952_Evidence_Outline

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EVIDENCE OUTLINE

I. EVIDENCE LAW AND THE SYSTEM

a. Why Rules of Evidence?i. Why Evidence Law at All?

1. Mistrust of juries ((2)Jury System)a. Lay factfinders, Dont want influenced badlyi. Judges are biased

ii. Rule 403 If Evidence is HighlyPrejudicial, Can Be Excluded

1. Prior Bad Acts2. Substantive Policies Relating to the Matter Being Litigated

a. Setting and allocating burdens of persuasion3. Further Substantive Policies Unrelated to the Matter In

Litigation ((4) To Further a Policy External to the TrialPractice That We Think Are Important)

a. (Usually) Privilegesi. Example:1. Husband-Wife Privilege

b. Seek to affect behavior or quality of life outside thecourtroom

4. Ensure Accurate Factfinding (3)a. Ensure accuracy

i. Example:1. Authenticating Documents

b. Force Litigants and Courts to be Careful5. To Control the Scope and Duration of Trials ((1)

Pragmatism Parties May Want to Fight Forever (Life,Lots of Money At Stake)a. Example:

i. Rule of Relevance Only IntroduceEvidence Relevant to the Point Are Tryingto Make

b. Parties may want to fight6. Lower Tier Reasons:

a. Dispute Resolution Processb. Acceptability of Verdicts (Article) Society Will

Accept as Final and Move Onc. Trials Ritual and Theaterd. Preserve the Jury not Protect the Jury like Before,

Jury Deliberations are Secretb. What Happens At Trial

i. Jury Selection1. Voir Dire

a. For Causeb. Peremptory Challenges

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ii. Opening Statement1. Overview of the story2. the evidence will show the points made

iii. Presentation of Proof1. Builds case

2. First: Party with the burden of persuasion3. First: case-in-chief4. Second: case-in-rebuttal

a. Refute what the adverse party presented during hismore recent appearance

5. Direct Examination by the calling party;6. Cross Examination by the adverse party7. Re-direct Examination by the calling party;8. Re-Cross Examination by the adverse party

iv. Trial Motions1. Court has opportunity to assess the sufficiency of the proof,

and to take the case from the jury if a reasonable personcould resolve the dispute only one way2. Rarely granted

a. Usually if granted, to defendants in criminal casesand defendants in civil contract suits

v. Closing Argument1. Burden: Opens First, Closes First and Closes Last2. Sometimes before, sometimes after Jury Instructions

vi. Instructions1. Judge instructs the jury on the law, so that it understands

what it must decide in order to reach a verdict for eitherparty

2. Explain the applicable substantive principles, and allocateand define the burdens of proof on the various issues

3. Parties draft the instructions and submit their requests tothe court before the close of the evidence

vii. Deliberations1. Hidden2. Reasons:

a. Protects freedom of Speechb. Protect Jury System b/c may not survive close

scrutiny of the deliberative processviii. The Verdict

ix. Judgment and Post-Trial Motions1. Judgment

a. Civilb. Criminal

2. Time Limitsx. Appellate Review

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II. RELEVANCE

a. Relevance an everyday word describing factors that bear on thedecisions we make and problems we set out to solve

b. Relational it carries meaning only in contexti. Applicable substantive law

ii. Issues that the Parties raisec. Evidencei. Direct if accepted as genuine or believed true, necessarily

establishes the point for which it is offeredii. Circumstantial even if fully credited, may nevertheless fail to

support the point in question, simply because an alternativeexplanation seems as probably or more so

d. Logical Relevancei. Relevance and Materiality

1. Common Lawa. Relevant

b. Material2. Federal Rules of Evidencea. Relevance evidence is relevant if it tends to

make more or less probable the existence of anyconsequential fact (RULE 401)

ii. Establishing Relevance: The Evidential Hypothesis1. Evidential Hypothesis why the proof is relevant2. Using Experiences to Predict what will happen next

a. Inductive and Deductive Logic3. Deductive Argument premises stated necessarily lead

to a particular conclusiona. Conclusion contained in premisesb. Example:

i. All humans are mortal. Socrates is Human.Socrates is mortal.

4. Inductive Argument conclusion does not necessarilyfollow from the underlying premises, but the premisessupport the conclusion

a. Conclusion contains conjecture about the world thatgoes beyond what is in the premises

b. Example:i. Defendant robbed a bank.

ii. People who intend to do something likely doit. People who state an intent likely have it.

1. Likelyiii. Notes:iv. PROBLEM 2-Av. Evidence is a Relational Constant

1. Need to know the underlying issues and elements of thesubstantive law

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a. Legal Issues

b. Underlying Issues i. Liable or Not (Civil)

ii. Guilty or Not (Criminal)

c. Underlying Issues 2 UI II

i. elements of the crime/tort/counterclaim/etc.and defense

2. Factsa. Passing downhill and crash occurs going uphill

less likely Hills testimony

b. Speed limit sign less likely Hills testimonyc. Accident happened in East bound Lane (Jays lane)

R out of lane, Hills testimony not matter3. Evidence to be Offered4. Objection5. Relevance

a. TEST: Any tendency to make a fact ofconsequence either more or less probable (RULE401)

6. Subsidiary Facts facts that build up to that fact ofconsequence

a. Cannot offer the fact of consequence (speed at timeof collision) directly

b. Must use subsidiary facts7. Lowest possible standard to have Any Tendency

a. Logical standard for Relevancy adopted as LegalStandard

b. Although miniscule, Not Treated As Liberally As itSoundsvi. Admissibility

1. RULE 402:2. Relevant Evidence is Admissible

a. Except: Constitution of the United States, by Act ofCongress, by these rules, or by other rulesprescribed by the Supreme Court pursuant tostatutory authority

3. Irrelevant Evidence is Inadmissiblevii. Civil Burden of Proof :

1. More Probable Than Notviii. No Evidence1. Directed Verdict

ix. Attorney: Drive that stretch of road!!! Look for stuff!x. Inductive Logic = Fact Sensitive!

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xi. Relevance As Threshold: The Standard of Probative Worth1. RULE 401: any tendency to prove or disprove a

consequential fact.2. Question : How strong does that tendency have to be?

a. One opinion : evidence has the required tendency

only if it makes the point more probably true thannotb. Second opinion: evidence is relevant only if the

suggested inference is more probable than any otherc. Third answer: the necessary tendency requires a

standard of legal relevancy that is stricter thanlogic and reason alone would indicate

d. Fourth answer: evidence is relevant if it makes thepoint to be proved more probable that it waswithout the evidence

i. Most lenient standard of all most favoring

admissibility3. Conclusion: Unanswerable, there is no real testxii. Relevance In Operation: Hypothesis and Standard Applied

xiii. Notes:xiv. Fact vs. inference

1. Direct vs. circumstantiala. Direct evidence, which taken as true, will prove

the outcome of a caseb. Circumstantial whenever we have to draw an

inference, this is circumstantial evidence2. Inferences The Other Side Will Make Of the Facts For the

Closing Arguments3. Fight Over :

a. Factsb. Lawc. Inferences depends on the experiences and

common sense of the jurorsxv. PROBLEM 2-B

1. Facts: Victims of Robbery identify Carl. When the policecame to arrest Carl, Carl hid.

a. Inference: If not guilty, no reason to runi. Or

1. Not like police,2. Grew up in a neighborhood where

the police harass the peopleb. Judge: Flight from police is generally

ADMISSIBLE since it occurs often.c. Prove: Admission of guilt (subsidiary fact that goes

right to Underlying Issue of the case)d. Evidence:

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i. Circumstantial1. Not necessarily true, have to draw an

inference =ii. Circumstantial vs. Direct Evidence

iii. Direct Evidence:

1. witnessiv. Better? Neither, TRICK QUESTIONv. Direct: Always rests on credibility of

witness (includes confessions)vi. Circumstantial: Inference can be really

strong (includes photographs andsurveillance)

2. Facts: Carls arrest was based on an outstanding defaultwarrant, issued two years earlier on unrelated charges.

a. Inference: Anyone would have run if had a priorwarrant

b. Judge: Equally likely for him to run for the oldwarrant as for the new warrant NOTADMISSIBLE

c. Sidebar: Mere argument infers that there arefacts/information there, and if it is not admissible,have polluted the Jury (RULE 103 (c))

i. potentially prejudice the jury cannothear it

xvi. Notes on Evidence of Attempts to Avoid Capture1. Evidence of efforts to avoid capture

a. (1) Generally admissible in criminal trials

b. (2) Does not create a presumption of guilt orsuffice for convictioni. Reasons for flight apart from guilt

1. Jury2. Do not wish their names to appear in

connection with criminal acts3. Arrest and Trial4. Because they do not wish to be put to

the annoyance or expense ofdefending themselves

c. (3) Open to Interpretation

i. No doubt1. High speed chase2. Runs when uniformed officers

approachii. Doubt

1. Cannot be located in his usual haunts2. Left the environs after the crime3. Arrested in another jurisdiction

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d. (4) Lapse of time weakens inferencee. (5) Important: jury instruction that invites the jury

to consider flight as evidence of possible guilti. May be reversible error if conduct cannot

support an inference of flight

xvii. Relevance Reconsidered: The Problem of Induction (pg. 67-70)1. Problem of Induction = Problem of Relevance2. Varieties of Inductive reasoning

a. Inductive generalization i. Inquirer draws an inference from a sample

of observed instances to a conclusion aboutfurther instances

ii. Conclusion cannot be said to be certainb. Inductive analogy

i. Using resemblances between knowninstances and some aspects of the instanceunder study,

1. inference that an unknown aspect ofthe latter follows a known aspect ofthe former

ii. Common in everyday thinkingc. Inductive inference to cause

i. Observation of an event that seems to be theeffect of something else, and draws aninference that a previous event or conditionwas the cause

