I. Relevance1.) FRE 606 Inquiry into Validity of Verdict or Indictmenta. When theres an Inquiry into Validity of Verdict or Indictment, Juror must not testify about:i. Statements/Incidents that occurred during jury deliberationsii. Jurors Thoughts/Emotions that caused juror to agree/disagree w/ verdict/indictmentiii. Jurors Mental Processes in connection w/ agreeing or disagreeing w/ verdict/indictmentb. Exceptions Juror may testify about:i. Whether Extraneous Prejudicial info was improperly brought to jurys attentionii. Whether there was any Outside Influence on any juroriii. Whether there was a mistake in entering the verdict on the verdict form2.) FRE 401 Probativeness and Materialitya. Evidence is Relevant if:i. Probative It has any tendency to make a fact more or less probable than would be w/o the evidence, andii. Material The fact is of consequence in determining the action1. In deciding whether evidence is Material, look to Substantive law3.) FRE 402 General Admissibility of Relevant Evidencea. All Relevant evidence is admissible, unless prohibited by:i. Constitution, Federal Law, FRE, or SCOTUS Rules4.) FRE 104 a. FRE 104(a) Preliminary Questionsi. Ct must decide any preliminary question about whether:1. Witness is qualified/competent, 2. Privilege exists, or3. Evidence is admissibleii. In so deciding, Ct is not bound by FRE, except those on Privilegeiii. Standard of Proof Preponderance of Evidence [Huddleston]b. FRE 104(b) Conditional Relevancei. When the Relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact exists.ii. Ct may admit the proposed evidence on condition that proof be introduced later oniii. Standard of Proof Proponent must produce evidence sufficient to allow a reasonable jury to conclude that _____ (e.g., D committed the prior acts) [Huddleston]5.) FRE 403 Probativeness vs. Risk of Unfair Prejudicea. Relevant evidence may be excluded if its Probative value is substantially outweighed by a danger of:i. Unfair Prejudiceii. Confusion of the Issuesiii. Misleading the Juryiv. Undue Delayv. Waste of Time, orvi. Needless presentation of Cumulative Evidence6.) FRE 407 Subsequent Remedial Measuresa. Ct must not admit evidence of Subsequent Remedial Measure to prove:i. Negligenceii. Culpable Conductiii. Defect in Product/Designiv. Need for Warning/Instructionsb. Exceptions Ct may admit evidence of Subsequent Remedial Measures to prove:i. Ownership/Control, orii. Feasibility of Precautionary Measures7.) FRE 408 Compromise Offers/Settlementsa. Ct must not admit evidence to prove/disprove:i. The validity or amount of a disputed claim, orii. To impeach by prior inconsistent statements:1. Furnishing, promising, or offering a valuable consideration in compromising or attempting to compromise a claim, or2. Conduct or Statements made during negotiations about the claim (unless offered in a Criminal case if the negotiations related to a claim by a public office in the exercise of its investigatory/enforcement authority)b. Exceptions Ct may admit this evidence for another purpose, such as:i. Proving a Witness Bias/Prejudiceii. Negating a contention of undue delay, oriii. Proving an effort to obstruct a criminal investigation or prosecutionc. McCann P may not produce evidence that Corporate-D settled with some other P8.) FRE 409 Payment of Medical Expensesa. Evidence of furnishing, promising to pay, or offering to pay, medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability9.) FRE 411 Insurance Against Liabilitya. Evidence of a partys liability insurance is not admissible to show that the person acted negligently or wrongfullyi. FRE 411 does not apply to Life Insurance, only Insurance Against Liabilityb. Exception Ct may admit this evidence for another purpose, such as:i. Proving a Witnesss Bias/Prejudice, orii. Proving Agency/Ownership/Control10.) FRE 410 Pleas in Criminal Cases (only applies against D)a. In a Civil or Criminal case, evidence of the following is not admissible against D who made the plea or participated in the plea discussion:i. Guilty plea that was later withdrawnii. Nolo contendere pleaiii. Statement made during a proceeding on either of those pleas under FRCrim 11 or a comparable State procedure, oriv. Statement made during plea discussion w/ Prosecutor if the discussion did not result in a guilty plea or if they resulted in a later-withdrawn guilty pleab. Exceptions i. Ct may admit a FRE 410(a)(3) or (4) statement:1. [Broad] In any proceeding in which another statement made during the same plea or plea discussion has been introduced, if in fairness the statements ought to be considered together2. In a criminal proceeding for perjury or false statement if D made the statement under oath, on the record, and w/ Counselii. P or D may introduce evidence of rejected-immunity deal because its not being used against D [Biaggi]iii. If D makes a statement in plea discussion w/ FBI/DHS/DEA, statement is admissible in subsequent criminal prosecutions of Dc. Waiver Clauses Prosecutors may use Waiver Clauses that provide that anything said during plea negotiations are waived under FRE 410, which allows these plea discussions to be admissible evidence [Mezzanatto]11.) FRE 406 Habit; Routine Practicea. Evidence of a Persons Habit, or an Organizations Routine, may be admitted to prove that on a particular occasion, the Person/Organization acted in accordance w/ that Habit/Routine.i. The Ct may admit this evidence regardless of whether it is corroborated or whether there was an eyewitnessb. Halloran To justify introduction of Habit/Routine evidence, the Party must be able to show on voir dire that he expects to prove a sufficient number of instances of the conduct in question12.) FRE 404 Character Evidence; Crimes or Other Actsa. FRE 404(a) Character Evidencei. Evidence of a persons Character or Character Trait is not admissible to prove that on a particular occasion the person acted in accordance w/ that Character or Traitii. Exceptions for a D or Victim in a Criminal Case 1. D may offer evidence of Ds pertinent trait, and if the evidence is admitted, Prosecutor may offer evidence to rebut it2. Subject to the limitations in FRE 412, D may offer evidence of Victims pertinent trait, and if the evidence is admitted, Prosecutor may:a. Offer evidence to rebut it, andb. Offer evidence of Ds same trait3. In a homicide case, Prosecutor may offer evidence of Victims Trait of peacefulness to rebut evidence that Victim was the first aggressoriii. Exceptions for a Witness Evidence of