially similar circumstances 2. Foundation must show that the relevancy is conditioned upon showing the fulfillment of some other fact o Relevancy: have to identify the piece of evidence that is subject to our inquiry to some factual proposition and if there is then balance under rule 403 Jones v. Pak-Mor Manfg

o In product liability cases involving a claim of defective design, the trial court has discretion under 403 to admit evidence of safety history concerning both the existence and nonexistence of prior accidents, provided that the proponent establishes the necessary predicated the evidence o Evidence safety history is admissible if issue whether design caused the product to be defective, whether the defect was unreasonably dangerous and whether it was the cause of the accident o The court has discretion to admit prior accidents, but when there is the absence of prior accidents, there is a per se rule of inadmissibility o Court must determine admissibility according to rules 401 and 404, no per se rule 1. The test is ofter stated as whether there is substantial similarity between the other happening and the present litigation o By showing a good safety record, an injury could show the fault of the user rather than by design o In order to get in the prior acts, you must lay a foundation which would permit the jury to believe that there had been a prior accident 1. They could have known about it 2. The relevancy of the evidence is conditioned upon D showing sufficient evidence for the jury to be able to find that there had been prior accidents o Cant have a per se rule of admissibility for the non-happening of accidents as being per se inadmissible for any purpose o The absence of other accidents may be admissible to show the absence of a dangerous condition 1. Showing probative value is far more difficult o Redfield v. Iowa State Highway commn o Evidence of the price at a recent sale of property is relevant to prove the value of similar property in the same location o What conditions the relevancy is a sufficient foundation showing that the circumstances surrounding that home are sufficiently similar to the home in question (time, location, size) and any dissimilarities would have to be accounted for Carpenter v. Kuhn o Evidence of tests and experiments conducted under circumstances approximately similar to the incident sued upon is admissible o Putting forth a strong foundation is very important because unlikely that youre going to get reversed o In order for such experimental evidence to be admitted, the circumstances under which the experiment was conducted must be substantially the same as those at the time of the occurrence under the courts discretion Foster v. Agri-chem Inc. o Evidence of an experiment conducted under circumstance substantially similar to those existing at the time of the incident under the courts consideration may be admitted within the judges discretion o Court: even though not exactly the same, was sufficiently similar to meet the test of relevancy and not conducted with intent to litigate Rumbaugh v. McCormick o Evidence of habitual conduct of an animal is admissible to establish an observers ability to identify that animal or to prove conduct conforming to the habit o The disposition of the animal is no less relevant than a human being o The reason for precluding evidence of character in cases of conduct therewith on a particular occasion with respect to person is not present with animals governed by instinct rather than by reason

o It is up to the jury to decide that the animal in fact had the habit testified to, and whether the dog acted in conformity with such a habit if shown o It is commonly known that animals do not always do what they have been observed to have done in the past Beach v. Richtmeyer o In a civil action where a partys character is not at issue and the credibility of a party as witness is not impeached, evidence of that partys character or reputation must be excluded by the trial judge o There is a statutory presumption that the owner of an automobile consents to the use to which the driver of the car puts it o The character or reputation of a party is not a proper subject of inquiry in a civil action unless such character is at issue o The probative value of character evidence in showing conduct consistent with a partys character is outweighed by the possible prejudicial effect on such evidence when improperly considered by the finder of fact and by the likelihood of such improper consideration Rule 404(a) o Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion 1. Ex in an action for divorce based upon a claim of adultery, evidence that the defendant spouse has a bad character for sexual morality would not be admissible o Exceptions 1. Character of a criminal defendant The accused in a criminal case may offer evidence of a pertinent trait of his or her character and the prosecution may rebut that proof 2. Character of the alleged victim of a crime Evidence of a pertinent character trait of the victim of a crime may be offered by an accused in a criminal case, and the prosecution may rebut that proof The prosecution may offer evidence of a character trait of peacefulness of the victim of a homicide to rebut any evidence that the victim was the first aggressor o When character evidence is admissible but character is not in issue in the case, the traditional rule provided that the only way in which character can be proved is by evidence of reputation Shafer v. Time, Inc o Are specific instances of misconduct admissible to prove character under 405 in an action for libel? o Specific instances of misconduct are admissible to prove character under 405(b) in an action where a persons character is an essential element of a charge, claim or defense o In all cases where character evidence is admissible, a party may offer reputation or opinion testimony on the issue of a persons character o Only in cases where a persons character is an essential element of a charge, claim or defense, however, may a party offer evidence of specific instances of conduct o A charge of defamation or libel commonly makes damages to the victims reputation or character an essential element of the case o Since the Ps character is substantively at issue, the admission of evidence regarding specific instances of the plaintiffs conduct is allowed MissouriKT RR v. McFerrin

o Is evidence of a habit of a person admissible as tending to prove that his behavior on a specified occasion conformed to that habit even where there is an eyewitness to the event in question on such specified occasion? o Yes, if there is no such eyewitness the evidence is admissible o Here, the only eyewitness is employed by the company that contributed/caused the accident and may have potential bias o The habit must constitute regular, patterned routine conduct as opposed to something usually done Reyes v. Missouri Pac RR o Is character evidence admissible to prove consistent behavior on a specified occasion? o No, character denotes disposition and is too unreliable to allow inference of compatible behavior o Its marginal relevancy is outweighed by the significant prejudice which it caused o Habit is more reliable as it indicates a constant pattern of behavior rather than a mere disposition Eaton v. Bass o Is evidence of a business custom of equipment inspection admissible as probative of the kind of inspection that was received by a particular piece of equipment subject to the business custom? o Yes, whle the evidence of the customary inspection procedures would not be admissible to show that D was not negligent, it can be admitted for a limited purpose such as habit or customary practice o Evidence of a business custom of equipment inspection is admissible as probative of the kind of inspection that was received by a particular piece of equipment subject to the business custom o Theis leaves the jury to decide whether such custom was sufficient as nonnegligent o The evidence of habit, or routine practice, is probative of conduct in conformity therewith on a particular occasion, but it does not establish such conduct nor give rise to a legal presumption that such conduct occurred State v. Renneberg o Is it proper for a prosecutor to ask the defendant questions about their prior drug use, addiction and treatment for their addiction o Yes, character impeachment dictates admissibility when the D voluntarily puts their character before the jury by testifying to good character o The evidence for bad character can come in to impeach, and the jury may be given a limiting instruction to limit the bad character evidence only to credibility and weight to the witnesss testimony Edington v. US o Is evidence of the good character of a criminal defendant which tends to show that it is unlikely that such defendant commited the crime charged admissible? o Yes, the good character of a criminal D which tends to show that it is unlikely that such D committed the crime charged is admissible o The D opens the door for the prosecution to offer character evidence in rebuttal which does more harm than good Broyles v. Commonwealth o May a witness testifying to the good character of a criminal D be questioned on cross-exam about specific instances of misconduct having some relationship to the good character trait in question for the limited purpose of testing the accuracy of the reputation testimony, though not as substantive evidence? o Yes, the witness may be cross-examined as to specific instances of misconduct when put on as a good character evidence o The instances elicited must bear some relationship to the particular trait in question for the limited purpose of testing the accuracy of the reputation testimony, but not as substantive evidence

o May also be asked about opinion regarding specific instances of misconduct Evans v. US o Is evidence of a victims character admissible to corroborate the defendants contention that the victim was the aggressor? o Yes, in a plea of self-defense evidence of a victims character is admissible to corroborate the defendant contention that the victim was the aggressor o Instigation is a prime element of elf-defense, and thus any trait toward or against aggression on the part of the victim is relevant to show whether self-defense is applicable o The prosecution can then offer evidence through witness testimony that the victims character was peaceful Doe v. US o Is evidence of sexual reputation and behavior of an alleged rape victim admissible to show her state of mind? o No evidence of sexual reputation and opinion evidence of sexual behavior may not be used to show an alleged rape victims state of mide o Such evidence is of doubtful probative value, and its inflammatory content clearly outweighs its probative value US v. Azure o Is evidence of a victims past sexual behavior admissible if offered to show the source of injury to the victim? o Yes, the effect of 412 is to preclude the routine use of evidence of specific instances of a rape victims past sexual behavior o Past behavior is admissible if offered upon the issue of whether the accused was or was not the source of semen or injury o Also may be shown to indicate prior sexual activity with the accused Redmond v. Kingston o Does the nonallowance into evidence of the alleged victims prior allegation and the recantation of forcible rape violate the constitutional right of the accused? o Yes, because the prior allegation and subsequent recantation of forcible rape is highly probative, noncumulative, nonconfusing, and nonprejudicial evidence which was vital to the central issue in the case US v. LeMay o Does the allowance of Ds prior acts of molestation as propensity evidence under 414 violate fundamental ideas of fairness and thus unconstitutional? o No, as long as the protection of 403 remains in place, so the district judges retain the authority to exclude potentially devastating evidence, Rule 414 is constitutional and propensity evidence is allowed o Factors to consider when admitting prior similar acts 1. The similarity of the prior act to the acts charged 2. The closeness in time of the prior acts to the acts charged 3. The frequency of the prior acts 4. The presence or lack of intervening circumstances 5. The necessity of the evidence beyond the testimonies already offered at trial o Requires a strict balancing under 403 of the good the evidence will provide as opposed to the harm it will do in order to protect both the victims rights to justice and the defendants right to constitutional protection