1. Fallacy:ii. Used in litigation

d. Inductive explanation or hypothesisi. Hypothesis

3. The dilemma of inductive logica. All arguments are based on experiences from the

past, presupposes that the future will be exactlyalike

b. Habit: makes experience useful to us4. Defense of inductive logic

a. John Stuart Mill: nature is uniformi. Logic is circular

5. The dilemma cut to sizea. Lawlike statements vs. accidental generalityb. Lawlike: statement that is capable of receiving

confirmation from an instance of it

e. Pragmatic Relevance

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i. Prejudice and Confusion1. RULE 401: giveth

a. Logical relevancy standard: satisfied by evidencehaving even the slightest probative worth

2. RULE 403: takes away

a. Lets the judge exclude relevant evidence on accountof any danger described thereb. Or, any of the considerations set out there

i. Undue delayii. Waste of time

iii. Needless presentation of cumulativeevidence

c. Judge has wide discretiond. Language favors admissibility

i. substantially outweighed by the variousdangers and considerations

ii. Balanced: admit the evidence3. STATE v. CHAPPLEa. Facts: Defendant in murder case convicted on

testimony by MS and PB. M.S. and P.B. placedDee at the scene of the crime and P.B. stated thatDee confessed to killing Varnes. Both M.S. andP.B. identified defendant as Dee.

b. Evidence at Issue: Admitting pictures of thecharred body and skull of the victim

c. Rule:i. Photographs must be relevant to an issue in

the case and may be admitted in evidenceii. May be admitted although they may also

have a tendency to prejudice the jury againstthe person who committed the offense

iii. Discretion of the trial court will not bedisturbed on appeal unless it has beenclearly abused (State v. Mohr)

d. Court:i. State v. Mohr: does not mean that

ii. Relevancy is not the sole test ofadmissibility for the trial court

iii. When the offered exhibit is of a nature toincite passion or inflame the jury

1. The court must go beyond thequestion of relevance and considerwhether the probative value o theexhibit outweighs the danger ofprejudice created by admission of theexhibit

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2. Rule: Relevancy is not the sole testof the admissibility of evidence;admissibility depends, rather, on abalancing of the various effects ofthe admission of such evidence,

considered in the light of recognizedrules of law governing theadministration of criminal justice

a. RULE 4033. Rule:

a. First: the evidence must befound relevant

b. Second: consider theprobative value of theexhibits and determinewhether it outweighs the

danger of prejudicei. Examine the purposeof the offer

iv. Uses for photographs of a corpse:1. To prove the corpus delicti2. The identity the victim3. To show the nature and location of

the fatal injury4. To help determine the degree of

atrociousness of the crime5. To corroborate state witnesses6. To illustrate or explain testimony,

and7. To corroborate the states theory of

how and why the homicide wascommitted

v. If any questions contested, either expresslyor implicitly, then the trial court may findthat the photographs have more than meretechnical relevance

vi. Have bearing to prove a contested issue inthe case and may be admissible aside atendency to create prejudice

vii. However, if the photographs have notendency to prove or disprove any questionwhich is actually contested, they have littleuse or purpose except to inflame and wouldusually not be admissible

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e. Holding: While the arguments establish therelevancy of the photographs, we find that thephotographs have little probative value

i. Based on the facts of the caseii. Unnecessary use:

1. Cumulative of uncontradicted andundisputed testimony2. Subject of a stipulation offered3. Only issue to decide was whether

Defendant was Dee, an issue ofidentification

iii. Only possible use of the photographs was toinflame the jury

4. Notes5. Rule 104 (a): Preliminary questions concerning the

qualification of a person to be a witness, the existence of aprivilege, or the admissibility of evidence shall bedetermined by the court, subject to the provisions ofsubdivision (b). In making its determination it is not boundby the rules of evidence except those with respect toprivileges.

a. To decide relevance, need to hear the evidencewhich may not be relevant or admissible.

6. PROBLEM 2-A (revisited)a. Facts: Object to graphic pictures of the crash on

Rule 403

i. Not Relevant Rule 401 b/c have to provethat Husband is dead

ii. Rule 403: Although relevant, evidence canstill be excluded ifunduly prejudicial

1. If a little unduly prejudicial, is stilladmitted: substantiallyoutweighed

iii. Whats the Prejudice? Emotional jury notgood instead of Rational evidence

1. Should be Prepared to Point toWhich Kind of Prejudice That YouTalking About and Explain Why:Unfairly Prejudice, Confusion of theIssues, Etc.

b. Note: Rule 103 (a): Harmless Error Rulei. Great deference given to Judge

ii. Original:iii. Rule 403: Tell us so little about what

happened and causes Jury to draw

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conclusions that shouldnt be drawing:unfair prejudice

1. Confusion of the Issues: Jury willthink that its relevant b/c its talkedabout

a. Jury: Wouldnt think thatletting in something thatmarginal and must beimportant

i. Waste of Time:tiny probative value

c. Pictures:i. Defense: Stipulate that R died at the scene

ii. Stipulation agreement between theparties that its going to be taken as true

d. Does the stipulation hurt the relevance of the

photographs?i. Doesnt eliminate relevancy of the photosii. Party is entitle not just to the facts, but to the

impact of he facts: Photos, not just Wordsthat he died at the scene,so long as notunduly prejudicial

iii. Photos are less probative: cumulative anwaste of time

e. Judge: Take the stipulation and 1 out of 4/5photographs if agree to the stipulation and want thephotographs as well

7. Rule 104 (a): Judge makes all the decisions. Can considerinadmissible evidence in deciding relevancy.8. Rule 403: Even if relevant, if unduly prejudicial can be

excluded.a. Inflame passion of the jury and decide on emotional

rather than rational grounds.9. Rule 402: Relevant evidence is admissible. Irrelevant

evidence is inadmissible.10. Rule 401: Definition of relevant evidence.11. Exceptions: Sentencing Hearings; Preliminary Hearings;

Grand Jury Proceedings

a. Do apply in Depositions12. Motion in limine: Rule in Advance That Certain Evidenceis Irrelevant and Inadmissible.

13.Notes on Prejudice, Gruesome Photographs, and Prior

Crimes

a. (2) Defendants: often offer to stipulate to theappearance of the scene and cause of death

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i. Prosecutors: list f points on which suchphotographs bear:

1. To establish cause of death2. To show position of the body3. To show nature and relationship of

wounds4. To prove viciousness of attack, and5. So forth

b. (3) Often, the cases hold that the fact that thephotographs are gruesome does not mean theyshould be excluded

i. Sometimes admitted because theydemonstrate atrocity

ii. Gruesome crimes result in gruesomephotographs

iii. Color photographs are allowed as well

c. (4) Sometimes courts exclude gruesomephotographs under FRE 403 when probative worthis minimal and inflammatory impact is great

i. Post-Autopsy photosii. Photos of victim before died

d. (5-7): OLD CHIEF: didnt cover14. PROBLEM 2-D

a. Facts: W died from knife wound that ex-H/D gaveher. H: Argument, then W attacked ex-H/D withbaseball bat, then fell on knife ex-H/D held

b. Evidence At Issue: 2 years earlier, W stayed atshelter for 30 days and divorced D

c. Case-in-chief:i. Relevant: Probative value without defense

given if relatively lowii. Prejudice:

iii. Inference:iv. Problems:

1. Old,2. Worry:

a. Overvalue the Evidence:misleading the jury;

b. dont really know that it wasabuse or that that was theentire factual situation of whyshe went to the BatteredWomans shelter;

c. punish for what did before.Dont like wife beaters

d. Judge: 99% Excluded

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e. Case-in-rebuttal:i. Relevant: more relevant

1. not accident but pattern of abuse,counters particular defense

15. PROBLEM 2-E

a. Facts: Passenger in car that is rear-ended dieswhen the car explodes b/c of a ruptured fuel tank.b. Evidence: Guilty plea of other driver to counteract

the fuel tank explosion and the speed of the othercar.

i. Products Liability Test: Standard ii. Design Defect:

a. reasonable design for reasonablyforeseeable situation

b. Causation of the Harm

c. Evidence: 68 mphi. Relevance: Not reasonably foreseeable,ii. Causation any tendency even though

may have 70 mph zonesiii. Prejudice: NOTHING RULE 401iv. Even though low probative value, still no

prejudicev. Decision: ADMITTED

d. Evidence: Guilty plea of driver of rear cari. Relevance:

1. Caused the accident which ultimatelykilled the guy, but manufacturingdefects might also be the cause of theflames that killed the guy

2. Re-enforcing the speedingii. Prejudice:

1. cumulative evidence;2. confusion of the issues driver of

the car took responsibility for theaccident and caused it.

a. Therefore, how could themanufacturer have caused theaccident?

iii. Decision:ii. Limited Admissibility Confining the Impact of Proof

1. RULE 403a. Balance the probative worth against risks of unfair

prejudice or confusion of issues or misleadingthe jury and admit or exclude accordingly

2. RULE 105

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a. Admit the evidence, on the point for which oragainst the parties as to whom it is competent, butgive limiting instructions to prevent misuse onother issues or as against other parties

3. PROBLEM 2-F

a. Facts: M and L are in a car accident. Unsure causeof the accident.b. Evidence At Issue: L says that whoever screws up,

her insurance will pay and Im sure myinsurance will cover it.

c. Admissibility?i. Relevance:

d. 2 lines of relevance:i. Proof of Insurance

ii. Admission of Guilte. RULE 411: Evidence of Liability Insurance is not

admissible as evidence for negligence.i. however, not excluded when offered foranother purpose: such as proof of agency,ownership, or control, or bias or prejudice ofa witness.

