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Evidence Outline

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This is an extract of our Evidence document, which we sell as part of our Evidence Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

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EVIDENCE RAPE SHIELD LAW - RULE 412 o Rape Shield Balance o Combat outdated Stereotypes o Protect Victim's Privacy o Prosecute violent crime


Allow Defendant to present defense

o In criminal cases involving sexual misconduct: o General prohibition against evidence of victim's other sexual acts or sexual predisposition. 412 (a) o Three exceptions (in criminal cases)
? (1) V's prior sexual acts when related to argument about physical evidence; [412(b)(1)(A)]
? (2) V's sexual behavior with accused; [412(b)(1)(B)]

* D: only to prove consent

* Prosec: for any purpose (e.g., can show D raped her before)
? (3) When constitutionally required; [412(b)(1)(C)]
? Procedure required for criminal cases---- [412(c)]. A party intending to use evidence within subdivision (b) must file a written motion 14 days before trial; court MUST conduct a hearing in camera and afford all a right to attend and be heard o Rule 412 applies to the prosecutor as well as the defense. o If the Rule didn't apply, 404(a) would. Allows evidence of victim's pertinent character but prosecution can offer only to rebut character evidence by defendant. D here hasn't made a character argument. o [Note: Can introduce evidence that V told D she was a virgin before sexual act. That might contradict consent.]
o Rape Shield: Civil Cases 412(b)(2) o Evidence of victim's other sexual behavior or sexual predisposition excluded UNLESS:
? The probative value of that evidence substantially outweighs the danger of harm to any victim and of unfair prejudice to any party o Applies to any case involving alleged sexual misconduct. o Includes tort claims based on rape. o Also sexual harassment claims---don't need sexual contact. o Rule 412 becoming important in sexual harassment cases because the D can argue that the P welcomed the harassing behavior. That often involves attempts to introduce evidence of the P's sexual comments and other behavior. o In applying weighing test, very important factor is whether behavior occurs at work or outside the workplace o Rare for court to admit evidence that occurs outside workplace.

PRELIMINARY DETERMINATIONS - RULE 104 Judge makes preliminary determinations Rules of Evidence do not apply to 104(a) Except for the rules of privilege, which do apply Judge decides issues of law All preliminary factual issues are decided by the preponderance standard o Party offering evidence usually has the burden of proof o o o o o

o 2 types of preliminary factual determinations: o 104(a)
? Judge resolves the factual issue on her own, applying preponderance standard
? These factual questions determine whether a policy reason exists to exclude otherwise relevant evidence
? Example: Did repair occur after injury?
? Example: Is this person a qualified expert to testify?Other 104(a) Determinations

* Rule 408 o "Whether there was a dispute or compromise negotiation"?

* Rule 409 o "Whether a D offered to pay "medical, hospital, or similar expenses"

* Rule 609/405 o "Whether a questioner has a good faith belief for questions posed on cross-exam re: truthfulness"

* Rule 404 or 406 o Was conduct sufficiently regular and specific to constitute a habit?"


o 104(b)
? Judge decides question initially and leaves it to a jury ultimately;
? Judge asks whether a reasonable jury could find the disputed fact by a preponderance of the evidence;
? These factual questions relate to relevance---jury decides the issue ultimately, i.e., whether the fact met the condition.
? Example: Could eyewitness see the incident [602]?Relevance Depending Upon the Fulfillment of a Condition of Fact

* Personal Knowledge under 602

* Evidence of Other Acts under 404(b)

* Factual Determinations re: consent under Rule 412

o Factual determinations affect 403 decisions o Weakly supported facts offer more potential for unfair prejudice o Hotly disputed facts are more likely to confuse or delay the trial

o Rule 407: Remedial Measures o School district changed its sexual harassment policy (p. 94) o Is this change in policy a "remedial measure" that should be excluded?
o How do we determine if policy change is a "remedial measure"?
o Judge decides as a matter of law [104(a)]
o Rule 410: Plea Discussions o How determine if statements were part of "plea discussion"?
? Judge decides as a matter of law [104(a)]
o This is still an issue of law. Judge just decides. No dispute about who said what or what happened. Just a legal question about how to characterize interaction. o **Distinguishing 104(a) from (b) seems theoretical and complex, but result always makes sense (or at least more sense than the alternative). Policy determination [104(a)] versus a factual dispute that will affect relevancy [104(b)]
o Rule 602: Personal Knowledge o How do we determine if witness has "personal knowledge"?
? Jury decides after prima facie screen [104(b)]
o Conditional relevance under 104(b) o This really relates to witness credibility. As long as some reasonable jury could find that witness has personal knowledge, judge will let the jury decide. o Prima Facie Determination: Rule 104(b) o Could a reasonable jury find by a preponderance of the evidence that.... o The witness has personal knowledge