US v. Robinson o Should evidence from a previous robbery be allowed into the current charged crime involving robbery? o Yes, evidence may be admissible under 404B to demonstrate modus operandi, to prove identity, and consciousness of guilt o The admissibility of evidence is dependent upon whether: 1. The evidence is directed toward establishing a matter in issue other than the defendants propensity to commit the crime charged 2. The evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue 3. The evidence is sufficient to support a jury finding that the defendant committed the similar act 4. The evidence has probative value that is not substantially outweighed by the danger of unfair prejudice o The evidence of the 2 crimes amounts to modus operandi and there are similarities between the 2 crimes that clearly distinguish the defendant from other criminals committing bank robbery 1. Ex ski cap, duffle bag, handgun, manner in which the money was demanded and taken, getaway vehicle, the amount of time that lapsed between the two robberies and the distance between the 2 locations o Given the similarities, the probative value of the evidence is outweighed by the danger of unfair prejudice o The governments theory for the admission of the evidence that demonstrates consciousness of guilt for both of the robberies is a reasonable inference and is a legitimate use of such evidence US v. Hernandez o Should testimony regarding extraneous evidence of uncharged bad acts be admitted under 404B o No, 404B allows admission of evidence of other acts relevant to an issue at trial that which proves criminal disposition o Under 404B prior bad acts are admissible if they are: 1. Relevant to an issue other than character 2. Necessary 3. Reliable o The evidence of the prior bad acts must be relevant to the charges in the indictment for them to be admissible US v. Woods o May evidence of other offenses be offered in a criminal trial if relevant for any prupose other than to show a propensity or disposition to commit the crime, subject to the power of the trial judge to exclude the evidence if it will create undue prejudice o Yes, while evidence of past criminal acts is generally inadmissible to show that the D committed the crime of which he is accused, if the past acts are such that it appears that the defendant engaged in a common scheme or plan including the crime in question, or fi the past acts show the D has placed his signature on his handiwork by committing the acts in the same way, the evidence is admissible o Need to balance the actual need of the evidence in order to prove the crime against the degree to which the jury will probably be roused by the evidence to overmasting hostility o Evidence of other offenses may be offered in a criminal trial if relevant for any purpose other than to show a propensity or disposition to commit the crime, subject to the power of the trial judge to exclude the evidence if it will create undue prejudice

o The danger of admitting past acts in proving a crime is that the jury will try the defendant on the basis of the past act rather than the prosecutors proof of the crim in question In re Air Crash Disaster o Does 407 exclude evidence of subsequent remedial measures taken by a D to prove the culpability of a co-defendant? 1. Yes, evidence of past remedial measures excludes evidence of remedial measures so as not to deter remedial measures from being taken to improve defects o Does 407 exclude evidence of remedial measures taken after the design of a product, but before the accident in question? 1. No, 407 excludes evidence that would have made the event in question less likely to occur 2. The evidence of remedial measure taken after their design, but before the accident in issue, keeps them outside the reach of 407 o The only way to apply subsequent remedial measures is to show ownership or control McInnis v. AMF o Does 408 bar the admission of evidence of settlements between plaintiffs and third-party joint tortfeasors or former codefendants? o Yes, 408 bars the admission of evidence of settlements between plaintiffs and 3rd party joint tortfeasors and former codefendants o It excludes evidence of settlements and settlement negotiations in order to promote the voluntary compromise and settlement of disputes among parties to litigation o Policy of 408 is to encourage freedom of discussion with regard to compromise

H. Judicial Notice

I. Real and Demonstrative Evidence Allows the trier of fact to perceive first-hand, without the need for a witness Real evidence is a tangible object that played some actual role in the matter that gave rise to the litigation o Foundation 1. Relates to proving that the evidence is indeed the object used in the underlying event Admitted if relevant in the sense that it makes some consequential and contested proposition of fact more or less likely, or aids the jury in understanding some issue o Authentication 1. Show that the object is the object that was involved in the underlying event o Balanced under 403 where if the probative value is outweighed by prejudice Demonstrative evidence is tangible evidence that merely illustrates a matter of importance in the litigation o Foundation involves showing that the demonstrative object fairly represents or illustrates what it is alleged to illustrate o Common type include maps, diagrams, models, summaries and other materials created especially for the litigation o Authentication

1. Showing that the object fairly represents or illustrates what it is claimed to represent or illustrate Authentication o Proponent bears the burden of establishing that the object is what he says it is o All evidence must be relevant to the cause of action o Methods 1. Real Evidence must show that the item is ready identifiability The sponsoring witness merely testifies that the object he originally saw has a specified unique characteristic, and that the item shown to him in court bears the same unique identifier Chain of custody shows that when the object may not have any uniquely identifying characteristic, every person who has handled or possessed the object since it was first recognized as being relevant to the case must explain why they did with it Prevents tampering of evidence 2. Demonstrative Evidence Must show that the object fairly represents some aspect of the case Judge decides whether there is some evidence from which a jury could reasonably find that item is what it is claimed to be o Must admit the evidence once a prima facie case has been made on the issue of authenticity or identification o Based on conditional relevancy Smith v. Ohio Oil Co. o Does court permission to use demonstrative evidence consitttute reversible error only where such evidence is used for dramatic effect or emothional appeal rather than to aid the reasoning of the jury? o Yes, demonstrative evidence, such as models, maps, photos and x-rays, have no probative value in and of themselves o They merely serve as a visual aid to the jury in comprehending the testimony of a witness 1. It must be relevant and actually explanatory o Permitted within the discretion of the court Gallagher v. Pequot Spring Water Co o Must the admission as evidence of an instrumentality alleged to have caused an injury be predicated upon a foundational showing that the object is what it purports to be and that it is in a condition reasonably the same as when it allegedly caused the injury? o Yes, ordinarily the admission of an object as evidence requires only a foundation based upon the identification of it by a witness with sufficient knowledge of what it is o However, the bottle was offered for its substance and not for identification purposes o Because the substance in the bottle allegedly caused the injury, it must be shown that the substance has not changed since the time of the incident and a foundational showing that the object is what it is purported to be and that its condition is reasonably the same as when it allegedly caused the injury Semet v. Andorra Nurseries o Does the admission of evidence rregarding an instrumentality allegedly involved in an accident require a foundational showing that the instrument is in the substantially the same condition as when the injury occurred? o Yes, when personal knowledge is not possessed, the admission of evidence regarding an alleged instrument requires the object in question is substantially the same condition as when the alleged injury occurred o Objects introduced into evidence is demonstrative and must be similar to the object in question

o If tests of what is alleged to be the actual object involved are offered, the foundation of identity and substantial similarity of condition of the object is required, because it is real evidence of what happened Clark v. St. Thomas Hospital o Are videotaped reenactments admissible if based on sworn testimony? o Yes, they are demonstrative evidence that are also common o So long as the tape reasonably reflects the testimony, it is admissible o Improper portions that are not based on the testimony, are inadmissible Commonwealth v. Serge o Are computer generated animations illustrating a theory of a homicide admissible? o Yes, CGAs illustrating a theory of a homicide are admissible if they are authenticated, relevant, and their relevance outweighs any potential prejudice, and the judge instructs the jury about their role as demonstrative and not substantive, evidence o The evidence was authenticated by the testimony of many individuals o It was relevant because it clearly, concisely, and accurately depicted the prosecutions theory of the case and helped the jury understand the testimony of the witnesses Fisher v. State o Is photographic evidence admissible upon a foundational showing of adequate authentication? o Yes, so long as the trial court, in its discretion, finds sufficient foundational evidence to authenticate it 1. Show that the equipment is functional and establish the chain of possession in order to authenticate o Pictorial evidence can be used as demonstrative of events that are based upon sworn testimony and probative themselves (silent witness) that are treated as writings under the evidence rules of most jurisdictions Evansville School Corp v. Price o In order for a photograph to be admitted into evidence, must it be material and relevant? o Yes it must first be accepted by the trial court as material and relevant and must tend to prove or disprove some material fact in issue o The admission or rejection of photographs in evidence lies largely within the discretion of the trial court and will not be disturbed unless an abuse of discretion is shown to have occurred o Relevancy is determined by an inquiry into whether or not a witness would be permitted to describe the objects photographed o The fact that a photograph might arouse the passions of the jury and prejudice them against one of the parties is not a sufficient ground to justify its exclusion if the photograph is material and relevant Ensor v. Wilson o Is an in-court demonstration of an injured plaintiff permissible in the measurable discretion of the trial court? o Yes, is permissible in the measurable discretion of the trial court where it is conducted by a sworn as a witness and was subjected to a searching cross-examination o Demonstration was necessary as the issue of cognitive abilities were in issue an on the matter of damages o It would be difficult to exhibit cognition without a demonstration of vocal expression, physical response, etc o The accuracy of such demonstrations should be tested by the requirement of relevancy, and such a demonstration should not be allowed when its probative worth is exceeded by its capacity for prejudice o An in camera hearing could be held to allow the judge to determine the relevancy and probative value of the proposed demonstration

McDowell v. Schuette o Is a jury viewing of the site of an issue in question pertinent act evidence? o No, a jury view is not evidence but a vehicle of demonstration which allows the jury to better understand the actual evidence presented o It must be used as a supplement to otherwise competent evidence and the use of a viewing is within the discretion of the court o Many problems arise in a jury view due to the difficulty in sheltering inadmissible evidence Geo Christopher & Son v. Kansas Paint and Color o Does misconduct of the jury which results in prejudice to a litigant and impairs his right to a fair and impartial require a new trial? o Yes, misconduct of jurors per se does not necessitate a new trial, but misconduct which results in prejudice to a litigant and impairs his right to a fair and impartial trial requires a new trial o It is for the trial court to determine whether misconduct on the part of the jury has resulted in prejudice to a litigant, and its judgment on that issue will not be overturned unless abuse of discretion is manifest o Litigants have a right to expect that with respect to evidence, juries will confine themselves to the evidence introduced, and that members of a jury will not engage in any extracurricular activites o The object of sending exhibits to the jury is to enable the jurors to make a more thorough examination of them than was possible when the exhibits were offered in evidence

