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Evidence Outline

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Evidence Short Outline

I. Evidence Fundamentals A. Purposes of Evidence Rules:???Accuracy: Jury could be misled or played. Efficiency: Limit what can be heard. Preserving relationships: Privilege - Doctors, Spouses, etc. Predictability/Consistency across trials: Otherwise, subject to ambush Externalities: Public policy considerations Distrust of Jury?
Self-Interest: Entry barrier - Makes lawyers more important

FRE 102: The rules should be construed to secure fairness, efficiency, truth, and justice.

B. Inviolability of Jury Verdicts Appealability:
? Can be raised on appeal even if not objected to, but hard.
? Abuse of Discretion --- great deference to trial court
? Harmless error. (Bocharski) Jurors as Witnesses
? FRE 606(b): Juror re: validity of verdict. No statement/incident during deliberations, effect on vote, or mental processes. Exceptions: (A) Extraneous prejudicial information improperly brought to attention; (B) outside influence; (C) Mistake in verdict form.
? Tanner: Jurors partying not admissible; O'Connor, narrow reading of 606(b). Partying not "external." Marshall: trial activity [?] deliberations.

II. Relevance A. Relevance Requirement FRE 401: Relevance = Probative + Material.
? Probative: Evidence having any tendency to make any difference to o (Tendency to make a fact more/less probable?)
? Material: any thing that matters in the case. o (Substantive law) o ? What is the inferential chain?
o James: Whether X committed crimes is relevant to whether X actually told Y that he committed them. FRE 402: Relevant evidence is admissible (except when provided by Constitution, statute, rules, Supreme Court). Irrelevant evidence is never admissible.

FRE 104(b): Conditional Relevance. If E1's relevance depends on E2, E2 must at some point be demonstrated (though can be done later) by a preponderance-of-the-evidence standard (Huddleston).
? Cox: only requires "sufficient to support a finding that the fact does exist." (X's motive for killing Y depends on X knowing that Z was denied bail hearing.) FRE 403: Court may exclude otherwise admissible E if probative value "substantially outweighed by":
? "unfair prejudice" (prejudice by itself isn't a problem), confusion, misleading jury, time waste, or needless cumulative E.
? [NOTE: FRE 105 allows for jury instructions on use/misuse: can be admitted for one purpose but not another.]
? Bocharski: Extra-brutal crime photos were too prejudicial under 403 because they added very little (barely discussed), but conviction upheld for harmless error.
? Old Chief: [?]'s willingness to stipulate to past felony conviction made the conviction inadmissible under 403 for felon-in-possession charge. Gov't refusal to accept stipulation just an attempt to get jury to convict [?] for bad character o However, gov't has general ability to structure case as it sees fit. o Rare: Essentially limited to felon-in-possession cases. o Narrative (Souter) Doesn't trust jury to follow limiting instructions. o O'Connor: Has less confidence in jury being neutral on the law, but trust jury to follow limiting instructions. Jury expectations ("Why isn't prosecutor describing...")

B. Specialized Relevance FRE 407: SUBSEQUENT REMEDIAL MEASURES (only applies to party opponent)
?? Barred purpose: liability (i.e. negligence, culpable conduct, defect, or need for warning)
?? Permitted purpose: any other purpose, e.g. impeachment or disputed ownership, control, or feasibility FRE 408: COMPROMISE OFFERS (and conduct or statements made during)
?? Barred purpose: liability, impeach by prior inconsistent statement (CAN use pre-existing documents brought into negotiation)
?? Permitted purpose: any other purpose, e.g. bias, prejudice, negate contention of undue delay, prove obstruction FRE 409: OFFER TO PAY MEDICAL EXPENSES (but not surrounding statements)
?? Barred purpose: liability
?? Permitted purpose: any other purpose, e.g. existence of injury, mitigation, or employment relationship FRE 411: LIABILITY INSURANCE
?? Barred purpose: liability/negligence
?? Permitted purpose: any other purpose, e.g. bias, prejudice, agency, ownership, or control FRE 410: PLEA DISCUSSIONS (i.e. withdrawn guilty plea, nolo contendere plea, admission to statement of facts, statements during plea negotiations to prosecutor)
?? Barred purpose: (a) against civil/crim D for any reason - note that D may introduce, but then gov't can introduce
?? Permitted purpose: (b)(1) completeness; or (b)(2) crim proceeding for perjury or false statement
??Waiver: prosecutors may force D to waive FRE 410 right as condition of negotiating [Mezzanatto]
??Reverse 410: D may introduce rejection of immunity as evidence of innocence [Biaggi]