f. Deep Pocket Concern: Insurance has a lot ofmoney to pay for it; doesnt really matter whoactually did it

g. Notion that early on, bought insurance b/c you werereckless or negligent b/c had insurance and didntcar about actions

h. RULE 403: Prejudicei. Exclude: RULE 411: Too prejudicial, probative

value is small (RULE 403)j. Let in BUT, Limiting Instruction underRULE 105:

For one purpose but not anotherk. RULE 105

i. LIMITED ADMISSIBILITYii. upon request

iii. Counsel may not want to draw the Jurysattention to it at all STUCK betweenPROBATIVE and PREJUDICIAL

iv. Psychologists DONT WORKl. Limiting Instruction Members of the Jurym. If get it in, Defendant canstipulate that She made a

statement that could possibly indicate liability.n. Redaction Eliminate objectionable parts of the

material

4. Notes on Limited Admissibility

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a. (1) Problems in PROBLEM 2-Fi. M could not testify to part of what L said

ii. Should Ls statement be excluded altogetherunderRULE 403 or admitted for a limitedpurpose underRULE 105

b. (2) Must proceed that the jury will follow theinstructionsc. (3) Limited admissibility in a recurrent situation

the criminal trial of several defendants, where theprosecutor offers a statement by one that mentionsothers

i. Often such a statement is admissible againstthe person who made it, but notagainstothers

ii. Court: even clear limiting instruction werenot good enough, noting that the prosecutor

could sever and proceed separately againstthe various defendants (BRUTON v.UNITED STATES) discussed later

iii. Completeness Providing Context1. RULE 403: balance, and admit or exclude the whole

accordingly2. RULE 106: a writing or recorded statement

a. Require introduction of any other part of thestatement that ought in fairness to be consideredcontemporaneously with the part already offered

3. RULES 401 403, 611: enough authority to apply thesame principle to such other proof

4. PROBLEM 2-Ga. Facts: Lt. Cmd. Erin Ramney died in a training

aircraft that crashed while climbing. Survivinghusband, also a flight instructor, personallyinvestigated the plan and the scene and the records.He wrote a detailed letter to Cmd. concluding thatthe power rollback caused the crash.

b. Husband sues Rockwood Aircraft. Husbandsevidence includes mainly expert testimony.

c. Rockwood claims pilot error caused the crash b/c ofthe student improperly trimming the plane.

d. Evidence:i. Husband to testify to Letter:

1. unnecessary pressure2. tired and emotionally drained

ii. Husband tried to testify to Letter:1. Conclusion:

iii. Other Counsel and Judge:

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1. Hearsaye. Notes:

i. Misleading underRULE 106.ii. RULE 106 introduction of whole or

another part of the letter ought in fairness to

be admitted when only a part is introduced.iii. Hearsayiv. Judge: Let in

5. Notes:a. RULE 106 only written but underRULE 403 can

do oral and RULE 611 (a) where Judge is allowedto control the Order of Witnesses, etc. and the spiritofRULE 106 to get the same result.

b. Notion of Completeness :(1) Allows to Counter Inference of Inconsistency or

Incompleteness

a. Rebuttal Function(2) Notion of Completeness has a TrumpingMechanism

a. Trumping Functionb. RULE 106 Trumps Hearsay Rule for the

Notion of Completeness.(3) _________________________________

a. E.g.: Statement to Police about a Murder had a migraine and stayed in the House except forLunch when went outside and say murder.Defendant: only stayed in bed.

b. Object: RULE 106as the thing comesto pass. MISLEADING. And, Interrupt Function:Interrupt Party to read the rest of the statement.Forces Opponent to Draw Out Evidence That IsHarmful to Them.

6. Notes on the Completeness Doctrinea. Letter:

i. Could be used against him as his admissionii. Husband could not normally put the letter in

evidence himself, since the admissionsdoctrine does not authorize one to introducehis own statements

iii. Trumping hearsay when necessary toprovide context

iv. The Shortness of Life1. Judge: can exclude evidence

a. under RULE 403 undue delay, waste of time, orneedless presentation of cumulative evidence

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i. Limit number of witnesses calledii. Duplicative evidence

iii. Deny requests for time to locate newwitnesses or evidence

v. The Functions of Judge and Jury

1. Judge:a. Admissibility:i. Determines questions of admissibility

1. Alone2. RULE 104 (a)

b. Relevancyi. Not the sole decisionmaker

1. Shares responsibility with the Juryii. Simple Relevance

1. Judge: Alonea. Whether a particular point,

which a proffered item ofevidence concededly tends toestablish or refute, isconsequential within themeaning ofRULE 401.

b. Whether proffered evidencereally ahs a tendency inreason to prove that point forwhich it is offered

2. Jury:a. weighs the evidenceb. RULE 104 (e)c. Cases that go to the jury

because reasonable mindscould assess the evidencedifferently and cases thatrequire a directed verdictbecause only one outcome isreasonable

c. Conditional relevancei. RULE 104 (b)

1. When relevance turns on a conditiona. Judge: screening functionb. Jury:

i. When differentanswer are reasonable

2. PROBLEM 2-Ha. Facts: Girl riding older brothers bicycle when

crashed due to brake failure. Parents sued threeyears later. Manufacturers brakes had a plastic cap

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that was supposed to be oiled. Expert wants to saythat the bikes brakes fail today, three years after theaccident. Defendant: not in same state andtherefore not allow. Plaintiff: Other Expert: Didexperiments with it, no problem. Then in shed.

b. Object:i. RULE 104 (a): Not relevant since not insame condition

ii. RULE 104 (b): Conditional Relevancy Prove Condition b/f allow evidence

c. Any difference in the test that would occur fromtwo years ago and today. Mundel couldnt say thatthere was no difference, therefore case went away.

d. Judge: conditional relevancy RULE 104 (b),choices:

(1) Overrule not a valid conditional relevancy

objection(2) Valid Conditional Relevancy, ask other side forOffer of Proof to satisfy the condition

a. Satisfy, overrule objection, let testify subjectto the condition being met later on. Makesure that evidence comes in.

(3) Valid Objection, Sustain, and Still call OtherEvidence before calling Mundel.

3. Notes (Conditional Relevancy):4. Conditional Relevancy if cannot satisfy the Condition,

the evidence isnt relevant anymore

5. RULE 104 (a) Judge is gatekeepera. Relevance: Personal decision

6. RULE 104 (b) Conditional Relevancya. Judge is (usually) gate-openerb. Standard reasonable juror

7. State of the bike is the same as before 2 years ago.

a. Not relevantRULE 104(a)b. Condition may be important: authenticity of

documentsi. Condition of Authenticity has been met or

has not been met and will either be allowedor not allowed into Evidence8. Whether the Condition has been sufficiently met

a. RULE 104 (b)9. Reasonable people could disagree about the Authenticity,

its not the Judges Personal Decision about it:

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10. Question: Could a Reasonable Juror disagree with me(lower standard, deferential standard, to the Jury)? If so,then let the Contract in.

11. ***sufficient to support a finding***a. Example: Mfr can ask the Judge to give an

Instruction about Conditional Relevancyi. Testimony is only relevant ifb. May object to the Order: Not to let the Expert

testify until Meet the Condition(1) Testify and Then Introduce Witness to Meet

the Condition(2) Put the Witness to Meet the Condition

before Testify FORCE ORDER12. WORST: Promising a Judge to Do Something on an Offer

of Proof and Then Following Through13. Critical: Reasonable Juror Standard (Language Not in

Rules) = sufficient to support a finder (Evidence)14. UNITED STATES OF AMERICA v. SCARFO (SeigelsSupplement)

a. Facts: McNair (Witness) traded Jerome

Palumbo brother John Palumboassociate (worked for but not a member of the

Mob itself) Nicky Scarfoi. Gun: S & W .38c is the murder weapon

15. Allegation: NS and Nicholas Virgilio kill Helfant (Judge)16. Govt: McNairs testimony helpful? Chain of Events to

the murder weapon. (NS to MW)

17. Evidential Hypothesis: People who are connected to aMurder Weapon are more likely to be the Murderers thanpeople who are totally unconnected.

a. Doesnt Prove Guilt, but is a building block.18. Defense: Point out long string of Inferences that tells us

Nothing. Doesnt connect N. Scarfo to the Gun, butanother guy, Jerome Palumbo, and not relevant underRULE 401.

a. RULE 104(a).b. RULE 104 (b) Conditional Relevancec. Condition on Prove that Govt Meet one of the

Conditions. Is that Good? If cannot prove theevidence later on, then GREAT!

d. RULE 403 prejudicial: give too much weight tothe evidence than it deserves. Connection to theMW and Scarfo is going to have greater focus.

e. Overvalue it out of confusion esp. during a longtrial

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f. Lying Jerome to protect someone, especially abrother, to John

g. John, scared of Mafia bossh. Inferences are a little helpfuli. Footnote Question: Why footnote 1 if not ask the

Judge to change previous ruling?i. Primary Reason from the Offer of Proofprevious to McNair testifying

ii. Prosecutor could not keep the Promise Never Intentionally Mislead the Judge

iii. Lesson: Credibility

f. THE RELEVANCE OF PROBILISTIC ANAYLSISi. Admissibility of Statistical and Probabilistic Evidence

ii. Civil : necessary facts are more probably true than notiii. Criminal : beyond a reasonable doubt

iv. PEOPLE v. COLLINS1. Facts: Statistical probability that the people who robbed awoman are the right ones. Caucasian, blonde woman andan African-American man with a moustache and beard in ayellow car.

2. Prosecutor: Statistical evidence about how many menwith beards and moustaches married to a girl with aponytail and blonde hair as an interracial couple in a car tosay that the evidence proved that the Defendants had a 1 in12 million chance that another couple was like theDefendants.