J. Writings and Related Matters Writings o Authentication determined by authorship o No presumption of authenticity o Direct testimony may authenticate o Signature is a common method to authenticate when the witness can attest to ownership belonging to a certain person o No special abilities required, sufficient if the witness has seen the writing of the person in question at some time previously 1. Not acquired for the purpose of litigation 2. If testimony is given based upon study of specimens made in preparation for testimony, it must be given by an expert o Reply letters can be authenticated by the circumstantial fact that it appears to be a reply to a prior communication, and the prior communication is proved 1. Must prove the first communication, oral testimony about the first letter will generally suffice if the letter has been lost or destroyed Telephone conversations o To establish the contents of a telephone conversation, the proponent must authenticate the conversation by establishing the parties to it o Outgoing calls 1. Can authenticate by showing the number called was assigned by the telephone company to a particular person and 2. The circumstances show that the person who talked on the other end was in fact the person the caller was trying to reach

Self-identification called and asked to speak to X, and receiver of the call says this is X Callers ID of the voice recognized voice of receiver X because spoke on the phone to X many times before and the voice is distinctive Called the unlisted number previously used to reach X, and reached a person who said he was X and knew things about the relationship between X and me that only X could have known 3. Business authentication can be made that a call was made to the listed business number and was related to business that would be reasonably transacted over the telephone o Incoming Calls 1. Self-identification by the caller is not enough May impersonate May fabricate the conversation 2. The receiver recognizes the voice of the caller as being Xs voice based on previous calls or face to face interactions 3. The call was in response to a communication from a previous time 4. Phone company records indicating call from the number assigned to callee Wills witnesses called to attest to the document before the will may be authenticated Ancient documents o Direct authentication is very difficult as it is unlikely to find witnesses who can testify to seeing that it was executed o Common Law automatically deemed authentic if 1. At least 30 years old 2. Unsuspicious in appearance 3. Produced from a place of custody natural for such a document 4. Not required to produce an attesting witness o Federal Rules more broad 1. In such a condition as to create no suspicion concerning its authenticity 2. Was in a place where it, if authentic, would likely be 3. Has been in existence for 20 years or more 4. Includes data compilations Computer tapes, photographs, x-rays, movies, sound recordings Self-authentication o State statutes such as deeds and instruments that are duly notarized, certified copies of public records, and books of statutes printed by a government body o Official publications issued by public authority o Newspapers and periodicals o Trade inscriptions 1. Labels affixed in the course of business and indicating ownership, control or origin o Business records accompanied by a certification by a custodian or other qualified person 1. Made at or near the time of the occurrence or from a person with knowledge of those matters 2. Kept in the course of the regularly conducted activity 3. Made by the regularly conducted activity as a regular practice Chain of custody o Required in criminal cases if not uniquely identifiable o Show the link among those who have had possession and testify to 3 things

1. How and when he came into possession 2. How the object was stored while he had possession 3. How he disposed of it and to whom o Proponent will have to show that the condition has not substantially changed between the time the object was acquired and some later time Demonstrative o Does not need to be essential, but is required to be useful to the jury in understanding testimony or real evidence in the case o Must fairly represent what it is supposed to illustrate o May not lead to unfair prejudice 1. Gruesome photos often show the nature of the victims injuries and are relevant to the case Life sized blowups in favor of smaller prints or photo after the autopsy 2. Evidence that serves little purpose other than to create sympathy will probably be excluded from the jury Best Evidence o In proving the terms of a writing, where the terms are material, the original must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent o Requirements 1. The original document must be produced, rather than using a copy of oral testimony about the document 2. Only applies where what is to be proved is the terms of a writing or audio tape 3. Does not apply if the original is unavailable because it has been destroyed, is in the possession of a third party, or cannot be conveniently obtained and the unavailability is not due to serious fault of the proponent o Only applies to writings and recorded communications, does not apply to evidence generally o Rationale distortion may inadvertently occur when a handwritten copy of the writing is produced, or an oral account of its contents is given 1. Fraud is easier where the original need not be produced 2. If the original need not be produced, the proponent has a better opportunity to mislead by taking a small portion of a larger document out of context Duplicates o A duplicate is admissible to the same extent as an original uless 1. A genuine question is raised as to the authenticity of the original or 2. In the circumstances it would be unfair to admit the duplicate in lieu of the original o A counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements or miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original Photographs, X-ras and other similar products of the photographic process are generally not offered to prove their contents, so the best evidence rule wont apply unless offered to prove its contents o Then would have to introduce as evidence instead of just demonstrative evidence Sound Recordings when offered to prove the contents applies When an event occurs which is memorialized or evidenced by a writing, the fact that there happens to be a writing memorializing a transaction does not mean that the transaction can only be proved by introduction of the writing o Here, the writing is treated as an incidental by-product of the transaction

o Ex the earnings of a business may be proved without putting the books and records into evidence Transcripts o A persons prior testimony can generally be proved by an oral account of a witness who heard the testimony, even if a transcript exists 1. No attempt to prove the contents of a writing 2. The issue was what the defendant had said, not what the transcript contained Dissent in Meyers called it a meaningless formula o Confession 1. In criminal cases, the transcript will be received over the confession 2. Desire to protect against false or misleading evidence of confessions Photographs which are incidental recordings testified about are admissible as its contents are not really being proved Collateral writings o Writing that are sufficiently collateral fall within the exception o Factors 1. The centrality of the writing to the principal issues of the litigation 2. The complexity of the relevant features of the writing 3. The existence of genuine dispute about the writings contents If the jury is listening to a recording and following along with a transcript, the transcript is not evidence but merely an aid to assist the jury Artwork is an equivalent of a writing Summaries are allowed o When the underlying wrings must be so voluminous o The in-court explanation must be inconvenient o The voluminous records must be admissible and available to the opposing party to review US v. Skipper o Does the mere similarity in name between a criminal D and a person named in a prior conviction alone satisfy the identification requirement of 901? o No, the government is required to produce evidence showing that the D was the actual person named in the order o 901 requires the authentication or identification as a condition precedent to admissibility and is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims Buckingham Corp v. Ewing Liquors o May a handwriting be proved by a witnesss show of familiarity with it? o Yes, this familiarity may be gained from having seen the party actually write or from having been acquainted with the handwriting in the course of business dealings o The identification of a signature by a layperson is held to be sufficient for the purpose of authentication when the person is familiar with the purported authors writing US v. American Radiator & standard sanitary Corp o Must only a prima facie case of an alleged authors identity be established in order for documents to be admitted? o The weight of authority requires only that a prima facie case of the alleged authors ID be established for documents to be admitted o The ultimate issue of their authorship and the probative weight to be afforded them is for the jury

o When documents are admitted for purposes other than handwriting comparison, they may be used by the jury as a standard for handwriting comparison if the handwriting is admitted or prove to be that of the alleged author o The trial judge determines whether the genuineness of the handwriting on the documents to be used US v. Sutton o May authorship of writings be shown by circumstantial evidence? o Yes, ordinarily the genuineness of documentary evidence must be shown independently before it can be accepted as proof o The mere contents of a written communication, purporting to be a particular persons are not of themselves sufficient evidence of genuineness o Authorship of writings may be shown by circumstantial evidence, among the components of which the contents of the writing may play a significant role o In special circumstances, where the contents reveal a knowledge or other trait peculiarly referable to a single person, the contents alone may suffice for purposes of authentication People v. Lynes o May authentication of a phone conversation be achieved without the direct identification of the participants voice? o Yes, may be achieved if the surrounding circumstances indicate to the court it is improbable that anyone other than the purported participants were involved o The caller called within hours of the officer leaving his number with the Ds brother, requesting the D to call and the caller asked for the D by name, even though they had no prior contact o Usually, telephone conversations are admitted based on authentication through familiarity with the voice of the caller US v. Siddiqui o Are e-mails which are properly authenticated properly admittable into evidence? o Yes, when the emails sent contain the Ds email address are the same as the email sent to Ds attorney by D and the use of reply automatically sent message to D and the author is someone who knew the specific details surrounding D o Also, personal details and signature of nickname when linked to telephone conversation identifying Ds nickname o The government may authenticate a document solely through the use of circumstantial evidence which includes the distinctive characteristics of the document US v. Duffy o Does the Best Evidence rule cover writings only? o Yes, in proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent o The trial judge has discretion to treat evidence which contains marks of writing as a chattel or writing o The uniform rules of evidence adopt the view that any object carrying an inscription should be treated as a writing Meyers v. US o Is the best evidence rule limited to cases where the contents of a writing are to be proved? o Yes, the issue was what someone had testified to which was recorded in the transcript, not what the transcript contained