III. Hearsay A. Hearsay Basics

801(a), (b), (c), 802. FRE 802: Hearsay is not admissible unless provided by statute, FRE, Supreme Court. FRE 801: Hearsay is
? Out of Court Statement o 801(a): person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. o Form: Number ("88" -> "hh" -> Heil hitler); non-verbal (two lights to Paul Revere). o Intention: Merely doing something, then acting [?] hearsay (Boat captain, Wright; Santiago didn't pack a thing; but Amchitka holiday, vacation intended to make a statement)
? To Prove the Truth of the Matter Asserted o Implied Assertion ("Laura ought to give that dog a bath" = dog is dirty) o Indirect Assertions: If making an inference that is based on the assertion, still hearsay o NOT TOMA: Effect on Listener ("Fire!", James); Notice; Verbal Act (intended as conduct); Knowledge (mother testifying about daughter describing room, Bridges); Impeachment (prior statement); To prove speaker's belief but not what speaker intended to communicate (letters about politics proves lucidity/competence, Wright v. Tatham) o James: Bf's Boasting, not to prove the violent crimes but to prove fright. Policy Considerations:
? Issues of reliability: (1) Perception; (2) memory; (3) narration; (4) sincerity.
? Countered by: (1) The Oath; (2) Demeanor Evidence; (3) cross-examination; (4) formality of proceeding/confrontation
? ? No reason to doubt sincerity in non-assertive conduct (sea captain versus Amchitka).

B. Hearsay Exceptions POLICY:
? Values: Necessity and Trustworthiness. MULTIPLE HEARSAY: Does each part of combined statement conform with a hearsay exception? FRE 805 FRE 801(d): 801(d)(1): Prior Statement by declarant-witness not hearsay if declarant-witness testifies with CX
? (A) Inconsistent and made under penalty of perjury ["I don't remember" may/may not be inconsistent; depends on if judge thinks witness is lying.]
? (B) Consistent and offered to rebut express/implied charge of fabrication or improper motive or rehabilitate credibility when attacked on other grounds.(C) Identifies a person as someone the declarant perceived earlier o Owens: Identification admissible despite memory loss; no guarantee that CX be meaningful. Scalia: hard to draw a bright line otherwise. Brennan (dissent): If he was dead, hearsay. So why does it matter?

801(d)(2): Opposing Party's Statement
? (A) Direct o Note: Rule of Completeness (FRE 106). Not admitted for TOMA, but context. No cherrypicking.

???(B) Adoptive: "party manifested that it adopted statement or believed it to be true" [e.g. forwarded email, nodding, reference letter, even silence if (1) heard; (2) could respond; (3) circumstances called for it; (4) failed to respond]
(C) Authorized: statement made by authorized person [Poos (board minutes); translation]
(D) Agent/Employee: (1) agent or employee; (2) within scope of relationship; (2) while relationship existed [Poos (note he left)]
(E) Co-Conspirator: (1) co-conspirator; (2) during conspiracy; (3) in furtherance of conspiracy [OR (1) conspiracy existed; (2) conspiracy included both the declarant and the party; (3) the declarant spoke during course of and in furtherance of conspiracy]. o FRE 104(a): Judge decides preliminary questions of admissibility of evidence, by preponderance of evidence std, unconstrained by FRE. o Bourjaily: Statement itself must be considered, but isn't sufficient to establish admissibility under (C) (authority), (D) (agency/employment), (E) (conspiracy). NOTE: 8th Circuit/ACN: Personal Knowledge (FRE 602) not required. Introduce whole statement if fairness requires. Testimony itself can establish personal knowledge POLICY: o Professor: Powerful evidence. Necessity, rather than extolling the reliability. The trade-off is worth it(?). Even though it might somewhat unreliable, trusting the jury to effectively weigh such evidence. o Book: (1) statement made against self-interest are unusually reliable; (2) parties cannot complain of their inability to cross-examine themselves; (3) "This is war": result of the adversary system

