Michelson v. US
Facts: D on trial for bribing federal agent.
Rule: A party has the right to cross-examine another party's character witness & inquire about specific past bad acts &/ or convictions. Where D offers character, prosecution can rebut using "relevant specific instances." 405(a).
Evidence of Flight
US v. Myers- 4 Necessary Inferences for admitting:
1. For D's behavior to flight.
2. ... to consciousness of guilt.
3. ... to guilt concerning crime charged.
4. ... to actual guilt of crime charged.
Evidence having any tendency to make existence of any fact that is of consequence (material) to the determination of the action more probable or less probable.
SUBSEQUENT REMEDIAL MEASURES
Not admissible to prove negligence, culpable conduct, product defect, or need for warning/instruction.
Admissible to prove ownership/control, to rebut claim that precaution was not feasible, or to prove destruction of evidence.
FRE 413, 414, 415
413- D accused of sexual assault, evidence of another offense of sexual assault.
414- D accused of child molestation, evidence of another offense of child molestation.
415- Civil evidence of sexual assault or child molestation, similar acts admissible too.
BARS liability insurance or lack of it to prove negligence or wrongful action.
OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath/affirmation administered in a form calculated to awaken the witness's conscience & impress the witness' mind as the duty to do so.
COMPETENCY OF JUROR AS WITNESS
(b) inquiry into validity of verdict/indictment. Not testifying to any stmt./matter during deliberations, BUT may testify about: (1) extraneous prejudicial info. improperly brought to jury's attention.
(2) outside influence improperly brought to bear upon juror, OR
(3) there was a mistake in entering verdict.
Huddleston v. US
Facts: D charged with selling stolen goods.
Rule: Individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of evidentiary presentation may even be greater than it's constituent parts. 104(b) conditional relevance.
HABIT; ROUTINE EVIDENCE
Halloran v. Virginia Chemical: "deliberate and repetitive practice."
ACN: "Invariable regularity"
INADMISSABILITY OF PLEAS, OFFERS OF PLEAS, DISCUSSIONS, ETC.
BARS AGAINST D: (1) guilty plea later withdrawn; (2) Nolo contendere plea; (3) stmt. in plea proceedings; (4) stmts. in plea talks with prosecutors. BUT, admissible...
(a) to complete partial account of plea discussion, OR
(b) in criminal proceeding- in perjury prosecution if stmt. under oath, or record, or in counsel's presence.
(a) Statement: is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it's intended by the person as an assertion.
(b) Declarant: a person who makes a statement.
(c) Hearsay: A stmt., other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
WHO MAY IMPEACH
The credibility of a witness may be attacked by ANY PARTY, including the party calling the witness.
STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS
OR TREATMENT, and describing medical history, or past/ present symptoms, pain, or sensations or the inception or general character of the cause or external sources there of insofar as reasonably pertinent to diagnosis/treatment.
Court Room Tools for Accuracy
The Oath, Demeanor Evidence, Cross-Examination
Tanner v. US
Facts: Bad Jurors
Rule: 606(b), (i) any matters/stmts. occurring during deliberations (ii) the effect of anything upon mind/emotions of any juror as relates to assent/dissent from verdict; & (iii) the mental process of the juror in connection w/his assent/dissent from verdict.
Giles v. California
Facts: D killed former GF thus she couldn't testify.
Rule: For forfeiture by wrongdoing under 804(b)(6), generally needs to be shown that D acted with purpose of keeping victim from testifying.
Character Evidence is generally not admissible to prove action in conformity therewith on a particular occasion, EXCEPT (1) Character of accused: in criminal case, evidence or pertinent trait of character offered by accused or pros. to rebut the same. (2) Character of alleged victim: In criminal case, evidence of pertinent character trait of victim, or pros to rebut same. OR in homicide where asserted victim was 1st aggressor, rebut evidence with peacefulness. (3) Character of witness under 607, 608, 609.
LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
PAYMENT OF MEDICAL & SIMILAR EXPENSES
Evidence of furnishing/promising to pay medical, hospital, or similar expenses occasioned by an injury is NOT admissible to prove liability or injury.
Testimony given as witness at another proceeding if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had a opportunity and similar motive to develop testimony by direct, cross, or redirect examination.
Declarant UNAVAILABLE when:
(1) Privilege (2) refuses to testify (3) lack of memory (4) death or then existing physical or mental illness (5) proponent unable to procure declarant.
A statement relating to a startling event/condition made while the declarant was under the stress or excitement caused by the event or condition.