o The transcript was evidence of what had been said, but it was not the only admissible evidence concerning it o The testimony given by a witness to the hearing was equally competent and admissible whether given before or after the transcript was received into evidence o Statements alleged to be perjurious may be proved by any person who heard them, as well as by a reporter who recorded them in shorthand o Dissent the witness did not purport to be absolute in his reproduction but merely recited his unrefreshed recollection, and his recollection on each of the alleged incidents of perjury bears a striking resemblance to the succinct summation in the indictment 1. It is obvious that what the witness provided as substance was his own distillation and not an attempt to reproduce the whole of the testimony recorded State v. Nano o Does testimony concerning an absence of entries in a writing violate the best evidence rule? o No, testimony concerning whether a record does not contain certain entries is admissible and not violative of the best evidence rules o Here, the precise language of a writing was not a prima facie issue in the case and thus production of the original records was not necessary o Where the precise language is not at issue and it is in the absence of entries rather than the presence, the rule is less helpful Wilson v. State o Is a photocopy of a document admissible as original in the absence of a genuine issue authenticity? o Yes, the rule requiring the use of the original dates back to the use of the hand copying where errors were common o The availability of electronic copying machines eliminates the rationale for the rule o Proper foundation is required to prove authenticity of a photo copy US v. Stephens o Are summary charts based upon previously admitted evidence admissible o Yes, as long as proper instruction is given, such charts merely make the voluminous documentation understandable o The charts themselves are not evidence and must be viewed in light of the underlying documentation o If they are used as argument or to teach the jury, they may not be used o Their proper use is as summaries of previously admitted evidence o The rule requires that the documentation summarized be voluminous and production inconvenient Seiler v. Lucasfilm o Are pictures and other nonverbal copies of writings subject to the best evidence rule? o Yes, the key issue is the similarity between the two characters as to first creation o Copies created after the D characters were created are of dubious probative value o Because they are subject to the best evidence rule, it must be shown that the originals were lost or destroyed by no fault of the P o Writings are often defined extremely broadly under must local evidence codes and include 1. Traditional verbal communications 2. Motion pictures 3. Audio recordings 4. Videotape Doe Gilbert v. Ross

o When a copy cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given

K. Testimonial Evidence Direct Examination o Witness dominated, want your witness to be believable and must prepare them o Help with form, not substance o Develop the facts chronologically review what the witness knows about the testimony o Present in positive light but expose weaknesses o Use visual aids to help jury o Use favorable knowledge Cross-Examination o Lawyer dominated o Want to bring out the testimony that supports your theory of the case o You know what the witness will testify to o Thats how you meet your burden of production and hopefully the burden of persuasion Competency o A winess is deemed competent if they possess the qualifications necessary to give testimony if they can communicate thoughts, impressions, feelings and beliefs o Physical or mental capacity the capacity to perceive, to remember and communicate o Common law 1. Incompetent if atheists, convicted felons, persons with an interest in the outcome of the litigation, young children and insane persons o Competent for 2 reasons under FRE 1. Lack of personal knowledge must have personally observed or have knowledge of the event 2. Must promise to tell the truth so as to awaken the conscience and impress the witness mind with the duty to do so o Children and mentally incapacitated 1. Determined by the court 2. If a diversity case in fed court, state law determines rules for competency 3. The childs ability to receive and communicate information 4. Whether the statements are spontaneous 5. Indications of coaching or rehearsal 6. Ability to remember 7. Ability to distinguish between truth and falsehood 8. The likelihood that the child will give inherently improbable or incoherent testimony o Interpreter 1. Qualify interpreter 2. Take oath o Dead Mans Statute a person cannot testify as to the knowledge/contract between themselves and a dead person o Rule 615 at the request of a party or on the discretion of the court, witnesses may be ordered to be removed from court so they cant hear the testimony of other witnesses

1. Exceptions a party who is a natural person An officer or employee of a party designated as a representative of a corporation A person whose presence is shown by a party to be essential to the presentation of the partys case 2. A person may not be sequestered if their presence when not testifying is shown to be necessary to a partys representation Expert witness who assists a lawyer to counter testimony for experts of the opposing side Objections to the form of a question judge decides o Narrative response 1. Advantage of the narrative is to save time 2. May prevent a more spontaneous response 3. Opinion Evidence o Lay witness may offer testimony where the opinion is rationally based on the perception of the witness and it would be helpful to understanding the witness testimony or determining a fact in issue o Examples 1. Physical appearance of a person (weight, age, height, drunkenness, strength) 2. Recognition (voice, looks, handwriting) 3. Emotional state of another (angry, happy) 4. Speed, distance, temperature (approximations within everyday experience) 5. Value of ones own goods or services 6. Visible signs of irrational behavior 7. Odors o Lay opinion testimony is admissible for sense impressions within the everyday experience of ordinary people o A lay person is not able to correctly label someone as having a precise condition o Lay opinion testimony on sanity is generally admissible, although it is often limited to a description of an individuals actions plus the witness opinion as to whether the actions seemed rational Expert o Toy v. Mackintosh 1. Proof of negligence requires a finding established by a preponderance of the evidence which is the plaintiffs burden to produce 2. When the issue is stand of care and extent of injuries, you have to produce an expert with respect to causation in order to meet the burden of production 3. If the subject matter is within the knowledge of lay people, then you dont need expert testimony 4. Normally the standard of care requires expert testimony in malpractice actions unless the breach is such gross negligence that it is within common knowledge (wrong leg amputated) o People v. Kelly 1. The foundation for admission of results of scientific tests or techniques cannot be sufficiently laid by only the testimony of an expert witness that such tests or techniques are generally accepted by the relevant scientific community absent a showing of ademic qualifications enabling him to express such an opinion 2. The jury relies on the testimony of the scientists and there is a higher threshold than a relevance test 3. Must bring in disinterested witness who can explain the underlying theory and discuss the common use o Daubert v. Merrell Dow Pharmaceuticals

1. Expert testimony must meet 5 requirements to be admissible It must be the case that scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue The witness must be qualified as an expert by knowledge, skill, experience, training or education The testimony must be based upon sufficient facts or data The testimony must be the product of reliable principles and methods The witness must have applied these principles and methods reliably to the facts of the case 2. The underlying issue is whether the testimony is reliable and not whether its generally accepted (Frye) 3. Factors of scientific validity Whether the theory or technique has been or maybe reliably tested, if yes than more likely to be found valid Whether it has been subjected to peer review The size of the known or potential error rate in using the technique Whether the technique has been generally accepted Whether the technique grows naturally out of work that the testifying expert was conducting independently of the litigation was instead developed specifically for the present litigation 4. Experts may rely on inadmissible evidence in formulating their opinion, but the inadmissible items may not be disclosed to the jury unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect Second-hand data relied on need not be admissible, if its of a type on which experts in the field reasonably rely 5. An expert may testify on 3 types of information Personal observation Facts presented to the expert at trial (hypothetical question) Facts introduced to the expert outside of the courtroom o even where an expert bases her opinion on otherwise admissible evidence, the expert is not required to explain the facts or data on which she relied 1. but if the adverse party wants to disclose that data or factual basis to the jury, it can do so through cross-exam of the expert witness o Kumho Tire v. Carmichael 1. A trial court must examine the reliability of expert testimony for not only scientific knowledge but technical or other specialized knowledge as well and may flexibly apply one or more of Dauberts specific factors to determine the admissibility of a technical experts testimony based on its relevancy and reliability o A judge may appoint an expert witness if found to be necessary to help the trier of fact o Evidence may be authenticated by an experts comparison with evidence already admitted o Experts may not testify to legal conclusions of mental state under the ultimate issue rule 1. Must be a formed opinion US v. Hines o Do Daubert and Kumho apply to the technical fields of handwriting analysis and the psychology of eye-witness identification? o Yes, handwriting analysis is not traditional, experimental science, but is not necessary

o The handwriting analysis testimony here met the requirements of 702 because it is restricted to similarities and dissimilarities between known exemplars and the robbery not o The experts testimony is rooted in science and based upon experimental psychological studies, testing the acquisition of memory, retention, and the retrieval of memory under different conditions o The psychological evidence relating to cross-racial ID is important to demonstrate to the jury that eyewitness IDs may be influence by a number of factors which may affect the accuracy of such IDs US v. Veysey o When does the probative value of statistical probability evidence outweigh the potential for jury confusion and prejudice? 1. when it is not supported by a proper foundation o probability evidence cannot be admitted solely to express the odds that the defendant is guilty or innocent o here, the expert based the analysis on a proper foundation of accepted studies rather than mere speculation o rather than being offered as evidence of Ds guilt, the testimony of the expert was offered to show that there is almost no chance that the four prior acts were random as opposed to intentionally committed by someone else o the government will have to meet its burden to prove beyond a reasonable doubt that the prior acts were intentional and that the D was involved in the prior incidents o the jury is free to reject the probability evidence in making its final decision Commonwealth v. Rosier o Is DNA evidence from STR testing scientifically reliable for admission? o Yes, the testing has come into wide use and the database was adequate and common within the field of DNA testing and would produce no significant difference in the result o The methods used are generally accepted within the field of population genetics and the evidence is reliable and scientifically acceptable for admission into evidence Elcock v. Kmart o May a witness that lacks formal training and certain credentials in a particular field qualify as an expert in that field? o Yes, even though the expert had no formal training,his practical experience demonstrates that he possessed the minimum qualifications necessary to qualify as an expert o The expert has continued to study relevant literature in the field of expertise and consulted the standard tool of the area o Although the expert lacked a degree in the field of expertise, the common degree, practical experience and review of literature in the filed all demonstrate that he has substantially more knowledge than an average lay person regarding the issue in question o A witnesss expertise may have been attained, so far as legal rules go, in any way whatsoever, all that the law requires is that it should have been attained Wheeling Pittsburgh Steel v. Beelman River Terminals o May an expert witness provide opinion testimony as to issues beyond his area of expertise? o No, the expert lacked the knowledge, education, employment, and other practical personal experiences to testify as an expert specifically regarding the issue testified to o The expert repeatedly offered opinion testimony on ultimate issues of fact that the jury was required to offer Iconco v. Jensen Construction