3. Prosecutor: mathematical proof of guilt that displacesthe reasonable doubt

v. Notes on COLLINS1. Distribution: even if a particular outcome is likely to occur

half the time, it does not mean that the frequency will occurin the same series of events or particular sample

2. DNAa. Probability that the same characteristics are seen in

the populationvi. Notes:

1. Background: Larry Tribe may have written the Opinion.IMPORTANT CASE.

2. like one in a billion unethical3. Not Saying that cannot use Statistical or Probabilistic

Evidence in a Trial(1) DNA(2) Blood Tests(3) Fingerprints

4. Problems:

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(1) *No evidence of Foundation for the Statistical Numbersa. Relevant Body for the Baseline? San Francisco,

California, United States, etc.(2) Product Rule only works for Independent Variable, not

dependent variables like Beard and Mustache, when

Most men with Beards have a Mustache.a. Failed Rule lack of independence(3) Misuse of what Statistic Means 1/12M vs. 1/10

(4) 1/12M Probability of couple matching Testimony,not of a Couple of That Kind of Period

a. Could be Lying which is uncaptured by theStatistic

(5) Larry Tribe: Statistical Evidence Has the Risk ofDwarfing Soft Variables

a. Possibility that May be Lying (Soft Variable):Cannot put Number on That

b. Dwarfs importance of soft variables(6) RULE 403: prejudice and confusion(7) Distribution as well: if theres one, then theres more

of a chance to find another there than in another part ofthe world: Scandinavia vs. L.A.

III. HEARSAY

a. What is Hearsayi. Underlying Theory: Risks and Safeguards

1. A simple definition2. Reasons to exclude hearsay3. The Hearsay risks:

a. Misperceptioni. Misperception of the Declarant that is thenrepeated as Hearsay

ii. Cross-Examination: Courtroom Safeguardsiii. Just what Declarant said, not what heard,

saw, or external evidence to testify aboutand be cross-examined

b. Faulty Memoryi. Time lapse between Witnessing the Incident

and the Issuing the Statementc. Ambiguity (Misstatement, Faulty Narration)

i. Thinking one thing, BUT Say Anotherii. Between what was Said and what was Heard(by L from Declarant)

iii. Inference: People Say What They Mean,Believe What They Say

iv. Not Always True: Sarcasm, Joking

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v. Have to Take the Inference that He SaidWhat He Meant, and That Might Be aWrong Inference

d. Distortion/Deceptioni. Liar: Not like Higgins, Not sure but Say It

Anywayii. Out of Court Statement Offered for Its Truth1. Elements of Hearsay:

a. OOC: by the Declarantb. Offered to prove (by party)c. The Truth of the Matter Asserted (by Declarant)

2. PROBLEM 3-Aa. Facts: H charged with bank robbery. L is called to

the witness stand about conversations he had afterthe bank robbery.

b. P said to L: H is the one who did it

i. HEARSAY: out-of-court statementii. Tending to prove or disprove the ultimateissue in the case whether H is the one whorobbed the bank or not

iii. In-court Testimony: P said to me that H didit.

iv. Inference: People usually say things thatthey believe. P believes that H did it. Hesaid that. In the absence of all otherinformation, if P believes that, then it is alittle more likely that H did it.

iii. Notes:1. Hearsay is

a. an out of court statement (by the Declarant)b. offered to provec. the truth of the matter asserted

2. Some hearsay is admissible, either by Exception or labelingit not hearsay

3. Rule 801(a) (c)(d) Exemptions

4. Rule 802: Hearsay is not admissible. Hearsay that fallsunder the exemptions is admissible.

5. Rule 401: Rule of Relevancya. Declarant P, person who makes a statement (Rule

801 (b))6. Courtroom Safeguards:

1. Cross-examination2. Demeanor Evidence assess the demeanor in the

courtroom

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3. Oath swear to tell the Truth7. What about an affidavit? Under Oath and Subject to Cross-

Examination BUT no Demeanor Evidence

b. A Closer Look at the Doctrine

i. What is a Statement?1. Assertive Conducta. Examples:

i. Noddingii. Shaking the head

iii. Shrugging the shoulders in answer to aquestion

iv. Coded signal2. Non-assertive Conduct

a. WRIGHT v. DOE d. TAHAM***i. Seminal case

ii. Not followed todayiii. Rule: Unintended implied assertions arehearsay, no matter verbiage or conduct

iv. Now: depends1. Trustworthy : not Hearsay2. Non Trustworthy : Hearsay

b. CAIN v. GEORGEi. Facts: Parents bring suit against motel

alleging that son died of carbon monoxidepoisoning. The motel wants to introduce thenumber of guests who had made nocomplaints.

ii. Declarants guests of the hotel that stayedin the room prior to the accident

iii. Potential Statement: No complaints1. (Conduct that is non-assertive)

iv. Not trying to communicate anything1. Allowed

v. HYPOTHETICAL : Assume some peopletalk on way out of motel.

vi. STATEMENT: Voluntary Utterancevii. Unintended Implied Assertion : Not

intended to communicate belief that Heaterwas Working Fine

viii. Trustworthy: Not relying on one personwho walked away, but multiple people

3. Indirect Hearsaya. Routine hearsay questions: birth date, place of

birth, parents names and addresses are hearsay

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i. Regularly acceptedii. Technically: lack of personal knowledge

challenge1. Still accepted

b. UNITED STATES v. CHECK

i. Facts: Testified to what said out of court toa CI when CI didnt testify. Half of aconversation, basically so that able to getwhat the other guy said without reallysaying, This is what he said

ii. Rule: Indirect and Direct Hearsayiii. HYPOTHETICAL : Same FBI case. BUT,

Proceeded to Location and set upsurveillance. Saw D buying white powdersubstance from guy. Then we arrested.

iv. Technically, a little bit of indirect hearsay

know to go to Location.v. However, probative value is miniscule ofwhere she went.

4. Machines and Animals Speaka. Clocks okay b. Screen read: Hearsayc. Usually allow animal

ii. When is a statement not hearsay?

1. Something other than truth of matter asserted NOTHEARSAY

2. PROBLEM 3-C

a. Impeachmenti. Cross:

1. Offered to prove impeachment NOTHEARSAY

a. Bystander was confused, liar:

Credibility NOT HEARSAY2. To Prove Truth that light green for blue

sedan HEARSAYb. Judge: Not Hearsay since offered for purposes of

Impeachment, Credibilityi. Relevance doesnt depend on its truth

c. not to prove the truth of the statements, but that thestatements CHANGED

3. Notes on Impeachment by Prior Statements

a. Prior inconsistent statementsb. RULE 403: prejudicial to the jury BUT not likely

to be thrown out b/c probative value toCREDIBILITY = Judge

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i. LIMITING INSTRUCTION: Do notevaluate the statements as to its truthfulness,just to the fact that the Witness changedstatements.

4. HYPOTHETICAL:

a. Verbal Actb. Facts: A walks into bank and hands Teller note thatsays: Want all Your Money, or Else. Gets Caught.

c. Note: Hearsay?

d. Not going to the Truth of the Matter AssertedVERBAL ACT

e. Verbal Act: Words (written or stated) that at themoment they are uttered, they have (potential) legalsignificance.

f. Words themselves are relevant. Includes Conductsuch as Nodding your Head, Shaking your head,

etc. i. Example: Fraud words, Selling drugs,Buying drugs, etc.

g. TEST: Eliminate the words and substitute theillegal action. If its relevant, then a VERBALACT

h. Speaker: Verbal Acti. Listener: Effect on Listener

5. PROBLEM 3-Da. Verbal Actb. Hearsay? No Verbal Act: Crime of Soliciting

Prostitution6. Notes on Verbal Acts7. PROBLEM 3-F

a. Hearsay? Agency: Yes; Reasonably:b. Effect on Listener.

i. Mere fact that the words were utteredsometimes changes LEGAL POSITION, butmostly gives a LEGAL ARGUMENT

8. Notes on Effect on Listenera. HYPOTHETICAL: Drive even though warning

label says not to on medicine bottle.

i. Hearsay? No ii. Effect on Listener b/c just to prove warnedthe person

9. HYPOTHETICAL: Wills depend on who dies first.Bystander testifies that heard a womans voice.

a. Hearsay?b. No, b/c the point is that she had a voice and was

alive.

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10. PROBLEM 3-Da. Hearsay? Offered forContext/Move the Story

Along. Cannot testify to half a conversation.11. PROBLEM 3-G

a. Matchbook w/logo

i. Pure Verbal Objectii. Dont need to read what it saysiii. Logoiv. Recognize it

v. If have to know what it says potentialhearsay

1. Purpose: to advertisea. Probably: unintended

implied assertion b. Trustworthy: NO

HEARSAY

b. Mug from W.S.s college w/his name on iti. Impure Verbal Objectii. Not hearsay, but need to read it

c. Cannot point out now; pointed in pasti. To prove connection between her and

Isoms testimonyii. Verbal Marker

1. verbal equivalent to a verbal object2. just her words are the marker

iii. Need: testimony of 2 witnesses w/statementconnecting testimony of the two of them

12.Notes on Verbal Objects13. PROBLEM 3-Ha. Facts: Wife died.

i. (1) loss of companionshipii. (2) loss of income

iii. vs. will: hate and $1.00b. Hearsay?

i. Circumstantial Evidence of State of Mind1. Works ONLY when state of mind of

declarant is a fact of consequence2. Circumstantial category- not directly

saida. Criminal cases: Mens rea criminals state of mind

ii. Examples:1. Divorce papers: Verbal Act2. Disinheritance: Verbal Act

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iii. Needs to know what the Declarantsthinking, not external to the mind (i.e.whether or not it is truthful or not, etc.)