Statement under BELIEF OF IMPENDING DEATH
In a prosecution for homicide or civil action/proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believes to be impending death.
Facts: Lab analysts drug analysis affidavit of cocaine.
Rule: Lab reports are incontrovertibly solemn declarations or affirmations made for the purpose of establishing or proving some fact, thus testimonial. Prosecution has burden.
Palmer v. Hoffman
Facts: Hoffmans hit by train at crossing grade, civil suit.
Rule: Business records admissible under hearsay exception do not include accident reports prepared for litigation, even if reports prepared in routine systematic process.
Michigan v. Bryant
Facts: Police interview victim found shot in parking lot.
Rule: To determine whether PRIMARY PURPOSE of an interrogation is to enable police assistance in ongoing emergency as nontestimonial, the court should objectively evaluate the circumstances in which the encounter occurs & the stmt./actions of the parties.
Crawford v. Washington
Facts: D charged with assault & attempted murder of man, claimed self-defense, wife's testimony contradicted claim.
Rule: The testimonial statement of an unavailable declarant is inadmissible unless established unavailability/necessity & prior opportunity to cross-examine.
Mutual Life Ins. Co. v. Hillmon
Facts: Hillmon's husband supposedly died, went to collect ins. money, Ins. co. introduced letters to show might have been someone else.
Rule: The fact that evidence show's a particular intention of a person at a particular time material to the case is admissible as his own testimony of that intention would be.
Maryland v. Craig
Facts: Addresses different CC issue where child allowed to testify on one-way closed circuit TV.
Rule: Right to confront witness in face to face setting, contrast with Coy v. Iowa.
Ohio v. Roberts
OLD RULE (1) necessity and (2) reliability.
IMPEACHMENT EVIDENCE OF CONVICTION OF CRIME
(1) For purposes of attacking character for truthfulness, evidence of prior felony conviction may be admitted against nonaccused witness subject to 403, against accused witness if probative value substantially outweighs prejudicial effect.
(2) If crime involved proof/admission of act of dishonestly or false stmt. it's auto-admitted against witness.
Shepard v. US
Facts: D, major in army convicted of murdering wife. Wife told nurse husband poisoned her.
Rule: Death must really be imminent to let in dying declaration and inference must be permissible that there was knowledge as to facts declared. 804(b)(2)
Rule: The jury more likely to use state of mind evidence as a way to implicate the husband. 803(3)
RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs/opinions of a witness on matters of religion is NOT admissible for the purpose of showing that by reason or their nature, the witness' credibility is impaired or enhanced.
GENERAL RULE OF COMPETENCY
Every person is competent to be a witness except as otherwise provided in these rules.
If a witness uses writing to refresh memory for the purpose of testifying either while or before testifying, an adverse party is entitled to have the writing produced at the hearing, inspect it, and cross witness on it.
EVIDENCE OF CHARACTER & CONDUCT OF WITNESS
(a) OPINION & REPUTATION evidence of character. The credibility of a witness may be attacked/supported by evidence in the form of opinion/reputation, BUT subject to these limits: (1) Evidence may only refer to character for truth/ untruthfulness; AND (2) evidence of truthful character only admissible after character has been attacked.
PRELIM. Q's: RELEVANCY CONDITIONED ON FACT
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit upon, or subject to, the intro. of evidence SUFFICIENT to support finding of the fulfillment of the condition.
PRELIM. Q's: QUESTIONS OF ADMISSIBILITY GENERALLY
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court, subject to provisions in (b).
A record/memo concerning a matter about which a witness once had knowledge but now has insufficient recollection ot enable the witness to testify fully & accurately shown to have been made/adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, only can be read in unless offered by adverse party.
COMPROMISES & OFFERS TO COMPROMISE/SETTLE
Must be a claim, claim must be disputed as to liability or amount. BARS compromise or attempts to compromise a disputed claim & statements or conduct in negotiations to prove liability for or invalidity of claim.
A stmt. not covered by 803/804 may still be excluded if court determines: (A) stmt. offered as evidence of MATERIAL FACT, (B) stmt. MORE PROBATIVE THAN ALTERNATIVE, AND (C) Policy of 803/804 served & interest of justice served by admitting.
Davis v. Washington
Fact: Woman called 911 during DV assault.
Rule: Where primary purpose to aid in ongoing emergency= nontestimonial.
Hammon v. Indiana
Facts: Police came & questioned where woman & BF already separated.
Rule: Where emergency passed and primary purpose investigatory= testimonial.
Bullcoming v. New Mexico
Facts: P arrested on DWI charges. BA test sent to lab.