a Witnesss Character may be admitted under FRE 607, 608, and 609b. FRE 404(b) Crimes, Wrongs, or Other Acts [104(b) determination]i. Evidence of a Crime, Wrong, or Other Act is not admissible to prove a persons Character in order to show that on a particular occasion the person acted in accordance w/ the Character, butii. This evidence may be admissible for another Purpose, such as proving:1. Motive2. Intent3. Preparation4. Plana. Kirsch (SSC) Under FRE 404(b)s common plan/scheme exception, its not enough to show that each crime was planned in the same way rather, there must be some overall scheme of which each of the crimes is a part5. Knowledge6. Identity7. Absence of Mistake, or8. Lack of Accident13.) FRE 405 Methods of Proving Charactera. FRE 405(a) By Reputation or Characteri. When evidence of a Persons Character or Trait is admissible, it may be proved by testimony about the persons (1) Reputation, or (2) Opinionii. On cross-examination of the Character-Witness, the Ct may allow an inquiry into relevant specific instances of the persons conduct [Michelson]1. Michelson When D introduces C.E., Prosecutor may cross-examine Ds Character-Witness and ask very specific questions about D (e.g., whether D was arrested before) BUT, Prosecutor may only impeach the integrity, or impair the credibility, of a Character-Witness by asking whether Character-Witness has been convicted of any crimes (BUT not if Character-Witness has ever been arrested)2. Exception FRE 413, 414, 415 Character-Witness may testify about Specific Actsb. FRE 405(b) By Specific Instances of Conducti. When persons Character or Trait is an essential element of the crime, claim or defense, the Character or Trait may be proved by relevant Specific Instances of persons conduct1. 3 Cases Entrapment defense, Libel/Slander, Parental Custody disputes14.) FRE 412 Rape Shield Law: Victims Sexual Behavior or Predispositiona. FRE 412(a) Prohibited Usesi. The following evidence is not admissible in Civil or Criminal proceedings involving alleged sexual misconduct1. Evidence offered to prove V engaged in other sexual behavior [including fantasies/dreams], and2. Evidence offered to prove Vs sexual predispositionb. FRE 412(b) Exceptionsi. Criminal Cases Ct my admit the following evidence:1. Evidence of Specific Instances of Vs sexual behavior, if offered to prove that someone other than D was the source of semen, injury, or other physical evidence,2. Evidence of Specific Instances of Vs sexual behavior w/ respect to D, if offered by D to prove consent, or offered by Prosecutor, or3. Evidence whose exclusion would violate Ds Constitutional rightsii. Civil Cases 1. Ct may admit evidence offered to prove:a. Vs sexual behavior or predisposition if its Probative value substantially outweighs the danger of harm to V and of unfair prejudice to any party2. Ct may admit evidence of a Vs reputation ONLY IF V raised ita. If V raises her reputation, D may specific instances of behavior/predisposition c. FRE 404(b)-Style Uses of Evidence of Past Sexual Behaviori. State v. Smith (SSC) Evidence offered to prove allegedly false prior claims by V is not barred by FRE 412ii. Olden Ds 6th Amendment right to Cross-examine his accuser is violated if D is prevented from impeaching Vs testimony by introducing evidence to show Vs Untruthfulness/Bias, so long as D is not attacking Vs sexual predisposition/behavior15.) FRE 413 Similar Crimes in Sexual-Assault Criminal Casesa. In a Criminal case in which D is accused of Sexual Assault, Ct may admit evidence that D committed another sexual assaulti. The evidence may be considered on any matter to which it is relevant16.) FRE 414 Similar Crimes in Child Molestation Criminal Casesa. In a Criminal case in which D is accused of Child Molestation, Ct may admit evidence that D committed another Child Molestationi. The evidence may be considered on any matter to which it is relevant17.) FRE 415 Similar Acts in Civil Cases Involving Sexual Assault or Child Molestationa. In a Civil case involving a claim for relief based on a Partys alleged Sexual Assault, or Child Molestation, Ct may admit evidence that the Party committed another Sexual Assault or Child Molestation18.) Burden of Proof and Presumptionsa. Burden of Proof and Burden of Presumptionsi. Burden of Production Whoever has Burden of Persuasion has Burden of Production1. Civil If P doesnt have sufficient evidence, directed verdict for D2. Criminal If Govt doesnt establish all elements of crime, D entitled to acquittal3. Mullaney v. Wilbur (1975) If allocating burden of proof to D involves an element of the crime charged, its unconstitutional bc Govt must always have burden of proving the element of the crime4. Patterson v. NY (1977) As long as D isnt required to prove an element of the crime in his defense, its acceptable to make D prove his defense w/ evidenceii. Burden of Persuasion Who must convince the trier-of-fact of a particular issue1. Martin v. OH (1987) If self-defense issue is raised by D, and self-defense doesnt deal w/ element of the crime charged, its not unconstitutional to place the burden of persuasion on D (e.g., D has burden to prove insanity)iii. Presumptions Party seeking to use Presumption must offer evidence to sufficient to meet a burden of production as to each foundational fact.1. Ct determines whether Party met this burden, then Jury decides whether the foundational facts are true2. Mandatory presumptions are unconstitutional in Criminal cases against D3. Conclusive Presumptions are not allowed in Criminal cases (violates DP)b. FRE 301 Presumptions in Civil Cases Generallyi. In a civil case, unless a Federal law or FRE provides otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption, but this rule does not shift the burden of persuasion, which remains on the party who originally had it [Thayer View]1. Thayer Rule If letter mailed, its presumed to be received, but if person claims he didnt receive letter, presumption is removed and jury can decide for P or D2. Morgan Rule If D claims not to receive letter, D must prove he didnt receive itc. FRE 302 Applying State Law to Presumptions in Civil Casesi. In a civil case, if State law decides the case, presumption rule of State applies in Fed Ctd. Presumptions in Criminal Cases (No FRE for presumptions in Criminal cases)i. Francis v. Franklin (1985) Cts scrutinize presumptions in criminal cases where the impact on D can be almost a conviction w/o any proof by GovtII. Reliability1.) Competency of