14. PROBLEM 3-Ia. Facts: Girls description of room; never seen that

room before, or after, no one has described thatroom to her before, or after. Is it hearsay?b. Prove : More to prove that she was there, not what it

looked like. Not the truth, but the circumstantialevidence that she recalls what the room looks like.

c. Relevance to case:i. Not a hearsay use of the description for the

asserted content15.Notes on Circumstantial Evidence of State of Mind and

of Memory

a. HYPOTHETICAL

i. Bank vault code that Bank Manager saysonly gave to Defendant. Defendant claimsthat someone else knew it. Offers a witnessthat attests that another Employee gave him(the witness) a slip of paper with the codewritten on it.

ii. Hearsay?iii. Relevant b/c disproves theory of only two

people knowing the code. Used to provethat someone else knew. Not the truth of thematter asserted, but used to prove Heremembered something that was relevant tothe lawsuit.

iv. Not to prove what the code was (separateevidence) people already know that, just toprove that other people knew it.

b. Circumstantial Evidence of the State of Mind

i. Needs to know what the Declarantsthinking, not external to the mind (i.e.whether or not it is truthful or not, etc.) i.e.free of consequence

c. Ought to be unusual, unique characteristic.d. RULE 803 (3): State of Mind Exceptioni. Still get it in under the State of Mind

Exceptioniii. Notes:

1. Statement: Must be a statement to be Hearsaya. If not a Statement, then not Hearsay

2. Verbiage disagreement among the scholars

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3. Think: Oral a. Anything that comes out of your mouth that is a

voluntary utterance is a STATEMENTi. Example: Questions, Commands

b. Involuntary Verbiage NOT A STATEMENT, but

as soon as it becomes voluntary, its a statement4. Conduct:a. Assertive Conduct

i. STATEMENT with the Risksb. Non-assertive Conduct

i. NOT A STATEMENTii. Not asserting anything, therefore no risks

iii. Not trying to communicate anything

CHART ON PAGE 42 OF THE SUPPLEMENT

5. Conducta. Non-Assertive Conduct: No Statement, No Hearsayb. Assertive Conduct: Same Reasoning of Offered to

Prove (by party) the Truth of Matter Asserted (bydeclarant)

6. Verbiage:a. Involuntary Utterance : No Statement, No Hearsayb. Voluntary Utterance : Reasoning of Offered to

Prove (by party) the Truth of Matter Asserted (bydeclarant)

i. Directly (Problem 3-A (1) and (2))ii. Indirectly

1. Intended Implied Assertion :(usually) Hearsay

2. Unintended Implied Assertion :a. WRIGHT v. DOE d.

TATHAM: Unintendedimplied assertions areHearsay, no matter whetherverbiage or conduct

i. Now: SometimesHearsay orSometimes NotHearsay

ii. Trustworthy : NotHearsay

iii. Not Trustworthy :Hearsay

iv. Factors ofTrustworthiness:

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1. Acted on beliefthat M wascompetent

7. NOT for the truth of the matter asserteda. Context

b. Impeachmentc. Verbal Actsd. Effect on Listenere. Circumstantial Evidence of State of Mindf. Circumstantial Evidence of Memoryg. Verbal Object

8. Indirect Hearsay:a. Routine Machine (clock, etc.)b. Drug Dog (think dont lie)

c. Hearsay and Nonhearsay Borderland of the Doctrinei. Statements with Performative Aspects

1. UNITED STATES v. SINGERa. Facts: Envelope with the address, sent by alandlord to tell them that they were being Evicted.Prosecution offered to prove that the men wereassociated.

b. Declarant: Landlordc. (1) OOC: Envelope

i. Court: Analyzed as conduct. Not anassertion, though, and therefore, not hearsay.

ii. Problem: Is it just conduct? There isverbiage there, and therefore SHOULDNTbe pure conduct.

iii. Undercover agent handed letter to Landlordto mail. Is that allowed?

iv. Doesnt know that watching Landlord, andtherefore not assertive and non-hearsay.

v. Assertion: Landlords belief that they livedtogether at this address

vi. Intended or Unintended?1. Intended Implied Assertion:

Hearsay, maybe, butTRUSTWORTHY, to the postalcarrier to deliver the envelope.

2. Unintended Implied Assertion:Delivery, not asserting to anybody.

vii. Cannot treat it simply as conduct, just at theend in support of Trustworthiness. CHART(under intended implied assertion)

d. (2) Eviction: Trying to accomplish an actLEGAL ACT

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i. Argue: Envelope with Letter is a legal actof EVICTION, and therefore VERBALACT and not hearsay.

ii. Verbal act is part and parcel of the Act.2. Notes on Statements with Performative Acts

a. Follow Landlord to guy.b. Telephone calls for drugs or bookmaking3. Notes on Statements that are Not Declarative Sentences

a. Commandsb. Questions

4. PROBLEM 3-Ja. Facts: Wife lies about Husbands whereabouts.b. Statement: My Husband is in Denver

i. Its a lie, therefore not offering for its truthor the truth of the matter asserted (thatHusband is in Denver)

ii. Offering for Unintended Implied Assertion(of Husbands guilt)5. Notes on Lying and Hearsay

a. LIES: sometimes hearsay, sometimes noti. Unintended Implied Assertion:

trustworthiness may decide the factorb. Prosecutor: Elaborate lie not off the cuff but well-

thought out and prepared.c. Made to a cop carries some risk if found out and

carries some risk, therefore must really want to liefor it.

d. If made to a cop, may always be admitted againsthim

e. HYPOTHETICALi. Facts: Dont worry, I didnt tell them

anything about you.ii. Offered to Prove: Must have been

something to tell about your guilt.iii. Declarant: Aiv. Intended or unintended? Unintendedv. Shared assumption assertion Why would

A have to in a coded fashion, say to B, Ithink that Youre guilty. In a conspiracy,both know that the other is guilty and shouldhave to communicate their belief in theothers guilty.

vi. Trying to: assure that took care ofvii. Next Step: TRUSTWORTHINESS

viii. Note: Post-arrest statements of As belief inBs guilt, are not admissible.

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6. PROBLEM 3-Ka. Facts: Man charged with letting stolen airplane to

land on his airstrip that was used to pick up anddeliver drugs illegally. Bruno offers that the planemade an emergency landing on his airstrip and

communicated that a plane was there to people.b. Inference: If communicated that had a plane on theairstrip, it wasnt a big deal, i.e. illegal.

i. Offers own statements made to people.c. Declarant: Hed. OOC Statement: Ive got a plane on my hangar.e. (1) Offered: To prove that not hiding anything and

therefore not guilty for anything.f. State of Mind: Innocent.g. Circumstantial? Yes, otherwise: Im innocent.h. Not being offered for direct assertion (that a plane

was there) but an implied assertion that theresnothing wrong going on.i. Intended or Unintended? Unintended if truly

innocent. Intended if hes not.j. Since its a Criminal Case, may be unconstitutional

to not allow this defense by letting the judge decideit and not the jury.

k. (2) Also, State of Mind.7. Notes on the Significance of Disclosure

a. Relevant because of what it does, not to prove itstruth.

ii. Using Statements to Prove Matters Assumed1. United States v. Pacelli2. Facts: Govt charged P with conspiracy to interfere with

the constitutional rights of other (i.e. killed a Federalwitness, now a Federal Crime)

3. Evidence: Statements of family and friend that presume hisguilt. Lipsky is to testify to:

a. Meetingi. No hearsay problem, but not relevant

ii. Context/moving the story alongb. Talked about the manner in which the murder was

committed; bungling of the murder and thedisposition of the body.

i. Relevant why arent they talking abouthow innocent P is, instead of the bungling ofthe murder ASSUME murdered, upsetabout how done; belief that P was involvedin the crime

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ii. Implied assertion: Hes guilty, theyregoing to catch him b/c it was done in astupid way

iii. Unintended: Shared assumption: Knew thathe did it, dont need to communicate that to

youv. DOE d. TATAM: easily hearsayiv. Next Step : Trustworthinessv. Arguments: family know better than anyone

else (usually); strength in numbers1. Untrustworthy? Dont know where

information came from2. EITHER WAY

c. Tell Lipsky to go away and hide out, give himmoney.

i. Is this relevant?

ii. If they think that it might hurt P to keep Laway, shows that believe that P is guilty.Reason why to send L away.

iii. Giving L money to leave is Obstruction of

Justice VERBAL ACTiv. Prosecutor: Tie them together

1. Just talking: issues oftrustworthiness

2. Acted on belief: putting $ wherebeliefs lay

4. Not Circumstantial Evidence of St of Mind

a. St of Mind of the family and friends is not an issueof the case. Can only use for an external factor. ???d. Hearsay Test your understanding

i. BETTS v. BETTSii. Facts: T.L.s reaction to being returned to mothers custody.

iii. Hearsay for custody case to decide placement?1. For criminal case HEARSAY b/c proof of Truth of the

Matter Asserted2. Custody case : not to prove Truth of the Matter Asserted,

but Circumstantial Evidence of State of Minda. Relevant

b. Doesnt have to be necessarily true3. Also : Not Hearsay b/c of potential Effect on Listener (canbe logical, not just legal effect on listener)

iv. HEARSAY QUIZv. EXAM:

1. D caught, went to police and confessed

a. Wrong Verbal Acti. Changes Legal Position

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b. Right confession just applies evidence against iti. Arrest changed legal position

1. Not confession

IV. HEARSAY EXCEPTIONS

a. Much that is hearsay is admissiblei. A series of standard exceptions paves the way for statements

offered to prove what they assert1. Simple relevancy and unfair prejudice still need to be

provenii. The Rules set out the exceptions in four main groups:

1. Certain prior statements by testifying witnesses2. (1)Prior statement by witness. The declarant testifies at the trial

or hearing and is subject to cross-examination concerningthe statement, and the statement is

a. (A) inconsistent with the declarant's testimony, and

was given under oath subject to the penalty ofperjury at a trial, hearing, or other proceeding, or ina deposition, or

b. (B) consistent with the declarant's testimony and isoffered to rebut an express or implied chargeagainst the declarant of recent fabrication orimproper influence or motive, or

c. (C) one of identification of a person made afterperceiving the person; or

3. Five variations on the admissions doctrine4. (2)Admission by party-opponent. The statement is offered

against a party and isa. (A) the party's own statement, in either anindividual or a representative capacity or

b. (B) a statement of which the party has manifestedan adoption or belief in its truth, or

c. (C) a statement by a person authorized by the partyto make a statement concerning the subject, or

d. (D) a statement by the party's agent or servantconcerning a matter within the scope of the agencyor employment, made during the existence of therelationship, or

e. (E) a statement by a coconspirator of a party duringthe course and in furtherance of the conspiracy.f. The contents of the statement shall be considered

but are not alone sufficient to establish thedeclarant's authority under subdivision (C), theagency or employment relationship and scopethereof under subdivision (D), or the existence ofthe conspiracy and the participation therein of the

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declarant and the party against whom the statementis offered under subdivision (E).