o May a hypothetical be used to elicit the opinion of an expert witness upon facts as to which the expert has no personal knowledge? o Yes, a hypothetical question need not include all facts shown by the evidence or pertinent to the ultimate issue o A hypothetical should include only such facts as are supported by evidence, and the only basic facts need be assumed in the hypothesis o The omission of any material fact from the hypothetical question makes the opinion incompetent Thomas v. Metz o May an expert witness base opinions on inadmissible testimony? o Yes, the opinions in the case were not rendered void because they were partially based on the Ds deposition but also upon a review of the medical records and other admissible evidence o It is at the discretion of the trial court to choose whether to admit the testimony o The impeachment of the expert on cross-exam will often allow the existence of inadmissible testimony evidence to come to the attention of the jury Carr v. Radkey o May a specialist in mental illnesses testify concerning either a testatrixs competency in general or her sanity at the times she executed her will? o Yes, testimony relating to a witnesss perceptions of a testators mental condition is always admissible, but expressions of opinion concerning legal capacity will be excluded o P objects to the testimony of Ds expert concerning the competency of the testator that invades the province of the jury and also requires the witness to resolve the ultimate issue of the case o Ct holds that most authorities permit questions which call for pinions on ultimate issues, and the objection that the province of the jurors will be invaded is unrealistic since it ignores the fact that jurors can always choose to disbelieve any evidence offered, and will accord it such weight as it deserves o Testimony concerning a testators competency is inadmissible only to the extent that it involves the witnesss expression of opinions concerning concepts which are puely legal in nature o Here, the testimony sought did not pertain to the testatrixs legal capacity to make a will, and should have been admitted o Questions which arguably call for legal conclusions will rarely be asked except when the popular meaning of a concept is approximately the same as its legal definition o Otherwise, a question calling for an opinion based on the former will have no bearing on the latter Washington v. Texas o Does a D have a right to compulsory process when state law bans co-Ds from testifying for one another? o Yes, the compulsory process for obtaining witnesses is so fundamental and essential to a fair trial and protect by the 14th amendment due process clause o The D has the right to present a defense and produce favorable witness in the courtroom o The jury is the safeguard against a lying witness Gordon v. Idaho o Is promising to tell the truth sufficient to ensure truthful testimony o Yes, if agreed to testify under penalty of perjury and knew that if he testified falsely, he could have been subject to criminal penalties and is sufficient to ensure truthful testimony Evans v. State o Is a child competent to testify if he or she is able to receive just impressions and relate them truthfully? o Yes, a childs competency is judged on a case-by-case basis by:

1. Ability to receive and communicate information 2. The spontaneity of their statements 3. Indications of coaching 4. Ability to remember 5. Ability to distinguish between truth and falsehood 6. The likelihood that they will give inherently improbable or incoherent testimony US v. Snyder o Is a courts refusal of a request for a psychological exam to determine the competency of a child witness an abuse of discretion o No, the court will only order a psych exam to determine the competency of a child witness to testify upon the showing of a compelling need o The fact that some of the childs statements were baseless does not mean that the child cannot differentiate between fantasy and reality o The defense had an opportunity to examine the child on cross exam to undermine the childs credibility o Court has discretion to determine the competency of witnesses to testify US v. Rouse o May a court permit child witnesses to testify by CC TV based on a fear finding that is not based on expert testimony? o Yes, the statute authorized and the court must find that if the child testifies in the presence of the D they will be traumatized o The courts observation that the child was unable to speak in front of D warranted the special accommodation o Exception to the confrontation clause Byndom v. State o May a court allow a witness to testify through alternative means of communications? o Yes, a witness is competent if they can communicate thoughts, impressions and beliefs even if it is not through use of oral testimony o May use a computer and would not constitute hearsay because the witness could directly answer questions with words and phrases programmed in the computer US v. Heinlein o Is the decision to order a psych exam of a witness within the discretion of the court? o Yes, the decision as to whether a court should order a psych exam in order to aid it in resolving the issue of competency must be entrusted to the trial judge with respect to the particular facts of the case o The court noted that despite some differences of the witness alcoholic, they related essentially to the same event and described the facts and did not significantly change the account of what happened o The trial judge has the discretion to admit extrinsic evidence which bears on the competency of the witness, including psych and mental test and expert testimony of psychiatrists US v. Rhynes o Does an attorney discussing an opposing partys witness testimony with his own witness before testifying violate a sequestration order o No, the difference exists because an attorney has bot ethical and constitutional duties and 615 does not apply to an attorneys discussion with a witness because there are other rules that govern attorney conduct o A defense attorney has a constitutional duty to his client that requires that he provide competent representation through preparation of witnesses the defense intends to call on the Ds behalf

o The attorney had a duty to thoroughly prepare his witness by discussing the testimony of a P witness as it pertained to his own testimony to assess the credibility of his own witness Northern Pac RR v. Charless o When testimony is given in narrative form, is it the duty of counsel to object and strike out? o Yes, it is within the courts discretion to allow the witness to give his testimony in narrative form o But if a witness gives irrelevant, immaterial, incompetent or hearsay matters it is the duty of counsel to object US v. Clinical Leasing Service o May a court terminate direct testimony by sustaining a specific object without further explanation? o Yes, the court prior to the witness testimony ruled that Ds counsel not to lead the witness and when Ds counsel violated, it was within the courts discretion to stop the exam US v. Brown o Is the decision whether to permit the use of leading questions left to the discretion of the trial judge? o Yes, the judge can determine in the interest of truth and justice whether the circumstances justify leading questions to be propounded to a witness by the party producing them o In general, leading questions are undesirable on direct exam, although permissible on cross-exam o Leading questions may be used in the direct exam of hostile witnesses o The trial judge did not abuse discretion in allowing the P to use leading questions because the witness and D were good friends and evidence showed that the witness was a participant in the crime o Leading questions should not be used on the direct exam of a witness except as may be necessary to develop his testimony Ward v. Morr Transfer & Storage Co o May any writing be used to refresh the recollection of a witness? o Yes, it can remind the witness of things to and which they testified, just as anything else may remind an individual of a fact now forgotten o The writing is not evidence, but the memory of the witness is o 2 situations where a writing may be used to refresh recollection: 1. A witness may refer to a writing which refreshes his recollection, so that he may testify to what he actually remembers about the facts in question 2. If a witness cannot recall the evenets in question after examining the memorandum, he may still testify to the accurate depiction of the facts at the time the writing was made Winters v. Winters o Does a party, against whom a witness testifies, have a right to see a writing used by the witness to refresh his memory? o Yes, notes or memoranda personally made by the witness at or near the time of the transactions concerning the matters about which the witness is called to testify may be used to refresh his memory o The opposing side, upon proper demand, has a right to see and examine the writing and use upon cross exam of the witness Borawick v. Shay o Should courts apply a per se rule of exclusion regarding post-hypnotic testimony? o No, a per se rule of exclusion or inclusion would fail to address the concerns regarding the reliability of post-hypnotic testimony or the concerns that persons who have been sexually abused may lose an opportunity to bring suit against their abusers o Instead, a cases by case analysis is required and the court should consider the following factors:

1. Whether the purpose of the hypnosis was to refresh a witnesss memory of an accident or a crime or whether it was conductd as part of therapy 2. Whether the witness received any suggestion from the hypnotist or others prior to or during hypnosis 3. Whether a permanent record was made of the hypnosis session 4. Whether the hypnotist was appropriately qualified by training in psychology or psychiatry 5. Whether corroborating evidence exists to support the reliability of the hypnotically refreshed memories 6. The subjects hypnotizability and 7. Whether the procedures used were reliable o the court should weight the factors in favor or against the reliability of the hypnosis procedure o the party attempting to admit the hypnotically enhanced testimony bears the burden of persuading the court that the balance tips in favor of admissibility o some courts follow the totality of the circumstances Kemp v. Balboa o May a lay witness only testify as to matters within her personal knowledge? o Yes, the testimony cannot be based upon what had been prepared by others o The records should not be used to refresh memory since she had no personal knowledge of the facts and thus no recollection that was capable of being refreshed Jackson v. Leach o Is testimony from a lay witness concerning the speed of a vehicle admissible if the witness had sufficient opportunity to observe the vehicle in motion o If provided a view of the car, and based on ability to perceive speed o Witness is shown to have a sufficient opportunity to observe the vehicle in motion o The witness need not be absolutely certain as to the exact speed of the vehicle, and this lack of certainty will not normally affect the admissibility of the evidence, unless the uncertainty appears to stem from a lack of opportunity to observe the matter related Parker v. Hoefer o May the conclusion, judgment, or opinion of a witness be testified to where the facts underlying them are of such a character that they cannot be presented with proper force to anyone without the benefit of personal observation? o Yes, if the facts cannot be presented with proper force to anyone without the benefit of personal observation and the conclusions as facts based upon observations were admissible o Cannot be permitted as extended to permit statements that a party was negligent or that otherwise the province of the trier of fact in drawing conclusions Krueger v. State Farm o Is lay opinion testimony available where it would be helpful to a clear understanding of the factual testimony? o Yes, is admissible at the discretion of the court and is weighed against the danger that exists where such opinion will be given too much weight, rather than merely to explain the testimony Rupert v. People o May a layperson who is sufficiently acquainted with the accused give an opinion as to the sanity of the accused? o Yes, one who shows adequate means of becoming acquainted with the person whose mental condition is in issue, after detailing the facts and circumstances concerning his acquaintance, and the acts,