Witnessa. FRE 601 Competency to Testify in Generali. Every person is competent to be a Witness unless FRE provides otherwiseii. In a Civil case, State law governs the Witnesss competency regarding a claim or defense for which State law supplies the rule of decisioniii. Competent Witness has personal knowledge of the event and can recollect itb. FRE 602 Need for Personal Knowledge [104(b) determination]i. Witness may testify to a matter ONLY IF evidence is introduced sufficient to prove that Witness has personal knowledge (i.e., Witness must see it See = Knowledge)ii. Evidence to prove personal knowledge may consist of Witnesss own testimonyiii. Experts [FRE 703] need not have Personal Knowledgec. FRE 603 Oath or Affirmation to Testify Truthfullyi. Before testifying, Witness must give Oath or Affirmation to Testify Truthfully. It must be in a form designed to impress that duty on the Witnesss conscienced. FRE 604 Judges Competency as Witnessi. Presiding-Judge may not testify as Witness.e. FRE 610 Religious Beliefs or Opinionsi. Evidence of Witnesss Religious Beliefs/Opinions not admissible to Attack or Support the Witnesss Credibility2.) Impeachment and Character for Truthfulnessa. FRE 607 Who May Impeach a Witnessi. Any Party may attack the Witnesss Credibility by showing:1. Bias2. Sensory/Mental Incapacity3. Prior Inconsistent Statement made by that Witness under FRE 6134. Contradiction by Another Fact, OR5. Impeachment for Untruthfulness under FRE 608 or 609ii. May not call W solely to impeach if purpose is to offer otherwise inadmissible evidenceb. FRE 608 Witnesss Character for Truthfulness/Untruthfulness [Impeachment]i. FRE 608(a) Reputation or Opinion1. Witnesss Credibility may be Attacked or Supported by:a. Testimony about Witnesss Reputation, or by Opinion, of Witnesss Character for Truthfulness/Untruthfulness BUT, evidence of Truthful Character is admissible ONLY after the Witnesss Character for Truthfulness has been Attackedb. Direct- or Cross-Examination = Impeach Witness by Reputation/Opinionii. FRE 608(b) Specific Instances of Conduct1. Except for a Criminal conviction under FRE 609, Extrinsic evidence is not admissible to prove Specific Instances of a Witnesss conduct in order to Attack or Support the Witnesss Character for Truthfulness2. BUT, on Cross-Examination the Ct may allow Specific Instances to be inquired into if it is Probative of the Character for Truthfulness/Untruthfulness of (1) the Witness, or (2) Another Witnessa. If Witness denies having done (or heard) of the specific act, the Lawyer may present no other evidence about iti. However, Extrinsic evidence of specific conduct is admissible on cross-examination to show Bias/Prejudice (Not to attack character)3. Cross-Examination = Impeach Witness by Specific Instances IF: a. Probative for Truthfulness/Untruthfulness, AND b. Not proved by Extrinsic Evidence (i.e., Lawyer must accept Witnesss answer to the question), andc. May not Impeach W by contradiction on a Collateral matter using extrinsic evidence 4. Limitations on FRE 608(b)a. Whitmore In order to Attack the Credibility of a Witness by cross-examining him on Specific Instances of Conduct, Counsel must possess some fact that supports the genuine belief that Witness engaged in the Actb. If evidence inadmissible under FRE 609, cant use FRE 608(b) to admit itc. FRE 611 Dont harass/unduly embarrass the Witnessc. FRE 609 Impeachment by Evidence of Criminal Conviction [Applies to D as Witness or Witnesses]i. FRE 609(a) Attacking Witnesss Character by Evidence of Criminal Conviction1. For a Crime that was punishable by Death or Imprisonment for more than 1-year in the convicting jx, the evidence:a. FRE 403 Civil or Criminal, Witness is not Db. Reverse 403 [Prob value substantially outweigh prejudice to D] Criminal, Witness is Di. Factors [Brewer]:1. Nature of Crime2. Time of Conviction, and Witnesss Subsequent History3. Similarity Between Past and Charged Crime4. Importance of Ds Testimony5. Centrality of the Credibility Issue2. For any Crime, regardless of the punishment, evidence must be admitted if the Ct can readily determine that establishing the elements of the Crime required proving (or Witness admitting) a Dishonest act or False statementa. Only FRE that escapes FRE 403 balancingb. Perjury, Fraud, Embezzlement, False Pretense (NOT theft, robbery, larceny)c. FRE 609(b), (c), and (d) apply to FRE 609(a)(2) Crimesii. FRE 609(b) Limit on Using Evidence After 10 Years1. If More than 10 years have passed since Witnesss Conviction or release from confinement (whichever is later), Evidence is admissible only if:a. Reverse 403 Probative Value, supported by specific facts and circumstances, substantially outweighs its Prejudicial Effect, andb. Notice Proponent gives an Adverse Party reasonable written notice of his intent to use it so that the Party has a fair opportunity to contest its useiii. FRE 609(c) Effect of Pardon, Annulment, or Rehabilitation1. Evidence of a Conviction is NOT admissible if:a. Pardon, Annulment, Rehabilitation Certificate, Finding of Innocence, or Other Equivalent Procedure, ANDb. Person hasnt been convicted of another crime punishable by death or 1-yriv. FRE 609(d) Juvenile Adjudications1. Evidence of a Juvenile Adjudication is admissible under this rule only if:a. Offered in a Criminal case,b. Adjudication of the Witness was not the current-Dc. Adults conviction for that offense would be admissible to attack the Adults Credibility, andd. Admitting the Evidence is necessary to determine Guilt or Innocencev. FRE 609(e) Pendency of an Appeal1. Convictions that satisfy this Rule are admissible even if an appeal is pendingvi. Limitations on FRE 609 1. Ohler If Judge disregards FRE 609 safeguards and wrongly admits evidence of past convictions to impeach D, D may not appeal unless:a. D testified at trial + Prosecutor introduced evidence of the contested conviction 2. Loper If D did not have Lawyer at prior conviction, Govt may not use prior conviction for impeachmentd. FRE 613 Witnesss Prior Statements [Impeachment Rule Cf. 613 w/ 801(d)(1)]i. FRE 613(a) Showing or Disclosing the Statement During Examination1. When examining a Witness about Witnesss prior statement, a Party need not show it or disclose its content to the Witness, but the Party must (on request) show it or disclose its contents to an adverse-Partys Attorneyii. FRE 613(b) Extrinsic Evidence of a Prior Inconsistent Statement1. Extrinsic Evidence of a Witnesss Prior Inconsistent Statement is