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Unit 2 Reliability Outline

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Unit 2- Reliability 19th Century Common Law Tradition was that we determine witness competency by "status" in various different ways (convicted felon, certain religious beliefs) Rule 601. Competency to Testify in General Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision. Rule 602. Need for Personal Knowledge A witness may testify to a matter ONLY if evidence is introduced sufficient to support a finding that the witness has personal knowledge on the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule

703. Rule 603. Oath or Affirmation to Testify Truthfully Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.
[potential problems: very young children, low mental competency]
Rule 610. Religious Beliefs or Opinions Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility

Hearsay Generally Hearsay rule defines a category of evidence that is "prima facie" unreliable, and then creates a whole lot of exceptions for things that are more reliable ALWAYS CONSIDER WHETHER THE STATEMENT IS BEING OFFERED FOR ITS TRUTH OR NOT WATCH OUT FOR VERBALCONDUCT THAT IS ASSERTIVE BUT OFFERED AS A BASIS FOR INFERRING SOMETHING OTHER THAN THE MATTER ASSERTED - i.e. "I need to put on a sweater" can be submitted for the truth that it is cold, because its main subject is how the speaker would have dressed. However the closer a statement is to the inference drawn the more likely it is hearsay, and the further away it is the more likely it is to fail the relevance standard. Risks in all witness testimony:??

Perceptions Memory Narration Sincerity

Basic Checks on Reliability of Witness Testimony
?? ? ?Oath
?? ? ?Assessment of Deameanor

?? ? ?Cross Examination and Other Impeachmetn Devices ALL OF THESE RISKS ARE DOUBLE WHEN WE ARE DEALING WITH HEARSAY EVIDENCE, AND WE CANNOTUSE THE CHECK MECHANISMS TO CONTROL THIS HALF OF THE RISKSGood thing is we do not care about this half of the risks if we do not care about the truth of the statement that was reiterated

Article 4 Relevance Rules focus on the issue of fact which an item of evidence may ten to prove, whereas the HEARSAY RULE focuses on whether the statement depends on the truth of what is asserted in it, in order to be relevant for a proper purpose

Rule 801. Definitions that Apply to this Article; Exclusions from Hearsay (a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it to be an assertion. [umbrella example - when people open up their umbrella on the street they are manifesting their belief that it is raining/think it is going to rain, you are NOT intending to communicate this belief to anyone, so its not hearsay because its more reliable (no insincerity risk)]

Declarant. "Declarant" means the person who made the statement.


Hearsay. "Hearsay" means a statement that (1) The declarant does not make while testifying at the current trial or hearing; and [does not matter how reliable the past statement was (under penalties or perjury, at another trial etc),does not matter if the delclarant is testifying about a statement she made (still hearsay)]

(2) a party offers in evidence to prove the truth of the matter asserted in the statement (d) Statement that are not Hearsay. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A)

is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition [can be admitted for a SUBSTANTIVE purpose since declarant is subject to cross examination AND the past statement is more likely to be true than the current one because it was made nearer in time to the matter which it relate and is less likely to be influenced by the controversy that gave rise to the litigation]



is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or


identifies a person as someone the declarant perceived earlier

An Opposing Party's Statement. The statement is offered against an opposing party and: (A)

was made by the party and in an individual or representative


is one the party manifested that it adopted or believed to be

capacity; true; (C) was made by a person whom the party authorized to make a statement on the subject (D)

was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or


was made by the party's coconspirator during and in furtherance of the conspiracy

The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E) [i.e. must offer other evidence to prove these things before the statement can be admitted]

Rule 802. The Rule Against Hearsay Hearsay is NOT admissible unless any of the following provides otherwise:?

A federal statute; These rules; or

Other rules prescribed by the Supreme Court

Hearsay Exemptions You can always submit out of court statements if:?There is no assertion OR You are not submitting the statement for its truth, OR There is an exception provided by the rules

A lot of the exception rules are motivated by the fact that the hearsay is MORE RELIABLE or possibly NECESSARY Mahlandt v. Wild Candid Survival: Wolf allegedly bit a 3 year old. Three statements that were of importance:

(1) Poo's note to the center's president "Sophi Built a Child" (2) Poo's verbal statement to president Sexton that sophie bit a child (3) Minutes from the center's board meeting that describe discussion Court does not allow any of these statements because the witness (Poo) did not have personal knowledge of the situation. He had heard about the wolf bite from someone else.?Both Poo's written noten and his verbal statement should be admissible against him under 801(d)(2)(A) (he is in court and the statement was made by him, he has an opportunity to rebut it if its not true) Both are also admissible against the research center under 801(d)(2)(D) (made by a party's employee within the scope of that relationship). Also should have to answer to the board minutes (but not Poo) However, what actually happens here is a 403 ruling (prejudice)

801 (D)(2)(E) Exception: Conspiracy Exception Rule 602 Requirement DOES NOT apply to opposing parties statements under Rule 801(d)(2). Rule 801(d)(2)(E). CoConspirator Exception A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (E)Was made by the party's coconspirator during and in furtherance of the conspiracy [i.e. a party's statement to the police after he is caught does NOT fall under this exception - the conspiracy has ended essentially] [it is NOT required that a party be formally charged with conspiracy]
So, this requires that there 1) is a conspiracy and 2) the conspiracy included both Lonardo and Bourjaily, and that 3) Lonardo made the statements during and in furtherance of the conspuracy

Bourjaily v. US: Leonardo makes statements to informant that Bourjaily ants to buy some drugs. Transaction occurred as planned, Leonardo & Bourjaily were arrested once Leonardo placed a kilo of cocaine in petitioner's car.WHAT BOURJAILY STANDS FOR: Preliminary question of conspiracy must be decided by a judge under FRE 104(a). CAN use the actual statements sought to be admitted in determining whether the precondition is met, as FREs do NOT apply to preliminary questions [Bourjaily]. Judge must reolve these questions by a PREPONDERANCE OF THE EVIDENCE. 104(a) is the standard for al hearsay exceptions and witness qualifications.

Rule 104(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. [where does the preponderance of the evidence requirement come from?]

Contrast 104(a) to 104(b) (conditional relevance). 104(b) is a LESS STRINGENT STANDARD. Requires only that "proof, be introduced sufficient to support a finding that the preliminary fact does exist" Rule 805. Hearsay Within Hearsay Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule [each part of the combined statements just needs to have its own exception]

Rule 613 - Using Past Statements to Impeach Rule 613. Witness's Prior Statement [procedural rule for how most past witness statements are dealth with]
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence [AKA more than just "did you say this", it would be "here is proof showing you said this] of a witness's prior inconsistent statement is admissible ONLY if the witness is given an opportunity to explain or deny the statement (does not matter when their chance to respond is) and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2) NOTE: If you are trying to admit a statement just to show inconsistency, that is NOT hearsay United States v. Barnett: Stamp Heist- Adams meets Barrett through Tilly; there is a theft in the stamp museum and Barrett is arrested. .?Right after arrest, Barrett tells Adams "they got me" Witnesses Delaney and Kelly says Adams told Delaney "Barrett was not involved" in the robbery (trial court refuses to admit this, incorrectly saying its hearsay" IT IS NOT HEARSAY BECAUSE IT IS NOT OFFERED FOR PROOF OF WHAT IS ASSERTED, JUST THAT ADAMS SAYS DIFFERENT THINGS AT DIFFERENT TIMES.

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