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Evidence - Gottesman
FRE 606- What juries can do after trials and after deliberation.......................................................................................2
Relevance - FRE 401 and 402...............................................................................................................................................2
Conditional Relevance - FRE 104(a) (b), 403.......................................................................................................................2
Rule 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other........................................3
Probability Evidence - FRE 403............................................................................................................................................4
Stipulations - FRE 403..........................................................................................................................................................4
Specialized Rules of Relevance - FRE 407-411....................................................................................................................5
The Ban on Character Propensity Evidence from Crimes and Other Acts - FRE 404(b)................................................7
Ways Around the Propensity Box: FRE 404(b)(2)..............................................................................................................8
Permissible Routes THROUGH the Propensity Box..........................................................................................................9
Huddleston Standard for Admitting Other Acts...............................................................................................................10
Proof of the Defendant's and Victim's Character - 404(a)(2)(A), 404(a)(2)(B); 405......................................................11
Habit Evidence - R406........................................................................................................................................................12
Credibility Impeachment - FRE 608 (allowed by FRE404(a)(3))....................................................................................13
Credibility Impeachment by Evidence of a Criminal Conviction - FRE 609..................................................................14
Juvenile Convictions - FRE 609(d).....................................................................................................................................16
Rehabilitation and Extrinsic Evidence - FRE 608(a)........................................................................................................16
Chapter 5: Rape Shield Law...............................................................................................................................................17
Historic Backdrop (318)................................................................................................................................................17
The Shield Law (323)....................................................................................................................................................18
The Law in Force (331).................................................................................................................................................18
A Glance at Civil Cases (360).......................................................................................................................................20
Hearsay................................................................................................................................................................................. 21
Definition of Hearsay: R801 (a) - (c)..................................................................................................................................21
Hearsay Exceptions: Statements of Party Opponents - FRE 801(d)(2)...........................................................................23
Hearsay Exception: Past Statements of Witnesses - FRE 613, 801(d)(1)........................................................................25
Past Statements for Truth of the Matter - R801(d)(1)......................................................................................................25
Hearsay Exceptions That Apply Only When Declarant is Unavailable - FRE 804........................................................27
Hearsay Exceptions That Apply Whether or Not Declarant is Available - FRE 803.....................................................31
Hearsay and The Confrontation Clause: From Roberts to Crawford...............................................................................38
Hearsay and the Confrontation Clause: Post Crawford...................................................................................................40
Other Confrontation Clause Issues....................................................................................................................................43
Compulsory Process............................................................................................................................................................44
Lay Opinions:.......................................................................................................................................................................46
Expert Testimony.................................................................................................................................................................47
Areas that experts can't testify on......................................................................................................................................47
The Proper Basis of Expert Testimony - FRE 703, 705....................................................................................................49
The Daubert Reliability Threshold for Expert Testimony...............................................................................................50
Generally; Psychotherapist, Medical, Reporter Privileges - FRE 501; Proposed FRE 504...........................................52
Clergy, Attorney, Familial Privileges - Proposed FRE 506, 503, 511, 505......................................................................53
Quasi-Privileges - FRE 407, 408, 409, 410, 411.................................................................................................................55
Authentication and Best Evidence - FRE 901, 902, 1001, 1002, 1003, 1004....................................................................58

1 PART I: RELEVANCE
FRE 606- What juries can do after trials and after deliberation
-a jury may not testify about any statement or incident during deliberations, the effect of anything on that juror's vote, or any juror's mental processes
-exceptions:
-if extraneous prejudicial info was improperly brought to the jury's attention
-if outside influence was improperly brought to bear on any juror; or
-a mistake was made in entering the verdict on the form

Relevance - FRE 401 and 402

1. Rule 401 - Test for Relevant Evidence a. it has a tendency to make a fact more or less probable than it would be w/out the evidence (Probative),

i. What are you trying to prove with this evidence and does this evidence prove that?
AND
b. the fact is of consequence in determining the action (Material)

i. Is the thing you are trying to prove important in determining the case?

ii. Must look to substantive law to know what issues are important iii.
Always material if it goes to motive, alibi, means, opportunity, credibility c. Incredibly lenient i.
Admissible if it has any tendency to make a fact more or less true ii.
"A brick is not a wall"

