Evidence Outline Fall 2018
Evidence Outline Fall 2018
Evidence Outline Fall 2018
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Fall 2018 → Evidence (Lund) Wade
CHARACTER EVIDENCE
Rule 404 (lack of relevance is NOT a reason to prohibit against use of character or other acts)
404 prohibits using evidence to show character for purposes of showing action in conformity
with that character. NO PROPENSITY REASONING!!
- Applies in civil and criminal cases
- Applies to attempts to prove plaintiff’s AND defendant’s character
- Rule itself doesn’t’ define character.
2 steps:
1. Am I allowed to prove character? 404(a)
2. How can it be proven? 405(a) and 607-609
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a person’s other acts in order to prove something OTHER THAN the person’s
character.
- Whenever judge admits evidence under 404(b)(2)→D should request, and
limiting instruction given! Rule 105 ex) evidence is admissible only to show the
D had the necessary know-how to commit the crime, not to show that he is the
sort of person to commit a crime like this (sample instruction pg 156). If judge
doesn’t think the limiting instruction will be effective, can exclude under R403
- **on exam do NOT refer to 404(b)(2) as an exception because it’s NOT
exception to the ban on character evidence because they DO NOT INVOLVE
PROVING CHARACTER AT ALL!!. Aren’t using to show character so proving
something else.
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• Idea that someone always acts a certain way and therefore they acted like that
on this particular occasion too. Not saying they have a tendency to act a certain
way…they ALWAYS acts like this.
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Fall 2018 → Evidence (Lund) Wade
for it, whichever is later. (latest from date of conviction OR final release). Evidence of the
conviction is admissible only if:
(1) its probative value (of that conviction as to the witness’s truthfulness), supported by
specific facts and circumstances, substantially outweighs its prejudicial effect; and
• This says excluded! MUST show probative value of witness’s truthfulness
substantially outweighs its prejudicial effect.
• If witness is D, will be incredibly hard to show.
• If witness is not D, must show strong probative value to that conviction and its value
substantially outweighs prejudicial effect, but not prejudicial to the witness. Must be
prejudicial to the prosecution or defendant.
(2) the proponent gives an adverse party reasonable written notice of the intent to
use it so that the party has a fair opportunity to contest its use.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under
this rule only if:
(1) it is offered in a criminal case; never admissible in civil case
(2) the adjudication was of a witness other than the defendant; never admissible to
impeach a testifying defendant
(3) an adult’s conviction for that offense would be admissible to attack the adult’s
credibility; rarely admitted to impeach other witnesses and only if this is the type of
conviction that would be admissible if it happened while witness was an adult (ex, perjury)
(4) AND admitting the evidence is necessary to fairly determine guilt or innocence.
Lund says very hard to meet, would be saying this is a very important witness whose
testimony is critical to the case and there is nothing else we have to impeach with but most
cases not admissible.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an
appeal is pending. Evidence of the pendency is also admissible.
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Fall 2018 → Evidence (Lund) Wade
Credibility: if defendant’s “credibility may be a central issue in the case, [that is] a factor
supporting admission.”
- If it’s important D testify to support himself…goes against. But if credibility is very
important…is in favor. (So these two off set each other…counterbalance)
Rule 413 & 414: 415 same except for civil cases of sexual assault or child molestation.
(a) permitted uses: In a criminal case in which a defendant is accused of a sexual assault/child
molestation, the court may admit evidence that the defendant committed any other sexual
assault/child molestation. The evidence may be considered on any matter to which it is relevant.
- Govt/P must make prior disclosue of intention to rely on this evidence
- Court may still exclude under 403
HEARSAY
Rule 802: Hearsay is not admissible unless any of the following provides
otherwise:
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
So Hearsay is INADMISSIBLE unless an exception applies!!
- Issue of admitting hearsay is that reliability has not been tested!
- Didn’t tesitfy under oath, in presence of trier of fact, subject to cross examination.
On cross examination can test credibility by exploring the declarant’s:
(a) Perception
(b) Memory: whether they’re accurately remembering what they saw
(c) Sincerity
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(d) Narrative ability: can they accurately what they saw into words
1. Statement defined in 801(a) as: oral or written assertion or nonverbal conduct if person
intended it as an assertion.