admissible if the Witness is given an opportunity to explain or deny the statement [Available] and the adverse-Party is given an opportunity to examine the Witness about ita. Barrett (1st Cir) i. Permitted under 613 Using statement to impeach Witness Credibilityii. Not Permitted under 613 Using statement to prove guilt/innocence3.) Judicial Notice; Refreshing Recollection; Past Recollection Recordeda. FRE 201 Judicial Notice of Adjudicative Factsi. FRE 201(a) Scope1. Cts may take Judicial Notice of both Adjudicative and Legislative Factsa. Adjudicative Fact Historical, Geographic, Physical, Statistic, Scientificb. Carey Ct took Judicial Notice that sexual activity among minors is highc. Fenner (SSC) If opposing-Party does not have access to same info, Ct will not take Judicial Notice of the factii. FRE 201(b) Kinds of Facts that may be Judicially noticed1. Ct may Judicially Notice a Fact that is not subject to reasonable dispute bc it:a. Is generally known within the Trial Cts jx, orb. Can be accurately and readily determined from sources whose accuracy cannot reasonably be questionediii. FRE (c) Ct may take Judicial notice sua sponte, or by request of a Partyiv. FRE (d) Timing1. Ct may take Judicial Notice at any stage of the proceeding (Trial or Appellate)v. FRE (f) Instructing the Jury1. Civil Ct must instruct jury to accept Fact as conclusive2. Criminal Ct must instruct jury it may or may not accept Fact as conclusivea. Ct may not take Judicial Notice of an Adjudicative Fact in Criminal Proceedingsvi. Vejvoda (SSC) In Criminal cases, Ct may not take Judicial Notice of a Fact if it relates to an element of the Crimeb. FRE 803(5) Past Recollection Recorded [Hearsay Exception]i. A Record that: 1. Is on a matter the Witness once knew about but now cannot recall, 2. Was made or adopted by the Witness when the matter was fresh in the Witnesss memory, and 3. Accurately reflects the Witnesss knowledgeii. If admitted, may be read into evidence but may be received as an exhibit only if offered by an Adverse Partyiii. Johnson (SSC) Witness must adopt PRR in order for it to be admissible (4 Elements):1. Witness must have had 1st hand knowledge of the event2. Written statement must be a memo made at or near the time of the event while Witness had a clear and accurate memory of it3. Witness must lack present recollection of the event, and4. Witness must vouch for the accuracy of the written memoa. Witness may testify she presently remembers recording the fact correctlyb. Remembers recognizing the writing as accurate,c. Knows memo is correct bc of habit of recording matters accurately, ord. Recognizes her signature on the statement and believes it correct bc she wouldnt have signed it if she hadnt believe it to be true at the timec. FRE 612 Refreshing Recollectioni. Adverse Party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the Witness about it, and to introduce in evidence any portion that relates to the Witnesss testimony Witnesss Testimony becomes the evidence1. If the producing-Party claims that the writing includes unrelated matter, Ct must examine it in camera, delete any unrelated portion, and order the rest to be delivered to the adverse partyii. Baker v. MD (SSC) Memory aid used in connection w/ RR may be anything1. When the writing in question is utilized to RR of the Witness, the writing may be a memo made by someone other than the Witness, even if never before read by the Witness or vouched for by him2. When the writing in question is utilized to RR of the Witness, the writing may be a memo made by the Witness himself even if:a. It was not made immediately after the eventb. It was not made of 1st hand knowledge, andc. Witness cannot vouch for the fact that it was accurate when madeiii. Before offering evidence under 803(5), use 6124.) Hearsaya. Introi. Hearsay concerns the reliability of evidence the jury hearsii. 4 Testimonial Capacities that may lead to Unreliability:1. Perception2. Memory3. Narration4. Sincerityiii. Witness may testify about Facts they observed [Personal Knowledge] bc it is tested by:1. Under Oath2. Cross-Examination, and3. Demeanorb. FRE 801 Definitions; Exclusions from Hearsayi. Statement Persons oral or written assertion, or non-verbal conduct if the person intended it as an assertion1. Assertion Must be intended to communicate info to othersii. Declarant Person who made the statementiii. Hearsay Out-of-Court statement offered for the truth of the matter asserted iv. Statements that are not Hearsay [May be Offered Substantively]:1. Declarant-Witnesss Prior Statementa. Declarant Testifies and is subject to Cross-Examination about a prior statement, and the statement:i. Is Inconsistent w/ Declarants own testimony and was given Under Oath at Trial, Deposition, or Other Proceedingii. Is Consistent w/ Declarants Testimony and is offered [see Tome]:1. To rebut an Express or Implied charge that Declarant recently fabricated it, or2. Acted from a recent improper influence/motive in testifyingiii. Identifies a person as someone the Declarant perceived earlier [Prior Identification]2. Opposing Partys Statement [No Personal Knowledge Required]a. Statement is offered against an opposing-Party, andb. Was made by the Party in an Individual or Representative capacity, ori. Includes guilty pleasc. Is one the Party manifested that it Adopted or Believed to be true, ori. Beckham (DC Cir.) 4 Components of Adopted Admission:1. Person must have heard and understood the statement2. Person was at liberty to respond (but acted instead)3. Circumstances naturally call for a response4. Fails to affirmatively rebut/challenge what was said to himd. Was made by a person whom the Party Authorized to make the statement, on the subject, ore. Was made by the Partys Agent/Employee on a matter within the scope of that relationship while it existed, ori. Watergate Volunteers are Agentsf. Was made by the Partys Co-Conspirator during and in furtherance of the conspiracyi. Bourjaily If Co-conspirator makes statement after arrest, his statement is not in furtherance of the conspiracy1. Whether statement was made by a member of a conspiracy should be decided by preponderance of evidence under 104(a)g. Bourjaily Bootstrap: When preliminary facts relevant to FRE 801 [Opposing Party] are disputed, offering party must prove them by preponderance of evidence under 104(a)v. Miranda and Silence1. FRE 801(d)(2)(B) Adopted Admissionsa. Ds silence in the face of an accusation of guilt (You robbed the bank), may