Rule: If an out-of-court statement is testimonial in nature, including a lab report, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable & accused has had prior opportunity to confront that witness. PRIMARY PURPOSE TEST applied.
FRE 803(6) & (7)
(6) Records/Regularity Conducted Activity: if kept in regular course of business, for business purpose, not litigation purpose admissible.
(7) Absence of entry in records kept in accordance with (6) admissible to prove the nonoccurrence or nonexistence of a matter.
Williamson v. US
Facts: Sheriff stopped Harris for weaving found 19kilos coke.
Rule: FRE 804(b)(3) provides certain statements against interest may be admitted even tho they are hearsay because they contain certain guarantees of trustworthiness.
Ohler v. US
Facts: Govt. brought motion in limine to determine whether D's past conviction would be admissible to impeach.
RULE: By offering the evidence of the past conviction herself, D waived any right to complain about their admission. To preserve right to appeal as D, need to testify but NOT bring up convictions.
Olden v. Kentucky
Facts: D's convicted of raping complaintant. D's theory that she made it up to save relationship with BF.
Rule: CC includes the right to conduct reasonable cross-exam of witnesses by D. Exposure of a witness' motivation in testifying is a proper & important function of the constitutionally protected right of cross-X. (412 Rape Shield)
Old Chief v. US
Facts: D charged with assault with dangerous weapon under 18 USC 922(g)(1) tried to stipulate out of admission.
Rule: Under 403, when you have a status crime & an element of prior conviction then pros. must stip. if D stips. Just may take into consideration substitutes when assessing 403.
RAPE SHIELD LAW
Inadmissible: (1) to prove any alleged victim engaged in other sexual behavior or (2) to prove any alleged victim's sexual predisposition.
Exceptions: (1) It was someone else (2) it was consensual (3) Con. Law rights of D.
ADMISSIONS BY PARTY OPPONENTS
A stmt. is NOT HEARSAY if the statement is offered against a party & is (A) party's own stmt. in individual/representative capacity, (B) manifested adoption/believe in its truth, (C) stmt. by person authorized, (D) agent or employee concerning matter within scope of employment, (E) Co-conspirator in while furthering the conspiracy
FORFEITURE BY WRONGDOING
A statement offered against a party that has engaged/ acquiesced in wrongdoing that was intended to & did procure the unavailability of the decl. as a witness.
THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION-- STATE OF MIND
A stmt. of a decl's then existing state of mind, BUT not including stmt. of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of decl's will.
Luce v. US
Facts: D asked trial court judge to determine in advance whether prosecutor would be permitted to impeach.
Rule: Since D, didn't testify, it was impossible for reviewing court to measure how badly the challenged evidence woudl have harmed his case. (609(a) eval only on appeal)
US v. Owens
Facts: Following sever beating by D, victim hospitalized & suffered memory loss.
Rule: Neither 802 nor the CC bars admission into evidence of testimony concerning prior, out-of-court ID when witness suffers from memory loss & cannot recall basis for ID.
PRESENT SENSE IMPRESSION
A statement describing or explaining an event or condition made while decl. was perceiving the event/condition, or immediately thereafter.
There needs to be an audience known to the party making the stmt/gesture/conduct in order for there to be COMMUNICATIVE INTENT.
Implied: need to get to core part of assertion of what might be implied to test it for sincerity.
Indirect: generally come up when you have a series of inferences leading to an ultimate conclusion.
Johnson 4 Elements for Past Recollection Recorded
(1) Witness must have 1ST HAND KNOWLEDGE of event
(2) Witness stmt. must be a MEMO MADE AT/NEAR THE TIME OF THE EVENT while witness had clear & accurate memory of it.
(3) Witness must LACK PRESENT RECOLLECTION of the event, AND
(4) Witness must VOUCH FOR THE ACCURACY of the written memo.
PRIOR STATEMENTS OF A WITNESS are not hearsay if the decl. testifies at trial/hearing & is subject to cross-X concernign the stmt., & stmt is...
(A) Inconsistent (B) Consistent to rebut, or (C) Identification.
PRIOR STATEMENTS OF WITNESSES
(a) Examining witness concerning prior statement: whether written down or not, need no shown its contents to the witness at that time, but on request the same shall be shown to opposing counsel.
(b) Extrinsic Evidence or Prior inconsistent stmt. of witness. Not admissible unless witness is afforded the opportunity to explain/deny the same & opposite party is afforded opportunity to interrogate witness thereon (Doesn't apply to 801(d)(2))
Modes of Impeachment
When you are trying to discredit a witness... (1) witness is mistaken, (2) witness is lying, and (3) witness is liar.