5. Twenty-four unrestricted exceptions6. Declarant unavailable as a witness exceptions7. 37 total exceptions

b. Exceptions Declarant Testifyingi. Prior Inconsistent Statementsii. Conditions:

1. Witness must now by cross-examinable concerning theprior statement

2. Statement must be inconsistent with this presenttestimony

3. Under oath in a prior proceeding or depositioniii. STATE v. SMITH

1. Facts: Victim wrote out a statement on a form supplied bya detective of the Police Department, which contained

Miranda warnings, in which she named Smith (defendant)as her assailant. She signed under oath with penalty ofperjury before a notary. At trial, named another man asattacker. TC: allowed her prior inconsistent statement tobe used. Judge: not a proceeding.

2. Proceeding a. other proceeding includes grand jury proceedingsb. Taperecorded statement made under oath in an

immigration investigation (United States v. Castro-Ayon)

c. Open-ended and not restricted to grand juryproceedings

d. Enough similarities between the two to admit thestatements

e. We do not hold ... that every sworn statementgiven during a police-station interrogation would beadmissible

f. Facts of each case must be analyzedg. Minimal guarantees of truthfulness were met:

i. Notaryii. Under Oath

iii. Subject to penalty for perjury3. Reliability is the key

iv. Notes on Prior Proceedings1. Most federal cases exclude stationhouse declarations, as

Smith itself recognizes2. Statements made at a Border Patrol Station after read

Miranda and placed under oath.a. Similarities to a grand jury proceedings

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i. Investigatory, ex parte, inquisitive, sworn,basically prosecutorial

ii. Right to remain silent, to counsel, and tohave the interrogator inform the witnesses ofthose rights

3. turncoat witnessesv. Notes:vi. RULE 801

1. Characteristicsa. previousb. cross-examined now

2. Inconsistent, oath, subject to perjury; hearing or otherproceeding, etc.

a. Other proceeding includes grand jury3. 2nd use: turncoat witnesses4. Some indicia of reliability

a. Worried about: collusionvii. STATE v. SMITH

1. reliable very much like a proceeding2. probable cause for indictment

viii. Notes on Substantive use of Inconsistent Statements: MemoryLoss and Cross-Examinability

1. Inconsistency may be "found in evasive answer, silence, orchanges in positions.

2. In addition, a purported change in memory can produceinconsistent answer.

3. Manifest reluctance to testify, if a witness has testified to[certain] facts before a grand jury and forgets them at trial,his grand jury testimony falls squarely within FRE 801 (d)(1) (A).

a. United States v. Williams4. California: Code permits the use of all such statements,

whether or not given in a proceeding under oath5. Federal cases agree that feigned lack of memory is

inconsistent, but have not held that lack of memory must befeigned.

6. United States v. Owens :

a. Facts: Witness could not remember the assault dueto injuries. Witness remembered talking in thehospital with FBI Agent and identifying Owens ashis assailant.

b. Supreme Court: one may be subject to cross-examination underFRE 801 (d) (1) (C) even iflack of memory about events makes him

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unavailable as a witness underRULE 804 forpurposes of hearsay exceptions

7. One court: cross-examination mean that witness must beable to give some kind of response to questions

8. Crawford v. Washington

a. Confrontation Clauseb. Supreme Court: prosecutors cannot offertestimonial statements against the accused

i. Probably includes:1. prior testimony that the defendant

was unable to cross-examinea. Examples:

i. Grand Juryproceedings

ii. Statements to policeix. Notes:

x. Questions:1. Is lack of memory inconsistent?a. Feigned

2. If dont remember incident; is cross-examinable as reqd byrule

3. If dont remember making statement, is it still cross-examinable?

xi. Prior Consistent Statements1. Prior consistent statements by a testifying witness are

defined as not hearsay under some circumstances2. RULE 801 (d) (1) (B)3. Three conditions:

a. The witness must be cross-examinable at trialconcerning the prior statement

b. The statement must be consistent with his presenttestimony

c. It must be offered to rebut a charge of recentfabrication or improper influence or motive

4. Hard to get excited about this provision:a. A statement consistent with present testimony

i. Brings no new informationii. Cannot be the only evidence on any point

5. RULE 801 (d) (1) (B) contains limits that discourage resortto out-of-court statements as proof at trial

a. Fear: the deferred cross-examination is simply notas effective as contemporaneous cross-examination

b. Most acute with prior consistent statements, for it ishere where the witness sticks to his original story

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which the danger seems real that any falsehoodmay harden. State v. Saporen.

6. RULE 801 (d) (2) (B) embraces any prior consistency,since there is no requirement that it be uttered under oath ina proceeding

a. Two points of difficulty:i. First, what kind of attack on a witness raisesa charge of recent fabrication or improperinfluence or motive?

ii. Second, what prior consistencies tend torebut such an attack?

7. What kind of attack?a. Sometimes that cross-examiner suggests in so many

words that he witness just made it up or changedhis story because

i. Cajoled

ii. Paid, oriii. Frightenedb. FRE 801 (d) (1) (B) reaches these easy cases where

the charge of fabrication is expressc. Also reaches further

i. Charges of influence or motive are merelyimplied

ii. Examples:1. Mother of defendant would say

anything to help your son2. Talk with plaintiffs counsel shortly

before testifying here today3. When did you decide to change your

testimony for today8. What consistent statements rebut the charge?

a. All statements?b. A prior consistency tends to rebut such an attack

only if uttered before the supposed influence ormotive came into play

9. Effect ofFRE 801 (d) (1) (B):a. Tome v. United States (1995)

i. Supreme Court: accepts Common Lawtradition

ii. LATER!!!10. Does FRE 801 (d) (1) (B) have any further effect?

a. Where it applies, it permits substantive use of aprior consistent statement by a testifying witness, sothe statement may be taken as proof of what itasserts

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b. Prior Consistent Statement can be takes asadditional proof (along with her testimony_ thatDavid was driving within the speed limit.

i. This consistent statement was made beforeDavid and Marian spoke before the trial, so

it tends to refute any suggestion that hisinfluence accounts for her testimony (sheexpressed the same view before she methwith him, so his influence cannot accountfor her testimony).

c. Something other than recent fabrication?i. Maybe for lack of memory

xii. Notes:xiii. RULE 801 (d)(1)(B)xiv. Prior Consistent Statementsxv. Rehabilitate Witnesses (under certain circs)

xvi. Prior Statements of Identification1. Trial: point to the person that you saw on the night in

questiona. Point: Defendantb. Jury: setting renders it so suspect

2. Pretrial identifications may be far more trustworthya. Close to the time of the offense

3. FRE 801 (d) (1) (C): hearsay exception for previousstatements of identification

a. Conditions :i. Made by a witness

ii. after perceiving the subjectiii. Provided that the witness is subject at trial

to cross-examination concerning thestatement

4. Criminal Trials:a. Eyewitness identification of the defendant brings

serious risks of error or manipulation by police thattranscend hears issues

b. United State v. Wade :i. Post indictment lineup is a critical state

where defendant is entitled to counselii. Later in-court identifications may be

contaminated not merely by the inevitablesuggestivity of physical arrangements in thecourtroom, but by the influence of improperpretrial procedures

c. The Wade-Gilbert doctrine, summation:

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i. Establishes a per se rule that blocks use ofsome pretrial statements of identificationthat might fit FRE 801 (d) (1) (c) thoseobtained in post indictment lineups wherethe defendant is denied counsel

5. Should an out-of-court statement of identification beadmitted as proof of what it asserts?a. Do such statements satisfy FRE 801 (d) (1) (C)b. Does this provision adequately regulate the use of

such statements?6. STATE v. MOTTA

a. Facts: Witness and sketch artist identifieddefendant. Sketch was entered into evidence.

b. Hearsay?c. Court: the prior identification exception allows the

admission of pretrial identifications, not merely as

corroborative evidence, but also as substantiveproof of identityd. RULE 801 (d)(1)(C): operates independently of

the impeachment process7. Notes on Application of RULE 801 (d)(1)(C)

a. RULE 801 (d)(1)(C) contemplates statements by aneyewitness made after perceiving the subject

i. Where, declarant saw the crime itself, thenlater saw him again (typically in a lineup_and identifies him.