serve as an adoptive admission of guilt and because silence may be inconsistent with a later claim of innocence, evidence of silence may also serve to impeach2. Defendant Not in Custodya. Salinas v. TX (2013) If a D is not in custody, silence is deemed an adopted admission under FRE 801(d)(2)(B), so Govt may use Ds silence at trialb. Jenkins v. Anderson (1980) If a D is not in custody, silence may be used to impeach his credibility under FRE 6133. Defendant in Custody, but Pre-Miranda Circuit Splita. US v. Frazier (8th Cir. 2005) If a D is in custody (but pre-Miranda), silence is not deemed an adopted admission under FRE 801(d)(2)(B)b. US v. Flecha (2nd Cir. 1976) If a D is in custody (but pre-Miranda), silence is deemed an adopted admission under FRE 801(d)(2)(B)4. D in Custody, Post-Mirandaa. Harris v. NY (1971) If a D is in custody (post-Miranda), silence is not deemed an adopted admission under FRE 801(d)(2)(B)b. Doyle v. Ohio (1976) If a D is in custody (post-Miranda), silence cannot be used to impeach his credibility under FRE 6135. Fletcher v. Weir (1982) In the absence of the sort of affirmative assurances embodied in the Miranda warnings, it does not violate DP for a State to permit cross-examination as to a Ds post-arrest silence when D chooses to take the standc. FRE 802 Rule Against Hearsayi. Hearsay is not admissible unless Federal Law, FRE, or SCOTUS provides otherwiseii. Owens FRE 802 does not bar Testimony concerning a prior Out-of-Court [Hearsay] identification when the identifying-Witness is unable to explain the basis for the identification because of memory lossd. FRE 805 Hearsay within Hearsayi. Hearsay within hearsay is admissible only if each part of the statement conforms w/ an exception to the Rule Against Hearsaye. FRE 806 Attacking or Supporting Declarants Credibility [Impeachment]i. If Hearsay or FRE 801 [Opposing Party Statement Authorized, Agent, or Co-Conspirator] has been admitted into evidence, Opposing-Party may Attack Declarants Credibility, even if Declarant is Unavailable, by:1. Proof of Bias2. Inconsistent Statements3. Contradiction (of Fact or Prior Inconsistent Statement)4. Evidence of Untruthful Character (Opinion/Reputation/Criminal Convictions)5.) Hearsay Exceptionsa. FRE 804 Exceptions to the Rule Against Hearsay [Declarant Unavailable]i. FRE 804(a) Criteria for Being Unavailable 1. Declarant is Unavailable as a Witness if Declarant [May raise CC issues]:a. Ct determines that Privilege appliesb. Refuses to testify despite a Ct order to do so [5th Amendment]c. Testifies to not remembering the subject matter [see RR and PRR]d. Death or a Then-existing Infirmity, or physical or mental illness, ore. Is absent from the trial or hearing and the statements Proponent has not been able, by process or other reasonable means (e.g., subpoena), to procure:i. Declarants attendance, or Declarants Testimony2. Determinations of Unavailability are FRE 104(a) determinationsii. FRE 804(b) Exceptions Applicable Only When Declarant is Unavailable:1. Former Testimony Testimony that:a. Was given as a Witness at trial, hearing, or lawful deposition, andb. Is now offered against a Party who had (or in a Civil case, whose Predecessor in Interest had) an opportunity and similar motive to develop it by direct, cross-, or redirect-examinationi. Predecessor only applies if current Trial is Civil (not Criminal)ii. No Grand Jury No opportunity for Cross-iii. Witness should be Under Oath2. Dying Declaration In a Prosecution for Homicide, or in a Civil case, a statement that the Declarant, while believing Declarants death to be imminent w/o hope of recovery, made about its cause or circumstances [requires personal knowledge]3. Statements Against Interest Statement that:a. A Reasonable person in Declarants position [Subjective] wouldve made only if he believed it to be true because it was so contrary to the Declarants Ownership, Monetary, or Penal interest, or had so great a tendency to invalidate Declarants claim against someone else, or to expose Declarant to civil or criminal liability, and b. Is supported by corroborating circumstances clearly indicating its truth if offered in a Criminal case that may expose Declarant to Criminal liabilityc. Williamson In Criminal proceeding, if confession implicates another person, it is not admissible4. Statement of Personal or Family History Statement about:a. Declarants own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, or similar facts, even though Declarant had no way of acquiring personal knowledge about that fact, orb. Another person concerning any of these facts, as well as death, if Declarant was related to the person by blood, adoption, marriage, or was intimately associated w/ Persons family5. Forfeiture by Wrongdoing Statement offered against a Party that wrongfully caused (or acquiesced in wrongfully causing) Declarants unavailability as a Witness, and did so intentionallyb. FRE 803 Exceptions to Hearsay [Declarants Availability Immaterial 104(a) determination]i. FRE 803(1) Present Sense Impressions1. Statements describing or explaining an event or condition made while, or immediately after, the Declarant perceived itii. FRE 803(2) Excited Utterance1. Statement relating to a startling event or condition made while Declarant was under the stress of excitement that caused itiii. FRE 803(3) Statements of Then-Existing Mental, Emotional or Physical Condition1. Statement of the Declarants then-existing state of mind (such as motive, intent, or plan) or emotional, sensory or physical condition (such as mental feeling, pain, or bodily health) BUT NOT including a statement of memory or belief to prove the fact remembered/believed unless it relates to the validity of the Declarants Will2. Hillmon Only Declarants (not a 3rd persons eavesdropping of Declarant) statement of future intent (not his intent to do something in the past) is admissible 3. Shepard Only Declarants future intent, not a 3rd Persons future intent iv. FRE 803(4) Medical Diagnosis or Treatment1. Statement that is (1) made for, and is reasonably pertinent to, medical diagnosis or treatment, and (2) describes medical history; past or present symptoms/sensations; their inception; or their general causea. Parts of Statement offered to prove liability will be strickenv. FRE 803(6) Records of Regularly Conducted Activity (Business Records)1. A record of an act, event, condition, opinion, or diagnosis if:a. The record was made at or near the time (or from info transmitted