2. Rule 402 - General Admissibility of Relevant Evidence a. Relevant evidence unless the constitution, a fed statute, these rules, or other rules prescribed by the
Supreme Court (FRCPs) say otherwise b. Notice that is says irrelevant evidence is not admissible. That does not mean that relevant evidence is always admissible

3. United States v. James (9th Cir 1999)
a. Mom is charged with aiding and abetting manslaughter for giving daughter gun who then shot and killed boyfriend. Judge allows mother to testify that Ogden (bf) committed a bunch of violent crimes. Did not allow court documents confirming that he did commit those crimes.
b. The risk is that the jury is going to think she is making up the stories he told her. Juries are very disbelieving of defendants in criminal trials.
c. This bolsters credibility. It makes it more likely that he told her these stories because they are true.

Conditional Relevance - FRE 104(a) (b), 403

1. R104(a) - the court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
a. determined by a preponderance of the evidence (Huddleston)

2. R104(b) -Relevance that Depends on a Fact- When the relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
a. Requires that the proponent introduce sufficient evidence that the jury could reasonably find the conditional fact by a preponderance of the evidence b. Role of the judge i.
Judges make the preliminary determination whether there is enough evidence in the record sufficient to support a finding of fulfillment of the condition (low standard), it can be admitted
(even if the jury later finds otherwise)

ii. Judge may also introduce the conditionally relevant evidence subject to the introduction of further evidence to establish the condition. If such evidence is not introduced, the judge will instruct the jury to disregard it.
2 The judge will issue a limiting instruction under FRE 105 informing the jury that they should only consider it if they find that the other fact is true iv.
If the objection is made, the judge will weigh the evidence under Rule 104(b). If there is no objection it will be judge under the bare relevance standard of 401.

3. Cox v. State (1998) Indiana - R 104(b)
a. Prosecutor wants to introduce that Cox knew about the bond hearing for his friend.

i. Motive: Leonard's daughter alleged that Hammer molested her. Cox was good friends with him.
At the bond hearing, Leonard reported additional allegations which has resulted in his friend
Hammer being in jail.
b. Why is this a problem of conditional fact? Trying to prove that Cox knew about the bond hearing. The motive only exists if Cox knew about the hearing.

4. How do we know when there is no problem of conditional evidence?
a. Fisher suggests that attorneys do not make these objections enough because they are not witty enough. But in most case, they are pointless.

i. "your honor that's only relevant if the witness isn't blind!"

ii. Although theoretically you can find conditions for all facts, in reality, only in certain circumstances is this worthwhile tactic b. Fisher also suggest that the tests for relevancy and conditional facts are the same. But that's not quite true i.
First, assuming the conditional fact exists, would this be relevant?

1. Apply test of relevancy - any tendency to make it more likely?

ii. But then you still have to ask if the conditional fact exists.

1. Could a jury find this fact by a preponderance of the evidence.

iii. Rule 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other

1. R403 - The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, needlessly presenting cumulative evidence (when probative value is low, the prejudice doesn't need to be all that high)
a. unfair prejudice - when a fact finder might react to aspects of evidence in a way that is not supposed to part of the evaluative process i. Ways that evidence may be unfairly prejudicial:

1. Jury might convict the D just because they believe he is a bad person or for a different crime even if they don't think he is guilty for this one

2. Or he's the kind of person who would commit this sort of crime b. Confusing to the jury i. Bringing up a past conviction can confuse the jury by taking away their attention on the current crime c. Waste of time i. 7 witnesses that say the same thing d. needlessly cumulative (US v. James) - evidence that Ogden actually committed the crimes went to the reliability of her testimony. It was cumulative, but not needlessly e. judge has discretion and it's rarely reversed

2. Ways to reduce prejudice a. Limiting instructions b. Altering evidence

3. State v. Bocharski (Arizona 2001) Gruesome murder photos of the body a. If a photo is of a nature to incite passion or inflame the jury the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit's probative value. Court decides some are admissible and others were introduced to inflame the jury and therefore not admissible b. Theory of unfair prejudice here:

i. If the crime is so gruesome, the jury may be more willing to find someone guilty for the crime

1. Prosecutor may have introduced ev that makes it likely, but not beyond a reasonable doubt

2. But they may not want to acquit after seeing the photos and ignore the instruction to acquit.
The jury is going to be willing to convict with less persuasion because of how gruesome the crime is.

ii. Cts to some extent are going to allow this bc ppl tend to believe that no one is capable of this c. What was the reason for not admitting the last two?
3 i.