ii. Also, where declarant sees the crime,recognizes the culprit, then remarks orreports the identity to the police

iii. Voice-recognition8. Cross-examinable at trial?

a. Witness who cannot remember?b. Witness who can remember making the

identification?9. What is the Witness testified that Defendant was notthe

one who robbed the coffee shop?a. Can her prior statement picking him still be

admitted as positive proof that he did itb. Yes, United States v. OMalley

10. Verbal Marker Witness watches culprit leave, watchespolice arrest him and testify to that at trial withoutidentifying the man at trial

a. The man arrested is the Defendantxvii. Notes:

xviii. RULE 801 1. Prior Inconsistent Statements

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a. Conditional on relevancyi. Impeach and substantive

2. Prior Consistent Statementsa. Rehabilitation

i. Substantive

3. Out-of-Court Statements of Identificationa. In-court not as reliableb. Includes : descriptions

c. Admissions by Party Opponenti. FRE 801 (d) (2): Admissions

1. (2)Admission by party-opponent. The statement is offeredagainst a party and is

a. (A) the party's own statement, in either anindividual or a representative capacity or

b. (B) a statement of which the party has manifested

an adoption or belief in its truth, orc. (C) a statement by a person authorized by the partyto make a statement concerning the subject, or

d. (D) a statement by the party's agent or servantconcerning a matter within the scope of the agencyor employment, made during the existence of therelationship, or

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

ii. Statement is not binding1. Can explain away or reject

iii. Individual Admissions1. There are almost no limits2. PROBLEM 4-B

a. Facts: Fire at Repair consumes car. Martin v.Carter (boss). Carter to Adjuster: Dugan causedthe fire.

b. D: Carter Ajdusterc. Statement: "Dugan put torch on the groundd. H/S?: Yese. Why/Why not?: OOCf. Exception: Partys own statement in either an

individual/representative capacity

DoesntMatter You Werent There: still admittedg. Theory: Youre there and can explainh. Said to collect insurance policy

i. In his interest to gain insurance moneyi. EXAM: Not Required: Statement Against Interest

i. Admissions do not have to be againstinterest when made

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j. Didnt Anticipate Liability Nok. Conclusory, not usually factual

i. Witnesses not allowed to conclude3. Notes on Individual Admissions

a. No requirement for personal knowledge when he

spokei. Dog bitesiv. PROBLEM 4-C

1. Facts: Parker and Whalen get into a fight. Whalen pleadsguilty in the criminal case. Parker wants to enter the guiltypleas as evidence in civil trial.

2. Verbal Acta. Guilty plea changes legal positions

i. Guilty plea vs. confessionii. Not: I hit him with a bottle

3. Soliloquy: When plead guilty, plead guilty

4. Want guilty plea and words as wella. Admission5. Summary Judgment?

a. Issue of Material Effect6. Collateral estoppel effect on the question whether he struck

Parker without justification?a. Must be litigated to come into playb. Pleading guilty: Not Litigated

v. Notes on Prior Guilty Pleas

1. Traffic infractiona. Statutes in some states: pleas of guilty to traffic

infractions are notadmission of guilt or faultb. Waiving appearance by sending a check for the fine

to the county clerk are not admissiblevi. Notes:

vii. No contest : NOT an admission1. Not admitting guilt: say State could

viii. Traffic citation?1. Majority not allowed

a. Civilb. Collateralc. Evidentiary

ix. BRUTON v. UNITED STATES1. Facts: Bruton and Evans were arrested and tried jointly.

Evans made a confession. Trial: confession allowed to beheard, but Limiting Instruction that should not be usedagainst Bruton. Both convicted. Evans conviction wasreversed on the grounds that the confession shouldnt havebeen allowed to be heard. Brutons was affirmed, arguingthat the Limiting Instruction saved him.

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2. Court:a. Limiting Instruction does not save the case against

the Confrontation Clause, even though it savesagainst HEARSAY

3. Bruton and I did it

a. HEARSAY with respect to (wrt) Brutonb. Admission (RULE 801 (d)(2)(A)) with respect toEvans

x. PROBLEM 4-D1. Facts: Napton works for Ace and runs over OBrien

during while making deliveries for Ace. Six months later,Napton tells OBrien: (1) The brakes failed; (2) I wasspeeding. O sues both N and A.

2. (2) Admission

a. Hearsay Ace (party admission)

b. Excluded Probative = Hearsay

3. (2) Probative Admissiona. Relevant but Hearsay (Not in employ)b. (RS)c. Probative value makes it prejudicial

4. BRUTON SITUATION5. No Confrontation Clause issue CIVIL

a. Bruton CRIMINAL6. End: Admit it with a RULE 105 Limiting Instruction

towards Ace-???-

xi. Notes:

1. QUESTION: How do you fix a Bruton Problem?a. (1) Redact the name in the Confession,i. But, it may be obvious and not sufficient

ii. If Jury pieces together certain facts

mentioned in the Confession Not aproblem

b. (2) Sever the Triali. Confession doesnt appear at the Bruton

Trialc. (3) Same case with Dual Juries

i. Hear/tailor evidence and send out other Jury

when persons evidence comes inii. Undermines Jury if one comes back guilty

and one innocent no rationale2. CIVIL Trial

a. Limiting Instruction does not survive SummaryJudgment or Directed Verdict

b. Solution: Call N as a hostile witness to the standi. CIVIL

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c. Since on Stand, Ace gets to cross-examined. NEVER SEVER CIVIL TRIAL!

3. Redaction 4. GRAY v. MARYLAND

a. Redaction that simply replace a name with an

obvious indication of alteration, leave statementsthat so closely resemble Brutons unredactedstatements that, in our view, the law must requirethe same result

xii. Adoptive Admissions1. FRE 801 (d)(2)(B): Manifests others admission as

adoption or belief in its truth, then the statement becomeshis own.

2. UNITED STATES v. HOOSIERa. Facts: Witness: Hoosier told that was going to rob

a bank. Three weeks later, had money. Girlfriend

said that had sacks of money in the hotel room.b. Hearsay?c. Court: If what girlfriend said was not true,

Defendant should have denied it.3. Notes on Tacit Admissions

a.xiii. Notes:xiv. HYPOTHETICAL

1. Facts: W and H in a tax fraud case, give all information toaccountant. At a dinner party, tell friends that are going togive bad information to accountant an blame him if thingsgo bad

a. HYPO 1: Use Hs statement against W (HoosierStatement): Okay, then we can go to Europe againthis year

i. RULE 801 (d) (2) (B)ii. Take others admission as own adopted

admissionb. HYPO 2: Use Hs statement against W (circa

Hoosier)i. Did the person by not saying anything,

adopt the statement1. Expect protest if its not true!

xv. Admissions by Speaking Agents1. Someone authorizes someone else (agent) to speak for him

a. Verbal Act2. RULE 801 (d) (2) (C): Admissions by Speaking Agents

a. Admissible against the person represented by thespeaking agent

xvi. Notes:

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1. Hired to speak on behalf = Speaking Agents2. Lawyer on CNN

xvii. PROBLEM 4 - F1. Facts: Child killed by bus. Parents sue bus driver and bus

company. Names wrong bus company and action isdismissed against them. Bus driver lawyer admits intoevidence statement against bus company. Bus driver winsand parent appeal use of testimony about bus companyclaim.

a. statement pleading, anything writtenb. IRONIC EXCEPTION: Admissions requested to

admit Admission are not admissionsi. Purpose: to narrow scope

1. Because under Rules of CivilProcedure, have to put in ALL

theories of liabilitiesa. Therefore, not truly anadmission

2. Admit: BUT probative value is outweighed by prejudicea. Confusion of jury by the conflicting theories

xviii. Notes on Admissions in Judicial Proceedings1. Admissions filed in response to requests to admit

a. Federal Rules of Civil Procedure: a matter admittedin this way is conclusively establish in thepending suit but that such an admission is for thepurpose of the pending action only and is not anadmission for any other purpose and may not beused against him in any other proceedings

xix. Admissions by Employees and Agents1. FRE 801 (d) (2) (D)2. Multiple or Layered Hearsay

a. Hearsay within Hearsayb. Depends on what others have saidc. RULE 805

i. Each Hearsay statement must pass the Ruleor an Exception to the Rule to be admissible

d. There is no personal knowledge requirement3. Government Admissions

a. Traditionally, statement by public employees havenot been admissible against the government

i. Cannot bind the governmentii. No personal stake

4. MAHLANDT v. WILD CANID SURIVIVAL &RESEARCH CENTER

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iii. Limited admissibility, coupled with therepetitive nature and low probative valuejustifies not admitting

xx. PROBLEM 4-G1. Facts: Driver of truck in accident claims fault 30 mins

after accident2. Question: What proof is necessary to prove Rogers is anagent of employer?

a. Statement itselfi. Can be used BUT not sufficient to prove

Agencyb. Riding on the truck

i. Impure verbal objectii. NOT HEARSAY

xxi. Notes on Statements by Agents or Servants1. FRE 801 (d)(2)(D) reaches two classes of persons:

a. People whose conduct produces liability for theiremployers or principalsb. People who are passive observers or bystanders

rather than actors but who make statements onmatters within the scope of their duties

i. Since not always authorized spokespeople,less compelling

2. Independent Contractors:a. Principal exercises less control over what they do

i. May not be agents or servantsb. Sometimes the principal adopt their statements

3. While Employee is an agent of the Company, the Companyis not an agent of the Employee

xxii. Coconspirator Statements1. FRE 801 (d) (2) (E): Admissible if

a. (1) Declarant and Defendant conspired and thestatement was made

b. (2) during the course of the venture andc. (3) in furtherance thereof

2. Civil and Criminal3. Whether or not involve charges of conspiracy4. Difficult:

a. Proof of conspiracy is invariably circumstantial anddiffuse

b. Problem of coincidence b/c conspiracy is both apredicate fact in the exception and an element ofguilt or innocence

i. Question of conspiracy raises an ultimateissue for the jury to resolve

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5. Often coconspirator statements assert or imply thatdeclarant and defendant conspired, which introduces theproblem of bootstrapping or circularity, for the statementasserts the very fact on which its admissibility depends