HEARSAY o Firsthand reports are more reliable than secondhand ones o Why We Prefer In-Court Statements o Reduce risks of error o Assess credibility o Cross-examine o Oath and formality o Rule 801: Definitions. o (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, . . . offered to prove the truth of the matter asserted......
o Three parts to this definition o Hearsay requires a "statement." o Statement must be made by a "declarant" [in a context OTHER than at trial]. o A party must offer the statement to prove the "truth of the matter asserted." o Declarant o 801(b) says a "declarant" is a person who makes a statement." o Add 602's requirement of Personal Knowledge to Rule 801(b)'s concept of statement. o 801(b) reads: "A 'declarant' is a person who makes a statement based on personal knowledge." o Declarants and Witnesses o 801(c): distinguishes between statements made by declarants "while testifying at the trial or hearing" and all other statements. o A declarant who testifies at a trial or hearing is a witness. o All witnesses are declarants. o But declarants are witnesses only when they testify under oath at a trial or hearing. o Truth of the Matter Asserted o This is the factor that often determines whether an out-of-court statement is inadmissible hearsay. o Ask: What is the proponent trying to prove with the statement?
o Hearsay depends upon o Is the out of court statement offered for it's truth or content?
? If so, hearsay. o Is the out of court statement offered to show only that a statement was made?
? Then, no hearsay o The Hearsay "Four" o Is it a statement?
o Did the statement occur outside the courtroom?
o Is a party offering the statement to prove the truth of the matter asserted?
o Does an exception apply?

o If an out of court statement is made for some reason OTHER than it's truth, it is not hearsay. o Examples:
? Impeachment of a witness;
? Knowledge of the speaker (P knew about danger on property);
? Notice to a listener (med mal; risks of surgery);
? Effect on listener (defendant states menacing words) o Evidence is often relevant for MORE than one purpose. o Rule 403 and Hearsay o This can prompt game-playing by lawyers. If there are two possible purposes (and the evidence is likely for the "truth" despite alternative purposes), judge will balance the probative value of the non-hearsay purpose against the unfair prejudice of the hearsay purpose o Summary of Offered for the Truth o Hearsay rules bar out of court statements if they are offered for the "truth of the matter asserted."
? Ask: What is the proponent trying to prove by offering the statement into evidence?
o If she is providing that the content of the statement is true, then the statement is hearsay because secondhand reports are unreliable and we cannot cross-examine.
? BUT, if we only care that that the statement was MADE, then not hearsay. o Statements
? **We can have words that do not constitute a statement. And we can have actions that do.
? Declarant + Assertion
? Media that almost always contain statements:

* E-mails

* Audiotapes/other sound tracks

* Web pages with words

* Faxes

* **But they may not be offered to prove the truth of the matter asserted
? Media that are less likely to contain statements (although they sometimes do):

* Photos

* Videos

* Websites without words
? Machine Generated Printouts (some of the most difficult issues)

* Automatic processes: Not a statement

* Information originating from human: Statement

o Overview of Hearsay Exceptions o 4 Categories of Exceptions
? 1. Rule 801(d): Exemptions

* Prior statements by Witnesses (801(d)(1)(3);

* Statements made by opposing parties
? 2. Rule 804: Declarant Unavailable [need]

* Dying Declarations

* Former testimony

* Statement Against Interest

* Statement of Personal or Family History

* Forfeiture by Wrongdoing
? 3. 803 Exceptions

* Declarant Availability Immaterial [reliability]

* Present Sense

* Excited utterance

* Then-existing mental, emotional or physical condition;

* Statement for purposes of medical treatment

* Recorded recollection

* Business records

* Public records

* Market reports

* Learned treatises
? 4. 807 Residual Exception

* Trustworthiness

o 104(a) Preliminary Determination
? Who decides whether a statement fits into a hearsay exception?

* Admissibility of hearsay does not depend upon relevance [104(b)];

* Admissibility of hearsay is based upon policy [104(a)]
o Prior Statements By Witnesses o 801(d) defines two types of statements as non-hearsay.
? (1) certain prior statements of witnesses; &
? (2) admissions of a party-opponent o 801(d)(1)
? What happens when a witness quotes her own earlier statement? And changes the story?

* What counts is that the statement was made out-of-court, not that the declarant came into court.
? Why Admit Witness's Prior Statement?



Need o Witnesses feel embarrassed, want to protect friends, feel intimidated Reliability o Witness is in the courtroom, subject to cross-examination o Something about prior statement enhances reliability

o 801(d)(1)(A): Prior Inconsistent Statement by Witness
? Declarant testifies at trial
? Declarant/witness is subject to cross
? Prior statement is inconsistent with courtroom testimony
? Prior statement given under oath
? Prior statement given during "proceeding" [oath alone is not enough!]

* Memory Loss = Inconsistent under 801(d)(A) o 801(d)(1)(B): Prior Consistent Statement
? Declarant testifies at trial
? Declarant/witness is subject to cross
? Prior statement is consistent with courtroom testimony
? Offered to rebut charge of fabrication
? Prior statement made before motive to lie arose o 801(d)(1)(C): Prior Identification
? Declarant testifies at trial
? Declarant/witness is subject to cross
? Prior statement was identification of person o Admissions By a Party-Opponent 801(d)(2) o Admissions are statements by a party offered against him. Admission is merely a 'statement' by a party. o There are five types of admissions (individual, adoptive, authorized, agent or employee, coconspirator). o Admissions can be excluded for reasons other than hearsay (statement admitting a prior crime may be excluded if the prior crime can't properly be proved or FRE 403). o Admissions by one defendant that name and incriminate another defendant in the same trial may be excludable under the Bruton doctrine (based upon the Confrontation Clause). If D1 does not testify, you must redact with instruction, sever, or exclude. o o o o o o

Probably used most often. But differs from all of the others Not an exception based on reliability and/or need. Based on the idea of estoppel Party can't deny their own statements Rules define as "not hearsay," so it's sometimes called an exemption

o 801(d)(2) o Party-Opponent Exemption is Very Broad

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