Classic modes of impeachment:
Contradiction: other witness, that witness' prior stmts, or bias
Prior Convictions: FRE 609
Cross-X to show specific lies.
METHODS OF PROVING CHARACTER
(a) Reputation or opinion: after going thru 404, on cross-X inquiry into specific facts allowed.
(b) Specific Instances of Conduct. Where character trait is an ESSENTIAL ELEMENT of charge. Only 3 exceptions: (1) rebut entrapment defense, (2) rebut defense of truth in libel/slander, (3) resolving parental custody dispute.
Fletcher v. Weir
Facts: D stabbed victim in nightclub parking lot, at trial said it was self-defense.
Rule: Silence can constitute an adoptive admission under 801(d)(2)(B). Also, under 801(d)(1)(A) prior statements of witness might be admitted as inconsistent statement. (Then apply 613 mechanical rule).
Tome v. US
Facts: D charged with felony sexual abuse of his daughter. His defense was story was fabricated by his ex-wife.
Rule: the intro. of a decl's out-of-court stmts to rebut a charge or recent fabrication or improper influence or motive are admissible only when those statements were made BEFORE the charged recent fabrication/motive. TIMING- 801(d)(1)(B) consistent stmt. only admissible when made BEFORE alleged motive to lie/exaggerate.
STATEMENT AGAINST INTEREST
Not excluded by hearsay rule if decl. UNAVAILABLE as witness & (A) a reasonable person in decl's position would have made the stmt. only if believed it to be true because it was so self-incriminating, AND (B) is supported by CORROBORATING CIRCUMSTANCES that clearly indicate trustworthiness.
PUBLIC RECORDS & REPORTS
Records setting forth (A) activities of office/agency OR (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, (excluding criminal case matters observed by law enforcement) OR (C) factual findings resulting from an investigation made pursuant to authority granted by law unless the sources of info./other circumstance indicate lack of trustworthiness.
What Constitutes an Attack Under 608(a)?
(1) Offering opinion/reputation testimony of witness's bad character for truthfulness (608(a))
(2) Eliciting on cross evidence of specific acts of the witness that are probative of untruthful character (608(b))
(3) Offering evidence of past conviction of witness (609).
Beech Aircraft Corp. v. Rainey
Facts: Deceased Spouses of Ps died in naval flight training accident. Ps tried to get JAG investigation report admitted.
Rule: 803(8) instructs the court to admit reports setting forth factual findings. The limits & safeguards lie in (1) the requirement that reports contain factual findings bars the admission of statements not based on factual investigation & (2) trustworthiness provision requires court to make det/ as to whether the report is sufficiently trustworthy to admit.
Gordon 5 Factors
From US v. Brewer:
(1) The nature of the crime.
(2) The time of conviction & Witness' subsequent history
(3) The Similarity bet/ past crime & charged crime.
(4) Importance of D's testimony, AND
(5) The centrality of credibility of the issue.
EVIDENCE OF CHARACTER & CONDUCT OF WITNESS
(b) Specific Instances of Conduct. For the purposes of attacking/supporting character for truthfulness, other than 609, may NOT be proved by extrinsic evidence. They may in discretion of the ct., if probative of truthfulness, be inquired into on cross-X of witness (1) concerning witness' character for truth/untruth, OR (2) concerning the character for truth/untruth of another witness as to which character the witness being cross-X has testified.
Non-Hearsay Uses of Out-Of-Court Statements
(1) Verbal Acts or Legally Operative Facts
(2) Words Offered to Prove their Effect on Listener
(3) Inconsistent Stmts. Offered to Impeach (613)
The 6th Amendment
In all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him.
Bourjaily v. US
Facts: D charged with conspiring to distribute cocaine.
Rule: 801(d)(2)(E) the prosecutor must 1st establish that there was a conspiracy by a preponderance of the evidence. (104(a))
Whorton v. Bockting
Crawford has no retroactive force in cases made final after direct appellate review. Nontestimonial statements are only hearsay issues.
Although relevant, evidence may be excluded if its PROBATIVE VALUE is substantially outweighed by the damage of UNFAIR PREJUDICE.
ROUTES AROUND THE PROPENSITY BOX.
Evidence of other crimes, wrongs, or acts is NOT admissible to prove the character of a person in order to show action in conformity therewith. May be admissible for other purposes such as: motive, opportunity, intent, plan, knowledge, ID, etc.