by) someone w/ knowledgeb. The record was kept in the course of a regularly conducted activity of a business, organization, or occupation, whether for-profit or non-profitc. Making the record was a regular practice of that activityd. No lack of Untrustworthiness either in the source of info or in the method/circumstances of preparation of the info contained in the record2. Palmer If record is created for the purpose of litigation, and not for the purpose of conducting business, then it relates to liability, so inadmissiblevi. FRE 803(8) Public Records1. A record or statement of a Public Office if it sets out:a. The Offices activitiesb. A matter observed while under a legal duty to report, but not including (in a Criminal case) a matter observed by Law enforcement personnel, ori. Oates Police reports always inadmissible against Ds in Criminal casesii. Weilan Non-traditional Crime investigation reports are admissiblec. In a Civil case, or against the Govt in a Criminal case, factual findings from a legally authorized investigation, andd. Neither source of info or circumstances indicate a lack of Trustworthinessvii. FRE 803(16) Ancient Documents1. Statement in a document that is atleast 20 years old and authenticity is establishedc. FRE 807 Residual Exceptioni. Evidence that is Necessary + Trustworthy + Relevant + Material [Dallas]6.) Confrontation Clause [Hearsay in Criminal Context Govt must overcome both CC + Hearsay]a. 6th Amendment In all Criminal trials, D shall be confronted w/ Witness against himb. Incorporated 6th Amendment CC applies to States [Pointer]c. Hearsayi. CA v. Green In order for Out-of-Court Statement [Hearsay] to be used against a criminal-D, and not violate the CC, requires:1. Out-of-Court Declarant testifies at trial, so D may cross-examine him, or2. If Declarant is not now present, but D had an opportunity to cross-examine Declarant at some earlier proceedingii. OH v. Roberts* Under 104(a), Ct may admit Out-of-Court statement [Hearsay] made by a Declarant that criminal-D cannot cross examine if:1. It is Necessary for the jury to hear that info, and2. The info/testimony is Reliableiii. Coy v. Iowa CC guarantees a face-to-face meeting w/ Witnessiv. Crawford Testimonial statements of Witness absent from trial may be admitted only if:1. Declarant is Unavailable, and2. D had a Prior Opportunity to Cross-examine the Witnessd. Testimoniali. Hammock Primary Purpose Test for Testimony1. Testimonial If Statement is made primarily to assist a criminal investigation2. Non-Testimonial If Statement is primarily made to resolve ongoing emergencyii. Michigan v. Bryant Objective Primary Purpose Test1. To determine whether the Primary Purpose is to assist a criminal investigation or to resolve an ongoing emergency, Cts Objectively assess the circumstancesiii. Whorton Non-Testimonial statement, even if unreliable, is admissible against crim-Div. Giles Ds Wrongful Conduct forfeits his CC right only if:1. Ds conduct made the Witness unavailable, and2. D intended Witness to be unavailable v. Bullcoming Lab reports fulfilling an element of Ds crime are Testimonial, so D must have the opportunity to cross-examine the particular Lab technician that made the report1. No Surrogates Govt may not use a Lab Technician that did not make the reportvi. Williams v. IL Expert Testimony about DNA tests performed by a non-testifying analyst do not violate CC, and are therefore admissiblevii. OH v. Clark If an Unavailable Declarant with Diminished Capacity makes an Out-of-Court statement, the testimony is admissible because, objectively, persons with diminished capacity do not form intent to make Testimonial statements, so CC is not implicated at all w/ respect to persons w/ diminished capacity e. Bruton Doctrinei. Bruton Non-testifying Co-Ds confession offered against D in same trial violates CC 1. FRE 105 Insufficient to safeguard Constitutional protectionsii. Cruz In joint trial, non-testifying co-Ds confession implicating D violates Ds CC right even if Ds confession against himself is admittediii. Gray If a Redaction replaces Ds name with an obvious indication of deletion, such as a blank space, nickname, the word deleted, or a similar symbol, then Bruton applies and the redacted-report is inadmissible (FRE 105 is Insufficient)iv. Marsh If jury cannot figure out from confession/redacted report that D is implicated, then FRE 105 Limiting Instructions are permissiblev. Edwards A confession that redacts all names and replaces them w/ pronouns is admissible and does not violate Ds CC rights only if there are numerous Ds because if there are numerous Ds, it is unlikely the jury can determine which pronoun is who7.) Compulsory Processa. 6th Amendment In all Criminal trials, D shall have compulsory process for obtaining Witnesses in his favorb. Chambers Ds Compulsory Process right has been violated if a States hearsay rules:i. Deny D the opportunity for cross-examinationii. The excluded hearsay was critical for Ds defense, andiii. The excluded hearsay had considerable assurances of reliability and trustworthinessc. Crane US Constitution guarantees criminal-D a meaningful opportunity to present a complete defensed. Holmes If a State only considers the Probative value of Ds evidence by exclusively examining the Prosecutions evidence, it violates Ds right to a fair trial8.) Lay and Expert Opinion Testimonya. FRE 701 Lay Opinions [Must Testify from Personalized Knowledge]i. A Witness who is not qualified as an Expert by Knowledge, Skill, Experience, Training, or Education, may testify in the form of an Opinion or otherwise if:1. Rationally based on the Witnesss perception2. Helpful to clearly understanding the Witnesss testimony or determining a fact in issue, and3. Not based on Scientific, Technical, or Other Specialized Knowledge under 702ii. Lay Witness may not bring evidence onto the stand and talk about itb. FRE 702 Expert Testimony [Need Not Testify from Personalized Knowledge]i. Witness who is qualified as an Expert by Knowledge, Skill, Experience, Training, or Education may testify in the form of an Opinion or otherwise if:1. Experts Scientific, Technical, or Other Specialized Knowledge will help the trier-of-fact understand the evidence or to determine a fact in issue2. Testimony is based on sufficient facts or data3. Testimony is the product of reliable principles and methods, and4. Expert has reliably applied the principles and methods to the facts of the caseii. Expert Witness may bring 803(18) evidence onto