Prosecution wanted to introduce them to show how deep the wounds and the angle of the wounds. They also did not introduce testimony about that.

ii. These photos were of stuff the pathologist did - not what the murder did.

iii. Had little tendency to establish any disputed issue in the case d. Why is the conviction still affirmed? deemed to be harmless error and the jury still would have convicted him without seeing the photos e. Concurrence says we should never forbid grisly photos - we can trust juries with these photos

Probability Evidence - FRE 403

1. People v. Collins (Sup. Ct. Ca. 1968)
a. Rule: Math odds are not admissible to ID a defendant if the odds are based on estimates whose validity has not been demonstrated, or if the mathematics distorts the jury's role of determining guilt or innocence

Stipulations - FRE 403

1. United States v. Jackson (E.D.N.Y 1975) Weinstein a. False ID is evidence of consciousness of guilt, but there is a risk of unfair prejudice b. Rule: A court may exclude prejudicial evidence that is also of high probative value if the defendant enters into a stipulation concerning the facts that the evidence would show.

2. Old Chief v. US (SCOTUS 1997) Souter a. Probative Value: what other evidence is already in the record? Do you have other ways to prove the fact?
b. Facts: D charged with assault with a dangerous weapon & felon in possession. D did not want jury to know about prior felony (assault) D offered to stipulate that he had committed a felony in order to keep the details of his prior conviction record out of court. P wanted to introduce the conviction record.
c. Held: the unfair prejudice of the full record of Old Chief's prior conviction outweighs its very limited probative value and thus is not admissible. It is a violation of 403 to tell the jury what the prior felony was if the D is willing to stipulate that he committed a prior felony d. Dissent: Jury presumably followed instruction and so instruction offset prejudice.

3. Bottom Line a. When there's an alternative substitute with the same probative value and lower prejudice, you should introduce that

4. Discussion of Old Chief a. Can juries really expunge information? We wouldn't need section 403 at all if juries could really just follow the instruction they were given  We would just need a relevancy rule i. Reflects the judgment of the drafters of the rules and congress that we do have to keep probative evidence from juries because it is outweighed by the risk that juries will misuse it b. Prosecutor wants to tell story without admissions and stipulations - why? Prosecutors are entitled to tell their case the way they want to (while still using R403) because:
i. Prosecutor wants the jury to hear the full evidence

1. Use of evidence for other things, other elements of the case

2. People absorb info when they hear a story as opposed to something abstract ii. Motivating juries to be willing to convict people who are guilty

1. Need to show how nasty the crime was may be imp in their willingness to send him to jail iii. Satisfying jury's expectations

1. Where's the gun? where's the body? why am I not hearing the full story?

2. May hold it against the party seeking to introduce it iv. Court really wrote why particular evidence has probative value c. How does Old Chief affect Jackson case (if happened after) (p.80) - D fled and arrested in GA w/ a fake ID

1. Stipulation that he was in GA with fake ID Does this deprive the P of narrative?

2. Would it have been an abuse of discretion to allow the full information in?
a. Rule 403 allows a balance - Old chief doesn't take away the use of R403 b. Prob within the zone of discretion, what the J did, but maybe could have let whole thing in (especially if the prosecutor didn't need it and the probative value is low)
i. If Prosecutor really needed it, J may let it in bc it has more probative value ii. But would have to tell the jury that the arrest itself is not of value - just to show how the cop found out that he had a fake ID
4 c. But, if the prosecutor is close and not quite there, this evidence may be more dangerous than if the prosecutor had really proved his case i. Obviously what the defense would say ii. Risk that this could improperly tip the balance is serious if close iii. Ultimately, judges have to determine what they think is best