➢ Why is the statement being offered?
o Statement offered to prove the truth of the matter asserted in the statement?
▪ If yes…hearsay → inadmissible unless exception applies
▪ If no…admissible. Common non-hearsay purposes:
• to show effect statement had on person who heard the statement
• to show notice to person who heard the statement
• to show “legally-significant language” was spoken or written
o contract was made, defamation by blog post, threat on pres
• ex) to show ineffective assistance of counsel: D wants to admit
statemetn by another attorney to D’s attorney, isn’t hearsay
because not admitted to show truth of statement, but that statement
provied notice of potential defense to D’s attorney and he failed to
pursue it, and that failure to pursue was ineffective assistance
But judge can decided, possible 403 objection from opposing party.
o Statement can be hearsay when offered for one purpose, but not when offered for
another purpose. →NEED limiting instruction
2. Prove the truth:
➢ If trier of fact has to believe the declarant for the evidence to have value = hearsay
3. Assertion
➢ Words or conduct were intended by the person to be an assertion
o Fisher/text says; Could this conduct be a lie? Cause could only be a lie if someone
intended to assert something by the conduct.
➢ Oral or written expressions can be assertive even if not spoken as we normally think
o Can be implied assertion:
▪ Are you going to clean your room? Asserting room is dirty
▪ Clean your room. Asserting room is dirty
→ JUDGE decides if requirements for every hearsay exception have been met using
preponderance of the evidence standard!
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Fall 2018 → Evidence (Lund) Wade
• If cross examiner implied the witness had some reason to be lying which had
recently developed, then the prior C statements would be admissible to rebut
that suggestion
• Can come in to bolster and for it’s truth
(ii) to rehabilitate the declarant's credibility as a witness when
attacked on another ground; or
• Most commentators believe it will apply when the witness’ credibility has been
impeached on some other non-character ground (inconsistency, sensory
deficiency, memory issue, vision issue) → prior C statement may be admissible
to restore credibility
• These are allowed in for truth because it’s a hearsay exception
(C) identifies a person as someone the declarant perceived earlier.
Id • Identifying attacker, DECLARANT MUST BE TESTIFYING AT TRIAL and
subject to cross-examination at trial!!
• Evidence of a statement of ID that witness made out of court can be used for its
truth at trial if Declarant testifies at trial and subj to cross!
• “About 6ft tall” is statement of ID. statement can also be that this is not the
person, or statements that don’t match the suspect.
• a composite sketch made from statements is admissible…ugh, good argument
against this though. Error in interpreting and translating to a drawing
• Doesn’t have to point to one particular person. Just has to help identify.
• May be question about this and witness NOT testifying…can’t use.
(2) An Opposing Party’s Statement. The statement is offered against
an opposing party and:
(A) was made by the party in an individual or representative capacity;
• “Admission by party opponent” applies to *any statement made by a party
Adm • AND is being offered by the opposing party. *key, must be offered by an
opposing party. In other words, a party can’t introduce his OWN statement
under “an opposing party’s statement”
• don’t need personal knowledge for admissions
• admissions can be in form of opinion!!
(B) is one the party manifested that it adopted or believed to be true;
AA • Adoptive admissions is when someone else makes the statement and you agree
with it, then it effectively becomes your statement
• Preconditions for adoptive admissions:
o Person heard and understood the other person’s statement
o Person was at liberty to respond
o Circumstances called for a response
o Adoption by silence: person failed to respond (or responded but didn’t
deny)
• Ex) mom says “did you rob that store, don’t like to me” and son says
“yes”…that’s an adoptive admission because he could have denied but instead
2 he affirmatively adopted the mothers statement
A
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(C) was made by a person whom the party authorized to make a
Expressly statement on the subject; (best agency)
Unidentified man an agent?