6. Non-hearsay:

a. Verbal Act - conspiracy7. Hearsay:a. Implied assertions for the ToMA

xxiii. Supplement1. UNITED STATES OF AMERICA v. FRANCESCO

GAMBINO

a. Facts: FG arrested for conspiracy to distributeheroin and cocaine. Alleges that the hearsaytestimony provisionally admitted under thecoconspirator declaration exception underFRE 801(d) (2) (E) was inadmissible since the government

had failed to prove by a preponderance of theevidence that Gambino was a member of theconspiracy outlined in the indictment.

i. If the hearsay declarations wereinadmissible, the government lackedsufficient evidence to sustain a conviction

b. FRE 801 (d) (2) (E): Used toi. Require proof independent of the hearsay

statements sufficient to establish that boththe declarant and the defendant weremembers of the alleged conspiracy and thatthe statement was made in is course and infurtherance of its goals (Glasser)

c. BOURJAILY v. UNITED STATES:i. Court to determine by a preponderance of

the evidence whether the defendant and thedeclarant were members of the allegedconspiracy and whether the hearsaystatement was made during its course and infurtherance of its goals

1. FRE 104 (a): Judge decidesadmissibility

2. FRE 1101 (d) (1): The Rules do notapply to Preliminary Questions offact

ii. Notes: The statement itself, to proveadmissibility, can be considered, BUT mustbe some other independent evidence

1. Standing alone not enoughd. Question of Extent

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i. to which hearsay statements may provide theSole Inculpation of a defendant in aconspiracy for purposes of admissibilityunderFRE 801 (d) (2) (E).

ii. Supreme Court: coconspirator hearsay

statements be corroborated by someindependent evidence before they can beadmitted underFRE 801 (d) (2) (E)

1. satisfy the preponderance standarde. Amend FRE

i. Last sentenceii. Preponderance of Evidence Std to EVERY

FRE 104 (a) determinationf. List:

i. Unintended Implied Assertion1. Not trying to imply that these are my

coconspirators, just let me knowxxiv. PROBLEM 4-H1. Facts: Buy drugs in Colombia to sell through A to people

in the USA. Conversations between buyers B and C andfriend-driver. Also, conversation between A and the DEA.Conversation between C and DEA.

2. Statement 1: Presence of 3rd persons = idle chatter, notfurtherance of conspiracy, underRULE 801 (d)(2)(E)

3. Statement 2: __________________________________4. Statement 3:

a. Conspiracy is overb. Not in furtherance own neck instead

i. HEARSAYxxv. Notes on the Coconspirator Exception

1. Point: coconspirator exception may be invoked even if noconspiracy is actually charged

2. Do not have to have the Conspiracy charged to ADMIT3. Exception: Does not reach statements made either before

or after a conspiracya. Supreme Court: concealment phase statements

are not within the exceptiond. Unrestricted Exceptions

i. Notes:1. RULE 803 Exception; Availability of Declarant Immaterial

a. For some reason, they are so reliable that Declarantis not even necessary

ii. Present Sense Impressions and Excited Utterancesiii. NUTTALL v. READING CO. (1956)

1. Facts: Husband did not feel well; telephone conversation:forced to go to work. Had a heart attack and died.

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2. Evidence Not Controversial:a. Appearance

i. Involuntaryii. Non-assertive

3. Evidence sought to be introduced: telephone call made by

husband on the day that died and statements put in writingby employees of the defendant.a. Prove: Management forced a sick employee, of

whose illness they knew or should have known, intowork for which he was unfit b/c of his condition,has a case under the Federal Employers LiabilityAct.

4. Statements as Evidence?a. Business Records exception

i. Palmer v. Hoffmanii. Created for purposes of litigation

iii. Not admittedb. Adopted by the Defendanti. Not adopted

c. Vicarious admission against the Defendanti. Agency admissions in house

ii. Made to fellow agents and therefore,internal

iii. HEARSAYd. Declaration Against Interest

i. None worked5. Telephone Conversation as Evidence?

a. State of Mind exceptioni. Declarations of State of Mind to establish

that State of Mind, andii. Other things as proof of a State of Mind

tends to Establishiii. Based on whether or not he felt forced

b. Hearsay Exceptioni. RULE 803 (3)

ii. Intention6. Present Sense Impressions

a. Admissibleb. Perception as its happeningc. Contemporaneous:

i. No memory impairmentii. No time to make up a lie

iv. Notesv. Notes on Present Sense Impressions

1. Some calls to 911 fail be sufficient for Present SenseImpression, but maybe not forCrawford.

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2. Often exception for identifying attackersa. Observations of vehicles prior to accidentsb. React to unfolding crimes or notice critical facts,

making comments to othersvi. UNITED STATES v. IRON SHELL

1. Facts: Iron Shell, drunk, assaulted and tried to rape a nine-year-old girl. Evidence: Lucy, after being attacked, criedout that that guy tried to take my pants off. Scared andstill crying when made complaint. Interview later, notcrying, asked, What happened? and told.

2. Excited Utterance,a. not Present Sense Impression: 45 minutes laterb. Related to a startling eventc. Still under stressd. Theory :

i. Since still excited, not able to lie

3. Defense: hearsay statements to police during Interviewa. Forty-five minutes to one hour, fifteen minutes afterthe assault

i. No longer during Excited Utterance timeb. Question interrupted and prompted answer

i. Reason : dont have time to think out a lie time to think of lie and influenced byquestion

4. Court:a. Factors which the trial court must weigh in

determining whether the offered testimony is withinexception

b. RULE 803 (2): statement must be spontaneous,excited or impulsive rather than the product ofreflection and deliberation

5. Court: Upholds Excited Utterancea. Reason :

i. 7-year old traumatized longer than olderperson

ii. Only question asked: What happened?xvi. Notes:

a. Interesting: state of excitement does existi. Clouds ability to lie

b. But, usually only last 2-3 mins for most peoplei. Acceptable: 10-15 mins afterward

c. Increases likelihood of mistakei. Less likely to perceive correctly

d. Excited Utterance : used to be a pretty broad categoryi. Confrontation Clause reinterpreted by Crawford v.

Washington

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xvii. Notes on Excited Utterancesa. RULE 803 (2): Excited Utterances

xviii. State of Minda. Prove:

i. Declarants then-existing physical condition

ii. Declarants then-existing mentor or emotionalconditioniii. Declarants later conductiv. Fact about Declarants will

b. What Declarant said is likely the best source of informationi. Otherwise, own backward-looking testimonial account

ii. Virtue of immediacy (a through c)iii. Risk of misperception is smalliv. Risk of faulty memory is nonexistent

xix. Then-Existing Physical Conditiona. Statements describing aches and pains

i. Does not matter whether declarant speaks close in timeto the injury or onset of ailment, so long as his wordsdescribe how he feels as he talks

ii. Statements to doctor, spouse, or friendxx. Then-Existing Mental or Emotional Condition

a. When mental state of a party is in issueb. Only statements ofpresentmental state, not previous mental

conditionc. Sometimes reasonable to assume the mental state persists over

time, so that what said about mental state before and after thestatement

d. Fact-Laden Statements : people purposefully disclose state ofmind by speaking in factual terms,

i. Choosing to communicate inclinations in that obliqueway

xxi. Notes:a. RULE 803 (3):b. THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL

CONDITIONc. Overlaps with Non-Hearsay category

i. Easily pointed toii. BROADER: includes beyond simple state of mind

d. Presente. Not have to be circumstantial

i. Theory : difficult to get inside someones headf. PROBLEM : Fact-laden statements

i. State of Mind vs. Facts inherent in the Statementg. CLASSIC RULE 803 SITUATION :

i. Which is more important?ii. Used to get around hearsay rule?

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xxii. PROBLEM 4-J:a. Facts:

xxiii. Notes on Proving State of Mind by Fact-Laden Utterancesa. Murder vs. Extortionb. State of Mind must itself be an issue

c. Motivexix. Subsequent Conducta. Use of her words to prove intent, so that what a person said is

often admitted as proof of what she did thereafterb. Two Problems :

i. Intent is complicatedii. People often describe intent in statements that make

factual assertionsxx. MUTUAL LIFE INSURANCE CO. v. HILLMON (1892)

a. Facts: Susie Hillmon tried to collect on life insurance policieson Husband. Life Insurance companies: Husband not dead,

but another guy who was lured to CC and killed by Husband.i. Walters (Lured Guy) wrote Letter to Family andFiancee: Im going to CC with Hilmon

b. Intention as State of Mind vs.c. Intention as Future Act

i. Intention to Prove conduct Consistent Therewith1. = NO!!! Just for proving state of mind is okay,

NOT for actionsd. Court: Will allow statement

i. Wherever the bodily or mental feelings of an individualare material t be proved, the usual expressions of suchfeelings are original and competent evidence

1. Expressions are natural reflexes of what it mightbe impossible to show by other testimony

ii. Other:1. Physical2. Not have to be Circumstantial3. Conduct of Declarant Consistent with Intention

a. D: with Hillmonb. Infer: knew each other and believe that

Hillmon will go to CC with Waltersc. Prove: They went togetherd. Based: Factse. Relevant proof of his intention to go

togetherf. Many: not accept to prove others

conduct thoughiii. Narrow : Ds future conductiv. Broad : Anything D intertwined

xxi. Notes:

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