Specialized Rules of Relevance - FRE 407-411
Rulemakers and congress didn't want to leave this to 403. Some things should be automatically excluded. The rationale that in these categories the risk of unfair prejudice always outweighs is quite thin. Really a policy argument is driving these.
FRE 407 Subsequent Remedial Measures  don't want people to not fix things
FRE 408 Offers to Compromise  want to create a zone of free discussion and want people to settle
FRE 409 Medical  Don't want to discourage people from making gracious offers
FRE 410 Plea-Criminal create a zone of free discussion like 408
FRE 411 Liability  risk of unfair prejudice outweighs probative value because jury would be more willing to find them liable (like 404 whose primary function is that the risk of unfair prejudice outweighs probative value)
Reason we do this at the end
 easy to think about them as privilege
 most of these rules are designed like 404  these are admissible for other purposes (like around the propensity box)
FRE 407 - Subsequent Remedial Measures

1. Designed like 404  only bars introduction of this evidence if it's offered to prove negligence, culpable conduct,
defect in a product or design, need for warning or instruction. But it can be introduced for another purpose (list not exhaustive) such as impeachment, proving ownership, control, or feasibility of precautionary measures a. Example of control RR used defense that the city is supposed to put red light at crossing, but the day after the crash they put a red light there. That evidence could be used, but with limiting instruction under
R105 that they can't use it for negligence, just that they had control b. feasibility of precautionary measures  product design cases. D denies that they could have made the product safer. Then you can introduce evidence that they redesigned the product. The D has to put this in issue though.

2. Be careful about how you phrase something (impossible vs. not the best treatment)

3. Last sentence of rule - "court may admit this evidence for another purpose such as impeachment or - if disputed -
proving ownership, control, etc.
a. if it wasn't disputed, then this would be allowed in every case. Do want P to undermine policy reasons for having R407

4. Problem 2.2 (p. 110)
a. Court will not deny that the machines sold to army corp engineers were different. Could say this is impeachment, just another purpose, or could say that even if it is for the same purpose, they opened the door to this. D can't use 407 as a sword. Judges don't like when D try to hide behind it.
b. R102 - don't allow people to take advantage of the system. Courts frequently use 102 with these
"quasi-privilges"
c. When you say things in opening statement, have to put on evidence to support it. Normal remedy is to ask the judge to tell the jury that there is no evidence. But here, you need more.
FRE 408 - Settlement Discussions or Offers to Compromise(Civil Cases only!)

1. Bars compromise for a disputed claim and conduct/statements in negotiations to prove validity or amount of the claim

2. May be admitted to prove things like witness bias, lack of undue delay, etc.

3. Must cover a disputed claim and doesn't cover a frivolous defense

4. car accident  you get out and say "I'm so sorry I'm careless"  not covered because there's no claim

5. statements you make before the claim are not covered. Claims can be insurance, lawsuit a. Pretty much any time you reach out to the other party is considered an offer to compromise

6. it would unfair to claim they breached the contract, but you can't put in the ev that we told you you could do this.

7. Problem 2.4 (p. 117)
5 a. document prepared for the settlement discussion, even though prepared by 3 rd party, is protected by
R408.
b. case might be different if the document wasn't prepared for settlement and was created for something else.
c. BUT if you disclose what was said in the settlement negotiations or the same facts, like other privilege rules, those facts are admissible.

8. Subsequent litigation a. Cant introduce liability with one party in a case with other parties i. But you don't want to say anything in the context of a settlement that you would then contradict in later litigation

1. Could come in for impeachment
FRE 409 - Offering to Pay Medical Bills  AP 34

1. Don't want to discourage people from offering to pay medical bills.

2. Applies only to the offer to pay, not the contemporaneous statements you said
FRE 411 - Liability Insurance  AP 35

1. Can't introduce that someone was insured to prove the person acted negligently or wrongfully. It can be introduced for other purposes such as bias or prejudice, proving agency, ownership, or control.
a. Williams v. McCoy - she could introduce evidence of insurance to explain why she called a lawyer before the doctor. Not what 411 is to guard against.