authorized • If agent makes statement it can be used against - Woman calls repair number
agent and principle because agent was expressly - Man shows up, does repair
authorized to speak on behalf of the - Man makes statement
principle/employer - Ct must decide if he was agent
- Statement was about his job
(D) was made by the party’s agent or - Statement coming in
w/in scope of
the agency employee on a matter within the scope of
that relationship and while it existed; or (not authorized)
• If agent makes statement within the scope of their agency and it was made while
an agent, not before hired or after fired, can be used against employer
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Fall 2018 → Evidence (Lund) Wade
(5) is absent from the trial or hearing and the statement’s proponent
has not been able, by process or other reasonable means, to procure
attendance or testimony:
(A) the declarant’s attendance, in the case of a hearsay exception
under Former Testimony or Forfeiture; or
o If invoking either of these…must show couldn’t get appearance at TRIAL
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Dying Declaration or Statement against Interest.
o If invoking either of these…must show couldn’t get to Trial or depos. testimony
forfeiture clause → But this subdivision (a) does not apply if the statement’s
proponent procured or wrongfully caused the declarant’s unavailability as a
witness in order to prevent the declarant from attending or testifying.
• You can’t make the witness unavailable and then try to use the statement
(b) The Exceptions. The following are not excluded by the rule against
hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
Ft (A) was given as a witness at a trial, hearing, or lawful deposition,
whether given during the current proceeding or a different one; and
(B) 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 examination.
• Former testimony requires:
o declarant be unavailable
o that the party AGAINST WHOM the statement is being offered had an
opportunity to question the declarant at the former trial/proceeding/depos
▪ So grand jury testimony is NEVER admissible b/c D couldn’t cross
examine during grand jury proceeding
o AND that the party had similar motive to develop the testimony at prior trial
▪ Similar doesn’t mean identical
▪ Based on similarity of the underlying issues and context/objective of
quesitoning
(2) Statement Under the Belief of Imminent Death. In a
Dd prosecution for homicide or in a civil case, a statement that the
declarant, while believing the declarant’s death to be imminent, made
about its cause or circumstances.
• Requirements:
o Only in homicide case (declarant dead) or civil cases (maybe not dead)
▪ no other types of prosecutions
o Declarant made statement with “hopeless expectation that death was near”
▪ SUBJETIVE standard→what declarant thought
o only statements that were “made about the cause or circumstances” of death
• Allow out of necessity because (most cases) declarant is dead.
• Allow because predeath statement is reliable, not gonna lie if gonna meet God
• But declarant doesn’t have to die!!
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• The state of mind at time statement was made is what matters…not that declarant died
after he said it!!
(3) Statement Against Interest. A statement that:
Sag (A) a reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it was so
contrary to the declarant’s proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant’s claim against someone
else or to expose the declarant to civil or criminal liability; and
• Would a reasonable person make the statement if it wasn’t true?!
• And must be so contrary to proprietary or pecuniary interest
• Statement must be considered as single declarations. See if each statement is against the
declarant’s interest
o Just because person is making broad self-inculpatory confession doesn’t make the
non-self-inculpatory parts of the confession credible.
o Ex) defendant told cop: “ask maggi, it was her idea”
▪ Acknowledging he knows because didn’t deny→against his interest
▪ Shifting blame to maggi → isn’t against his interest.
▪ Likely will allow officer to say when asked about involvement, he didn’t
deny. Anything that brings in magnolia isn’t against his interest. but
because it’s his own statement to officer, can use whole statement against
him, but can’t use statement against maggi.
(B) is supported by corroborating circumstances that clearly indicate
its trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
• For criminal case, if statement exposes declarant to criminal liability then we require
corroborating evidence or declarant might just make stuff up
• The accused’s own testimony is not sufficient to corroborate!
(6) Statement Offered Against a Party That Wrongfully Caused
the Declarant’s Unavailability. A statement offered against a party that
F wrongfully caused — or acquiesced in wrongfully causing — the declarant’s
unavailability as a witness, and did so intending that result.
• If you made the witness unavailable, you forfeited your right to confront the witness and
any right to hearsay objection
• Requirements:
o Must have intended to make unavailable, but doesn’t require you intended them to
be available for tat particular case
o It’s enough that declarant was just a potential witness, not that the witness was
already part of a proceeding
• Declarant’s statements admissible against person who participated in a conspiracy to
silence the declarant even if the person didn’t himself engage in wrongdoing
• Any significant interference with the declarant appearing as a witness at trial amounts to
wrongdoing→ persuasion, control, intimidation, threat, instructing witness to invoke 5th
• Under 104(a) the JUDGE decided whether there has been a forfeiture by a preponderance
o Procedure for all hearsay exceptions
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Fall 2018 → Evidence (Lund) Wade
The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining
Psi an event or condition, made while or immediately after the declarant
perceived it.