conduct, and conversation upon which his conclusion is based, may give his opinion on the question of sanity o The weight of the opinion is for the jury to decide o Cant go to ultimate issue and label in medical theory Impeachment o Can use both reputation and opinion evidence to impeach a witness o 5 ways to impeach 1. Bias or conflicting interest Bias is never collateral, can use extrinsic evidence to impeach 2. Prior inconsistent statements Laying a foundation first is not required under FRE No foundation needed for intrinsic evidence In order for extrinsic evidence to be admissible, the principal witness must be given a chance to explain or deny the prior inconsistent statement, and the opposing party must be given a chance to rehabilitate the witness o The prior statement must at least to some degree contradict the present testimony o The prior statement may not contradict the present testimony on merely a collateral matter, the contradiction must concern a substantive issue in the case o 3. Bad character, especially for dishonesty Prior convictions misdemeanors involving dishonesty and any felony o Conviction may not be more than 10 years old unless court finds probative value substantially outweighs prejudicial effect o If the defendant in a criminal case: Any crime, felony, or misdemeanor involving dishonesty or false statement must be admitted to impeach D regardless of the balance between probative value and prejudice to D Any felony not involving dishonesty or false statement must be admitted but only if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect of the accused Bad acts not amounting to a conviction extrinsic evidence prohibited o May be introduced if The act or conduct must be probative of the witness truthfulness, not merely of the witness general good character The evidence must be brought out soley in cross-examination of the witness. The questioner must take the answer of the witness No extrinsic evidence may be used Specific instances of the conduct not amounting to a conviction by a witness to attack or support that witness credibility may not be proven by extrinsic evidence Bad reputation veracity for truthfulness Must be probative of truthfulness or untruthfulness 4. Sensory deficiencies Eyesight, memory, mental disability 5. Contradiction

o Collateral issue does not allow impeachment by intrinsic evidence 1. Bias is never considered collateral o A witness testimony may not be bolstered unless and until hes been impeached 1. Exception cases where the party is seeking to prove that the witness made a timely complaint 2. In a sex assault case, testimony that the victim made a prompt complaint will be admissible to bolster the victims credibility in a resulting criminal prosecution, even if the victims credibility has not yet been impeached 3. A witness may be rehabilitated on re-direct by being given the chance to explain facts brought out in cross-examination o An argumentative question is one designed primarily to emphasized a point to the jury rather than to elicit information from the witness 1. Always improper o Leading questions are permissible on direct examination when they serve to jog the witness memory about something he once knew, rather than to supply the answer to him o Witness may be shown prior writings made so as to refresh recollection o A withdrawn guilty plea may not be used in any subsequent civil or criminal action o Extrinsic evidence is always admissible to show that a witness lied about a material issue US v. Thornton o Does the admission of proffer letters and plea agreements impermissibly bolster the credibility of the witnesses who sign them? o No necessarily, here they merely laid out the terms and conditions of the agreements in the case o The judge was clear that they were not offered in an effort to enhance the credibility of the witnesses and gave a limiting instruction that the jury was the sole judge of credibility State v. Green o May a party impeach his own witness in the event of genuine surprise and hostility? o Yes, a party may not impeach his own witness unless without warning the witness tells a story different from the one the party calling him had a reasonable right to expect of him o The traditional rule prohibits a party from impeaching their own witness, except upon surprise and damage to that party o The fed rules have adopted the opposite view that the credibility of a witness may be attacked by any party, including the calling party US v. Webster o Is impeachment by prior inconsistent statement permissible if used to get otherwise inadmissible evidence before the jury? o No, using evidence in this way places hearsay evidence in as substantive evidence against the D o Here, there was no bad faith on the part of the Gov as the prosecutor did not know what the witness would say and offered to examine outside presence of the jury Alford v. US o Is the existence of bias a proper subject for cross-exam? o Yes, its permissible purposes are that the witness may be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood o The jury may interpret the testimony in the light, reflected upon it by knowledge of his environment o Facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased

o It is the essence of a fair trial that reasonable latitude be given to the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-exam might develop o The cross examiner may not exam merely to harass, annoy or humiliate Ede v. Atrium South OBGYN o Should evidence of a common insurance carrier between a D and an expert witness be excluded as unduly prejudicial? o No, in a med mal action, evidence of a commonality of insurance interests between a D and an expert witness is sufficiently probative of the experts bias as to clearly outweigh any potential prejudice that evidence of insurance might cause State v. Baker o May the credibility of a witness be impeached by evidence of his reputation for truth and veracity in the community? o Yes, the usual method of impeaching the credibility of a witness as one who will not tell the truth is to chow the bad general reputation of the witness for truth and veracity in the community where he lives, by impeaching witnesses who know that reputation o A proper foundation must be laid by showing that the witness bases his conclusions upon his knowledge of the partys general reputation among those with whom he resides o The form of the inquiry must be restricted to the inquiry of whether, in the view of the partysgeneral reputation for truth and veracity, the witness would believe him under oath o The FRE allows impeachment as to truthfulness to be given by the witnesss personal opinion US v. Alexander o Is evidence of prior felony convictions admissible for purposes of attacking the credibility of a witness if the prior crime was a felony, and the court determines the probative value of admitting the evidence outweighs its prejudicial effect to the defendant? o Yes, if the crime was a felony an must balance the probative value of a prior conviction with 5 factors: 1. The impeachment value of the crime 2. The amount of time between the prior conviction and the crime charged 3. The similarity between the two crimes 4. The importance of the Ds testimony 5. The centrality of the Ds credibility o The prior conviction must be relative to the crime charge in the same veracity Altobello v. Borden Confectionary Products o May a witness be impeached by proof that he was convicted of a crime if the manner in chich the witness committed the offense involved deceit? o Yes, a witness may be impeached by proof that he was convicted of a crime that involved dishonesty or false statement, regardless of whether it was a felony or a misdemeanor o Any misdemeanor conviction would be usable for impeachment purposes regardless of how prejudice and probative value balanced out since all crimes involving deception, are in a sense, dishonest acts and may impeach the credibility of the D State v Morgan o Are past incidents of assaultive behavior probative of a persons veracity and thus admissible? o No, past specific behavior can be used to prove or disprove veracity only if the conduct is probative of credibility o If the acts do not involve instances of a lack of truthfulness, the evidence is inadmissible o Violence is not probative of truthfulness

US v Opager o Is extrinsic evidence of a witnesss conduct admissible to contradict a witnesss testimony as to a material issue? o Yes, extrinsic evidence use is limited to instances where the evidence is introduced to show a witnesss general character for truthfulness o The records here were introduced to disprove a specific fact material to Ds defense, not the informant witnesss general character for truthfulness o 608(b) leaves the admissibility of extrinsic evidence offered for other grounds of impeachment, such as contradiction, prior inconsistent statement, bias and mental capacity Central Mut Ins v. Newman o May a witness be impeached by the use of prior self-contradictory statements? o Yes, when a witness has testified to facts material in the case, it is provable by way of impeachment that he has previously made statements relating to these same facts which are inconsistent with his present testimony o The theory of attack by prior inconsistent statements is not based on the assumption that the present testimony is false and the former statement true, but rather because such inconsistency raises doubt as to the truthfulness of both statements o A prior inconsistent statement may be brought out during cross exam of the witness, or if the witness denies making the previous statement, the making of the statement may be proved by another witness o 613(a) provides that the prior statement need not be shown to the witness during cross-exam, but must be shown to the opposing counsel upon request US v. Hudson o May a witness be impeached by a prior inconsistent statement even though a foundation was never properly laid pursuant to 613(b)? o Yes, 613 requires a witness, before impeachment, to be afforded an opportunity to explain or deny an earlier statement, and this was not done here o Nevertheless the traditional insistence that the attention of the witness be directed to the statement on cross-exam is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine the statement, with specification of any particular time or sequence o The judge controls the mode and order of interrogation and presentation of evidence, giving him the discretion to impose the common law prior foundation requirement when such approach seems fitting Freshwater v. Scheidt o May statements from learned treatises be used to impeach the testimony of an expert witness? o Yes, counsel may use a learned treatise to impeach a testifying expert by establishing that the expert is either unaware of the text or unfamiliar with its contents o The contents of a learned treatise can be used to impeach the credibility of an expert if the expert has relied upon the treatise in forming his or her opinion or the expert has acknowledged the authoritative nature of the treatise o The court can take judicial notice of learned treatises Rodriguez v. State o Is it proper to permit testimony that a witness has a good reputation for truth and veracity when an attack is made on the veracity of that witness

o Yes, the general rule is that where there is no evidence to impeach the testimony of a witness except contradictory evidence, it is not permissible to bolster the testimony of the witness by proof of his good reputation for truth and veracity o However, when attacked it is proper to permit testimony that the witness has a good reputation for truth and veracity o In general, a witness will be given an opportunity to explain or deny those facts which are alleged to give rise to bias or interest o In addition, evidence of a witnesss good reputation for veracity and truthfulness is usually admissible to rehabilitate that witness when he has been impeached by the showing of a prior criminal conviction US v. Plante o May the proponent or the opponent of a witness be permitted on cross-examine or redirect exam to inquire about the details of a witnesss conviction? o No, the conviction may be shown, but it is generally not permissible to rehabilitate a witness by having him deny his guilt because the opponent of the witness should not be required to try a case against him o Neither party should be able to develop the details of the conviction and would lead to unfair prejudice Bradford v. State o Must an impeached witness always be afforded the opportunity to explain or deny a prior inconsistent statement? o Yes, where a witness has been cross-examined respecting his former statements with a view of impairing his credit, the counsel who called him has the right to re-examine him, so as to afford him an opportunity to explain such statements o Common justice requires that a witness, after recollecting the facts whould have the opportunity to explain the nature, circumstances, meaning, and design of a prior inconsistent o When only one side is heard, it is highly unlikely that the case will be decided justly