2. Almost automatic R403.

3. Problem 2.7 a. owner childcare center doesn't report child abuse and her defense is that she didn't know about the abuse and wants to intro the fact that she has liability ins to show she had no motive to conceal this. Does R411 apply? Literally, yes. But the policy underlying R411 is not applicable here.
b. A ct would likely say that this is admissible because it doesn't fall within the purpose of the rule.
c. also a potential constitutional problem  Chambers argument (arguable if this is critical or not)
FRE 410 - Plea Bargains (Criminal cases only!)

1. Must be against the defendant!

2. Bars:
a. Guilty plea later withdrawn b. Nolo contendere plea c. Statements in plea proceedings d. Statements in plea talks with prosecutor

3. All four prohibited uses require that the D tells what he did. We want defendants to feel comfortable to talk. Want zone of privileged communication without fear of external consequences.

4. What about if you talk to a cop?
a. If prosecutor authorized cops to tell them they will get a reduced plea if he tells us what happens  courts inclined to have this covered by R410 b. But if its not authorized, clearly not covered by R410 because there wasn't apparent authority (I'll try to get the prosecutor to reduce your sentence)
c. If cop isn't authorized by says the prosecutor will go light on you (not that we'll try)  grey area; He has apparent authority. Courts divided over whether this is in the scope of R410.

5. Exceptions a. D introduces part of the statements, Prosecutor can introduce the whole thing if fairness requires b. Problem 2.8 - what if Prosecutor offers lesser sentence and D wants to introduce it to show his consciousness of innocence?
i. R410 doesn't literally apply. Only applies to prosecutors.
ii. But courts have said the policy of R410 applies.
iii. See Adv. Com. notes p. 78  suggest they should have written the rule to also include D
iv. Some courts sometimes allow it, but not always c. Can introduce the statements for perjury in a separate suit  can use non oath statements to show perjury of oath statements

6 PART II: CHARACTER EVIDENCE
R404:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such ev that the prosecutor intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

The Ban on Character Propensity Evidence from Crimes and Other Acts - FRE 404(b)

1. R 404 restricts a judge's discretion under 403 - when a piece of evidence fits under 404, a judge must exclude it!

2. R 404(b) covers evidence of past acts and previous crimes a. If that is being admitted to show propensity to commit this crime, not admissible, But is ad. for other uses b. (a) and (b) apply to any person - D, Ws, ppl who are not in the case - victim

3. Evidence of criminal propensity is relevant and probably wouldn't be barred by 401 or 402. So why bar it?
a. Policy reason - juries might punish them for the propensity - keep you off the streets b. juries give it too much weight c. Jury has to charge you based on blank slate d. Lowering the regret matrix - even if not proved beyond a reasonable doubt, this might lower the bar - think he probably did it and he's a bad guy so convict him anyway e. The probative value is always outweighed by the prejudice f. Exceptions:
i. D can put in evidence of his good character

1. But that opens the box and then the prosecutor can put on evidence of his character ii. Impeachment - propensity to lie iii. Crimes alleging sexual misconduct, prosecutor can introduce propensity to commit sexual crimes iv. Others

4. People v. Zackowtiz (1930) - Before the FRE
a. Why was the prosecutor allowed to show that he had 3 guns and a tear gas container? Prosecutor introduced the evidence and then argued to the jury the very thing he couldn't - that the D is a person with criminal propensity. This fits exactly R404(b).
b. Prosecutor can use the evidence for other purposes - just can't use it for propensity i. He made a selection of his guns - evidence of premeditation - Pound's dissent ii. Problem though is that this is not how the prosecution tried to use this evidence. They did not make this argument

Ways Around the Propensity Box: FRE 404(b)(2)

1. Knowledge a. HYPO: Hacked previous computer. Can't use it to show he's a hacker; Can use it to show proof of knowledge of how to hack.
i. Very probative: specialized knowledge.
ii. Instruction: Take the evidence that he knows how to hack, don't make inference that he's the kind of person that would commit the crime repeatedly iii. Stipulate "I have the knowledge to penetrate computer systems"? What about "this computer system?" But knowing he did it would be more probative.
b. HYPO: Previous drug deal conviction. Can't use it to show he's a druggie; can use it to show he has knowledge of drug trade.
i. Probative: Narrows the suspects, but not too dramatically. Prejudice: Get him off the street! Weak 404 victories end up on prejudicial side of 403.
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