• Statements must describe or explain event or condition
• Stress on while or immediately after…consider how much time has passed
• Closer in time that you said it, less likely you’re lying or had time to think
• Ex) that car just ran the red light
(2) Excited Utterance. A statement relating to a startling event or
Eu condition, made while the declarant was under the stress of excitement
that it caused.
• Statements must be related to the startling event or condition (broader than P si)
• Subjective test: whether THIS DECLARANT was under stress of excitement or still
under that stress when statement was made?
o Passage of time is important in determining if still agitated by the event
• circumstances produced excitement that “temporarily stills the capacity for reflection”
and the conscious can’t make up stuff
• 911 calls in CDV cases is common when victim recants (maybe confrontation issues)
thenx (3) Then-Existing Mental, Emotional, or Physical Condition. A
statement of the declarant’s 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 or believed unless it
relates to the validity or terms of the declarant’s will.
• Intent to do something in future is statement of present state of mind
o Must be evidence of declarant’s OWN intent, not another person’s
• My back is sore, my neck hurts, pain in the bottom of my foot, I’m cold/tired/scared
• Must be CURRENT condition, not a past feeling/pain
o “I saw movie last night” might be admissible to show declarant THINKS he did
something last night if it’s relevant to sanity maybe, if in question. But NOT
admissible to show that he did see the movie last night.
• Rationale: there are no perception or memory issues with what is going on right now
• **if didn’t have this limitation, almost every hearsay statement could come in here!
o If I could say I saw the movie last night, then statement from memory would be a
state of mind. Oh no…memory not reliable!
Med (4) Statement Made for Medical Diagnosis or Treatment. A
statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis
or treatment; and
• Statements to family members might be covered if made to get medical help
• Rule doesn’t specify that the declarant must be the patient, just “made for” medical
diagnosis or treatment. Spouse/close family member has as much incentive to be truthful
because seeking treatment for sick person
• This covers seeing dr even if it’s for purposes of a lawsuit
• Statements need to concern WHAT happened, not WHO did it
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(B) describes medical history; past or present symptoms or
sensations; their inception; or their general cause.
• Covers 3 types of statements:
o Describing medical history
o Describing past or present symptoms or sensations (overlaps thenx)
o Describing inception or general cause of a disease or injury
• Who caused the injuries not reasonably pertinent to treatment unless maybe a
spouse or caregiver caused them…maybe then part of the care plan
(5) Recorded Recollection. A record that:
Prec (A) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in
the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received
as an exhibit only if offered by an adverse party.
- Only applies if witness is testifying
- Must have unsuccessfully tried to refresh witness’s recollection first
- Writing isn’t received into evidence…only READ
- Opposing party can admit the writing as evidence though
- Can’t put an assertion of accuracy in the writing. Witness must acknowledge at trial that
the statement was accurate.
- If witness is uncooperative→canNOT use this exception!!
(6) ”Business records” Records of a Regularly Conducted
Bus Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information
transmitted by — someone with knowledge;
- Statement must be from someone INSIDE The organization/company/business
o (rule doesn’t say so, but courts read it this way)
- If business record contains statement from someone outside the organization, must be
a separate hearsay exception to cover their statements, unless being admitted for a
nonhearsay reason (like notice, effect, etc)
(B) the record was kept in the course of a regularly conducted activity
of a business, organization,
occupation, or calling, whether or not REFRESHING RECOLLECTION (not being
for profit; offered as evidence→nothing to do with hearsay)
- Witness doesn’t remember well enough to make
- Whatever activity was a regular activity statement at trial
of the organization - Can refresh recollection at trial
(C) making the record was a - Witness can be shown anything that will help
regular practice of that activity; refresh, even if that item is inadmissible
o Item marked as exhibit but does not become
(D) all these conditions are shown evidence
by the testimony of the custodian or - Then witness testifies as to the refreshed
another qualified witness, or by a recollection, not to the contents she was shown.