L. The Hearsay Rule and The Confrontation Clause Definition o A statement or assertive conduct which was made or occurred out of court and is offered in court to prove the truth of the facts asserted o The trier of fact may only be asked to believe those statements made by witnesses testifying at the trial o Covers oral, written, and non-verbal assertive conduct o Only hearsay if offered to prove the truth of the matter asserted in the declaration o Breakdown 1. Out of court statement 2. Offered to prove the truth of the facts asserted 3. By a statement or assertive conduct What is the consequence of defining evidence as hearsay? o If a statement is hearsay and it doesnt fit any exception to the hearsay rule and the other party objects to its admission, the statement must be excluded Why is hearsay excluded from evidence? o Because it is considered unreliable.

o If the declarant doesnt appear in court, the trier of fact has no way to evaluate: 1. Memory 2. Perception 3. Sincerity 4. Ability to communicate o Admission of hearsay deprives the opponent of the opportunity to cross-examine the declarant o Also reflects the same considerations that led to 403 (evidence excluded when the probative value is substantially outweighed by the prejudicial impact o The prejudicial impact of hearsay outweighs such evidences probative value because juries will not understand the relative unreliability of hearsay and therefore will not adequately discount hearsay evidence What is the difference between a hearsay exclusion and a hearsay exception? o A hearsay exclusion applies to the evidence that meets all three of the requirements for hearsay but, for policy reasons is defined as non-hearsay o 801(d) as an exclusion can be admitted to prove the truth of its contents o If it falls within an exclusion, the evidence is admitted because it is not hearsay o If it falls within an exception, the evidence is admitted because although it is hearsay, it falls within a recognized exception 2 categories of evidence excluded from hearsay o Prior statements of a witness 1. Inconsistent Statement Prior inconsistent statements, when used for impeachment or rehabilitation purposes, are by universal understanding excluded from the definition of hearsay May be offered on the theory that the mere fact that the witness has been inconsistent shows that he is not trustworthy and impeaches his present in-court testimony Are admissible both for hearsay purposes and nonhearsay purposes if the witness is subject to cross-exam Out of court statements can be offered are statements made under oath and subject to perjury 2. Consistent Statement Does not have to be under oath and can come in so long as the declarant is at trial and subject to cross-exam and does not require a limiting instruction Offered to rebut express or implied charge against declarant of recent fabrication or improper influence or motive 3. Prior Identification A witness out of court statement identifying a person, made after the declarant has perceived him or her, and where the declarant is presently testifying and available for cross-examination, is specifically excluded as non-hearsay Admissible to prove the truth of its assertion Requires the witness to testify at trial and be cross-examined o Admissions statements made by or imputed to a party-opponent that are offered against that party 1. Admissions by a party-opponent are admissible as an exception to the hearsay rule at common law and as an exclusion from the hearsay rule under 801 D 2 2. The partys own statement, whether spoken, written, or made nonverbally

3. An adoptive admission a statement of which the party has manifested an adoption or belief in its truth 4. A statement made by a person authorized by the party to make a statement concerning the subject 5. A statement by the partys agent or servant concerning a matter within the scope of, and during, the agency or employment, whether or not the speaker was authorized to make such a statement 6. A statement by a partys co-conspirator during the course of, and in furtherance of, the conspiracy o The exclusion refers to any statement, not just admissions, made or imputed to a party that is offered against that party 1. The statement does not have to admit anything or even be contrary to the declarants interest, it only has to be made by or imputed to a party What is the difference between an authorized admission and a representative admission o Occurs in a situation in which the party is an organization with whom the declarant is affiliated in some manner o An authorized admission is made by a person who has been expressly authorized to speak for the party against whom it is being offered o A representative admission, also called an agent admission, is a statement made by someone who is not expressly authorized to speak for the party against whom that statement is being offered, but is speaking about a matter that is within the declarants scope of agency or employment and was made during the existence of that relationship To qualify as a statement by a party-opponent, must it have been against their interest when it was made? o No. it doesnt matter that an admission was self-serving at the time it was made, it need only be unfavorable to the declarant at the time of the trial o A declaration against interest, an exception against the heresay rule, is only admissible if the statement was against interest when it was mad 1. Admitted because deemed to be extra-reliable, anything you say may be used against you 2. Only applies when the declarant is unavailable Under what circumstances will silence be treated as an adoptive admission? o 3 conditions 1. The declarant heard the accusatory statement 2. The declarant was capable of denying the statement; and 3. Under the same circumstances, a reasonable person would have denied the statement if it were not true o If the conditions are met, the silence is deemed to be an adoptive admission under 801 D 2 B o Ex Silence in response to the comment, at the scene of the crime: you are the murderer May non-assertive conduct ever be considered hearsay? o No hearsay must involve a statement o A statement is an oral or written assertion or 1. Non-verbal conduct of a erson, if it is intended by the person to be an assertion Non-assertive conduct is not as likely to be fabricated as assertive conduct or words and is therefore more reliable Dangers declarant not available for cross-examination o Ambiguity o Insincerity o Incorrect memory o Inaccurate perception

o Explanation 1. Oath raises the fear of perjury 2. Demeanor jury would be able to observe the witness 3. Context statement made as part of a larger story 4. Cross-Examination best instrument for uncovering the truth Dangers could be exposed by cross-exam Verbal Acts o Where the words accompanying an ambiguous physical act resolve the ambiguity, the words are the verbal part of the act and are not hearsay o Conduct, even if intended as an assertion, from non-human sources, such as animals and machines, is not considered hearsay Exceptions o B.D. HAM-FED PROMPT 1. Business Records The record concers a business activity The record was made in the regular course of a business o Regularly kept, rather than made in anticipation of litigation o Each participant in making the record must be working in the business when they participated The record was made by, or with information from, a person with personal knowledge of the matters recorded The record was made at or near the time of the matter or event recorded Authentication o The custodian of the records or another qualified witness may testify o Must testify that the record offered was regularly kept in the course of the business and that the record was made by or based on information supplied by someone with personal knowledge of the items recorded o The proponent may furnish a written certification by the records custodian or other qualified person asserting that the record was regularly kept in the course of the business Does not have to had actually made the record, just know generally how the records were kept 2. Declarations against interest (U) Witness is unavailable Admissible when: o The statement was made against the declarants pecuniary or proprietary interest o If the statement subjected the declarant to civil or criminal liability o If the statement rendered invalid the declarants claim against another o Where the declarant knew the statement was against his interest when made even if the consequences may not yet have happened, or might never happen o In a criminal case, the statement is admissible if it is offered to exculpate the defendant and is against the declarants penal interests and corroborating circumstances clearly indicate trustworthiness Difference between declaration against interest and admission o Declaration Made by either party or non-party

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Declarant must be unavailable Against declarants interest when made o Admission Made by a party Declarant need not be unavailable Must be offered against the declarant party Need not be against the declarants interest when made History or pedigree of family (U) Either the statement concerns the declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, regardless of declarants personal knowledge OR The statement concerning one of the above matters as to someone other than the declarant is made by a member of the family or someone intimately associated with the family (family physician) Ancient documents Statements in a document in existence 20 years or more are authenticated automatically Evidence that the document is: o In such condition as to create no suspicion concerning its authenticity o Was in a place where it, if authentic, would likely be o Has been in existence 20 years or more at the time it was offered Medical treatment or diagnosis Made for purposes of medical diagnosis or treatment o Michigan requires both diagnoses and treatment Must describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source; and Must be reasonably pertinent to diagnosis or treatment Made to medical personnel Past symptoms or past events that created those symptoms made to medical pros o Goes to cause of the declarants condition as long as the statements of causation are reasonably pertinent to diagnosis or treatment o Third party made relay info when patient unable ex. Unconscious Former testimony (U) Declarant must be unavailable The former testimony must have been made in a hearing (trial, pre hearing) or a deposition The party against whom the statement is offered must have had an opportunity to examine (usually cross-exam) the declarant in the prior proceeding o No grand jury Must be some overlap in the issues at stake in the prior and present proceeding o Former civil and present criminal trial might qualify o In civil cases, the party against whom the testimony is now being offered need not be the same party against whom it was offered in the original proceeding Predecessor in interest Ex the prior owner of property now owned by the opponent

o Only needs to be identity of interest and motive and an opportunity and motive to crossexamine at the former proceeding Witness testimony from a criminal case may be used against the same person in a civil case as long as the witness is unavailable to testify and as long as the defendant had a similar motive to examine the witness o Similar motive means that a similar issue was involved both times In criminal cases, the former testimony must now be offered against a defendant who was actually a party to the prior proceeding 7. Excited utterances The statement relates to a startling event or condition The event or condition was startling The statement was made while the declarant was still under the stress of excitement caused by the event or condition Doesnt require that the statement be made contemporaneously with the event, but only that the stress or excitement caused by the event or condition not have dissipated by the time the statement was made Does not allow time for the declarant to reflect to concoct a false account of the event 8. Dying declarations (U) The circumstances suggest trustworthiness Statement made while in extremis regardless of whether the belief turns out to be accurate Allowed in any civil case and criminal case involving homicide Must be a declaration offered to prove the truth as a statement of personal knowledge as the circumstances of death, not a supposition o Must go to the declarants sense of impending death, not another 9. Present sense impressions Describes or explains an event or condition AND It is made while the declarant is perceiving the event or condition (or immediately thereafter) Declarants availability to testify is immaterial for the purposes of a present sense impression The immediacy of the statement reduces the time for, and therefore the risk of, intentional deception by the witness 10. Recorded recollections The witness had firsthand knowledge of the event contained in the document The witness made the document, or the document was adopted by the witness The document was made when fresh in the memory of the witness The witness recollection of the facts is impaired o But if the document revives the witness memory, enabling him to testify without it, the document is inadmissible and o The witness verifies that the document correctly reflected the witness knowledge when it was made o 11. Official (public) records The activities of the office or agency Matters observed pursuant to duty imposed by law as to which matters there was a duty to report