the stand and talk about itc. FRE 704 Improper Topics of Expert Testimonyi. An Opinion is not automatically objectionable just bc it embraces an ultimate issueii. Exception In a Criminal case, an Expert Witness must not state an opinion about whether D had the culpable mental state of the crime charged, or of a defense1. Batangan Expert may not testify about whether a Witness is telling the truth2. Guilbert Expert testimony about reliability of eyewitness testimony admissibled. FRE 703 Bases of an Experts Opinion Testimony [Experts can rely on Hearsay]i. Expert may rely on facts or data:1. He personally observed2. He was made aware of at the hearing/trial, or3. He was made aware of before the hearinge. FRE 803(18) Learned Treatise & Medical Statementsi. Experts reliance on inadmissible hearsay actually makes that hearsay admissible as substantive evidenceii. Experts reliance on Learned Treatise during direct-examination, or her acknowledgement of its authority on cross-examination, dissolves any hearsay objection to pertinent parts of the documentf. FRE 705 Disclosing the Facts or Data Underlying an Experts Opinioni. Unless the Ct orders otherwise, an Expert may state an Opinion and give the reasons for it without first testifying to the underlying facts or data but the Expert may be required to disclose those facts or data on cross-examinationg. Daubert Doctrinei. Frye (DC Cir. 1923) Expert Testimony about Scientific testimony or evidence is admissible only if it has been Generally Accepted in the Scientific Community1. Many States still use Frye, but Federal Cts apply Daubertii. Daubert (1993) Pursuant to FRE 104(a), Cts must ensure that any and all Scientific Testimony or evidence admitted is both: (1) Relevant, and (2) Reliable1. Factorsa. Whether the theory/technique has been tested?b. Whether the theory/technique has been subject to peer-review and publication?c. What is the known or potential rate of error?d. Are there standards that the Scientific Community uses in evaluating this info?e. Is it Generally Accepted in the Community?iii. Kumho Daubert applies to all Expert Testimonyiv. Joiner Appellate Cts must review lower-Ct rulings on the admissibility of Expert Testimony for Abuse of Discretion9.) Authentication and Best Evidence Rulea. Authenticationi. FRE 901 Authenticating or Identifying Evidence1. To satisfy the requirement of Authenticating or identifying an item of Evidence, the Proponent must produce evidence sufficient to support a finding that the item is what the Proponent claims it is2. Examples a. Testimony of a Witness w/ Knowledgei. Photographs If someone is showing a photo of GULC Library, anyone thats been to GULC Library may authenticate the photob. Non-Expert Opinion About Handwritingi. Non-Expert Only if handwriting made before litigation ensuedc. Comparison by an Expert Witness or the Trier-of-Facti. Expert If handwriting made for the purpose of litigation d. Distinctive Characteristicsi. Caller may be identified because only he could utter the speech under the circumstancese. Opinion about Voice [Incoming Call]f. Evidence about a Phone Conversation [Outgoing Call]i. Call was made to the number the phone company assigned at that time to a particular person, and that person answered the phoneg. Evidence about Public Recordsi. Proof of Custody (may includes data stored on Computer)h. Evidence about Ancient Documents or Data Compilationsi. Condition is non-suspicious + in a place it likely be + 20years+i. Evidence about a Process or System [Wagner]i. Anyone familiar w/ the process that produced a photo, video, or other process/system, may testify about how the system works3. Proof of Chain of Custody Fungible items [blood, white powder, etc.] require testimony by each person who had custody of item from moment it seized from Da. Unique items [knife, gun, etc.] still must be Authenticated via FRE 901b. Best Evidence Rule [Applies only to Writings, Recordings, and Photographs]i. FRE 1001 Definitions 1. Writing Consists of letters, words, numbers, or their equivalent in any form2. Recording Consists of letters, word, numbers, or their equivalent in any manner3. Photo Photographic image or its equivalent stored in any formii. FRE 1002 and FRE 1003 Originals and Duplicates [Originals = Duplicates]1. Original or Duplicate Writing/Recording/Photo is Required to prove its Contenta. Jury decides whether a writing is an Original under FRE 104(b) [1008(b)]b. Where CONTENT is CRITICAL BER Appliesi. If Content not critical, have someone testify about it (if not hearsay)2. Duplicate Must be mechanically preserved (no potential for human error allowed)iii. FRE 1004 Secondary Evidence Rule1. An Original is not required and other evidence of the content of a Writing, Recording, or Photo is admissible if:a. All Originals were lost/destroyed, & not by Proponent acting in bad faithb. Originals cannot be obtained by any judicial processc. Party against whom the Original would be offered had control of the Original; was at that time put on notice, by pleadings or otherwise that the Original would be a subject of proof at the Trial or Hearing, and fails to produce it at the Trial or Hearing, ord. The Writing, Recording, or Photo not closely related to a controlling issueIII. Privileges 1.) Privileges Generallya. FRE 501 Privilege Analysisi. Is it a Criminal or Civil case?1. If Criminal, see if Federal CL Privilege appliesa. If Federal CL Privilege does NOT apply, Judge may create one under FRE 501 Reason and Experience language2. If Civil, and State Law is Rule of Decision, Judge must use State Law Privilegea. If State Law is not Rule of Decision, Judge must use Federal CL Privilegei. If No Federal CL Privilege, Judge can either make it up using Reason and Experience, or apply State Law Privilegeb. 