certification that complies with Rule - 612(b) says adverse party is entitled to have the
writing, inspect it, cross examine witness about it
902(11)or (12) or with a statute and can introduce any part that relates to
permitting certification; and witness’s testimony as evidence
o So can view and ask about discrepancies and
introduce into evidence the contrary
18 statements
o If can’t refresh→use writing as evidence
Fall 2018 → Evidence (Lund) Wade
- Allows to show evidence from organization without calling any witnesses from the
organization
- Requirements can be satisfied by someone familiar with the record keeping of that
organization, doesn’t have to be person who prepared the record
(E) neither the opponent does not show that the source of
information noror the method or circumstances of preparation indicate a
lack of trustworthiness.
- These records are typically reliable because businesses rely on the reliability of
records
o UNLESS it was a record prepared in anticipation of litigation, then it
indicates a lack of trustworthiness as the investigation may be slanted
o party opposing admission has burden of demonstrating lack of trustworthiness
(7) Absence of a Record of a Regularly Conducted
Bus Activity. Evidence that a matter is not included in a record described in
paragraph (6) if:
(A) evidence is admitted to prove the matter didn’t occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the opponent does not show that the possible source of
the informationnor or other circumstances indicate a lack of
trustworthiness.
- Can submit business record to show the nonoccurrence of an event
o Ex) you didn’t return something because we don’t have a business record of it
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(B) neither the opponent does not show that the source of
information nor or other circumstances indicate a lack of
trustworthiness.
o The report is admissible as long as it contains factual findings unless the party
opposing admission demonstrates lack of trustworthiness
- Business records VS public records
o Public records are also business records because govmt is a business but
public records exception go beyond the business records exception in several
ways
- If question about police reports admissibility as evidence: NOT admissible in
criminal case for their truth, can come in to impeach if report is contrary to what
they’re testifying about now, could use to refresh recollection if officer can’t
remember.
(10) Absence of a Public Record. Testimony — or a certification
Pub under Rule 902 — that a diligent search failed to disclose a public
record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a
record or statement for a matter of that kind; and
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- Declarant must: -
801(d) 1. testify at trial
(1) 2. be subject to cross exam
3. about a prior statement
inconsitent - Can be used to impeach - doesn’t require Declarant
witness’ current testimony by was cross examined at time
showing he previously mad a he made the statement
contradictory statement. - grand jury statement IN
- As substantive evidence (to - Majority of cases only
prove the truth of matter admissible for
asserted in the statement) it impeachment.
must fall within a hearsay
exception
consistent - statement must have been
made BEFORE alleged motive
arose
Statements of Identity - evidence of a statement witness - about 6ft tall
made out of court identifying - can be statement that this is
defendant not the person
- or statements that don’t
match the suspect
- statement offered against
(2) opposing party
Admission by party - made by party in individual or - any statement
opponent representative capactiy - offered by opposing party
- don’t need personal knowledge - **can’t introduce OWN
- can be in form of opinion statement
Adoptive admission - One the party adopted or - Person heard and
believed to be true understood other person’s
- When someone else makes statement
statement and you agree with - Person was at liberty to
it, it becomes your statement respond
- Circumstances called for a
response
- Adoption by silence: person
failed to respond or
responded but didn’t deny
Agent - Authorized
o Can be used against agetn
and principal b/c agent was
expressly authorized to
speak of behalf of principle
- W/in scope of agency
o Made while an agent (not
beofre/after)
o Can be used against
principle
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Co-conspirator - Made during - Defendant and declarant
- And in furtherance weere part of conspiracy
- Not statements madeto LEO
- Doesn’t matter if criminal
charges for conspiracy
- Doesn’t matter if conspiracy
involved illegal/legal acts
- Contested statement can’t be
only evidence of conspiracy
-
Rule 804 Unavailable
Former testiomny - -
Dying declaration - -
Statemetn against - -
interest
forfeiture - -
-
Rule 803 (available or not)
Present sense - -
impression
Excited utterance - -
Then-existing MEP - -
condition
Statement for med - -
diagnosis or treatment
Recorded recollection - -
Business Records - -
Absence of Bus Record - -
Public Record - -
Absense of Pub Record - -
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