o Except in criminal cases, where matters observed by police and law enforcement personnel o Factual findings resulting from an investigation made under authority of law In a criminal case, the police report can be admitted as an exception by a defendant but not by the government 12. Market reports Quotations, tabulations, lists, directories or other published compilations, generally used and relied upon by the public or by persons in particular occupations 13. Present physical or mental state The declarants ste of mind itself where state of mind is in issue and material (intent, attitude, mental feeling, pain) Declarants later conduct following through on that state of mind Generally admissible as long as its not a statement of memory or belief to prove the fact remembered or believed Any person may be the audience, not just a doctor The declarant knows his own state of mind, so there are no perception problems; and The statement deals with present state of mind, so there cant be memory defects Excludes a statement of belief to prove the fact believed o Except in connection with wills Statements of intent are admissible when offered to prove that the speaker followed through on the stated intent 14. Treatises A statement contained in a published treatise, periodical or pamphlet on history, medicine or other science or art may be o Read into evidence, but not admitted as an exhibit An expert witness relies on it on direct examination, or its called to his attention on cross exam and Its established as reliable authority by the witness own testimony or admission, other expert testimony, or judicial notice o The availability of the declarant to testify is immaterial 1. The judge determines whether the declarant is unavailable, not the jury o Declarant must be unable to testify for the hearsay exception to apply 1. Prior testimony 2. Declaration against interest 3. Dying declaration 4. Family history/pedigree o When will a witness be considered unavailable to testify? 1. Is exempted by a ruling of the court on the ground of privilege 2. Refuses to testify despite an order of the court to do so 3. Testifies to a lack of memory of the subject matter 4. Is unable to be present or to testify at the hearing because of death, physical or mental illness, or infirmity 5. Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant by process or other reasonable means

o When hearsay is admissible, what is the chief reason? 1. Because there are circumstances indicating that the out of court declaration is reliable, thus eliminating to some extent the need for cross exam 2. The declarants sincerity, perception, and memory are all factors making an out of court statement more or less reliable o Judge has discretion to exclude hearsay exceptions under 403 804 (b) (6) o Forfeiture by wrongdoing 1. The constitutional right of confrontation applicable to testimonial statements was subject to forfeiture by wrongdoing where the prosecution proves that the criminal defendant not only procure the declarants unavailability, dut did so for the purpose of preventing that person from testifying at trial 2. The confrontation clause does not pose any obstacle to the introduction of hearsay testimony via the forfeiture by wrongdoing exception 806 o Allows attack on the credibility of an out of court declarant o Provides that evidence of a statement or conduct by the declarant at any time, inconsistent with the declarants hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain 807 Catch-all residual exception o All of the following must occur 1. The evidence must be shown to have circumstantial guarantees of trustworthinesss that are equivalent to the guarantees inherent in the listed exceptions 2. The evidence must be offered as evidence of a material fact 3. The evidence must be more probative on the point than other reasonably procurable evidence 4. The opponent must be notified before trial of the statement to be introduced to give him an opportunity to prepare Confrontation Clause o Applies only to criminal trials o 6th amendment guarantee to a criminal defendant the right to be confronted with the witnesses against her o Procedural guarantees of the right to be present at trial to confront witnesses, the right to learn what evidence is being offered against her, and the right to cross-examine witnesses o Applies both in state and federal court under the 14th amendment incorporation o Compulsory process clause 1. The right to have compulsory process for obtaining witnesses in his favor 2. The right to subpoena defense witnesses 3. Interpreted to entitle a defendant to obtain and present all evidence helpful to his defense o The compulsory process clause is an inclusionary tools that allows a defendant to gain admission of otherwise inadmissible evidence o The confrontation clause is an exclusionary tool that allows a defendant to exclude certain types of damaging evidence from witnesses he may not confront o What is the primary objective of the Confrontation Clause 1. To protect the criminal defendant from the use of testimony that has not been subject to crossexamination

 Ex parte testimony testimonial statements made outside the accuseds presence 2. Focuses on the defendants ability to cross-examine the declarant, because the only constitutionally acceptable indication of reliability 3. Precludes the introduction of unconfronted testimony by an unavailable hearsay declarant against a criminal defendant o Under the forfeiture rule, unconfronted testimony by an unavailable declarant is not constitutionally excluded when the defendant engaged in conduct that was designed to prevent the declarant from testifying 1. In order for the defendant to have waived his constitutional right of confrontation, it is not sufficient for the declarants unavailability to have been the product of the defendants action 2. The defendant must have intended, as well as produced, the declarants unavailability o When will allowing hearsay into evidence constitute a violation of the defendants confrontation clause rights? 1. Precludes the admission of those hearsay statements that are deemed to be testimonial unless the accused has been afforded an opportunity to cross-examine the declarant either At the time the out-of-court declaration was made or At trial 2. Regardless of how reliable the declaration is perceived to be Reliability is no longer an element in the confrontation clause calculation o When is a declaration deemed testimonial for confrontation clause purposes? 1. Statements made during an official police investigation will be deemed to be testimonial only when the investigations primary purpose is to prove the occurrence of past events that are potentially relevant to a subsequent criminal prosecution 2. Declarations made during an interrogation conducted for the purpose of meeting an ongoing emergency will not be deemed to be testimonial in nature 3. So where the declaration is deemed testimonial, it will be excluded unless the accused had an opportunity to cross-examine the declarant at the time of the declaration or if the declarant testifies at trial and is subject to cross-examination 4. Where the declaration is deemed to be non-testimonial, it can be admitted as long as it falls within a hearsay exception Its admission does not violate the defendants confrontation clause rights 5. Emergency Exception (Michigan v. Bryant, Domestic Violence) In determining whether the primary purpose of a police interrogation was to enable the police to meet an ongoing emergency and not to establish or prove past events potentially relevant to a subsequent criminal prosecution (to obtain evidence for a trial), the court held that trial judges must make an objective assessment of the purpose of a reasonable participant under the circumstances, and not subject or actual purpose of the individuals involved in that situation In making that assessment, the court is to examine whether the information known to the interrogators and declarant at the time of the interrogation would have led a reasonable person to believe that the emergency that threatened either the declarant, the police, or the public at large was continuing or whether it had passed, and whether the interrogation occurred at or near the crime scene or at a police station Applying the test, the court found that statements identifying the shooter made by the victim to police when they found the victim lying in the street bleeding from a mortal wound were not

o o

made primarily for trial testimony purposes but to help the police determine the scope of a threat to the declarant, to them, and to the public at large Consequently, they were non-testimonial and their adissions was not precluded by the confrontation clause but were subject to state law hearsay rules Statements made outside of the context of police interrogations can also be deemed testimonial in nature if the declarant meant to discuss an event that already had occurred in order to support what the declarant believed to be an investigative or accusatory process Examples of testimonial statements 1. Prior testimony at a preliminary hearing 2. Prior testimony before a grand jury 3. Testimony at a previously held trial (of the defendant or a third party) 4. Statements made during police interrogations during an investigation to determine the occurrence of prior events after an emergency has passed potentially to be used for future prosecutorial or investigative purposes 5. Laboratory reports created by law enforcement personnel or such reports by scientists or technicians for law enforcement personnel An out of court declaration is more likely to be found to violate the confrontation clause if the same evidence could be furnished by live testimony from an available witness Ohio v. Roberts 1. Established a two prong approach In the usual case, the prosecution had to either produce the declarant at trial so that she can be cross-examined, or it must demonstrate the declarants unavailability If the witness was shown to be unavailable, the hearsay would be admitted only if it contained indicia of reliability. In the case of a firmly rooted hearsay exception, reliability would be inferred. But in the case of a hearsay that does not fall within a firmly rooted exception, then there had to be particularized guarantees of trustworthiness out of the specific facts surrounding the statement Crawford v. Washington 1. When an out of court declaration is testimonial, no matter how reliable the declaration is the confrontation clause prohibits the use of the declaration at trial unless the declarant is made available for cross examination 2. Could not require the wife of D to testify because of the adverse spousal testimony privilege 3. The principal evil at which the confrontation clause was direct was the use of ex parte examinations as evidence against the accused 4. Testimonial statements of witnesses absent from trial have only been admitted where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine 5. Inadmissible without any consideration of whether the surrounding circumstances made it reliable or not Davis v. Washington 1. Declarations made in the course of an official interrogation will be testimonial if and only if the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution (crime scene interview) 2. Statements wont be testimonial if the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency (911 Call) Speaking about events as they were actually happening, rather than describing past events

Facing an ongoing emergency and seeking help against bonafide physical threat Questions asked by the 911 operator and answered by the caller were necessary to be able to resolve the present emergency, rather than simply to learn what happened in the past