3 Types of Privilegei. Psychotherapist-Patient Privilege [504 + Jaffee]ii. Clergy-Penitent [506 + Trammel]iii. Lawyer-Client [FRE 502 + Upjohn]1. Togstadt In determining whether Attorney-Client Privilege exists, Ct must look at it from the Clients POV (Would a reasonable client believe AC Privilege exists?)2. Inadvertent Disclosurea. Williams v. DC (DDC 2011) Inadvertent Disclosure of Info covered by Attorney-Client Privilege (or WP Doctrine) is not a Waiver if:i. Disclosure is Inadvertentii. Holder of Privilege took reasonable steps to prevent disclosure, &iii. Holder of Privilege took reasonable steps to rectify the error3. Corporate Settinga. Upjohn Subject Matter Testi. In order to determine whether the AC Privilege applies in the Corporate Setting, balance the following factors:1. Communications were made by Corporate Employees to Corporate Counsel at the direction of Corporate Superiors2. The purpose of the Communication was to secure legal advice for the Corporation3. Upper-echelon Management did not possess all the info necessary to obtain the advice4. The Communications concerned matters within the scope of the Employees duties5. Employees knew the purpose of the Communications was to obtain legal advice6. Employees were instructed that the Communications were to be kept confidential4. Sources of Fees and Clients Identitya. Ousterhoudt Neither manner of payment, or Clients Identity is privileged, unless disclosure effectively discloses confidential commun.5. Duration of attorney-Client Privilegea. Swidler Attorney-Client Privilege survives the death of the Client6. Crime-Fraud Exception [See FRE 503 for additional Proposed Exceptions]a. Proposed FRE 503 If the services of the Lawyer were sought or obtained to enable, or to aid anyone to commit, or plan to commit, what the Client knew or reasonably should have known to be a crime or fraud, then there is no AC Privilege bc the Crime-Fraud Exception appliesb. Zolin In determining whether Crime-Fraud Exception applies, Cts apply FRE 104(a) and may use in camera review to determine whether the allegedly privileged AC Communications fall within the CF Exceptioni. To obtain in camera review, opposing-Party must produce some evidence sufficient to support a reasonable belief that CF applies1. Party seeking to apply CF to AC Privilege has burden of proof7. Government Lawyersa. Rowland AC privilege applies to Govt Attorney Communicationsc. 4 Elements of Professional Privilegesi. Privilege is the Clients1. Only Client (or Professional on Clients behalf) may assert or waive the Privilegeii. Privilege protects only those confidential communications made to facilitate professional services1. Friendly chats do not qualify, nor do communications made to a Lawyer acting as a lobbyist/business agent (i.e., not as a Law advisor) [Gionis]iii. Privilege protects only Confidential Communications1. Communication is Confidential if Client intended it to be Confidential and that it stay Confidential2. No Privilege attaches if, at the time of communication, Client plans to disclose it to persons outside the Privilege, or knows her Lawyer plans to do so3. Client waives Privilege if he voluntarily discloses or consents to disclosure of any significant part of the communication to person outside the Privileged relationshipiv. Privilege Protects only Confidential Communications1. Only the Communication, not the facts communicated, is privileged2.) 5th Amendment Privilegesa. 5th Amendment No person shall be compelled in any Criminal proceeding to be a Witness against himselfb. Hubbell 5th Amendment Privilege is violated only when:i. Compulsion + Testimonial evidence + Self-Incriminationc. Testimonial Test Ds evidence is Testimonial only if he can lie about it, but if he is physically unable to lie about it, then it is NOT Testimoniali. Testimonial May not be compelledii. Not Testimonial May be compelled (e.g., blood, DNA) does not violate 5th d. Couch Only if (a) the Clients 5th Amendment Privilege would have protected documents against disclosure while in the Clients possession, and (b) Client has transferred the documents to his Lawyer in confidence to obtain legal advice, then the Attorney-Client Privilege protects the documents against compelled production while the Lawyer has possessione. Use Immunity i. Doe (D) If the evidence is Testimonial and Self-Incriminating, it may not be Compelled unless Govt grants Use Immunity (e.g., Prosecutor may not use any Testimonial aspects of the act of production)1. Prosecutor is barred from offering evidence that D produced the documents, but Prosecutor may offer the documents themselves if Govt has independent proof of the 3 Testimonial Aspects of the act of production:a. Document Existed,b. D possessed the Item, andc. The Documents produced are the ones Govt demandedii. Hubbell (W) Govt may compel a Witness to disclose the existence of incriminating documents only if the Govt is able to describe the documents w/ reasonable particularity1. If Witness produces those incriminating documents pursuant to Use Immunity, the Govt is unable to use them to prepare criminal charges against Witness3.) Family Privilegesa. Spousal Testimonial Privilege and Confidential Communication Privilegei. Spousal Testimonial Privilege:1. Applies ONLY in Criminal cases2. Crime-Fraud Exception applicable3. Trammel Testifying-Spouse has the choice to testify against D or nota. Only Witness-Spouse has the Privilege4. Facts and Communication are covered5. Marriage goes backward Covers statements made before marriage6. Does not survive the marriage7. Email/Phone calls apply (but see Waiver)8. Waiver If 3rd person hears/sees communicationii. Marital Communication Privilege1. Applies in Criminal and Civil cases2. Crime-Fraud Exception applicable [Wolfe]a. Snapshot In determining whether Marital Communication Privilege applies, take a snapshot of when the Communication was made [Montgomery]3. Etkin Both Spouses have the Privilege4. Only Communications (not Facts) are covered [Rakes]5. Marriage goes forward Statements made before marriage NOT covered6. Survives the Marriage (unless its a Sham Marriage)a. Anything said during the Marriage will survive even Death and Divorceb. Anything said after the marriage (e.g., Divorce) is not privileged7. Emails/Phone Calls apply (but see Waiver)8. Waiver If 3rd person hears/sees the communicationa. Key Factor Does the person asserting Privilege have Notice that a 3rd Person will hear/see the communication? [Etkin]b. Parent-Child Privilege NO Parent Child Privilege [In re Grand Jury Proceedings]4.) Governmental and Other Privilegesa. Informant Privilege If Govt uses an Informant in crime-fighting, Govt can prevent the Disclosure of that Informants Identity [Roviaro]i. Only Govt (Not Informant) has Privilegeb. State Secrets Privilege Govt has Privilege against revealing Military Secrets [Reynolds]i. Only Govt (Not Private parties) has Privilegec. Executive Privilege NO Absolute Executive Privilege [Nixon; Clinton]i. Public Right to Info trumps Executives right to have Confidential Communicationsii. Executive Privilege may apply when oversight of Executive would impair Executive Branchs National Security concerns