FRE 803: Exceptions applicable regardless of the declarant's availability
? 803(1): Present Sense Impression. (1) Description/explanation of event or condition; (2) during or immediately after. o Observations only. Requires Personal Knowledge (602). o Rationale: reliability arises from temporal proximity: (1) no memory loss; (2) sincerity from spontaneity
? 803(2): Excited Utterance. (1) Related to startling event/condition; (2) made under stress of excitement. o "Stress of excitement" is subjective --- different declarants have different reactions. o Broader in scope than PSI (relates to event, not describe); broader in time (DV stress can last months). o CC: Usually not "testimonial" since in the moment. o Rationale: similar to PSI, i.e. reliability from temporal proximity and spontaneity
? 803(3): Then-Existing Condition (State of Mind). Three statements allowed: (1) then-existing SOM (motive, intent, plan); or (2) emotional, sensory, or physical condition (mental feeling, pain, or bodily health); or (3) only when relevant to declarant's will, memory or belief to prove a fact remembered or believed o Narrower in scope than PSI (prove internal world, not facts); narrower in time (made concurrently, not after) o Looks to future [Hillmon (frontier letter to show future intent to go away - strengthen claim that declarant did go away)]; not to past [Shepard (belief of past event, husband poisoned declarant, inadm)]o Conditional intent admissible ["If I'm pregnant, I'll run away" + disappearance - adm to prove pregnancy]
o Circuit split on using declarant's SOM to prove third party's action: (1) some allow; (2) some exclude; (3) 2d Cir. requires independent corroborating evidence of third party's conduct [Larry: "I'm going to lunch with Angelo"]
o Memory/Belief for Will: "I changed my will to give the money to the kids." OK. o Rationale: (1) reliability from temporal proximity; (2) necessity of proving past intent (mens rea) 803(4): Medical Diagnosis/Treatment. (A, purpose) Made for and reasonably pertinent to medical

??diagnosis/treatment; and (B, scope) Describes medical history, past/present symptoms/sensations, their inception, or their general cause. o 2-part test based on rationale behind exception: (1) is declarant's motive consistent with rule's purpose (get effective medical treatment)? (2) is doctor reasonable to rely on info (if doctor relies, so can court)? [Iron Shell]
o Liberalized FRE allows statements implicating fault if necessary [Iron Shell (clothes/neck); elder abuse]
o ACN: NOT used to establish fault. ("Hit by a car" OK, "Fred hit me" no). o Ambiguity: Who can make statement (parent, spouse, friend)? Who can take statement (doctor, nurse, therapist)? Who decides what is relevant (e.g., psychoanalysis, everything relevant)?
? ? Interests are aligned policy 803(5): Prior Recorded Recollections. (1) witness once knew but no longer recall; (2) statement made/adopted with clear memory; and (3) accurately reflects knowledge. o Read into evidence as substitute for testimony, not as exhibit. o Witness must vouch for accuracy [Johnson, hostile witness, merely recognizing signature not enough; "wouldn't have signed it if not true" might be enough]. o Refresh Memory tactic (NOT 803(5)): (1) show witness anything; (2) show other side. o Rationale: (1) reliability because better memory earlier; (2) prevent lawyers from stalling trial. 803(6): Record of regularly conducted activity (Business Records Exception). Record of act/event/condition/opinion/diagnosis admissible if (A) made at/near time of act by person or through info of person with PK; (B) in course of regularly conducted activity of business, organization, occupation, or calling; (C) regular practice to keep record; (D) in-court testimony of custodian or certification; and (E) not untrustworthy. o ? Go through those steps. o "Business" defined broadly: nonprofits, criminal enterprises (but reliable?) o "Regular course of business" narrow: a railroad's business is railroading, not litigating. Internal investigation is not a business record. [Palmer]
o Multiple Hearsay: if info supplied by people outside normal course of business. Consider if fits into another exception or isn't hearsay. [Vigneau, Western Union form; introduces unreliability]
o Rationale: businesses rely on their records, less incentive to falsify. 803(7): Absence of a Record of Regularly Conducted Activity. (A) Prove matter did not occur when (B) regular record for this kind of matter; and (C) no indicia of untrustworthiness. o Note: not hearsay anyway. Silence is not hearsay, no out of court statement. 803(8): Public Records. (a)(i) office's activities; (a)(ii) matters observed while under legal duty to report, except for law enforcement in criminal case; (a)(iii) in civil case, or against gov't in criminal case, factual findings from legally authorized investigation. &(B) No indicia of untrustworthiness. o (A)(i): Narrow exception. Only basic, straightforward, required activities. o (A)(ii): Broader. Have to have observed them. Doesn't have to be a statute requirement. Just have to fall within ambit of responsibilities of office.
? Not vs. Criminal because Confrontation Clause. o (A)(iii): Broadest. "Factual findings" includes opinions/conclusions, though must be trustworthy. Nexus between facts and conclusion. Consider: (1) timeliness of investigation; (2) investigator's skill/experience; (3) hearing?; (4) possible bias if prepared for litigation. [Beech Aircraft (navy crash report admissible)]. o Multiple Hearsay if report simply scribes from outside witnesses, but factual findings and conclusions admissible even if based on hearsay (trust expertise) o Circuit split on admissibility of police reports under another exception, e.g. business records: 2d Cir. rejects this runaround [Oates, drug record]; (2) 10th Cir. allows if routine matters in nonadversarial setting [Hayes, IRS records]; (3) 9th Cir. splits difference (allows routine matters as long as not a runaround) [Weiland, penitentiary packet on felon]

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